What will it take to get proportional representation in Nigeria?

As I listened in on the discussions of a committee of Harvard Law School students planning for an African Law conference in April 2010, I was surprised to hear that apparently there are some who are of the view that law plays little or no role in development. I volunteered that it would be interesting to have a debate about that. But I kept thinking about the role of law to ‘develop’ a society, community or country or even the role of law in influencing and changing culture – such as the way Mary Slessor’s work in Nigeria made it illegal to murder twins. The way we now practically worship twins and multiple births, and pray ‘ibeji’ and ‘ibeta’ for brides, no one would guess that less than one hundred years ago we rejected this as a blessing.

Nigeria does badly in many indices: our democracy and press under the Freedom House list; our corruption under Transparency International, the ease of doing business by the World Bank, our ability to achieve the Millennium Development Goals, our literacy rates, our infant mortality, our maternal mortality, on and on ad infinitum.

When asked what holds us back many people say corruption, however, and not in any way to trivialize corruption, politics in the United States is highly corrupt (it is just effectively isolated from the provision of basic services and development policies) and there are other parts of the world such as South Africa and Italy, where there is corruption, but things still work and they are not lagging behind on almost every development index.

There are other things that hold us back, including our laws. What the laws say, what they are about (National Assembly do we really need: HB. 182 A Bill for an Act to Establish the National Institute of Nigerian Philosophers and to Make Provisions for Determining the Standard of Knowledge and Skill to Be Attained by Persons Seeking to Become Professional Philosophers and for Other Connected Purposes?) and whether the laws are practical and enforceable and if there is the will to ever enforce them.

As we prepare for the 2011 elections and discuss the changes to our Constitution and the Electoral Act one thing that keeps coming up is having a system of proportional representation – for women, the physically challenged and other unrepresented minorities. Think of a better more realistic version of ‘federal character’ where we would make sure that our legislature actually reflects the ‘Nigerian character’ – which is almost 50% women. Today, women make up only 7.0% of the House of Representatives (hardly representative) and 8.3% in the Senate, making us 116^th out of 136 on yet another index. (http://www.ipu.org/wmn-e/classif.htm).

To put this in perspective we are only a few points above Somalia in terms of women representation in parliament and below, the Congo and Sao Tome & Principe. Two out of the first three countries in the world with the highest female representation are African: Rwanda has overtaken Sweden as number one with 56.3% and 34.6% in its lower and upper house respectively and South Africa is third highest in the world with 44.5% and 29.6% respectively.

Apparently, part of the Uwais Report on electoral reform, which to my knowledge has never been made public in its entirety, recommends that we adopt the proportional representation system which is designed to ensure that the legislative body reflects the voting strength of the electorate. However, the recommendation is not to amend the constitution but to amend the Electoral Act to force parties to reserve 30% of their seats for women (and 2% for those with physical disabilities), without prejudice to the right to also compete for representation outside this reserved seats- so that arguably, women could have more than 30% representation. This is the election law quota option.

There are two other avenues to using law to improve female representation. One is with constitutional quotas – where the constitution expressly reserves seats for women in the national law making body, as is the case in Burkina Faso, Uganda and Rwanda. After the genocide in Rwanda, women’s participation in the drafting of the new constitution resulted in a provision which reserves 24 out of 80 in the lower house and 6 out of 20 in the Senate. This means 30% of the seats is firmly held for women and they can vie for more.

The other is through political parties which is the system used in South Africa, where after years of apartheid, the ANC reserves 50% of its candidate lists for women and now they are ahead of us on this and many development curves, even though we arguably have more experience as a democracy give or take a few coups. In the political parties quota system, the political parties adopt internal laws which reserve a certain percentage of positions for female candidates – and with the ANC being the most popular party, this has resulted in increased women representation across the country.

It is widely acknowledged amongst development specialists that the inclusion of women, who usually make up half or more of the population, in decision making and their involvement in public and private enterprise improves the development indices of a country. This is the major thesis behind the push to educate females, provide financial independence through micro financing and provide platforms for greater participation.

The practice of proportional representation is not without its drawbacks. In Pakistan, where local government reform mandates 33% representation of women, most of the women elected, when interviewed, confessed to being mere proxies for husbands, male relatives, heads of clans or even landlords and forced to vote based on instructions from these people. And there are rich countries like the United States with only 10% female representation or some, like Nepal, with high female participation who continue to struggle with development.

Proponents of proportional representation are not saying that increased women representation will lead to immediate improvement in our physical, mental and cultural development. It took Sweden thirty years of practicing proportional representation to get where they are – but today Sweden has one of the best standards of living in the world according to the Human Development Report and some of the reasons are their high levels of education, democracy, income and public health.

Nigeria has nothing to lose if we legally adopt proportional representation in any one of the three available options. The same way we now see value in multiple births is the same way we will see the value in increased participation of women in governance.

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Can we decentralize Power generation?

I read with glee that last week between 5000 -10,000 people in Lagos marched to the Lagos State Secretariat to peacefully protest the crippling lack of power in Nigeria. Just a few months ago, angry youth in Zaria had protested about electricity as well. Hopefully the manufacturing sector and private businesses will join in the clamour for something to be done about the disgraceful lack of power in the blind giant of Africa.

I read with gloom that another $4.6 billion as been allegedly spent on power generation this year – this in addition to the controversial $16B which we are told is really $3.6 billion, spent by the Obasanjo administration on the same power sector.

And yet, by all indications it is doubtful if we will get as much as 4000 megawatts by the end of 2009.

As I pointed out in a previous article – ‘PHCN get rid of your freeloaders’; apart from the all pervading selfish interests of a few Nigerians, the problem lies with the Electric Power Sector Reform Act 2005 (the ‘EPSR Act’), the 1999 Constitution and the National Electricity Regulatory Commission (NERC).

States have a right under the Section 14 of the Concurrent List of the 1999 Constitution to generate electricity for areas not covered by the national grid but Section 63(1) of the EPSR Act deliberately restricts this right by requiring State power projects to be licensed by NERC.

Why? Why is it so important for the Federal Government to maintain control over State production of electricity? Why did the Obasanjo administration scuttle the efforts of Lagos State to independently power the State? Could it be because if States take control of power generation it will become glaring to Nigerians that the lack of power that we suffer from is not for lack of solutions but for lack of will?

We know that the Federal Government does not have a monopoly over the process of power generation, so why do the executives act like it does? The Wall Street Journal recently reported that the Bonny Utility Company funded with only $5million dollars in 2001 by Shell, Total, Eni and NNPC has managed to provide its customers with power 95% of the time. According to the article: “clients get power free of charge, up to a certain limit…and now has over 8000 paying customers. The revenue from paying customers covers half of the company’s costs and has created previously impossible public service and commercial opportunities, including a doubling of operations at a hospital”. Since 2005, a similar arrangement is supposedly benefiting the forty thousand people who live in Onelga, in Delta State and more and more of these independent power projects are being executed – badly when government is involved and successfully when managed privately.

The crux: decentralize power generation in Nigeria. As the National Assembly gears up to finally tackle the issue of constitutional reform, at the top of their list should be to give States more constitutional powers. The Federal Government has had close to fifty years to get power (and many other things) right and has failed.

Instead of the ridiculous collaborative arrangement where the Federal Government, States and Local Governments are to contribute billions of dollars from their Excess Crude allocations revenue accounts to the rehabilitation of existing power plants and new power projects under the National Integrated Power Programme (NIPP), why don’t the States get a chance to manage power generation instead of the constant excuses we get from the FG, its Ministry of Power, PHCN and most recently, NERC? Are the States and Local Governments also going to be involved in awarding the contracts and appointing the people who are going to be responsible for executing the projects?

One of the reasons for federalism is to aid development, yet our Constitution has helped to cripple the States so that they are ineffective. From all indications, one of the main issues for consideration for the constitutional review is the creation of more states. Arguably at least one reason why the clamour for more States is so loud is because people are frustrated with the lack of development and think that if every hamlet was a capital and every chief a governor, development will magically appear. What we need is States with more powers – ironically since we model ourselves on the American presidential system, why are we not considering the United States Constitution, which gives the States a lot more power and independence than our States have?

Competition within the States and most critically, at least for now, within the power sector is absolutely vital for the development of Nigeria and Pastor Sam Adeyemi, the organizer of the protests in Lagos sums it up nicely: "We call on the Federal Government to break the monopoly of the Power Holding Company of Nigeria and allow private investors and state governments to generate and distribute electricity. The strategy that worked for telecommunications should be made to work for power supply."

If we amend the Constitution to allow States to generate electricity, we can also simultaneously privatize PHCN and reduce the bureaucracies of having NERC and a Federal Ministry of Power. The difference under this scenario is that Nigerians will not be held to ransom if the usual privatisation process results in the NITEL or petroleum refinery scenarios.

