By Onikepo Braithwaite
A key element of democracy is the rule of law, which necessarily requires obedience to the law and its equal application to all. Double standards are not permitted, as equality, equity and fairness are the hallmarks of a constitutional democracy and the rule of law. Unfortunately, in several instances, we have seen a selective application of the law when it concerns high ranking members of the ruling All Progressives Congress (APC), particularly elective office holders, as opposed to non-APC members. This is an indictment of the law enforcement agencies, and the Nigerian administration of justice system as a whole – that it may have become a selective or two-tier justice system; and such a system not only breeds resentment and distrust amongst the citizens, it weakens the very system it claims to uphold, and undermines its legitimacy.
The Economic and Financial Crimes Commission (EFCC) and the Police, have become infamous for persecuting people for spurious and usually baseless allegations, many of which are clearly devoid of criminality; yet, Nigerians hear nothing about the cases of APC elective officials charged with looting Nigeria’s common wealth on a mind boggling scale, beyond the drama leading up to their arrest/arraignment.
For the avoidance of doubt, the duties of the Police and EFCC do not cover debt recovery, and simple contractual matters or breach of same, without any criminal element. But, what one observes is that these agencies attempt to introduce non-existent criminal elements into civil matters, in order to justify their intervention in matters that are not within the purview of their instructions and do not concern them. See Section 4 of the Police Act 2020 (PA) and Section 6 of the EFCC Act. Also see EFCC v Diamond Bank Plc (2018) LPELR-44217(SC) per Sidi Dauda Bage, JSC where the Supreme Court held inter alia that such invitations, harassment, intimidation and detention of individuals by the EFCC (and this can be extended to the Police) amount not only to a breach of an individual’s fundamental right, and are thereby unconstitutional and an abuse of process, pointing out that the EFCC’s enabling statute doesn’t allow the EFCC to act as debt collectors – see Section 6(b) if the EFCC Act. I also say, ditto for the Police.
The view of many Nigerians therefore, is that not just that power and the proximity to power determine outcomes, more so than the Constitution and laws, but almost literally speaking, APC members are able to get away with murder!
Senator Fadahunsi’s Utterances: “Pi pa ni o”
Last week, a videoclip of Senator Francis Fadahunsi, APC Senator representing Osun East went viral. I am Yoruba, from Ibadan, and I speak the language fluently. So, I can say unequivocally that the Senator spoke plainly in Yoruba language, not in any parable. In the video, he was seen addressing APC supporters, instructing them that, if they saw any Accord Party members before the election, “pi pa ni o”, meaning “it’s killing o”. His disingenuous attempt to subsequently, twist his utterances into a parable, or claim that he was proverbially telling his supporters to kill Accord members with votes, is an outright lie. His statement in Yoruba is as straightforward as saying, I’m 61 years old, which is an indisputable fact!
In an atmosphere that has been marred with violence, where it has been reported that at least 40 people have been killed in pre-election violence, so much so that a heavy presence of security had to be deployed there to keep the peace, Senator Fadahunsi, a leading member of the APC opposition in Osun State’s revealing utterances, can certainly not be taken lightly.
Senator Fadahunsi v Senator Akpoti-Uduaghan
If Senator Francis Fadahunsi isn’t suspended from the Senate for the crime he appears to have openly committed, inciting and counselling people to murder, then it shows that the Senate is partisan and prone to political witch-hunting. Granted, Senator Fadahunsi’s utterances were ‘ex facie curiae’ (outside the Senate chamber) while PDP Senator Natasha Akpoti-Uduaghan’ was ‘in facie curiae’ (inside the Senate chamber) but Legislators are expected to conduct themselves properly at all times and in all places, and distance themselves from socially unacceptable and immoral behaviour, which obviously includes publicly counselling people to be violent or commit crimes.
So, if Senator Akpoti-Uduaghan could be given such a stiff and unconstitutional punishment of 6 months suspension for her outburst on the floor of the Senate last year (see Section 48 of the Constitution and Speaker, Bauchi State House of Assembly v Rifikatu Samson Danna (2017) 49 W.R.N. (CA), surely Senator Fadahunsi who has not only brought the Senate, the highest lawmaking body in Nigeria into serious disrepute with his utterances, but the whole country into odium and opprobrium globally, deserves a stiffer punishment. Interestingly, so far, the Senate has been silent on Senator Fadahunsi’s behaviour, so much so that the silence has become deafening, and allegations of discrimination against Senator Akpoti-Uduaghan because she’s a woman and of the PDP, are being canvassed – see Section 42(1)(a) of the 1999 Constitution of the Federal Republic of Nigeria (as amended)(the Constitution).
