Bill on Hate Speech and the Right to Freedom of Speech and Expression

Introduction

The Nigeria Senate recently reintroduced a bill that seeks to penalize persons found guilty of “hate speech”. The bill titled “National Commission for the Prohibition of Hate Speech” was sponsored by the Deputy Chief Whip of the Senate, Aliyu Abdullahi. The bill prescribes death penalty for anyone found guilty of spreading a “falsehood” that leads to the death of another person. The bill also seeks the establishment of a National Commission for the Prohibition of Hate Speech to help investigate and prosecute offenders.

The Bill

The bill proposes that any person who uses, publishes, presents, produces, plays, provides, distributes and/or directs the performance of any material, written and or visual which is threatening, abusive or insulting or involves the use of threatening, abusive or insulting words or behaviour commits an offence if such person intends thereby to stir up ethnic hatred, or having regard to all the circumstances, ethnic hatred is likely to be stirred up against any person or person from such an ethnic group in Nigeria. According to the bill, any person who commits this offence shall be liable to life imprisonment and where the act causes any loss of life, the person shall be punished with death by hanging.

Expectedly, some civic groups have kicked against the bill because of its narrow and unclear definition of what constitutes “Hate Speech”. They say the provisions of the bill would be contrary to the Nigerian Constitution if the bill becomes law as designed. They argue that the Constitution protects the rights to unhindered speech, expression and association.

Jurisprudence on free speech and constitutional morality

Undoubtedly, freedom of speech is a right guaranteed under Chapter IV Section 39(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). However, the long history of the battle between national security and freedom of speech is one that has been ongoing from generation to generation. Of course, free speech is not absolute as it can be curtailed in the interest of national security but this must be justifiable in a democratic setting. Inevitably, the question that then follows is whether or not this bill is justifiable in the circumstances.

In every society, a conflict between the State and the individual’s opinion is bound to exist. Punishing or curtailing an individual for exercising the freedom to free speech contradicts the abstract theory of the promotion of a right to free speech and expression. Free speech allows the conveyance of an individual’s ideas and opinions. However, in some instances, individuals through their speech and expression disrupt the law or provoke and incite violence. The duty of the state is to strike a balance in order to maintain law and order. The bulwark of an effective democracy is undaunted, fearless and independent thought and speech. A gag in any form on the diverse opinions and thoughts of people will invariably lead to stifling of a vibrant democracy. The tricky part is - where the freedom ends and a curb gets justified.

On critically examining the bill, it becomes obvious that it is a very subjective piece of legislation, highly dependent on the disposition of the interpreter. We are presented with a situation where hyper-sensitive officials may come tomorrow who will see “hate speech” in every criticism, and crime in every utterance or write-up. Every dissent may be termed “hate speech” and offenders jailed for life and in extreme situations hanged.

It is the writer’s opinion that the “overbreadth test” should be applied to this piece of legislation to gauge its constitutionality in regards to freedom of expression. If a provision of law is excessively ambiguous, very subjective pertaining its applicability and its breadth very expansive, this could lead to obscurity in its practice and its overbreadth could serve to its detriment. Applying this test to the bill on hate speech, the exact interpretation of the word “Hate Speech” is uncertain and indeterminable. Given the haziness in the practical applicability of this bill, it should be rendered unconstitutional. The bill serves as a disincentive on the freedom of speech endowed to citizens under Chapter IV Section 39(1) of the Constitution.

For the bill to be applicable, it must establish a reasonable nexus between a speech and its role as an instrument to the causation of public disorder. There must be a clear and present danger. Regardless of the degree of derogation and insult, a certain degree of proximity needed to exist between the utterance and the potentiality of public disorder. In Schenck v. United State, 1919 SCC Online US SC 62, the US Supreme Court elucidated the required proximity between the utterance of speech and incitement of violence. It lays the possibility of danger or the intent to bring it about must be imminent or immediate. This case established the “bad tendency test”.  Brandenburg v. Ohio, 1969 SCC Online US SC 144 laid the “clear and present” danger test, whereby the State was prohibited by the US Constitution from repressing speech and its advocacy barring the possibility of it causing an immediate harm to law by an illicit act or if it aimed at causing such an action. In the US under the 1st amendment, free speech is promoted as opposed to necessitating silence to remedy bad or injurious speech. Thus, in the US even though some sedition laws have been retained, the courts are dispensing extensive protection to the right of free speech and same is advocated for in Nigeria.

Also, the procedural analysis of the punishment prescribed proves this bill to be mischievous and an attempt at gaging free speech and moving at perceived political opponents.  It is a draconian piece of legislation meant to cow the opposition.