Like anything there are disadvantages to providing the States with more power but the benefits outweigh the risks and at this point in our history, shouldn’t we be ready to try something different? I can predict the naysayers who will talk about uneven development but this is just an excuse for mediocrity – our development is uneven, both within and outside the country. If competition between the States and within the power sector will result in more electricity for consumers, most Nigerians will support this – after all, the majority of us are not benefiting from the inefficiencies of our power sector.

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Creativity in Communication - Dora borrow a page

'Tings Dey Happen' is a story about the Niger Delta oil politics - and is set to be performed in Lagos, Calabar, Abuja, Jos and Bauchi. Ironically, it is not being sponsored by our re-branding and miscommunication guru in the Ministry of Information but by the US State Department. So much for being in control of our content.

Please go and see it and let me know what you think - I am hoping it will come and show in Boston.

To find out more Google 'Dan Hoyle + Tings dey happen'

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Are our child custody laws up-to-date?

When Asabe left her husband for her father’s house with her eighteen-month-old son, she did not realize that leaving her marriage meant she would have to give up her baby. One late afternoon, a few days after she left, her mother –in –law came to visit. After the usual pleasantries, and as she held her grandson in her arms, Asabe’s mother in law informed her that it was okay for her to leave her husband, but she could not take their son away. She walked out the door with the baby and it was many years before Asabe would see her son again.

In March, hidden away on the pages of a little known newspaper was a story of a Nigerian woman who died while struggling to retain physical possession of her four-year-old son. According to eyewitnesses, the child cried as both parents tugged at him, until the father won with one final push and walked away with the child and the woman’s life. This couple had four children, two had died and the husband had possession of the third.

How many women in Nigeria have illegally lost possession of their children just because their marriages have ended either by them or for them? How many of these cases are ever reported? And in how many of these cases, even when civil and customary laws dictate that these children are better of with their mothers, does the social structure support this?

The Matrimonial Causes Act 1970 is applicable to all child custody cases including children borne out of civil, customary and Islamic marriages and provides that in all custody matters, ‘the interests of the child shall be paramount’. This predominance of the child’s right is also echoed in the Children’s Right Act 2003, but how do we decide in a patriarchal society what the ‘interest of the child’ is, especially when that child is a minor? This becomes even harder when the Matrimonial Act is silent on what the interests of a child are, does not define the word ‘minor’ nor take into consideration the special treatment that minors need.

So who gets custody of the child where both parents are fit, willing and capable?

In Nigerian case law, we see judgments where the courts try to make the interest of the child paramount, however, what is in the best interest is sometimes subjective and personalised. In Odogwu v. Odogwu, Justice Belgore, JSC (as he then was) said, ‘the welfare of the child is not in material provisions of the home such as…food and air conditioners…it is psychologically detrimental to his (the child) welfare and ultimate happiness and psychological development if maternal care, is denied him’. In this case each time the father, who had illegally abducted the children, was asked by the lower courts to return the children, he would use the legal process to stall by filing for a stay of execution. The problems with going the legal route in child custody cases are; the time it takes, the inability of most women to afford the cost and the unenforceability of judgement. So most women just walk away with no recourse to justice or equity.

Islamic jurisprudence is more detailed in custody issues because the injunctions are relatively clear with several categories for determining minors. However, and this is a big however, the clarity ends when the different schools of interpretation are taken into consideration. Under Maliki Islamic jurisprudence, which is what majority of Nigerian Muslims adhere to, children under the age of puberty stay with their mother. In fact, female children stay with their mother until the time of the child’s marriage while male children stay with their mothers until puberty. Going further in attesting to the importance of the mother in a child’s life, even when a Muslim woman cannot be granted custody, seven variations of custody lie with her family before the father’s family comes into the equation – again something that rarely happens. Again the subjectivity of man comes into play in the male led Sharia courts, so that the reputation of these courts is that the Alkalis are often unwilling to apply the law of the Quran ‘against’ our patriarchal culture.

Apart from the culture of patriarchy, the other reasons why women lose possession of their children is because they are economically disempowered and lack access to information about their rights under either customary (Islamic) or civil law.

Unfortunately there is little under Igbo and Yoruba customary law that supports a mother’s right to her children. Amongst the Yoruba the children belong with the father and custody will usually be granted to him. According to research, within a certain group of the Yoruba, the paternal grandmother names the children, setting the stage for ‘ownership’ of the children. Ironically, in a society where all the failings of a child are ‘blamed’ on the mother, a tacit admission of the importance of the role, our society insists on separating young children from their mothers.

With thirty seven ‘ministries of women’s affairs’ and countless non governmental organisations all focused on promoting the welfare of women and children, information on child custody issues and where to go for help and advice is sadly lacking. Baobab, a women’s human rights organization, has some relevant information but this is hidden inside annual reports and there is no information on the website on the legal position on child custody. Collating custody cases and judgments is the ideal place for law, data and public policy to merge; with the judiciary and NGOs’ feeding the information into the ministries and the ministries using this data to ensure the right policy is implemented.

As usual, the Nigerian legal and political system is not set up to protect the rights of women and children. We missed the opportunity to use the Children Rights Act to close the gaps in the Matrimonial Causes Act. Now women, not only in the judiciary and legal profession, must begin taking collective and individual responsibility for protecting one of the most fundamental rights of a child – the right to a mother’s love.

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Using 'law' to prevent change

Recent debate in the media, following Dr. Chudi Nwike’s report on corruption in the civil service masks a deeper malaise. There are several things wrong with our civil service and corruption is only one of them.

Imagine you have just been appointed a minister. Nigeria is lucky to have you, a technocrat from the private sector with the relevant experience for that particular ministry. You start full of lofty but realistic plans; maybe you have even written a couple of papers on reforming this sector or worked as a consultant providing expertise to governments at home and abroad. Six months later nothing has happened. One year later still nothing has happened. Why?

Many things happen to people when they assume leadership positions but one particular and consistent thing which ensues to most well meaning Ministers in Nigeria is the ‘civil service’. Apparently a common tactic of civil servants to destabilise a new minister is to bombard them with useless information and all sorts of imaginary or exaggerated emergencies. Of course when you start running around trying to douse phantom fires and get a grip on the convoluted rules and procedures, you begin to loose focus of your goal. All this while, the most relevant information is kept from you by these career civil servants who are supposed to be there to provide administrative support in the implementation of the Ministry’s strategy.

For too long we have presumed that leadership was the major problem in Nigeria. Fortunately, a Presidency characterised by an absence of leadership is allowing us to focus on where our problems lie. We, the ‘followership’ are a clog in the wheel of development. Everyone knows a civil servant – our fathers, mothers, siblings and friends are all in the civil service…and these are the same people who are holding us back.
This problem, of course, is something we should be well acquainted with from the Udoji Commission’s recommendations in 1974, to the Onosode Report of 1981, to the Dotun Phillips-led work in 1988 and, more recently with the public service reform work of el-Rufai, we have been repeatedly told that the federal and state civil service is fundamentally politicized, corrupt, demoralized, inefficient and pays scant regard to notions of service delivery.
The common factor over the years, as soldiers come and soldiers go; PDP comes and NPN goes, is a woeful civil service remarkably resistant to change.


The Civil Service

Civil servants are traditionally considered as neutral bastions of administrative efficiency meant to provide support to governments. The idea is to maintain a level of permanence and expertise in any political system so that despite the changes in government or government ideology, stability in implementation remains. All over the world however, the civil service has become the butt of jokes about mediocrity and the use of bureaucracy in the worst sense of the word to obstinately resist change.

As bad as the civil service is generally considered to be, Nigeria must have one of the worst in the world. There are several things wrong with our civil service and corruption is only one of them. In 2005, as el-Rufai attempted to kick start the reform of the public service using the FCT Ministry as a pilot case he listed the problems of the civil service as: poor service delivery, bloated service with duplication of functions, manual processes, poor compensation, inadequate skills and absence of training. I think we can add another one: attitudinal and functional bankruptcy.

Because only attitudinal and functional bankruptcy would explain the years of civil servants systematically scuttling all attempts to make things work in Nigeria. Every time a discussion about civil service reform starts, the civil service preservation army begins its tactical manoeuvres to ensure things stay the same. They constantly raise concerns over Murtala Mohammed’s attempts in the 70s to whittle the civil service: it resulted in the corruption we see today because those who were compulsorily retired were not prepared. In other words, civil servants now help themselves to public funds because they can be retired at any time. While this may to some extent be true, a more systemic problem exists: the rules that guide civil service operation often serve to entrench the dysfunction that prevails. One case in point: the civil service rules make it almost impossible to fire a civil servant even when a minister finds the person incompetent or deliberately obstructive.

