The Greatest Good for the Smallest Group

There is a belief that societies should make decisions or policy based on the greatest good for the greatest number. In Nigeria, going by our antecedents, we can argue that those in positions of authority, the elite and/or the educated do not subscribe to this.

Five years after the Electric Power Sector Reform Act (the Act) was signed into law and after billions of dollars have disappeared into a bottomless sinkhole, we are not any closer to implementing the Act or solving the acute electricity problem.

The lack of power is one of the hottest presidential campaign issues and every time there is an opportunity for people to speak about the issues which need the attention of the man who will be president in 2011 – electricity is on the list. All the pressure to resolve the problem seems focused on the president and the presidential aspirants and how we need them to fix our power problems.

But what about us? What is our role in assisting the implementation of the Power Act? If there are only six degrees of separation between people, then we all know one or more of the 50,000 employees of the Power Holding Company of Nigeria (PHCN) who are partnering with other alleged enemies of electricity such as the generator and diesel importers to ensure we stay off the track to sustainable and consistent power.

These 50,000 Nigerians together with the NLC and other ‘comrades’ who jettison socialist thinking when it suits them think that their fears about job security should hold the rest of us to ransom. Has anyone tried to quantify how much revenue and value Nigeria and Nigerians have lost from our abysmal power supply? The lives lost in hospitals during surgery or the death of premature babies in incubators with no power? The lives lost to generator fumes and malfunctions? The loss to our productivity and industry? Is it right for Dimeji Bankole, the Speaker of the House of Representatives to say, five years after the Act was passed that ‘he is worried about 50,000 jobs which will be lost’ as a result of the implementation of the Act? What did the legislature think would happen as a result of privatization and why is the loss of jobs accepted as a fait accompli? Across many sectors in different parts of the world, privatization has frequently resulted in job creation and skill development.

So what are the fears of the national union of electricity employees (NUEE) and their agents who see the privatization of PHCN as a tragedy?

The first is that they will loose jobs. And the quick answer to this is that privatization could (i) increase jobs because there will be competition and power companies will need people with the skills to manage our archaic equipment and infrastructure and (ii) we could see an increase in compensation for electricity sector employees because the competition will drive the power companies to pay more in order to attract and retain the best. Instead of thinking positively and creatively, these 50,0000 people prefer to scuttle the privatization of PHCN in order to cripple the future of 150,000,000 people so they can secure jobs which are only guaranteed until retirement. Then what? They retire to sitting outside in the dark or inhaling the carbon monoxide from their generators with the rest of us.

Another argument that labour and the NUEE make in “Power Reform: Labour Moves Against Privatization” (published in Thisday, November 9 2010) is that corruption is a larger obstacle to electricity reform than government ownership. I say corruption and government ownership go hand in hand. We know from all the failed enterprises the Federal Government is involved in (steel manufacturing, refining petroleum products, making fertilizer, manufacturing sugar, telecommunications etc.) that our government is inefficient and should not be concerned with managing businesses. The best role for government is as regulator and provider of an enabling environment for business.

Privatizing power is the reason why countries like India, Chile and Ghana to name a few are no longer suffering the embarrassing power cuts we have in Nigeria. Those opposed to the privatisation of PHCN routinely hold up Enron and the 2002 California black outs as an example of a failed privatisation. But Enron is an example of corporate greed not isolated to privatized entities and the dangers of government slacking off on its role as regulator.

The NUEE and labour groups are also worried that PHCN will be bought by corrupt Nigerians but since PHCN has been broken up into several companies, it is unlikely that all will be purchased by Nigerians. I am not condoning corruption but isn’t it better for those who appropriate our wealth to spend it in Nigeria instead of buying up real estate abroad? Besides, employees of PHCN allegedly have their own corrupt racket going on – from the executives who divert funds meant for investing in infrastructure to the mystery of the disappearing transformers and technicians who extort money from ‘optionless’ customers during the holidays and special occasions.

Whether privatization opponents like it or not, the telecom sector has made the benefits of privatisation glaring because despite the growing number of GSM subscribers, NITEL cannot get its act together because it is still managed by government. Should we hold on to decaying assets merely to keep a few thousands ‘ungainfully’ employed?

Finally, there is a tenuous argument made by counsel to the NUEE, that the privatization of PHCN is ‘illegal’ because the 1999 Constitution ‘imposes a duty on the Federal Government to manage and operate the main sector of the economy…which undeniably includes the power sector’. This is why according to him, Nigerians have a duty to resist the privatisation of PHCN.

But in the Part II of the 1999 Constitution – the Concurrent Legislative List expressly gives States the authority to make laws with respect to electricity and the establishment of electric power stations; generation, transmission and distribution of electricity to areas not covered by the grid; and the promotion and management of State electric power stations. This means States can manage electricity for themselves…if this is so, how can power generation be considered the exclusive right of the FG? Even without this provision, how can the duty to manage the economy mean that government must remain in the business of providing electricity especially when it has proven to be completely inept at it?