Conclusion

Thus, articulation of the “National Commission for the Prohibition of Hate Speech” bill appears to subdue and extinguish any forms of dissent present in Nigeria under this democratic dispensation. Such a tendency contradicts the inherent ingredients which characterize a democracy. The existence of such provision in a country aiming to progress appears obsolete and an over-kill. The punishment associated with it renders the provision draconian. The continuance of such a provision induces a chilling effect on the freedom of speech and expression, which is a supposed fundamental right provided under Chapter IV Section 39(1) of the Constitution.

It is hope that this bill will never make it pass its first reading and become law

CHINESE LOANS: DEBT-TRAP OR MUCH NEEDED INVESTMENT? AN AFRICAN PERSPECTIVE

Introduction:

China's commercial activities in Africa, such as investments, infrastructure projects and bank lending, have long attracted scrutiny and criticism. Critics have accused Beijing of practicing a new form of economic colonialism to gain control of the continent's valuable natural resources by luring unsuspecting African nations into so-called debt traps.

The meme - Chinese ‘debt-trap diplomacy’ - was born in a think tank in northern India in 2017. This meme quickly spread through the media, intelligence circles and Western governments.

By debt-trap diplomacy it is claimed that China intentionally extends excessive credit to another debtor country with the alleged intention of extracting economic or political concessions from the debtor country when it becomes unable to honor its debt obligations. The assumption seems to be that “China’s own economic and geostrategic interests are maximized when its lending partners are in distress.”

This paper will examine China's relationship with Africa to unravel the mystery of the so called debt trap allegation with view to verifying the authenticity of the allegation leveled against China.

Africa's Infrastructural Deficit:

Africa suffers from serious infrastructure deficit and needs serious investment from outside the continent to close the gap and investment from China is one of the few ways African countries can get financing for the infrastructure it so desperately needs.

The main types of infrastructure that these loans improve include roads, railways, dams and ports. Improved infrastructure favors internal trade, healthcare and education systems. Over four-fifths of China's investments are spent on infrastructure projects in underdeveloped and developing countries. According to the World Economic Forum, internal trade is the greatest opportunity for realizing Africa's economic growth potentials.

China is a world leader in infrastructure development, having undergone rapid economic growth since its reform and opening under Deng Xiaoping due to its infrastructure-based development strategy. Apart from extending credits, China's expertise in infrastructure development and know-how is part of the reason for the tilt towards China by many developing economies.

China has financed more than 3,000 strategic infrastructure projects in Africa and extended tens of billions of dollars in commercial loans to African governments and state-owned enterprises. China’s export of excess industrial capacity and its model of special economic zones have benefited the nascent manufacturing sector on the continent. An in-depth evaluation of Africa’s economic partnerships with the rest of the world in trade, investment stock, investment growth, infrastructure financing, and aid concluded that no other country matches the depth and breadth of Chinese engagement.

Much Chinese financing to Africa is associated with securing the continent’s natural resources. Using what is sometimes characterized as the “Angola Model,” China frequently provides low-interest loans to nations who rely on commodities, such as oil or mineral resources, as collateral. In these cases, the recipient nations usually suffer from low credit ratings and have great difficulty obtaining funding from the international financial market; China makes financing relatively available—with certain conditions.

Africa has long been exploited for its natural resources by the West and the relationship has always been that of unequal trading partners. China on the other hand, are newcomers trying to penetrate markets long exploited exclusively by Westerners for over two centuries. China has been able to penetrate the African continent by granting loans under less tenuous terms compared to the West.

The glaring reality is that Africa sees Chinese loans as more attractive as China treats same as business loans unlike the West which sees it as development aid with strings attached which sometimes involves direct interference in the debtor country's domestic affairs i.e. being forced to restructure i.e. devalue currency or implementation of austerity measures i.e. Structural Adjustment Program (SAP) in Nigeria or some other form of structural adjustment that sometimes lead to social instability in the debtor country.

Problems usually arise when the debtor nation is unable to pay back its loans in which case China may resort to realising the pledged asset. The readily cited instance is that of the Sri Lankan port at Hambantota where failure to service the loan resulted in a 99-year lease for $1.12 billion in 2017 and China’s control of the asset. But what is not told about this story is the fact that Sri Lanka faced a severe shortage of foreign reserves in light of upcoming debt servicing payments, due to the maturity of its international sovereign bonds in early 2019. The money obtained through leasing Hambantota port was used to strengthen Sri Lanka’s dollar reserves in 2017-18. In fact, the largest portion of Sri Lanka’s foreign debt was international sovereign bonds whilst Chinese loans constitute only little over 10% and most of that was in the form of concessionary loans. In a nutshell, Sri Lanka leased its port to China in order to settle its debt obligations not owed to China.