According to a member of the service ‘civil servants cannot be sacked’. ‘First the person needs to have at least four queries (which obviously cannot all happen within a week). After four queries, the issue goes to the Head of Service for an investigative and hearing process which can take months and even then the civil servant does not leave the service but is redeployed to another ministry and…even worse, you have no say on who replaces the civil servant you have just managed to get rid off.’ Section 171 of the 1999 Constitution specifically provides that only the President can appoint or remove civil servants ranking from permanent secretaries and above. An anecdote which might be more indicative to emphasise what is wrong with the civil service as opposed to being the truth is that a head chef in the staff canteen of one of the ministries which moved to Abuja was left behind in Lagos. Despite years of doing nothing in Lagos, he gradually rose to the grade of a director and was then posted to the Ministry of Justice…hopefully to the canteen.

Conclusion

The reason why a strong and efficient civil service is so important is because when we have a bad government or ‘no government’ as it seems like in the case of our current Servant Sleeper, then the business of managing the day to day governance of the country will continue. Ironically, these masters of self preservation have set up another civil service agency: the Bureau of Public Service Reform with an impressive website and a long list of achievements including the establishment of EFCC, ICPC, and budget and financial management reform. However the review of the Service in 2002 posted on the BPSR website, indicates that some of the issues were: (i) an aging population with 60% at 40 years old and above; (ii) 70% of the staff are unskilled (iii) a prevalence of “ghost” workers and (iv) 60% of Federal Government spending deployed to servicing this bureaucracy.

None of the listed achievements of reform so far have tackled these issues and Section 171(3) of the Constitution compounds the problem by insisting that the Head of the Civil Service must be appointed from the civil service pool. If over 70% of the civil servants are unskilled then what are the probabilities that the Head of Service will be fit for purpose?

While we struggle to get good leaders elected we also need to work harder to ensure these leaders have the support they need to succeed. We need to totally overhaul our civil service and rewrite the rules that underpin it.

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How can we use the law to create change?

John F. Kennedy said ‘those who make peaceful revolution impossible will make violent revolution inevitable’. If Nigerians continue to be passive about changing the affairs of State, change will come violently.

A few weeks ago the youth in Zaria protested the fact that they had not had electricity for weeks and what started as a peaceful protest turned violent. According to news reports, their anger and frustration spilled over to their conditions in Sabon Gari Local Council and they attacked the convoy of Governor Sambo of Kaduna State who was there to commission some projects.

Earlier, in May, the citizens of Borno State showed their displeasure at the governance of their State by throwing stones and sand at the Governor’s father who is alleged to be a strong influence on him.

Now we are embroiled in a full scale war in the Niger Delta which has been a long time coming, with years of litigation, Oil Mineral Producing Area Development Commission (OMPADEC), petitions, executions, the Niger Delta Development Commission (NDDC), protests, the vandalisation of pipelines and oil producing equipment, kidnappings, Ministry of the Niger Delta, murders and now the end…after all it cannot get worse than this. Or can it?

For over six months, the Pedestrian Lawyer has tracked some of the atrocities done in the name of law, by lawyers, law makers and law enforcers and the impact on Nigeria’s socio – economic and political pulse. Slowly a consistent pattern has emerged from the response. Many readers say, “Thanks for the information, entertaining as well as enlightening but now what? What would you like us to do?” Good question but no one answer. Law is not magic…law cannot change the way people behave and create change but people can use the law to change the way people behave and create change.

I think if things are going to change in Nigeria, then the leadership has to change. If the leadership is going to change in Nigeria then the quality of those who participate in elections and serve in public office has to change. If the quality of those who participate in elections is going to improve then the electoral process has to improve. For the electoral process to improve we have to have people in the executive and legislature who have the will to make changes to the electoral law and process. If we are going to have executives and legislators with the will and decency to make the necessary changes to our electoral law and process then we have to have the right people in these positions of leadership…which brings us back where I started: for leadership to change, the quality of those who participate in elections has to improve.

So my response, to those who want to know what we can do, is: if you think you have what it takes and mean well, then run for political office. 2011 is around the corner and our newspapers are filled with reports of the preparations of those who currently have the controls of the bus and are driving the country closer to a precipice to retain their hold on the steering wheel.

The first step in the journey to gain some control over our country is to register a political party under the provisions of the 2006 Electoral Act.

First incorporate a limited company in the name of the political party and register the party at the Independent Nigerian Electoral Commission (INEC) at least six months before elections. Since we do not have the 2011 election timetable, register at the latest by June 2010. Upon submission of all the documentation and fees required you will receive a letter of acknowledgement; keep it safe. If thirty days after you submitted the registration application you have not been registered by INEC, Section 78(3) says if the party meets all the conditions of the 1999 Constitution (Sections 221-229) and the Electoral Act, then the party shall be considered as registered. This is tricky – look out for INEC using this presumption to trip you up later. Some of the constitutionally provided conditions to party registration include adhering to federal character in the composition of the party officials and having the head quarters of the party in Abuja. If INEC refuses to register the party, party promoters have only thirty days from the receipt of the letter of notification to challenge the decision in court.

Avoid those who come late in the game to preach consolidation of resources because a potential landmine could be a merger with another party which INEC must approve and must be notified of at least six months before elections.

Once registered there are other rules for political parties to adhere to such as not holding funds or assets outside Nigeria and providing INEC with records of election expenses and twenty one days notice of any party conventions for either the election of party officials or the nomination of candidates.

On party financing it is interesting that the Electoral Act recommends the maximum amount to be spent by candidates in the elections: five hundred million naira for presidential elections, one hundred million for gubernatorial elections, twenty million for Senators and ten million for members of the House of Representatives. No wonder politics is a duel to the death in Nigeria, anyone who has ‘invested’ this much in winning an election will want to secure the investment and ensure it yields competitive dividends. Parties are also supposed to refuse anonymous donations and disclose donations of one million naira and above.

Once registered, you can start campaigning, raising campaign funds and trying to raise the awareness of your constituents and your target audience. A million and one underdog stories abound, most recently and amazingly, the story of Obama.

A sad truth is that getting involved in elections is risky, especially if you want to do it the right way; without political godfathers and dancing in shrines. Apart from possible financial ruin, mental and physical upheaval and the strain it will place on your relationship with family and friends, there is the very real danger of paying the ultimate price as Funsho Williams and many other Nigerians have done.

However, the alternative which is to do nothing but keep grumbling to ourselves and prepare our children for a future outside their country is not acceptable. Why? Because all those risks and dangers listed above are already being lived by those in the Niger Delta. Because the violence we fear for getting involved, might still probably come because we did not get involved.

Despite Ekiti and the lip service being paid to electoral reform by the current government, I feel encouraged by the judiciary to think the 2011 elections could be the start of the change we all want. If the judicial renaissance and independence we have witnessed over the last two years, starting with the Supreme Court decisions in the Ladoja impeachment case and Amaechi vs. PDP, continues, then there is hope. But this hope lies not only with the judiciary but with believing individuals who start this journey and who must continue to the identified destination. The Supreme Court judgement would not have been possible if Amaechi had given up his mandate and knowing Nigeria, the pressure must have been immense for him to do so. We have to keep working within the law and the processes which guide us and then, only then can we truly understand the limitations, appreciate the weaknesses and then make the changes that we need before change is forced on us.

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Why Would Obama Come Here When Doing Business is getting harder?

The discussions about why President Obama is visiting Ghana in July and not Nigeria are quite amusing, almost as amusing as President Yar’adua’s bewilderment about Nigeria not being invited to the G20 Summit. Wole Soyinka reasonably irked by the discussion, and when asked about it recently, said that he could stone President Obama if he graced Nigeria with his presence. A few days later there was a public response from the Presidency regarding Soyinka’s remarks. According to Ambassador Jibrin Chinade, Special Adviser to the President on Foreign Affairs, “It’s most unfortunate that a prominent citizen like Soyinka seized the opportunity…to attack his country…for somebody to speak at an art exhibition to say nothing else than to denigrate himself and his country that has done a lot for him is unfortunate and highly embarrassing.”

Apart from being slightly amused at the thought that Soyinka’s comments would have been okay if Nigeria had not done anything for him, I was more interested in understanding if Chinade deliberately missed the real issue behind Soyinka’s comment, or if he was pretending not to see the elephant in the room.

The issue is: why is Soyinka angry at the thought of President Obama coming to Nigeria? What is the reason for this outburst from a man who, while we acknowledge is no fan of most of our leaders, we can presume, like most of the world is a fan of Obama?

Because coming to Nigeria would be tantamount to a stamp of approval for the Nigerian government and the direction in which they are steering the country. Because coming to Nigeria would be like saying, Nigeria is doing well and this is a country to be associated with. Because coming to Nigeria would validate the state in which we find ourselves: total collapse of infrastructure and social services, war in the Niger Delta, rampant corruption amongst public officers and consistent violation of the electorate and electoral process.

But that is not the end of the story. If this story was unique to Nigeria which it is not – we only need to look at Zimbabwe and other war torn countries such as Angola and Sudan to find similarities with the situation we are in, then it makes sense that Obama would want to go to Ghana. Because Ghana is everything we are not. Ghana is a shiny example of a West African country which has turned itself around and is doing well.

