“June 12”: President Buhari’s progressive act versus professor Nwabueze retrogressive legalism

By Ogaga Ifowodo

Professor Ben Nwabueze’s reputation as Nigeria’s foremost constitutional law expert is well earned. His book The Presidential Constitution of Nigeria was (and remains, I suspect) required reading for law students

The symbolic revalidation by President Muhammadu Buhari of the 12 June 1993 presidential election, callously annulled by the military dictator General Ibrahim Babangida, caught many by surprise. Some might even be experiencing a nervous breakdown.  I have in mind the likes of Babangida, the annuller-in-chief, as well as General Olusegun Obasanjo, the undeserving chief beneficiary of the protracted struggle of the Nigerian people to redress that historic injustice. For the vast majority of citizens who have borne the agony of that crime for twenty-five years, however, the news was greeted with spontaneous joy. Even then, among the ardent “June Twelvers,” there remained an element of surprise: that it should be Buhari, a former military head-of-state dogged (unfairly he believes) by a reputation of utter inflexibility and a deep-seated anti-democratic animus, who would validate the people’s electoral will. As one who was in the front ranks of the struggle for June 12, and who was jailed by General Abacha for that reason, I testify that my joy was accompanied by the thought that perhaps, as a wise one famously said, “contradictions” are, indeed, “our only hope.” I had said as much in the Civil Liberties Organisation’s Annual Report on Human Rights, 1993 (I researched and wrote the reports from 1992-1999):  that Abiola was a most “unlikely hero” of our struggle for self-governance.

President Muhammadu Buhari honour Former Presidential Candidate MKO Abiola Amb Barepresented by his Son Alhaji Kola Abiola during the Special Investiture and National Honours Award Ceremony for Late MKO Abio

For we must remember that before Buhari, five other Nigerians had the chance to right the wrong, but they chose not to. There was General Sani Abacha, but he it was who allegedly bullied Babangida into cancelling the election. There was General Abdusalami Abubakar who had the last chance to launder the blood-spattered uniform of the Nigerian Army. There was Obasanjo who, in his self-estimation, is the greatest patriot, dead or alive, that Nigeria has known or will ever know. In Obasanjo’s eight years as chief profiteer of a struggle in which he was, at best, only a peripheral figure, he made it his first and last duty to erase every memory of the struggle and of Abiola, driven no doubt by the fear that he would otherwise be diminished. And then there were Presidents Yar’Dua and Jonathan who, having climbed the ladder of June 12 to the summit of Aso Rock promptly dismantled and discarded it —though Jonathan would make a feeble and insulting attempt at recognition through the naming of the University of Lagos after Abiola but only as the bleak prospects of his re-election slowly became clearer to him. One could understand a reluctance, even outright refusal, by their disciples and sympathisers to acknowledge the courage or conviction behind President Buhari’s decision to recognise the significance of June 12 as the immediate basis of the vaunted democracy we enjoy today and to honour Abiola and Gani Fawehinmi for their sacrifices in that behalf. What then to say to a constitutional law professor who launches a legal tirade against that simple gesture of restitution?

Professor Ben Nwabueze’s reputation as Nigeria’s foremost constitutional law expert is well earned. His book The Presidential Constitution of Nigeria was (and remains, I suspect) required reading for law students. So it ought to be a surprise that the reference point of his invective is the self-perpetuating act of a military autocrat first announced in an unsigned statement and then retroactively promulgated in a decree. Nwabueze begins his attack by questioning Buhari’s motives. He accuses the president of selfishness, insincerity, deceitfulness and mischief. In his words, the president’s declaration of June 12 as Democracy Day and bestowal of national awards on Abiola, his running mate Alhaji Baba Gana Kingibe, and Gani Fawehinmi, is motivated by “a political desire to secure the votes of Nigerians in the 2019 election, especially the votes of people of the South-West or to sow the seed of division among the members of the National Assembly in order to scuttle the threat to impeach him or to throw the country into turmoil or to smear the polity with the taint of illegality.” It is, he says, “a masterstroke of mischief and insincerity.”

Yet Nwabueze agrees that June 12 is more than qualified for the honour of Democracy Day. “[I]n the view of Nigerians, as shared by this Administration,” he stresses, “June 12th, 1993, was far more symbolic of Democracy . . . than May 29th or even October 1st.” And this is so because it is “the day when Nigerians in millions expressed their democratic will in what was undisputedly the freest, fairest and most peaceful elections since our Independence.” Consequently, the fact that “the outcome of that election was not upheld by the then Military Government does not distract from the democratic credentials of that process.” So, then, why the tantrum over the belated recognition of this fact? His answer: procedural irregularity, the way and manner the president did so. Nwabueze’s argument is as follows: the June 12 election was “as a matter of fact and law, annulled by a Decree” (No. 61 of 1993). Given the supremacy of decrees, as “settled with finality 48 years ago” by the military-in-government, the president’s revalidation action should have been preceded by an Act of the National Assembly, repealing the annulment decree and legalising his declaration and the bestowal of national honours. Failing that, President Buhari’s action, however popular, “affronts the law,” meaning the aforementioned dictator’s decree. In support of this untenable view, Nwabueze cites the well-worn dictum of Lord Denning in the 1961 case of Macfoy v. United Africa Co. Ltd [1961] on the nature of a null and void action: “If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the Court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.”