Evidence abounds of however of about 84 instances over the last 15 years, of China restructuring/waiving loans without taking possession of assets, including Ethiopia’s third such restructuring. The argument for bad-faith Chinese lending also ignores Venezuela—the single largest Chinese debtor country where there still isn’t Chinese takeover of flagship state assets.

Dependence or death-trap?

The reality of Africa’s debt to China is not particularly remarkable when taken against the aggregate of sources of Africa’s external debt stock. A few African countries: Angola, DRC, Ethiopia, Kenya and Sudan account for over half of Chinese lending in Africa so it's not like the entire continent is under the threat of a take over as some have hysterically alleged.

In fact, the allegation of debt-trap in regards to Africa is farfetched as the bulk of Africa's debt is not owed to China. There is now research that concludes that, “Chinese loans are not currently a major contributor to debt distress in Africa”. A SAIS-CARI report from August 2018 found that "Chinese loans are not currently a major contributor to debt distress in Africa.

In the 2015 and 2017 records of World Bank, Africa owes large sums of debt not only to China but also from other lenders with the debts owed to China constituting just 20% o the total debt stock. Africa's debts from multilateral lenders amount to 35%, 32% from private lenders, and around 13% from various other governments.

Higher interest rates of about 55% from the private sectors prompted Africa to go to China for loans, which is around only 17%. Also, the debts owed of the African countries from China are allocated for investments on sectors needing critical development and growth and not just for consumption. China in exchange just demands payment in the form of jobs, and natural resources. In economic theory and practice, any country can borrow from another country to finance its economic development. However, it is not always easy to find someone who will lend money even for logical reasons. The global competition on which country is best to invest money in is in fact, a country's sign of financial strength, which is why Africa does not consider the relationship with China as a debt-trap.

Between 2008 and 2018, Chinese FDI in Africa rose from $7.8 billion to $46 billion, according to official data. China could have expanded its trade with Africa and maintained its access to raw materials without committing nearly $200 billion in bilateral loans and FDI but it did anyway and Africa is grateful for this much needed investment.

China's role in Africa's infrastructural development is not lost on Africa as the instances below will buttress.

China is financing the new capital of Egypt, New Cairo.  In an interview, Gen. Ahmed Zaki Abdeen, who heads the Egyptian state-owned company overseeing the new capital, criticized American reluctance to invest in Egypt, saying: “Stop talking to us about human rights,” he says. “Come and do business with us. The Chinese are coming — they are seeking win-win situations. Welcome to the Chinese.

Also, in response to the negative responses from other Western powers, at the Forum on China-Africa Cooperation (FOCAC) in September 2018, there was overwhelming African political support of the continued relationship with China. South Africa's Cyril Ramaphosa stated that “In the values that it promotes, in the manner that it operates and in the impact that it has on African countries, FOCAC refutes the view that a new colonialism is taking hold in Africa, as our detractors would have us believe.” Kenya's president Uhuru Kenyatta spoke on his appreciation for the Chinese support in the infrastructure development and Botswana's president Mokgweetsi Masisi exclaimed, “To China, her president and citizens, we admire and hold you in very high regard”.

Western fear of China's rise:

Every few years in the West – in the media and in political circles – there is a moral panic about the rise of China. Africa often plays a central role in this: as a supposedly predatory China is counterposed against representations of hapless and powerless African victims. This is primarily the reason why China is now routinely accused of “debt-trap diplomacy,” (paywall) or intentionally “miring supposed partners, particularly developing countries, in unsustainable debt-based relations.”

Trade between African countries and China has also affected ties between African countries and other continents, especially Europe and North America. The West wants to counter balance the influence of China in Africa and a lot of propaganda has been deployed to achieve this by painting China as a predator preying on a hapless people.

Human emotions, including negativity bias, prime us to think in certain ways and Africans have been primed by Western propaganda to see the Chinese as predators rather than as development partners.

The language of “debt-trap diplomacy” resonates more in Western countries, especially the United States, and is rooted in anxiety about China’s rise as a global power rather than in the reality of genuine concern for Africa or other developing economies. As Evan Feigenbaum of the Paulson Institute think tank writes, treasury secretary Steven Mnuchin has counseled countries against taking Chinese money, warning it will lead countries into a debilitating cycle of debt, and asset-stripping. The US Department of Defense accuses the Chinese of predatory economic practices.

Infact, former National Security Advisor, John Bolton, claimed in a statement to unveil the new U.S. strategy for Africa that China is poised to take over Zambia's national power utility due to the government's failure to settle outstanding debts. The Zambian government however refuted this and officially requested the U.S. government to retract the "misinformation" in John Bolton's statement over China-takeover-assets allegations insisting that Zambia has not offered any of its assets as bilateral or multilateral loans and that there were no state enterprises at risk of being repossessed.