Forget the more recent examples of Ghana outshining us with their free and fair elections or even the fact that more and more Nigerians are moving there or going there for their holidays, let’s use just one measure of comparison: doing business.

For the past six years, IFC and the World Bank have conducted and published a global survey ‘Doing Business’ on the regulatory reforms that make it easier to do business around the world. The Doing Business project is based on the efforts of thousands of local business consultants, lawyers, accountants, and government officials along with leading academics around the world that provided methodological support and review.

On May 21st 2009, Business Day ran an article with the heading ‘Again, Ghana Beats Nigeria in Business Competitiveness. The first line in the article was: ‘Once again, Nigeria could not earn a mention in the 2009 global survey on regulatory reforms…Ghana adjudged the best place to do business in West Africa.’

This could end the discussion on why Obama would be more interested in Ghana than Nigeria: Ghana is doing better. Out of 181 countries surveyed for the 2009 report, Ghana ranked 87th while Nigeria ranked 118th. For the past three successive years Ghana was one of the worlds’ best reformers of business and the best in West Africa. This year, three African countries, Senegal, Burkina Faso and Botswana were amongst the world’s best 10 reformers. Senegal which moved nineteen places in a year to rank 149th in 2009 made reforms in starting a business, registering a property and trading across borders. In starting a business, Senegal started a one-stop shop that merged seven start-up procedures into one and the time required to start a business fell from fifty eight days to eight.

The ten things which are considered in the ease of Doing Business are: starting a business, dealing with construction permits, employing workers, registering property, getting credit, protecting investors, paying taxes, trading across borders, enforcing contracts and closing a business.

So where does Nigeria lie? Although the average income of Nigerian citizens (GNI per capita) at $930.00 is higher than Ghana at $590.00, our business processes are not better. When it comes to registering property, Nigeria holds the dubious position of being one of the most expensive and being one of the most regulated at 176th. We are also at the bottom of the list when it comes to paying taxes (120th), trading across borders (144th) and dealing with construction permits (151st).

One of the reasons why we are doing so badly with registering property is the outlandish Land Use Act of 1978 which requires Governor’s consent for property transfer. Some states have been smart enough to delegate this requirement while others hold on to it for reasons that most likely cannot be held up to scrutiny.

Unfortunately, most of these criteria used in ranking the ease of doing business are linked to the legal profession. Lawyers, judges and regulators have the power to do something about how long it takes to do business in Nigeria. For example with enforcing contracts, courts which have implemented the new High Court rules such as Abuja, Kaduna and Lagos are doing better already.

The solutions to these challenges lie with our laws and regulations. Was Nigeria’s ‘doing business’ rating a topic at the Section for Business Law conference in April? If it wasn’t then it should have been and if it was, what are the next steps?

Equatorial Guinea, a small country of only 700,000 people opened a liquefied natural gas facility two years ago which already exports over 3.7.million tonnes of LNG while Nigeria with a capacity to do a lot more, continues to flare and waste its gas. Considering the importance of energy to global politics and economy, if President Obama decides that his next visit to Africa will be to this small country, I hope no one will wonder why.

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Cadbury, AP, Dangote….Time to Up Our Corporate Governance Game

The ex Director General of the Nigerian Securities and Exchange Commission (SEC), Al-Faki announced last month that a new corporate governance code for quoted companies would soon be released; and not a moment too soon. Considering that the Cadbury scandal happened in 2005, it is a disquieting that regulators did not do more to put a stronger corporate governance structure in place for Nigerian companies and their investors. Not long after the Enron and Worldcom scandals the United States enacted the Sarbanes-Oxley Act in 2002 to block the loopholes in company reporting standards and improve corporate governance by amongst other things, enhancing conflict of interest provisions for directors and managers and asking directors, officers and 10% owners to report transactions within two days.
However, here we are, embroiled in another corporate scandal with the alleged manipulation of the AP share price and the Independent Shareholders Association of Nigeria screaming blue murder because according to it “the management of the truth of the AP insiders trading by both SEC and NSE calls to question the moral latitude and commitment of the, board/council to the overall interest of more than10 million shareholders in the Nigerian Capital market who have been and continue to be short-changed”.
Maybe a more robust corporate governance framework would have helped in mitigating the losses being incurred by the shareholders of AP and possibly other shareholders we are not aware of. Ideally, the share price of Dangote Flour and Sugar should fall too considering the shenanigans of its chairman who has fingers and toes in too many pies.
Prior to 2003, the standards of corporate governance for public companies in Nigeria were set by SEC which is charged with monitoring and controlling the issuance of securities in Nigeria under the Investment and Securities Act 1999; the Corporate Affairs Commission (CAC) which regulates all companies incorporated under the Companies and Allied Matters Act 1990; and the Nigerian Stock Exchange, which regulates and monitors the trading of securities in the Nigerian capital markets.

Publicly listed banks have additional requirements being under the supervision of the Central Bank of Nigeria by virtue of the CBN Act 1991 and the Banks and other Financial Institutions Act 1991. Informally, the board of directors of banks are also monitored and regulated to a lesser extent by the Nigerian Institute of Directors.

In 2003, one more layer of corporate governance compliance was added when the Code of Corporate Governance was published: a joint initiative of SEC and CAC to improve corporate governance practices because they realized ‘the need to align with corporate governance international best practices’.
With all this regulation, investors in publicly quoted companies should be safe from the kind of manipulations Cadbury and AP have undergone. With Cadbury, it was only after an internal review by the Cadbury parent group showed that its Nigerian subsidiary had overstated its account by 13.25 billion naira that an official enquiry by SEC was launched. And with AP, it was allegedly not until Otedola took out full page ads warning shareholders of stock manipulations by his close friend Dangote that the NSE realised that something fishy was going on. Maybe this cluelessness is not unrelated to the fact that Dangote is also the first Vice President of the Council of the NSE. With our reputation for corruption, who thinks it makes good sense to have majority owners of public companies also regulating the stock market?
Obviously there were a lot of weaknesses with the 2003 Code which is why a mere five years later, a committee was inaugurated to review it. One major weakness which the new Code will hopefully address is on the composition of the board. While international best practice is to have more non executive (independent) directors on a board, our 2003 Code did not mention this but merely recommended a mix of executive and non executive directors.
For instance, South Africa’s 2001 King Report on Corporate Governance which companies listed on the Johannesburg Stock Exchange must comply with, states that ‘the board should comprise a majority of non-executive directors, preferably comprising a majority of non-executive directors”. Unfortunately neither the Investment and Securities Act, nor the listing requirements of the NSE and CAMA have anything enjoining a board to have majority non-executive directors. On the composition of the board, CAMA restricts itself to excluding those who are under 18, insane and bankrupt and, without making any distinction between public and private companies, recommends that boards have at least two directors.
The contents of the new code of corporate governance have not been released, so until then Nigerian companies continue to be held to the existing watery standards of corporate governance. It is interesting that although corporate governance has been a global buzz word within business circles, our public companies (and of course private companies) seem totally oblivious of the need to incorporate best practices. When Oando Plc was listed on the Johannesburg Stock Exchange in 2005, I thought it meant Nigerian companies would start paying more attention to corporate governance because of the high standards set by other stock exchanges. Sadly this has not been the case. While in terms of business aggression and sharp tactics there would be little to differentiate Nigerians from Indians and vice versa, global companies like Infosys at least pay lip service to corporate governance best practice by providing information which proves they have more non-executive directors to ensure the independence of their board and details about their remuneration. The results of a random search of some corporate websites show that Dangote Group, Zenith Bank, and Access Bank provide no information about their corporate governance framework. GT Bank had a little more than the others but did not go far enough. Why? Is it because Nigerian shareholders are passive about enforcing their rights or because we do not have a culture of holding those in authority accountable? Between January 2005 to August 2005, the same year Cadbury’s fraud was exposed, Nigerians invested approximately Two Hundred and Forty Billion Seven Hundred and Seventy Seven Million Six Hundred and Twenty, Five Hundred and Ninety Six Naira (N240,777,620,596) in the capital market by buying shares in publicly quoted companies on the Nigerian Stock Exchange...isn’t it time to ask those we invest so much in to maintain higher standards of transparency and corporate governance?