What would the world think of Nigeria, if a Senator of the Federal Republic, who could be seen openly counselling supporters to kill their political adversaries, thereby giving the impression that Politicians have no regard for life and see nothing wrong with killing their opponents; that Nigerian lawmakers have no regard for the laws they make; that Politicians who are members of the ruling APC are not subject to the laws of the land, and they suffer no legal consequences when the commit criminal acts? In a country where the rule of law is upheld, everyone is subject to the law, no one is above it. In Nigeria, the only people who are excepted from suit and legal process, and only during their period in office, are the President, Vice President, Governors and Deputy Governors – see Section 308 of the Constitution.
Senator Fadahunsi v Nasiru El Rufai
Again, if ADC’s Malam Nasiru El Rufai can be arrested and charged on the basis of his utterances on Arise TV, concerning the illegal wiretapping of the telephone line of National Security Adviser, Nuhu Ribadu, then Senator Fadahunsi should also be arrested for the offence he is alleged to have committed, which was caught live on video.
Two scenarios arise from Senator Fadahunsi’s utterances, and both carry heavy penalties upon conviction. Section 7 of the Criminal Code Act (CCA)(applicable in the Southern States of Nigeria)(there should be a corresponding provision under the Osun State Criminal Law), provides that anyone who counsels or procures others to commit an offence is deemed to have committed the offence like the principal offender, and would suffer the same punishment if there is a conviction. See State v Mgbeafuru (2020) LPELR-51752 (CA) per Misitura Omodere Bolaji-Yusuff, JCA where the Court of Appeal held thus: “A conviction of counselling or procuring the commission of an offence, entails the same consequences in all respects as a conviction of committing the offence. Any person who procures another to do or omit to do any act of such a nature that, if he had himself done the act or made the omission, that act or omission would have constituted an offence on his part, is guilty of an offence of the same kind, and is liable to the same punishment, as if he had himself done the act or made the omission; and he may be charged with himself doing the act or making the omission”.
On the face of the video, Senator Fadahunsi’s statement appears to counsel or procure the commission of murder (or a serious offence against a person). Counselling a person to commit murder, in the eyes of the law, is considered to be exactly the same as actually physically committing the murder (see Section 7 of the CCA). By virtue of Section 319 of the CCA, the punishment for murder upon conviction, is the death penalty.
In the event that no death is linked to Senator Fadahunsi’s comments, his utterances raise a prima facie case under Section 324 of the CCA, which prescribes a 14 year imprisonment upon conviction for an attempt to counsel or procure another person to commit murder.
Either way, Senator Fadahunsi’s comments appear to constitute a felony, a grave offence. And, simply quizzing him and letting him go home, without detaining him, charging him to court, and him making his bail application to the court just like Malam El Rufai, smacks of double standards, inequality, inequity and discrimination in favour of Senator Fadahunsi and against Malam El Rufai (see Section 42 of the Constitution), concerning their offensive comments which both carry 14 years imprisonment upon conviction (see Sections 1(1)(b), 7(1)(a) & 8 (1)(b) of the Official Secrets Act 1962), and worse still, maybe the death sentence/life imprisonment in Senator Fadahunsi’s case, if any pre-election violence, murder or manslaughter can definitively be linked to Senator Fadahunsi (I’m in no way say that they can) or his comments. As the saying goes, what is good for the goose, is good for the gander.
While obviously the nature of Malam El Rufai and Senator Fadahunsi’s comments are different, and the offences resulting therefrom are also different, the procedural disparity in the way both parties are being handled, is the issue.
Many a time, people allege that successive governments have used security agencies to witch-hunt adversaries, critics and political opponents into submission. The civilians appear to have carried this arbitrary, dictatorial habit of the military, into this so-called democratic dispensation. Ignoring their constitutional and statutory functions, security agencies are used to oppress citizens, instead of concentrating on bringing real criminals to book. The public is also of the view that security agencies are partial to members of the ruling party/Government, and an act like letting Senator Fadahunsi who appears to have openly committed an offence, go home happily as if nothing happened, lends credence to this narrative. If the public is unaware of a crime, then possibly a perpetrator could get away with committing an offence. But, when the perpetrator openly admits to an offence, or it is committed in the eyes of the public, silence or omission to take the necessary legal steps, may be tantamount to Government’s acquiescence, if not complicity.
And, when the public point out these shortcomings, Government spokespersons are always quick to rain invectives on them, forgetting that 1) Section 14(2)(a) & (c) of the Constitution gives the people sovereignty from which the government derives its power and authority, as well as the right to participate in their government; and that 2) Government and its agencies are usually the ones that take actions, which create circumstances that give the people the platform to make these complaints. Certainly, the so-far casual attitude of the Police in Senator Fadahunsi’s matter, is one of those circumstances that may qualify.
Conclusion
When the foundational and constitutional principle of equality before the law appears to collapse in practice, giving way to a selective or two-tier justice system, it gives the impression that the administration of justice system of that State is weak and no longer functions as it should, and may be an instrument of political management instead. It gives the impression that, such a State has subordinated the rule of law to power and politics. It gives the impression that such a State is akin to
a Banana Republic, where the laws exist on paper in the statute books, but are not applied appropriately, and instead, are enforced arbitrarily, selectively and partially.
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