Conclusion:

The relationship between China and Africa is strictly business. China offers loans and African countries themselves then decide what they offer as collateral. So if your government decides to give up a port or farmland to get a bigger loan, and then fail to pay back the money, don’t blame the lender.

African countries enter these agreements by their own volition. To suggest that China is colonising Africa is to suggest that Africans are too stupid to know what they are signing, that they don’t understand business. Africans are not stupid. There is simply a lot of corruption in Africa. That is the problem not that they are utterly stupid.

The accusations that China is colonising Africa is not correct. The simple fact is that China is setting up trade infrastructure in Africa by investing in Africa. China's thinking seems to be to improve the purchasing power of Africa for the benefit of China's industrial output. This ought to be a win-win situation if well taken advantage of by Africa.

In a nutshell, there is really no debt-trap per se rather what we have is more of a dependency. Africa is highly dependent on China for its finance which in itself forebodes trouble. As many experts see it, the dependency of the developing countries like Africa to China in exchange of opportunistic loan offers is a sure way to deny the people of its sovereignty and self-sustaining growth in the longer-term scope. So Africa needs to wean itself of over dependence on Chinese loans while implementing policies to stimulate their internal economies.

IMPACT OF THE RECENT ACTIONS OF THE FEDERAL GOVERNMENT OF NIGERIA AGAINST MTN NIGERIA ON INVESTOR CONFIDENCE – AN INSIGHT

The Central Bank of Nigeria (‘CBN’) recently indicted MTN Nigeria alleging that it collaborated with Standard Chartered Bank Nigeria, Citibank, Stanbic IBTC Bank and Diamond Bank Plc to illegally repatriate $8.134 billion between 2007 and 2015 from Nigeria to its parent company in Johannesburg, South Africa.

As a consequence of the said indictment, the CBN slammed a fine of N5.87 billion on the four banks over flagrant violation of extant laws and regulations of the Federal Republic of Nigeria, including the Foreign Exchange (Monitoring and Miscellaneous Provisions) Act, 1995 of the Federal Republic of Nigeria and the Foreign Exchange Manual, 2006. In line with the fine on the banks, the CBN also directed MTN Nigeria to immediately refund $8,134,312,397.63 it alleged was illegally repatriated by the telecoms company to the coffers of the CBN.

MTN Nigeria denied the allegation insisting that the apex bank vetted and approved the transactions in question. In a statement (widely circulated by the news media) by MTN Nigeria, it was stated that “No dividends have been declared or paid by MTN Nigeria other than pursuant to CCIs issued by our bankers and within the approval of the CBN as required by law”.

In its official response to the CBN, Stanbic IBTC Bank described the conclusions reached by the regulator as based on “factually incorrect premises”. It reminded the CBN of the outcome of its findings on the same issue following a special examination that was conducted in March this year. The finding reportedly cleared the bank of any wrongdoing claiming that its actions were in line with extant rules and regulations. The other banks have also issued statements in similar vein to that of Stanbic IBTC Bank.

Almost concurrently with the said CBN’s action, the office of the Attorney General of the Federation (‘AGF’) also wrote to MTN Nigeria demanding the company should pay $2bn as tax arrears on imported equipment and unpaid VAT on payments made to suppliers. This was conveyed in a letter signed by Mr Abubakar Malami (the AGF) which was circulated by the news media. In the said letter, the AGF notified MTN that his office made a high-level calculation that revealed that MTN Nigeria should have paid approximately $2bn in taxes for importation of foreign equipment and unpaid VAT on payments made to foreign suppliers over the last 10 years.

However, MTN Nigeria, in reaction, said that an initial assessment of the period indicated that total payments made to the tax authorities with regard to the foreign imports and payments amounted to $700m, adding that it had fully settled all taxes on the imports under scrutiny.

As a direct consequence of the actions by the CBN and the AGF, the shares of the MTN Group plunged by 25 per cent to a nine-year low of R86.50 (South African Rand). Also, the much anticipated MTN Nigeria initial public offerings (‘IPO’), which was an initiative to absorb the hit of the Nigeria Communications Commission (‘NCC’) fine earlier paid by the telecoms giant, has been put on hold.

There is no doubt that the said actions against MTN Nigeria have had a negative consequence on its brand and also threatens its corporate existence in Nigeria as the company may go under if the Nigerian Government insists that all the imposed fines and demands on the company are complied with, without an opportunity for a review or negotiations.