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Ayoka Adebayo and the Right to Resign

As the Ekiti story unravels, along with different strands of rumours and theories, one particular dangling angle has continued to alternately amuse and nag. In Guardian’s lead story on April 29 2009, following the alleged resignation of Mrs. Adebayo, the Resident Electoral Commissioner for Ekiti State, it was reported that the Federal Government had rejected Adebayo's resignation and ordered her to report to INEC office or the nearest police station. This was cause for amusement.
In the article, the Minister for Information and Communication, Prof. Dora Akunyili said that “the purported letter from all indications is intended to undermine and discredit the government, the government rejects the letter of resignation written by Mrs. Adebayo as there was no evidence that she was impeded from carrying out her statutory assignment functions". Now this was cause for alarm.
The alarm was because it just did not sound right to me that a person could not resign from a job if they wished to. What I had learned in general employment contract law was that no employer could bind an employee to labour. However, there could be conditions attached to leaving a position such as restrictions against working for competitors, requirements that an ex –employee could not work closer than a specific radius to the ex-employer or even conditions not to take ‘clients’ or ‘customers’ of the employer. The thought of an out right negation of the right to resign was just foreign and dodgy. This feeling was not helped by Prof. Maurice Iwu’s enlightenment on the legality of Mrs Adebayo’s resignation. According to him, “INEC Commissioners are appointed according to the nation's constitution and can only be removed by the President acting on an address, supported by the two-thirds majority of the Senate showing that he or she be so removed for inability to discharge the functions of the office whether arising from the infirmity of mind or body or any other cause or for misconduct”.
If by this assertion he was suggesting that the only way a person could leave a public job provided for under the Nigerian Constitution was by the literal interpretation of the removal clauses, then such thinking is scary in its deliberate intent to misconstrue. Typically such provisions are to secure the independence of the person(s) holding such public roles; to ensure that they can stand up to those in power who are prone to abuse this power and not have their jobs threatened. To turn around and use this protection against interference as the basis to deny such officers the right to resign seems so Machiavellian on one hand and simply retarded on the other.
If the President of Nigeria can resign as provided for in Section 135 of the 1999 Constitution, how can Prof. Iwu’s theory that Mrs. Adebayo cannot resign her position as a public officer in a constitutionally guaranteed role be correct?
I was so sure I would not find anything to support Iwu’s position and as I scoured my usual resource; the internet, for a copy of the INEC law, I got more confident especially after I found it on the INEC website (www.inecnigeria.org). However when at 12.30am only 9.8MB of the 51.81MB had been downloaded; I gave up – so it remains a mystery to me what the law says about national or resident commissioners resigning.
What I did learn from other jurisdictions, specifically, New York is that the resignation of a public employee is not necessarily effective immediately – depending on the terms of employment, there might have to be express or implied acceptance of the resignation. For instance, in Vinuluan v. Doyle, a US appellate case, the court had to prohibit the criminal prosecution of a group of nurses who had resigned en masse despite the fact that their employment contract said they must remain employed for three years with liquidated damages (penalties) of $25,000 if they broke the contract. The employers felt they had a right to sue but on the basis of the Thirteenth Amendment (abolishing slavery and involuntary servitude), the court denied them this right.
So the same principle (regardless of what Prof Iwu thinks and whatever provisions might be in the Electoral Act 2006) arguably applies to Mrs. Adebayo. Under Section 34 of the 1999 Constitution, no Nigerian shall be held in slavery or servitude and no Nigerian shall be required to perform forced or compulsory labour.
Another New York law for Public Officers provides for semi automatic resignation which is expected to take effect either upon delivery to the appropriate authority or thirty days after the delivery. The latter requirement shows that a resignation by officers covered by this law would not be effective immediately. This means that if this was what the Electoral Act provided for in terms of its employment of Resident Electoral Commissioners, despite her resignation, Mrs. Adebayo would still have been bound to finalise and tidy up the elections in Ekiti (provided that the election engineering would have been completed within the applicable time).
If the law regulating the employment of RECs, was substantive and known to the parties concerned then Nigeria might have been spared the embarrassing debacle of some of Nigeria’s senior government officials (the Inspector-General of Police, Mr. Mike Okiro, alongside the Minister of Information and Communications, Prof. Dora Akunyili, and Iwu) blithely stating that the resignation of Mrs Adebayo had been rejected without providing proper legal reasoning for this rejection.
The important lesson for Prof Iwu, President Yar’adua and the PDP ‘machine’ is that as they should take advantage of the proposed review of the Electoral Act to ensure that the terms of employment of INEC officials includes provisions which make it hard for them to resign before their responsibilities have been executed. Their responsibilities could even be transferable to their next on kin in the case of their untimely death.
The other lesson is for draftsmen and policy makers: to remember that law can be used to help us navigate tricky and sometimes implausible situations but because our laws are rarely well drafted and even less well thought out we continuously find ourselves at the brink of anarchy – ironically, when we are supposed to be adhering to the rule of law.

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Why Do We Still Hoard Information?

James Garfield, the 20th US President said, ‘the truth will set you free, but first it will make you miserable’. No statement could be more apt to describe what might be the struggle for those opposed to a Freedom of Information law in Nigeria. They know that the truth should prevail but they are worried about the troubles it might cause to them and the ‘Nigerian way’ of doing things.

A few weeks ago, when disturbing images of torture methods approved by the previous US government for use against inmates at Guantanamo Bay were aired, I wondered why President Obama would agree to release this information. Here was sensitive information guaranteed to increase anti-American sentiments around the world and alienate the ‘national security’ neo-cons. My curiosity led me online and a few clicks later it turns out that campaign promises (which in Nigeria can always be broken on the rare occasions when they are made) and a lawsuit brought by the American Civil Liberties Union on the basis of the American Freedom of Information Act were responsible for the release of this information.

That made me wonder about the Nigerian freedom of information bill. Unfortunately it was not as easy to discover the status of this Bill online. Countless clicks later, I knew a lot about the United States and United Kingdom versions but nothing about the Bill and surprisingly nothing from other African countries. Although I could have sworn I read something recently about President Yar’adua’s support for the FOI Bill, according to Google, the last few news items on the Bill were in 2003 and 2005 and I could not even gain access to those articles. I tried the National Assembly link to all Bills but after scrolling down the third page of itemised bills with seventeen more pages to go, I had to give up because there was no search option.

I am disapointed that the sponsors of this Bill have not done more to keep the debate about it raging. If there is one law that we sorely need the National Assembly to pass, at least before the “HB 106 Bill for an Act to Regulate the Transportation of Animals, Prevent Undue Pain and Suffering in Animals Used in Food Production”, it is the FOI law. It would be the step in the right direction for a country in sore need of accountable leadership. So much of what the government does is shrouded in secrecy and that is why it is easy to mismanage resources. It seems part of our rare collective culture to hoard information, one of the few things that in Nigeria transcends ethnicity and religion, is the desire to be more powerful than our neighbours. And information (knowledge) is definitely power.

Everywhere you go, it is the same thing: insufficient information or bureaucrats, technocrats, so called professionals such as doctors and academicians, all trying to keep information.

I finished my undergraduate degree, paid my tuition and all the other relevant fees required. Yet I have no right to see my transcript – my academic record from the University of Lagos. How weird is that??? Why can’t I see this information? Who on earth should have more rights to this information than I do? But no; either to keep the records department relevant or to keep me enslaved to the civil servants in charge of this department, each time I want to apply for a post graduate qualification I must pay an application fee, a processing fee and postage…and I must have someone terribly important to help me navigate the inevitable delays in getting this information across to the relevant institutions. Supposedly this is to ensure that I do not get a chance to falsify my records…but why don’t schools abroad have this problem? A large percentage of Nigerians have gained their academic qualifications in universities outside Nigeria, yet these schools manage to secure their transcripts from these Nigerians. To show how myopic this policy on transcripts is, even before I graduated from Harvard I successfully asked the records department there to give me copies of my University of Lagos and Nigerian Law School transcript, documents I could never get directly from the University Registrar. A freedom of information law would give me the basis to sue the University of Lagos and get them to rethink this completely archaic policy.

And what about doctors? Have you ever tried to get your medical file from a doctor? Or tried to look into your own file while it is at the nurses’ station waiting for your vitals to be taken? You would think you were trying to steal the secret recipe for coca cola. Meanwhile this is your own information – you’ve paid for it and you’ve accumulated it over the years and have a right to see it, read it and get a copy of it if you wish.

For the Americans, the FOIA represents their fundamental commitment to open government. On January 21 2009, a few days after his inauguration, President Obama instructed that the FOIA should be administered with a clear presumption that in the face of doubt, openness prevails. This presumption has 2 important implications.

First, an agency should not withhold information simply because it may do so legally and second, whenever an agency decides that it cannot make full disclosure of a requested record, it must consider whether it can make partial disclosure. In his instructions he asked the agencies to be mindful that the FOIA requires them to take reasonable steps to segregate and release non-exempt information.

Disclosure obligations under any FOI law are not absolute. In the US FOIA there are exemptions which cover, national security, personal privacy, privileged records and law enforcement interests. But President Obama made it clear that ‘the government should not keep information confidential merely because public officers may be embarrassed by disclosure or abstract fears’. He goes further on the basis of the Open Government Act of 2007 to urge agencies to use modern technology to inform citizens what is known and done by their government and encourage the FOIA agencies and officers to work proactively and respond to requests promptly.

In Nigeria, we have a legislative committee report on a sector so completely vital to our lives, such as the power probe and not even all the legislators can see this report, talk less of tax paying voters. If our votes really counted would this be possible?