The questions are inevitable: is the learned professor really propounding the supremacy of decrees today, under a democracy, however imperfect it may be? And why did he ignore the five preceding declaratory sentences of Lord Denning’s only to feast on the last to find spurious support for the view that the president’s action amounts to putting something on nothing? Is the will of the people “nothing” or a perishable thing that expires by effluxion of time, in this case twenty-five years? Is Nwabueze dissembling when he says the “fact that the outcome of that election was not upheld by the then Military Government does not distract from the democratic credentials of that process?” All that semantic foray into the legal and ordinary meanings of “nullity” goes to no purpose. What is remarkable is Nwabueze’s careful avoidance of Lord Denning’s clear words that when an act is void, and so null, it is incurably bad, and that there is no need to go to court to seek an order to set it aside. For court, we need only substitute parliament to see that it was not necessary for Buhari to seek a repeal of Decree 61, it being a law made in violation of the constitution and which purported to annul the will of the people clearly, fairly and freely expressed.

And why does Nwabueze cite the constitution, the only law on which everything else must stand, only for a nebulous defence of an abstracted notion of the rule of law? I shouldn’t presume to remind him that the constitution takes supremacy over every other law (most especially inherited military decrees), but I must, considering. Section 1(2) states: “The Federal Republic of Nigeria shall not be governed, nor shall any persons or group of persons take control of the Government of Nigeria or any part thereof, except in accordance with the provisions of this Constitution.” Section 14(1) lays further emphasis on this bulwark of democracy and the rule of law by stating that “sovereignty belongs to the people . . . from whom government through this Constitution derives all its powers and authority.”

It is a fact that General Babangida seized control of the government by overthrowing the constitution. Thus, even though he maintained effective control of government for seven years through sheer might (acquired by the illegitimate use of the people’s arms) and sustained use of terror, his government was a nullity. All of the actions he took while in sustained violation of the constitution, including the retroactive Interim National Government Decree no. 61 of 1993 by which he sought to give bogus legitimacy to his annulment of the June 12, 1993 election, were therefore incurably bad. There was no need to ask parliament to repeal that law, already impliedly repealed, unless of course the president felt parliament was too idle. Indeed, the “something” that couldn’t possibly be put on nothing and hope not to collapse was precisely General Babangida’s illegitimate “government.”

This brings me to the matter of Nwabueze’s motive. Although he insists on a prior repeal of Decree 61, followed by a directive to the Independent National Electoral Commission (INEC) to declare the results of the annulled election (before Abiola could be deemed president and deserving of the honour of Grand Commander of the Federal Republic), he immediately points out the formidable obstacles to successfully doing so. INEC’s power to organize, undertake and supervise elections in the present and in the future, he argues, “does not authorize or enable the Commission to do anything in relation to an election that took place in the past . . . and organized and conducted by a differently constituted Electoral Commission.” Even if this obstacle were to be overcome through a specific Act of parliament enabling it to do so, there would yet be the problem of Section 70 of the Electoral Act which says that the winner of the election “shall be declared elected by the appropriate Returning Officer,” who must be “the particular returning officer involved in or who took part in the conduct of the particular election.”

We need not go too far in search of Nwabueze’s true motive: self-exculpation, a deep-seated animosity towards Abiola and perhaps the Yorubas generally as the primary dramatis personae of the election, as well as of President Buhari. His platitudinous praise of June 12 notwithstanding, Nwabueze was one of its most implacable undertakers. He not only gave intellectual justification for the illegitimate Interim National Government through which Babangida hoped to hit the final nail on the coffin of June 12, but also served as the Secretary of Education under it. And this despite the invalidation of that phony contraption by Justice Dolapo Akinsanya of the Lagos State high court. Then there is his barely disguisable dislike for the president. Nwabueze ends his jeremiad with the claim that President Buhari’s “perception of himself as an absolute ruler is antithetical to constitutional democracy, and constitutes a danger to the country,” and that he “should be made to shed that perception of himself.” For otherwise, he might have been willing to adopt the attitude of Olisa Agbakoba, certainly not an enemy of the rule of law or democracy: Even if the president acted in violation of an existing law, said Agbakoba, his recognition of June 12 is a popular act that he would not challenge.

Ifowodo, lawyer, poet, and human rights activist worked with the Civil Liberties Organisation for eight years and was a frontline participant in the June 12 struggles. He represents Delta State on the governing board of the Niger Delta Development Commission.