It is noteworthy that the value of the current claims by the Nigerian government at R150 billion outstrip the total value of all the shares in MTN listed on the Johannesburg Stock Exchange in South Africa. As it is, MTN Nigeria may be wondering that even if it succeeds in convincing the Nigerian authorities that they had the permission it claims it was given to move $8.1 billion in dividends out of the country and even if it manages to prove that its tax affairs are in order despite a $2 billion demand from the Nigerian Government its investors will constantly be wondering where the next brickbats will be coming from. This is bad for investors’ confidence. The actions of the Nigerian Government may look like a shake down to the South African investors of MTN Nigeria.

This article is not to apportion blame or say who is right and wrong as between the Nigeria Government and MTN Nigeria rather, it is to highlight the impact of the actions taken by the Nigerian Government on investor(s) confidence, bilateral relations with South Africa and the obligations of the Nigerian Government to foreign investors operating in the Nigeria economy. In other words, this article aims to critically examine the implications of the actions of the Nigerian Government under customary international law as it pertains to protection and security for foreign investments under which category MTN Nigeria falls.

International investment law is designed to promote and protect the activities of private foreign investors like MTN Nigeria and three of the four sanctioned banks. Globally, foreign investment is regulated by a Bilateral Investment Treaty (‘BIT’) between two countries desirous of trade, or a regional treaty, such as the Economic Communities of West African States (‘ECOWAS’) or the North American Free Trade Agreement (‘NAFTA’).

The basic international law governing treaties and their interpretation and application is the Vienna Convention on the Law of Treaties. Like contracts, treaties bind the state parties who have consented to them. Under international law, state actors assume certain responsibilities to respect treaties and protect foreign investments. Under the International Law Commission on State Responsibility, it is provided as follows:

            “Article 4: Conduct of organs of a State

1.       The conduct of any State organ shall be considered an act of that State under international law, whether the organ exercises legislative, executive, judicial or any other functions, whatever position it holds in the organization of the State, and whatever its character as an organ of the central government or a territorial unit of the State.

2.      An organ includes any person or entity which has that status in accordance with the internal law of the State.”

Most investment treaties contain provisions granting full protection and security for foreign investments. The wording of these clauses suggests that the host State is under an obligation to take active measures to protect foreign investment from adverse effects. The host State’s duty is not restricted to preventing damaging acts by private actors. The State’s responsibility extends to actions perpetrated by its organs. The applicability of a treaty provision on protection and security to direct attacks on the investor’s person and property by organs of the host State is beyond doubt. In Biwater Gauff v Tanzania (Award, 24 July 2008), the Tribunal said:

“The Arbitral Tribunal also does not consider that the ‘full security’ standard is limited to a State’s failure to prevent actions by third parties, but also extends to actions by organs and representatives of the State itself.”

In Azurix Corp. v The Argentine Republic (Award, 14 July 2006) the Tribunal confirmed that ‘full protection and security may be breached even if no physical violence or damage occurs’. The Tribunal said:

“The cases referred to above show that full protection and security was understood to go beyond protection and security ensured by the police. It is not only a matter of physical security; the stability afforded by a secure investment environment is as important from an investor’s point of view. The Tribunal is aware that in recent free trade agreements signed by the United States, for instance, with Uruguay, full protection and security is understood to be limited to the level of police protection required under customary international law. However, when the terms ‘protection and security’ are qualified by ‘full’ and no other adjective or explanation, they extend, in their ordinary meaning, the content of this standard beyond physical security.”

The two cases summarized above indicate that unjustified coercive measures taken by organs of the host State against the investor and his property constitute violations of the “protection and security” standard if they prejudice the investor to a material degree. Juxtaposing the above restatement of the law on foreign investment to the situation at hand, MTN Nigeria can legally make a claim against the Nigerian Government for state actions which threatens its investment or for damages resulting therefrom if it transpires that the actions of the Nigerian Government were unjustified.

The said actions may also impact on Nigeria South Africa bilateral relations. Since the inception of democratic rule in Nigeria, South Africa and Nigeria have had encouraging bilateral economic relations. Since then, South Africa has emerged among the top investors in many sectors of the Nigerian economy. South African companies' presence is visible in the Nigerian economy, especially in areas such as telecommunication, engineering, banking, retail, hospitality, property development, construction and tourism, to mention a few.

In 1999, the South African and Nigerian governments signed bilateral agreements on trade and investment and established the South Africa - Nigeria Bi-national Commission. These agreements amongst other things, aimed to increase the amount of trade and investment between South Africa and Nigeria. The signing of these agreements witnessed inter-alia (a) improved trade relations between South Africa and Nigeria and (b) South African corporations as big players in the Nigerian economy. Sequel to the signing of the bilateral agreements, the volume of trade between South Africa and Nigeria increased from 1999. Prior to 1999, trade between the two countries was minimal. In 1994, South Africa exported US$8.1 million worth of products to Nigeria; while it imported US$3.1 million worth of commodities from Nigeria.