It is the culture of secrecy that permeates our entire society that makes it easy for our leaders and those in trusted positions to abuse their positions. Some of those involved in the Guantanamo torture cases must feel embarrassed and some might also admirably stick to their guns – what is important is that the discussion and debate that follows, allows things to evolve and improve. In Nigeria however, we are so concerned with appearances that we would rather cover up the faults and indiscretions of our leaders, helping to sustain the rotten, festering wounds that keep us from moving forward.

What do the opponents of the FOI Bill think was the essence of the South African truth and reconciliation exercise that marked the end of formal apartheid? It is because, no matter how bitter or painful to hear, truth and openness makes things better – the pain of apartheid is a lot more recent for South Africans than the Biafran war yet while they have been open up we are still holding on tight to records, if any.

Secrecy only breeds conspiracy theories and misinformation which is inimical to growth and development. I listened in distress while a friend who is fellow of the 2009 Archbishop Tutu Leadership Fellowship Programme commended African delegates in his group for being able to have informed arguments on the issues related to their government policies, reasoned discussions which he felt were lacking in similar discussions by Nigerians. But we do not have this information, I heard myself lamely defending, feeling slightly ashamed for not knowing the issues and having to rely on the (mis)information fed to me by journalists, who like most Nigerians, cannot claim to be completely removed from the corruption and ‘price tag’ mentality which pervades our society.

So, I remain, like my leaders, largely uninformed about the governing of my country but haplessly hopeful that even if I do not know the facts or understand the issue, things will get better.

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Any alternatives to gas generated power?

As we struggle towards the vision of 6000 megawatts of power for 140 million people by the end of 2009, (South Africa produces more than 43,000 megawatts of electricity for a third of our population), a few weeks ago we lost over 700 megawatts of power due to disruption in gas supplies.

The importance of gas to the implementation of our power strategy is not in debate and neither is the recent news about the progress being made with our Gas Master Plan even though it focused only briefly on plans to make Nigeria the world’s second largest liquefied natural gas (LNG) producer after Qatar by 2011. Most of the article in question, published in Business Day online on March 24 2009, focused on the benefits to our power plans and all the power stations expected to spring up along the route of the gas transmission lines.

However, what should be in debate is how long we intend to ignore the possibility of using other sources of energy. Our gas problems are not going to be solved in the near future, especially with the oil producers’ reluctance to stop flaring and the extremely lucrative export market for gas. If our gas problems are not solved, then most likely our power problems will not be solved either. So what should we be doing?
We should be seriously considering alternative energy sources to address climate change and working on updating the 2003 National Energy Policy (NEP).We should also be figuring out how to make money from renewable energy or energy conservation either through carbon credits or other devices. This is what is happening everywhere else in the world and just like we thought we were immune to the global economic recession, we probably think we are immune to climate change and declining world oil reserves.

As usual policy and regulation are in abundance; apart from the 2003 NEP we also have a Renewable Energy Master Plan (2005), a Renewable Energy Action Plan (2006) and the Renewable Energy Policy (2006). We have several energy and environmental agencies that should be concerned with driving policy and plans on renewable energy, one because it is a cleaner source of energy and will do less harm to our environment and two because we should not be entirely dependent on fossil fuel for energy. However we have little to show for it.

Germany, a country not known for its sunshine, is in the forefront of solar energy generation, mainly through the use of legislation. A few years ago the German government passed the Renewable Energy Act to boost the switch to renewable energy sources. The renewable energy sector was aided especially by the provison that required businesses to buy energy generated from renewable sources first before buying energy from non-renewable sources. People who produce energy in their own homes have a guarantee by the government that they can sell their 'product' at fixed prices for a period of 20 years. As if that was not enough, last year, the German town of Marburg made history by becoming the first city in Germany to require solar power for newly built or renovated buildings. The aim is to encourage the use of solar thermal systems to displace the use of non-renewable energy sources for heating.

According to research, Nigeria has an annual average daily sunshine of 6.25 hours, and a feasibility study carried out in 2004 found out that on solar energy is the most efficient and economical way to electrify villages in this region. Indeed, solar photovoltaic technologies are allegedly currently being used for small-scale power supply in some rural electrification programs of some States of the federation. So my question is: must our power generation plans be solely hinged on hydrocarbons? Can the Ministry of Power say ‘I am going to diversify our power generation so that we are not 100% dependent on gas’, or does this have to be part of the nation’s energy policy?

To start, the NEP definitely acknowledges that we should work on generating more electricity through renewable sources of energy ‘in order to conserve our fossil fuels’. However it does not say what agency or organisation should be responsible for driving this development of alternative energy sources. Unfortunately, the eighty nine paged policy document does not set out clearly what agency or agencies are responsible for driving or implementing the policy. The mandate of the Energy Commission of Nigeria (ECN), established in 1988, is for the strategic planning and co-ordination of national policies in the field of Energy and does not include generating and distributing energy, so we find a convenient vacuum which allows everyone to abdicate responsibility.

A major problem, the curse of oil, is that it is just easier to rely on oil and gas for energy and we prefer not to plan for the future or think of alternatives to the way we live. Britain is talking about profound changes to the way they build - with ‘new homes built of mud or straw’ as one vision of the future to futher the Government's declared quest for zero carbon homes by 2016. Even America, notorious for energy inefficiencies and constantly derided for their fuel guzzling cars, recently passed the American Recovery and Reinvestment Act of 2009 (ARRA) with Renewable Energy and Energy Efficiency Provisions to provide tax incentives and over $16B to support renewable energy programs.

If the mandate of our Ministry of Power is to simply ‘generate electricity’ as opposed to ‘generate electricity through the use of hydrocarbons’, then we need a power plan that takes into consideration alternatives which do not require gas. There are also simple energy policy changes to be introduced such as banning 60 to 100watt bulbs in favour of 20 to 40 watt bulbs to save energy and providing incentives to new buildings which are built to conserve energy. It is not ‘backwardness’ that resulted in the mud huts and beautiful works of mud based architecture all around West Africa – these structures are built for our hot climate to ensure insulation against the heat. Now, on the altar of sophistication and progress we build with expensive cement and concrete and all our houses, offices, hotels, schools have to be powered with air conditioners and fans. Ironically, in a country where energy is so sorely lacking, we are inefficient and wasteful with the little we have and no one but the cement and generator companies are benefitting from this.

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A Tribute to Readers: For and Against

Personally, there is no better accolade for me as a writer than readers who not only spend their time reading what I write but who also take time to respond and share their views. So many people from within and outside Nigeria have written about one Pedestrian Lawyer article or another and after six months of writing this column, I have no better way of saying thanks to the readers who make it worth while than giving up the page to some of their thoughts, albeit with a little editing.

RE: CONSTITUTIONALLY GUARANTEED DISCRIMINATION (for)

“It is quite true and an undisputable fact that our legislators at state and national level have displayed all kinds of reluctance towards legislative proposals that have to do with discrimination against women and women empowerment. Unfortunately, the judiciary and the law enforcement agents have not displayed enough commitment to the existing sketchy laws for protection of women. We hear cases of rape, child prostitution, and young girls forced into marriage and most times the culprits of these inhuman crimes are found freely walking our streets with the clear zeal to commit more of such offences.

It is very painful, the way and manner most men, and some women, due to their cultural beliefs, react to write-ups on protection of the rights of women such as yours. You hear things like: ‘These women have started again’, ‘these women should better go back to the kitchen where they belong’, ‘these women think they can be equal to men’, ‘they better stay where God placed them’. Misconceptions such as these are made by even people who are supposed to know better. Imagine in a family where the parents were faced with financial challenges and had to decide to withdraw some of the children from school. The first thing the head of the family (father) said was that all the girls would remain at home while the boys, as the future bread-winners of the family, would continue. This is despite the fact that the girls are doing better in their academics than their brothers. I think our legislators and people in government think this way too.

Finally, I want to assure you that all the campaign, protest and write-ups on the protection of the right of women such as yours will not go down the drain. It will impact on the way we think. Several people and families have witnessed one type of disaster or the other due to the failure to uphold the rights of their womenfolk; and some have changed for good.”
Umar Abubakar


“A friend and I read your article "Constitutionally Guaranteed Discrimination" last Tuesday in This Day. I am an American male and she is a Nigerian female. We both found the content of the article disturbing although viewing it from different perspectives. The callousness and smug hypocrisy of bureaucrats in Nigeria is scary. For a Nigerian male in power to dismiss the problem because they say it doesn't exist indicates that the issue of discrimination and abuse will not be solved easily or soon. We both applaud your exposure of these officials and beg you to continue to publicize the issue until it is brought under control.”
Ag & Ti

Thanks Umar, Ag & Ti for sharing your thoughts, please do everything in your personal lives to address whatever wrongs you can against women, children and all the disempowered.