I sympathise with NUEE. They see our legislators, executives and politicians amassing private wealth and bending policy to benefit themselves – why shouldn’t they want to protect themselves as well? But Nigeria is in desperate need of electricity. We should not support this bid to stop the privatisation of PHCN for sentimental reasons. All our development needs, aspirations and visions for the future are tied to power and the short term value of jobs for 50,000 people masquerading as concern for corruption and legality should not trump the long term value for the entire country. The greatest good for the greatest number; that is what should guide us.

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The legislative coup against democracy

With stealth powered by effrontery, the Nigerian federal legislators have been and are doing their best to erode the foundations of democracy which Nigerians are trying to build on.

Quietly within the cyclone of noise about zoning, election dates, the back and forth between the National Assembly and the INEC chairman and governors who were not supposed to be governors and whatever else is being thrown at the public, the legislators have been chipping away at the Constitution and the Electoral Act to ensure they find a way to entrench themselves in power.

A few weeks ago they wanted a quid pro quo; to have a ‘right of first refusal’ to their positions as legislators in return for giving the President of Nigeria the right to use his assistants as ‘delegates’ during the party convention. Because legislators have no term limits, this right of first refusal means that once a person has been granted the God (since everything in Nigeria is done in the name of God) given right to ‘win’ then as long as he wants to contest that seat, no one in his/her party can contest for that seat. The American’s we ‘borrowed’ our presidential system from do not have this clause in their constitution or electoral laws but when it comes to mangling the democratic process, no one can beat Nigerians on innovation. Somehow, that story died down and no one is quite sure why or how. Did the story die because the legislators realized this was something they would not be allowed to get away with, or did the story fizzle back into the crack it came from because it was already a fait accompli?

Now they are back again with another trick. This time, they have tinkered with Section 87(4) of the 2010 Electoral Act to secure the opportunity to blackmail their parties into giving in to their demands. According to the new provision, all political parties must have a national executive committee which the legislators are automatic members to (along with former presidents, vice presidents, presiding officers of the National Assembly etc.). How is it that the nation’s Electoral Act is so concerned with the internal workings of political parties that it goes into detail about the quorum for decision making at these party national executive committees which of course give our legislators an advantage? This is a round about way of getting their ‘rights of first refusal’ because on the party level they can always vote as a block to ensure that they get ‘re-nominated’ even if members of their own party do not want them. How is that for democracy?

To be fair, they have a rational explanation for this inclusion: it is about time they did something to checkmate the president and the governors who use appointees as delegates during party primaries. If you have ever wondered why presidents and governors have so many special assistants and advisers – the mystery is solved – these special assistants and advisers turn into delegates who usually vote exclusively for their benefactors at party primaries. For these well meaning legislators, the fact that they will be able to vote to secure their candidacy is secondary – the realobjective is to strengthen democracy by protecting her from god-fatherism.

The Legislators also want to insert a clause in the 1999 Constitution in order to compel the executive to implement allmotions passed by the National Assembly. All. Absolutely no qualifications regarding the number of legislators who passed the motion or any review as to the practicality of the motion. This means that if the legislators in their wisdom decide to pass a motion to ensure women are dressed ‘decently’ and our upright policemen are given enforcement powers, the executive would have to execute. With their well-deserved reputation, earned with their utterances, shenanigans and antecedents, do we feel safe letting our legislators wield these types of powers? Apparently the reason behind this particular insertion is to counter the problem created by the fact that the executive often ignores motions from the legislators. For instance, the National Assembly says its motion regarding a landslide in Kwande Local Council of Benue State was ignored until some of the communities in the area were affected by a volcanic eruption. So there is a legitimate sense of frustration that their initiatives are ignored…but our legislators and indeed all arms of government should realize that the checks and balances in our system of government are meant to ‘slow’ certain things down and ensure that policy, directives, regulations are well thought out before they are implemented.

So the question for us regarding our legislators is Quis custodiet ipsos custodes? ‘Who will guard the guardians’? A key purpose of the presidential system of governance, with three separate arms of government, is to get all three to check each other and balance out the powers that they have. However, as legislators grant themselves all sorts of powers – who will check them? This is no idle question because in addition to these amendments and insertions the legislators have again, devoid of the drums and whistles which usually accompany their work, recently increased their powers by giving themselves a direct line in the budget so that they no longer have to go through the executive arm for funds…even the judiciary –whose independence should be the most fiercely protected as the last hope for the common man, does not have this privilege. What have our legislators done to deserve this?

Like many Nigerians, I am tired of the excruciatingly snail-like pace at which we are developing positively especially when we leapfrog into sophistication when it comes to detrimental actions such as kidnapping, smuggling and corruption, however I would rather institutions and processes are designed properly to provide the necessary restraint than have our legislators take on so much power. They are barely controllable as they are. Where is civil society when you need them? Where are those who have sworn to act as guardians of the guardians when powers are being concentrated in one place? We need to call attention to this silent, deadly coup on democracy being waged by our not so honorable legislators.