With the signing of the South Africa - Nigeria Bilateral Trade Agreement, the situation changed. By 2005 South Africa was exporting goods to the value of R3.4 billion to Nigeria and importing R4.2 billion worth of commodities from Nigeria. There are an estimated over 120 South African companies doing business in Nigeria of which the single largest investor is MTN. Its entrance into the Nigerian market came by way of the first telecommunications auctions process in Africa, in January 2001. At that time MTN’s entrance into the Nigerian market was the company’s single biggest investment outside South Africa.

South African companies are also heavily involved in Nigeria's media and entertainment sector. DSTV, as a major force in the television industry, accounts for 90% of the viewers that watch satellite TV in Nigeria between 2005 and 2009. This has seen DSTV growing into the sixth largest company listed on the Lagos Stock Exchange.

It is hoped that the South African Government and its Nigerian counterpart can find a middle ground to have this MTN Nigeria (which also affects another South African owned company, Stanbic IBTC Bank) issue amicably resolved so that bilateral relations between Nigeria and South Africa are not negatively impacted. This also goes for the affected banks. It is recommended that the Nigerian Government soft pedals and be more amenable to amicable settlement so that wrong signals are not sent to potential investors at a time that FDI is at a low and the rate of unemployment very high.

It is hoped the Nigerian Government will not learn to its cost that if you are not nice to FDI, it ups sticks and finds a new place to live.

NATIONAL AWARDS CANNOT BE AWARDED POSTHUMOUSLY

There have been varied reactions to the recent posthumous national award of the Grand Commander of the Federal Republic (GCFR) on Chief M.K.O. Abiola, and a posthumous national award of Grand Commander of the Order of Niger (GCON) on Gani Fawehinmi – a respected human rights activist, by President Buhari. I personally feel the awardees are most deserving and worthy recipients even if the award was politically motivated. The pertinent question however remains whether the awards are legal in the eyes of the law.

Justice Belgore, who was the Chief Justice of Nigeria (‘CJN’) between 2006 – 2007, opined that honouring Abiola with a GCFR was illegal. He stated that no national award could be awarded posthumously, let alone the GCFR – the highest honour in the land.

“It is for people living,” Belgore had said. “The only thing they could do is to name a place after him, but national honours award, no.”

In reaction to Belgore’s assertion, a prominent Nigerian lawyer, Femi Falana, SAN, observed that the former CJN did not refer to any section of the National Honours Act or any other law that has been violated by President Buhari. He argued that the National Honours Act has not prohibited or restricted the powers of the President to confer national honours on deserving Nigerian citizens, whether such person is dead or alive.

“No doubt, paragraph (2) of the Honours Warrant made pursuant to the National Honours Act provides that ‘a person shall be appointed to a particular rank of an Order when he receives from the President in person, at an investiture held for the purpose…’

“But paragraph (3), thereof, has given the President the unqualified discretion ‘to dispense with the requirement of paragraph (2) in such manner as may be specified in the direction,” the senior advocate said.

He stressed that since the national awards conferred on Abiola and Fawehinmi cannot be received by them in person, the President may permit their family members to receive same on their behalf.

In this rejoinder, I intend to join issue with the learned SAN that the awards of the GCFR on Chief M.K.O. Abiola and the GCON on Chief Gani Fawehinmi were legal in the circumstances in which they were made.

To properly situate the subject matter of this discourse, it will be necessary to give a précis of the relevant provisions of the extant laws on the subject. The enabling legislation is the National Honours Act and the applicable provisions are as follows:

“3. Mode of appointment to Orders, etc.

(1) The President shall by notice in the Federal Gazette signify his intention of appointing a person to a particular rank of an Order.

(2) Subject to the next following paragraph of this article, a person shall be appointed to a particular rank of an Order when he receives from the President in person, at an investiture held for the purpose-

(a) the insignia appropriate for that rank; and

(b) an instrument under the hand of the President and the public seal of the Federation declaring him to be appointed to that rank.

(3) If in the case of any person it appears to the President expedient to dispense with the requirements of paragraph (2) of this article, he may direct that that person shall be appointed to the rank in question in such a manner as may be specified in the direction.”

Falana's position is predicated on paragraphs (3) above where it is provided that the requirement of paragraph (2) above may be dispensed with if it is expedient to the President. The easiest way to dealing with this issue is to first answer the nagging question of who is a 'person' under the law since the enactment is replete with that word.

The enactment says National honours are to be awarded to a 'person'. Flowing from the above, the gravamen of this discourse will lie in determining whether a dead person still has the right to be continued to be addressed as a ‘person’ or whether this right is foreclosed by reason of death. In other words, if we are agreed, and there is no divergent opinion on the unassailable fact the award is to be bestowed on a ‘person’ then the next inevitable question will be whether or not Chief M.K.O. Abiola and Chief Gani Fawehinmi fall within the legal definition of persons in law.