RE: CONSTITUTIONALLY GUARANTEED DISCRIMINATION (against)
“Dear Ayisha,I read your article in today’s Thisday newspaper about section 26 of the 1999 Constitution of Federal Republic of Nigeria. You said it is discriminatory against women. I totally disagree with you.
Sometimes these laws are made for specific reasons and there is nothing inequitable about it.For example, in the UK, If an unmarried British woman gives birth to a child and the Father is Not British the Child born has British citizenship but if an unmarried British Man has a child from a woman who is not British the child does not have British citizenship.
Also, a British man cannot simply apply for a British passport without the consent of the British Mother, the passport officials will want to verify the documents of the British mother before issuing the passport.
Should the British men start writing that the laws are biased?” Abraham Zika

Dear Abraham, I think you’ve answered your own question. Isn’t it possible that this particular protection for women has been granted to address a situation where women are historically disadvantaged?

RE: ARE OUR LEGISLATOR’S SERIOUS? (for)
“Good day Ayisha,
I find your editorial as to whether our Legislature are serious very interesting, although I must confess I have always overlooked your column until two weeks ago and I regretted that because against my erroneous presumption I find them very concise. “Them” because a review of your past write-up reveals consistency. Please keep this up. I will like to ask you if there is something within the sphere of law that an ordinary citizen like myself can do to challenge the irresponsible decision of our Legislature. It is one thing for you to write about it and it is another for us to read it but it is altogether a different thing to take it up with them, I believe it is our duty as citizens to demand good governance from our leaders and the lack of it is due to our individual selfish desires, in some countries there would have been a peaceful protest against such a sabotage on our future, union leaders and workers from different field would have marched to the street - the recent AIG bonus decision in the US is a good example- to challenge them. But while selfish ambitions pervade the society those of us not yet infected and still sober can pursue the mission of injecting some sanity into our society, but how do we go about it without violating the law?

Personally I am getting tired of just reading about the atrocities of our leaders and doing nothing and I wish the likes of Gani Fawehinmi still have health on their side-although the old man has paid his dues and whether we like it or not we owe him and his ilk a lot – he would at least know how to go about it within the confines of the law, since any unlawful approach to correcting the Legislature would only exacerbate the situation. That I am a graduate and a working class citizen of this country with few months to three decade of existence and I know nothing about our basic law tells you a lot about our woes in this country. But for how long shall we continue to lament our woes? I think it is time for us to raise our voice and cry out against bad governance until every one gets caught in the frenzy of demand for good governance otherwise these avarice-ridden politician turn Legislature will not only destroy our future but when they have finished they will start selling us into slavery once again, but come to think of it Ayisha are we not indirectly their slaves already? We toil till we become worn out, pay our tax all along and what do we get in return? Please Ayisha let me know if there is anything that can be done.
John Onibiyo

Thanks John. Apart from being happy with your response, you made me feel a bit sad that all I am doing is ‘writing’…but that is my method for trying to precipitate change, to share and try to precipitate outrage or action. Please act.
PS not surprisingly, there were no contributions ‘against’ the article ‘Are our legislators’ serious?’

Published April 14 2009

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Electoral Reforms: are the problems legal or social?

As usual the more we hear the less we understand. Apart from the ongoing intrigue in the power sector, nowhere is this statement more apt than with the proposed electoral reforms. In the last couple of weeks the media has been rife with news about the Uwais Report. As the story unfolded, we learnt that in addition to the Uwais Electoral Reform Committee (ERC) set up in 2007 to propose ways for credible elections, there was a nine-member Shettima Mustapha Committee appointed to draft the Government’s White Paper* on the report. And then, the White Paper was reviewed by the three-man Michael Aondoakaa Review Committee. I remember thinking there were one too many cooks with ladles in the broth and that all these reports on reports and reviews on reports is one of the reasons it has taken so long to hear the recommendations on electoral reform and will be the same reason why most of the substance will be lost in translation. Unsurprisingly, the general consensus (apart from those in PDP-land where independent thinking is frowned upon) is that most of the recommendations which would bring about the critical positive change to the electoral system have been dropped in favour of other recommendations.

The one jettisoned recommendation which has precipitated the harshest criticism is the recommendation that the Chairman of INEC be appointed by the Nigerian Judicial Council (NJC). At the first briefing on the issue, the reason for the rejection of this recommendation was “to avoid a situation where the President loses ‘control’ over the electoral commission”. Isn’t that conflicting? Why should the President who might himself be up for re-election want to be able to control the Chairman of the Independent National Electoral Committee?

In another briefing, the Minister of Information provided another reason for the reluctance to give up control of the appointment of the executives of INEC: to avoid undermining the principle of the separation of powers by asking the judiciary (NJC) to perform a function of the executive (making executive appointments). Technically, the Chairman of INEC’s role is an executive role and it makes sense that the reporting lines are to the chief executive of the country but the sensitivity of the role and Nigeria’s track record where election fraud is concerned, demands some independence from this same executive. Besides, the separation of powers excuse is weak because there are few if any political structures which adhere to a strict separation of powers, not even in the United States where their Constitution is largely influenced by the writings of Montesquieu one of the foremost supporters of the doctrine. Britain, our birth mother, prides itself in its unwritten Constitution where there is actually little separation between the arms of government and their elections have not seemed to suffer for this.

According to Iwu in a lecture delivered at NIPPS, Kuru a few weeks ago, reforms on the electoral process in Nigeria have been ongoing such as the establishment of the Independent National Electoral Commission Fund under Sections 3 & 4 of the 2006 Electoral Act and the establishment of the Electoral Institute to facilitate capacity building and professionalism in the Commission. I’ll let you be the judge of the impact of these reforms.

Iwu goes on to say that there are only four outstanding areas of electoral reform requiring constitutional amendment: the mode of appointment of Chairman and members of the Commission; funding of the Commission; adjudication of post-election disputes before the sweating-in of declared winners and the introduction of a system of proportional representation. From the details which we now know, the Uwais Report made recommendation on the first and the third and both recommendations were dropped. Campaign financing and the funding of INEC are both critical issues and it says something about how serious we are about tackling election reform because regardless of who appoints the Chairman and Commissioners of INEC – he who pays the piper calls the tune. But these are all technicalities on what should or should not be in the Electoral Act as the enabling law for INEC.

Which brings me to the next question: is the problem with our election process and system because of the gaps in the legal framework or because of our psyche? As much as I hate to admit it, underlying Iwu’s self serving position on this issue, there is some truth. He says ‘the greatest corrosive damage to the electoral process in the land is wrought more by the self-serving and contemptuous conduct of few members of the political elite - the deep pockets - than any other factor. ” The expectations we have that electoral reforms will miraculously and dramatically change our elections for the better are not realistic; law is not magic. Instead we need people with the right psyche executing the law and accepting the law. Not what we have now, where laws are only for law students or the masses who do not have the money or the arrogance to circumvent the law.


If for arguments sake the Federal Executive Council had accepted the recommendation of the Uwais Report that the NJC appoint the Chairman and Commissioners of INEC, what would this do on its own as a part of legislation? Not much really because there is no assurance that the NJC or even the appointees of the NJC are incorruptible, so we end up back where we started.

In the United States, the country we seem most aligned to in terms of political structure, the President appoints the Chairman of the Federal Election Commission (FEC). Maybe in addition to the consultations with the general public on expectations for electoral reform, the Uwais ERC should have looked at the FEC and how it maintains its independence from the same President which appoints its executives. My guess is that the answer lies somewhere within law and society: campaign and election financing and simply, the type of men (or women) who go into service for their country.

*white paper is the term for documents issued by government which lay out policy or proposed action, on a topic of current concern

Published March 24 2009

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Constitutionally Guaranteed Discrimination

That the fairer sex, weaker sex, whatever you want to call the female sex has struggled (and is still struggling) for centuries, for equality and/or parity with men is not news. Over time this struggle has broken many barriers across different societies in different countries, some more than others and some not at all. What was news to me last week was finding out that Section 26 of the 1999 Constitution institutionalizes gender discrimination against women. Paradoxical for a country which makes a lot of noise about the promotion of women and totally contradictory to the right to freedom from discrimination in Section 42 of the Constitution which says, in totally inelegant and confusing text, that no Nigerian should benefit or be disadvantaged solely because of their ethnic origin, their sex, their religion or their opinion.

The effect of the provision on naturalization and citizenship in Section 26 of the 1999 Constitution is discriminatory against women because it means that when Nigerian women marry foreigners, their husbands cannot become naturalized Nigerians but when Nigerian men marry foreigners, they can transfer their nationality to their wives. Why is this different treatment necessary?

Unfortunately, when it comes to the enforcing the general fundamental human rights of women - whether it is their right to liberty, freedom of expression, or even ownership rights, the Nigerian woman is already sometimes disadvantaged by social, cultural and religious norms and laws. Yet our law makers and executive seem blind to this as they blithely sign up to different conventions which they have no intention of adhering to and attending forums where they cannot report any meaningful progress in making the lives of women better.

