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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