The Interpretation Act, CAP 123 LFN 2004 defines a person as:

"person" includes anybody of persons corporate or unincorporate."

Furthermore, Black's Law Dictionary 6th Edition, pg. 791, defines 'person' as follows: "In general usage, a human being (i.e. natural person), though by statute term may include labor organizations, partnerships, associations, corporations, legal representatives, trustees, trustees in bankruptcy, or receivers."

To add further fillip to the definition of persons, the following case law authorities are apposite on the point:

The Supreme Court in Ibrahim v. Judicial Service Committee, Kaduna State (1998) 14 NWLR (Pt. 584) 1 at 36 (1998) 12 SCNJ 255, espoused thus:

“The definition of the word "person" in the legal sense under the Nigerian law is not limited to natural persons or human being only. It clearly admits and includes artificial persons, corporation, sole company or any body of persons corporate or incorporate.”

In the case of Udeogaranya v. Adeyi (2010) LPELR-4415(CA), the Court of Appeal also defined a person as follows:

“It is beyond dispute that the word "person" when used in legal practice, such as in a legislation or statute connotes both a "natural person", that is to say, a "human being" and an "artificial person" such as corporation sole or public bodies corporate or incorporate”.

It is respectfully submitted that ‘person’ referred to above is not just anybody but a legal person. If there is no doubt that it is legal persons being referred to in acts and statutes, it follows therefore that a dead person is not a legal person. A legal person is as defined above. It is settled under our laws that a dead person ceases to be a legal person or to have legal personality. The Supreme Court of Nigeria, in Chief John Ehimigbai v. Omokhafe v. Chief John Ilavba Oje Iboyi Esekhomo (1993) LPELR – 2649 (SC) held thus:

“Generally, a dead person is no longer in the eyes of the law a person but in the eyes of the law, he is a person who ceased to have legal personality from the date of his death and as such, can neither sue nor be sued personally or in a representative capacity. The personality of a human being is extinguished by his death. The common law principle expressed in the maxim action personalis moriturcum persona presupposes a cause of action arising when both the plaintiff and the defendant are alive and will regard the cause of action as ceased upon the death of either the plaintiff or the defendant. See Kareem V Wema Bank Ltd (1991) 2 NWLR (Pt.174) 485; Akunmoju V Mosadolorun (1991) 9 NWLR (Pt. 214) 236 (CA) and Hodge V Marsh (1936) A.E.R 484.” 

It follows therefore that persons in the legal sense includes “natural persons or human beings” and also “artificial persons” such as corporate and incorporate bodies. Ipso facto, there can be no doubt therefore that the President may validly bestow national honours on “natural persons or human beings, and on artificial persons (corporations). What is doubtful is whether or not the President can bestow national honours on dead persons who are not legal persons in law.

It is clear that the emphasis above is on living persons as against a dead person. To proceed further we may need to highlight the distinguishing characteristics of a living person as against a dead person. The difference between the two concepts boils down to "existence". Here's what really exists:

1. An arrangement of matter with various traits, such as a metabolism, the ability to process information, etc.

2. An arrangement of matter that once had those traits but now doesn't.

You can choose to label either, both, or none with the word "person," but your choice alters nothing about what actually exists. If you call the second thing a person, it will be an arrangement of matter that once had those traits but now doesn't. If you don't call it a person, it will still be an arrangement of matter that once had those traits but now doesn't.

In a nutshell, a person is a being that has certain capacities or attributes such as reason, morality, consciousness or self-consciousness, and being a part of a culturally established form of social relations such as kinship, ownership of property, or legal responsibility. A dead person is a person who once had those attributes but now doesn’t.

On their demise, could it possibly be argued that Chief M.K.O Abiola and Chief Gani Fawehinmi, SAN continued to share or retained the characteristics of natural persons or human beings? I dare to say it would be preposterous and do violence to language to contend so. In a nutshell, the duo were former 'persons' and former 'Nigerians'. They can only be referred to in past and not present tense.

If the highest Court in the land has affirmed positively that a dead person is no legal personality in the eyes of the law, then to have conferred the respective national honours on both Chief M.K.O. Abiola and Chief Gani Fawehinmi as has been done in this instance is in clear breach of the National Honours Act.

In the interpretation of Statutes, the cardinal rule is that where the provision of a statute is clear and unambiguous, the duty of the court is to simply interpret the clear provision by giving the plain wordings their ordinary interpretation without more. However, where confronted with an ambiguous statutory provision, the basic task before a judge is to ascertain the intention of the legislature.