For example, Nigeria is a party to the Convention for the Elimination of All Forms of Discrimination Against Women (CEDAW Convention) yet as of July 2008, the international CEDAW Committee expressed ‘deep concern at the persistent failure by Nigeria to enact a law to ensure that CEDAW is enforceable’. In 2005 our National Assembly refused to adopt the provisions of the CEDAW Convention when they rejected a draft bill. In a country where we all know laws are not really adhered to, for our predominantly male National Assembly to refuse to even ‘capture’ these protections and rights on paper is a clear indication of the real position on improving the lives of Nigerian women.

Most recently at the 9th session of the Human Rights Council in Geneva, the Nigerian delegation was positively laughed at for saying our domestic violence laws were adequate – this in a country where, according to a 2003 demographic and health survey, 64.5 per cent of Nigerian women consider it normal to be beaten by their husbands and where only one Nigerian state has a law in place to address violence against women.

What do we get instead? We get a smokescreen of activity with an entire ministry dedicated to women ‘affairs’ as well as a national centre for women development (NCWD)…what exactly are their mandates? In Section 2 of the National Commission for Women Decree 1992 (which was later upgraded into a full fledged Federal Ministry for Women’s Affairs and Social Development), there are ten objectives for the Commission for Women and the first one pretty much says it all: ‘to promote the welfare of women in general’.

What did ‘promoting the welfare of women’ mean when the Commission was first set up and what does it mean now, seventeen years later? It is safe to wager that it still means the same thing; meaning[A1] the welfare of the Nigerian woman has not improved despite all the talk and all the show. We are still struggling to get a handle on the discrimination of the female child when it comes to education, the bad treatment of widows, the selling of young girls into prostitution, sex with under aged girls leading to VVF and employment discrimination; the list is endless.
What is scary is that while a multitude of nongovernmental organizations is focused on quietly redressing these issues without the support of a legal framework, our Federal and State legislators and executives, are slowly eroding even the little rights women have with laws addressed at controlling how women clothe themselves. If our Constitution itself discriminates against women, how many laws are out there with provisions which are unfair and which continue to subtly reinforce in our minds, and the minds of our children, that women are second class citizens?

How many private and public organizations are, like the Central Bank of Nigeria happily enforcing adverse discriminatory rules against women such as that women are not entitled to certain benefits which their male colleagues enjoy because they are, as women, not deemed ‘head’s of their household’. What if their husbands are dead? What if their husbands are terminally ill and have not worked for years? What if their husbands are just ner’ do wells who have abandoned the family or just do not provide enough for their families? In such situations must a female executive in such a place air her private issues in order to get benefits which should be her right?

Theoretically, Nigeria is serious about improving the welfare of women – along with the Ministry and NCWD, every Federal and State first lady has a pet project aimed at improving the welfare of women and/or children. We even have a National Committee on the Reform of Discriminatory Laws Against Women…so what are they all really doing? Blame it on poor or erratic internet service but all efforts to find meaningful news on the past achievements of the Ministry of Women’s Affairs failed. I did find a story about a children’s party hosted by the Ministry at the start of this year as well as details of the Minister of Women’s Affairs visit to the women’s development centre to assess its facilities. Is it possible for the Minister and the new Director General of the NCWD to give us a list of the things they intend to achieve at the end of each year? We are stakeholders and just as we expect companies in which we hold shares to meet the targets set and publicized in annual general meetings or offer prospectuses, we should expect government and its agencies to be accountable to us.

We all have a responsibility, to ourselves and to future generations to ensure that for a start, we have the legal framework to improve the welfare of women. The members of the legal profession, including the Ministry of Justice and the Law Reform Commission have all been incredibly lax about challenging laws which erode the fundamental human rights of women. Where lawyers come across provisions of law which are contrary to such rights, they need to flag it and publicise it. Where lawyers are advising clients on employment contracts or drafting regulations – they need to be vigilant and ensure women are being treated fairly and the Ministry of Justice which gets to see most bills have the perfect opportunity to act as a check to ensure nothing contrary or discriminatory passes through – it has to be a joint effort.
But first, Section 26 of the 1999 Constitution needs to be amended immediately, either as part of the constitutional review process or as something driven by the Federal Ministry of Women’s Affairs, the National Commission on Human Rights or the Law Reform Commission because what this section does apart from magnifying the serious legal issues within our Constitution, is it makes a mockery of every halfhearted Nigerian initiative to make the lives of women better.

Published March 31 2009

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Are Our Legislators Serious?

Lately the papers have been filled with stories about our federal legislators – the dead in the water/lame duck committee report on FCT a.k.a. the probe on El-Rufai; or the power probe with which this set of legislators started off their four year tenure with a loud bang only for the report to sit languishing without it so much as being circulated for review. That is on top of the 2.3billion Naira car scandal, the plans to impeach Dimeji Bankole and the disgraceful infighting between the House of Representatives and the Senate over superiority in the National Assembly.

Last year the President assented to only five laws. Yes, not too long ago in another article about the Legislators I said the number of laws did not matter but the quality, and I still stand by those words; if these five laws were real laws which would make some meaningful lasting contribution to Nigeria and Nigerians, then we could all over look the number. But when these five include amendments to existing acts and other insignificant laws such as the ‘Certain Political, Public and Judicial Office Holders (Salaries and Allowances e.t.c., (Amendment) Bill 2008’, then we have to hold that number up in shame.
Now not only are the legislature complicit in ‘missing budget-gate’ but apparently they have made unfavourable changes to the budget proposal submitted by the executive arm.

A little background.

Considering that the 2008 budget was finalised in November 2008, just in time to expire with the year, plans for the 2009 budget started relatively well with the President submitting the budget proposal to the National Assembly on December 2 2008. By 18 December 2009, one of the papers reported: ‘Senate Passes N3.049 Trillion 2009 Budget’. It seemed we were learning from the past and striving to improve, great.
January, February…silence. Then we hear the budget is missing and this starts to raise some interesting questions such as ‘what exactly is the process for passing budgets’? We know the President submits the proposal and this is considered by the legislature as an Appropriation Bill. However, once passed by the legislature, does it proceed like all other bills to the President for his assent or is there a different process for the nation’s budget? Maybe this is where the gap lies because this is where the trail for the 2009 budget went cold.
It is now March and thankfully, the budget has been found but to put it mildly, the executive are concerned about the changes made by the legislature. To quote a member of the executive council “what the National Assembly did to the 2009 budget was not far from sabotage".

Apparently not only did they slash the budget for crucial sectors such as power and gas, in direct conflict with the President’s seven point agenda, but they increased their own budget by 57% and allocated funds to non existent organizations including N250 million to an anonymous council.

Is there any citizen of Nigeria who thinks it makes sense for the National Assembly to spend 111.3 Billion Naira while the allocation for power transmission is a paltry N800 million? Each of our 109 Senators gets 28 million naira a year while the 360 Representatives get 22 million respectively. Yet they only work three days a week i.e., Tuesday to Thursday and even then only from about 10am until 2pm. Mondays and Fridays are supposedly for them to ‘visit’ their constituents and for this they even get an allowance. The Standard Papers – the Constitution of the Senate and the House – provide for five working days from 9am to 5pm, just like the civil service but these rules have since been relaxed... like everything else when it comes to accountability and responsibility.

Section 59 of the 1999 Constitution says that where within thirty days after the presentation of the Appropriation Bill, the President fails to signify his assent OR withholds his assent, then the Appropriation Bill can be presented to the National Assembly sitting at a joint meeting and passed into law by a two thirds majority. Now the key is: if there was no record of the bill being sent to the President for his assent, how would we know when the thirty days was up? This means during that period where those who should know, but did not know where the 2009 Appropriation Bill was, had the legislature wished to, it could arguably have approved the Appropriation Bill without giving the President the chance to do so.

In the United States, which we model our constitution and government on, there is a traditional ceremony surrounding the annual approval of the United States budget. The majority leaders along with minority leaders march from Capitol Hill to the White House to formally present the budget for the signature of the President. This ceremony is important not because it enables us to avoid situations where no one remembers the budget being sent or received, but more for the people to see their government at work and provide transparency to the democratic process. The Chief of Staff of the President also receives a copy and while this ceremony does not mean there are no issues or compromises to be made between the legislature and the executive, it serves as a milestone in what is sometimes a three to six month process and a marker for the checks and balances against possible abuse.

Unfortunately, because of the years of military rule, the legislature in Nigeria is the least developed arm of government – always the first to be disbanded after a coup, while the judiciary and executive soldier on. This no doubt has impacted on the development of our own traditions, but since we borrow so much already, why not borrow a similar tradition to support the budgetary process? It would be most heartening for Nigerians to know that the legislature is working for and not against us…otherwise we can always start to exercise Section 69 of the Constitution and recall our legislators, with this track record it should not be hard to justify.

Published March 17 2009

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