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Poor little Muslim girls and the lawmakers from Zamfara

Zamafara is in the news again as another lawmaker; Senator Sahabi Ya'u tries to marry a young girl without her consent. Why is this news? Because it is wrong to force someone into marriage with another person and we would like to presume that lawmakers know this. Because the High Court to which the reluctant bride took her case refused to hear the case on the grounds that hers was a matrimonial case for an Islamic court. Because, yet again the courts are refusing to look into the subjugation of a Muslim woman despite the protections given to all Nigerians under the 1999 Constitution. Considering the uproar that followed Senator Ahmed Yerima’s marriage to a thirteen year old earlier this year, it is tragic that there is still no sense of urgency about protecting the basic personal freedoms of Muslim women and girls in the north of Nigeria.

Unfortunately, the infringement of the basic personal rights of the female in the name of Islam or custom, is nothing new. According to UN statistics, in 2005 there were at least 60 million women in forced marriages across the developing countries. I think law and society are culprits in the continued refusal to be fair in the application of Islamic personal law to women and girls.

The problem with the law is manifold. The first is ignorance. Islam is a way of life and Muslims are steered by several authorities the most important ones being the Holy Quran, the Hadith, which are the sayings of Prophet Muhammad (PBUH) and the Sunnah which is the way of life prescribed for Muslims based on the teachings and practice of Prophet Muhammad. Maybe not enough people know that when it comes to the question of the consent of a female to marriage, the Quran says, “Don’t prevent them from marrying their husbands when they agree between themselves in a lawful manner.” (Q2:32) And there are many Hadiths authenticated by renowned collectors of hadith such as Sahih Buhari and Ibn Majah which indicate that Prophet Muhammad sanctioned the dissolution of any marriage which was contracted without the consent of the bride. Therefore, it is contrary to Islam to marry off any female without her consent and in this case, the reluctant bride’s father was wrong to marry her off to the Senator. On the issue of human rights, the court said “her human rights had not been violated…” But the United Nations views forced marriage as a form of human rights abuse because it violates the principle of the freedom and autonomy of individuals. So where does this leave us?

Which brings us to the second problem with law – patriarchal impunity which results in disregard for the law. Here society also plays a role because it permits men to think they are above the law and can do whatever they like regardless of what the law, any law provides. The third problem with the law is ambiguity or interpretation. Where fundamental human rights and the jurisdiction of courts are in question, the 1999 Constitution is a good place to start. The 1999 Constitution is not ambiguous about fundamental human rights and who they are applicable to and neither is it worded in anyway to suggest that the religion of a Nigerian may preclude that person from such fundamental human rights. Yet, the interpreters of law are starting a trend when they say to Muslim women – “if you marry in accordance with your religion, then we cannot guarantee your fundamental human rights”. There are two problems here. One, if a Muslim woman is trying to enforce her rights either under Islam or under the Constitution, research carried out byWomen's Right Advancement & Protection Alternative (WRAPA) indicates that the last place she would want to go is the Sharia courts because of the patriarchal impunity problem. So where else can she go? The high courts. But the high courts have refused jurisdiction on the ground that they are constitutionally prevented from hearing cases involving Islamic personal law.

Some believe that Section 262 of the 1999 Constitution which provides the Sharia Court of Appeal with jurisdiction over Islamic personal law matters, is the reason why state high courts and the federal high court will not accept any cases on Islamic personal law. However, it is not clear why the provisions of Section 262 are being interpreted so narrowly especially when there is nothing in the wordings to suggest that this jurisdiction is excusive and cannot be exercised by any other court. In fact the word used is ‘competent’ i.e., The Sharia Court of Appeal shall…be competent to decide. If, according to the Fundamental Rights Enforcement Procedure Rules 2009, “The Constitution shall be expansively and purposely interpreted and applied, with a view to advancing and realising the rights and freedoms contained in them and affording the protections intended by them” then why are sharia and common law courts refusing to interpret forced marriage as an infringement of fundamental human rights?

As for society, its mildest sin is complacency. By staring mutely into our tea cups whilst Muslim men marry children or marry off their daughters without their consent or marry and divorce ten, twelve or seventeen times, we are all culpable.

There are several things those concerned can do. One, encourage Muslim women forced into marriage as adults or children to challenge this by going to court even at personal risk to themselves because the future and well being of our daughters, sisters and nieces is dependent on our action. Two, lawyers should take this issue all the way to the Supreme Court and get the judicial pronouncement we need on aspects of customary/Islamic law which touch on fundamental human rights and the so called exclusivity which sharia/customary courts have over personal law matters to the detriment of justice and equity. Three, a major education campaign on Islamic personal law needs to be launched for the benefit of academia, the judiciary, and religious instructors. Finally, women need to make the regulation of marriage and the protection of personal rights a campaign issue for the 2011 elections. Muslim women in Nigeria need marriage contracts the same way Muslim sisters in Pakistan, Malaysia, Indonesia and other Muslim countries do. In the United Arab Emirates where our lawmakers and elite love to go on holiday, the law is that a man with more than one wife must provide separate houses for each wife. In Nigeria a man can keep two wives in a two-bedroom house with one bathroom and kitchen between them.

All the fancy goals and pronouncements about female empowerment, women participating in politics and even girl child education projects are meaningless as long as the most basic and fundamental rights of women remain unprotected and personal laws are at the very heart of a woman’s fundamental human rights.

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