In ascertaining the intention of the draftsman of the National Honours Act, it is clear that it was never intended that the award is to be conferred on a deceased Nigerian. Paragraph (3) of the Act referenced by Falana, SAN is only applicable if the honouree is unavoidably absent and not dead. If the intention was to confer the honour posthumously, the Act would have expressly stated so. This is so because in the same piece of legislation a provision was made for posthumous awards for dead servicemen.

If the legislation pertaining to the Armed forces makes specific provision for posthumous award while the preceding provision for award on deserving persons make no such provision. One would have thought that the lawyers advocating so vociferously for posthumous award would have asked themselves one simple question: “why would one provision be silent on the issue of a posthumous award whilst another provision in the same piece of legislation is specific on the point"?

Premised on the foregoing, it is my candid opinion that the awards bestowed on Chief Abiola and Chief Gani respectively, though deserved are illegal. The National Assembly may need to amend the law to accommodate posthumous awards like the instant one.

The FG May also do well to rename historical or national monuments after these deserving former personalities.

Whether the Nigeria National Assembly have powers to suspend a law maker?

In the aftermath of the senate saga resulting in the forceful entry into the senate chambers and the attendant 'stealing' of the mace, so many commentaries have been running particularly as it concerns the legality of the suspension of Senator Omo-Agege by his peers. Some notable legal practitioners like Falana, SAN and even Prof Sagay are of the view that the NASS has no power to suspend a law maker citing inter alia the case of Senator Ndume, Dana vs Bauchi House of Assembly, etc. Falana said that it is only a court of law or a law maker's constituency that can exercise the right to suspend or remove a law maker.

I doubt if this is the current position of the law as it pertains to the power of the NASS to dicsipline and sanction erring members. Of course the constitution in section 60 expressly provides that:

‘’Subject to the provisions of this Constitution, the Senate or the House of Representatives shall have power to regulate its own procedure, including the procedure for summoning and recess of the House".

Pursuant to the powers donated to it under the constitution, the NASS presented to President Buhari and the latter signed into law on January 26, 2018 a bill known as the ‘’Legislative Houses (Power and Privileges), Act 2018’’. Section 21 (2) of the law states that ‘’where any member is guilty of contempt of a Legislative House, the House, may by resolution, reprimand such member or suspend him from the service of the House for such period as it may determine’’.

Section 22 further says that, ‘’Suspended member excluded from Chamber and precincts:

‘’A member of a Legislative House who has been suspended from the service of that House shall not enter or remain within the Chamber or precincts of the House while such suspension remains in force, and, if any such member is found within the Chamber or precincts of the House in contravention of this section, he may be forcibly removed therefrom by any officer of the House and no proceedings shall lie in any court against such officer in respect of such removal’’.

In a nutshell, the senate acted under extant laws made pursuant to section 60 of the constitution in suspending Senator Omo-Agege. By his suspension, Omo-Agege was not supposed to be within the precinct of the NASS or even gain access into the chambers.

I am not aware that the Legislative Houses (Power and Privileges), Act 2018 was the subject of Senator Ndume's law suit culminating in the reversal of his suspension. The law was validly passed with the president signing it into law only this year. I am not aware that any court has invalidated the law at it stands so i do not know the basis or justification of Falana's assertion that the NASS cannot suspend a law maker.

The power of the legislature to regulate itself is universally acknowledged and practiced . For instance, Article I, Section 5, of the U.S. Constitution provides that "Each House [of Congress] may determine the Rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two-thirds, expel a member".

Even statutory and corporate bodies have internal regulating rules which our law courts have given validation to. In the case of Chinwo v. Owhonda (2008) 3 NWLR (Pt. 1074) 341, 361 which dealt on the issue of freedom of association and the implication of subscription to membership of associations, it was held that "In the exercise of their constitutional rights under sections 39 and 40 of the 1999 Constitution, which guarantee freedom of thought, assembly, association, etc., individuals elect to and do subscribe to membership in associations, which sometimes curtail their rights. The appellant, while exercising his right, joined an honourable profession of formidable societal influence and relevance which of necessity has rules and regulations to guide his professional conduct and which along the line curtail some of his choices. The appellant was not compelled to take up the profession of law and its attendant compulsory membership of the Nigerian Bar Association. However, once he made the choice to study and practice law and thereby placing his name on the roll of honour of belonging to the profession, he stands bound by the internal rules and regulations of the Association..."

Omo-Agege as an individual has fundamental rights to freedom of association and expression but as a senator those rights are curtailed by the Rules of the NASS. No law maker is compelled to remain in the NASS if he/she disagrees with those Rules. The Rules stands until amended or removed by the majority of NASS members. No single law maker can decide to ignore or rubbish those rules without attendant consequences.