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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