Editorial: FG, States, Rule of Law and ‘present danger’

A distinguishing factor between human beings and animals is that neologism referred to as ‘Rule of Law’.
In the animal kingdom or the jungle, it has never happened, and it will never happen, that a jury will sentence a lion to death for killing an antelope.
But, in any geographical space in all the continents in our world, even the ‘stronger of the strongest’ in any country cannot just kill a fellow human being without recourse to the Rule of Law.
So, in essence, affairs of human beings in any polity are strictly guided and guarded for sanity to prevail at any given time, especially in a democratic rule.
Given the suit of 19 governors before the Supreme Court against the Federal Government on the establishment of the Economic and Financial Crimes Commission (EFCC), the Independent Corrupt Practices and Other Related Offences Commission (ICPC) and the Nigerian Financial Intelligence Unit (NFIU), and the argument put forward by the Federal Government, the questions some Nigerians are asking are: even in a democracy, do we still have Rule of Law in Nigeria? Does it still apply to official conduct of government officials – FG, States, Councils?
Do those constitutionally mandated to enforce our laws follow the rules strictly?
Is the Federal Government applying laws or ‘might’ (like a lion in the animal kingdom) in its dealings with states and councils? Are we still in a federation in the real sense of it?
The case before the Supreme Court is pure law, not partisan politics and it is unfortunate that the Federal Government is, directly or indirectly, trying to bulldoze its way by threatening governors and states.
What exactly are the issues?
It is a truism, which is not subject to any legal analysis or debate, that no aspect of the 1999 Constitution (as amended) should be compromised, violated, breached, disregarded or raped on the altar of politics or partisan interests.
Now, this is the position of the governors and states in the suit which the Federal Government is yet to controvert, contradict or deny: the EFCC Act and others were based on a United Nations Convention Against Corruption (UNCAC), and, being an item not named in the Exclusive Legislative List, should and must enjoy concordance and ratification of, at least, 24 States Houses of Assembly as federating units in the Federation in line with provisions of Section 12 of the 1999 Constitution (as amended).
The EFCC Act was based on a UN Convention and before it can become operational, legally and constitutionally in the country, it must be codified and adopted by the Houses of Assembly. It is only when that is done that it can become an enforceable law at the federal level, the 36 states and FCT.
This was clearly the decision of the Supreme Court in the case of Dr. Joseph Nwobike vs Federal Republic of Nigeria.
To the apex court, the Act, having not been ratified by states in line with Section 12 of the 1999 Constitution (as amended), is an illegality.
Below is what Section 12 (1) of the Constitution says: “No treaty between the Federation and any other country shall have the force of law except to the extent to which any such treaty has been enacted into law by the National Assembly”.
Sub-section (2) states that “the National Assembly may make laws for the Federation or any part thereof with respect to matters not included in the Exclusive Legislative List for the purpose of implementing a treaty”.
In this case, the UNCAC, a treaty Nigeria ratified since December 14, 2004 by the Executive under former President Olusegun Obasanjo and the National Assembly from which the EFCC, ICPC and the NFIU Acts were enacted, is not included in the Exclusive Legislative List and
is without ratification from, at least, 24 States Houses of Assembly out of 36 states.
In fact, subsection 3 of this Section 12 states that “a bill of the National Assembly passed pursuant to the provisions of subsection (2) of the section shall not be presented to the President for assent, and shall not be enacted, unless it is ratified by a majority (24) of all the Houses of Assembly in the Federation.”
Although the Supreme Court has reserved judgement in the suit filed by the 19 governors/state governments challenging the constitutionality of the laws which the Federal Government has been using since 2004, the argument of the plaintiffs is that it is wrong to fight legality with illegality.
The question to ask is: since you cannot build something on nothing, what is wrong in seeking judicial scrutiny on the processes that led to the enactment of the laws establishing EFCC, ICPC and NFIU? Were provisions of the 1999 Constitution (as amended) obeyed in the course of enacting these laws?
In fact, at the hearing of the suit on October 22, a Senior Advocate of Nigeria (SAN), Mohammed Abdulwahab, who appeared for one of the plaintiffs, shot a straight legal arrow while addressing Justice Uwani Abba-Aji and the panel of Supreme Court Justices: “We are also challenging the foundation of those laws that created NFIU, EFCC etc. in order not to create a constitutional crisis”.
We believe the governors and states are raising this matter at the right time and the Supreme Court should do justice to it immediately.
The matter borders on the foundation of Rule of Law and the future of the country.
From the argument above, it is true that the enabling Act was enacted without input from, at least, 24 Houses of Assembly, violating the principles of federalism and state autonomy.
Therefore, the National Assembly must ratify the UN Convention in accordance with Section 12 of the 1999 Constitution.
We strongly believe the governors’ action is a legitimate pursuit of constitutional lucidity, transparency, openness and accountability.
It is clear that the Federal Government cannot unilaterally create EFCC, ICPC and NFIU without recourse to states.
This is not a case of corruption fighting back but an adherence to the Rule of Law.
Also, there is no Section of the Constitution that undermines federalism and state autonomy. So, the Federal Government should not be seen to be working against the provision of the Constitution.
Obviously, the 19 states are not seeking to dismantle these agencies but since this is a democracy, the Rule of Law must strictly guide conducts and operations of government agencies.
That is the only way to protect our federal system and ensure that agencies operate within legally-established and constitutionally-allowed variables.
Some stakeholders have also accused the Federal Government of cajoling, persuading or threatening some governors to withdraw from the suit.
We believe this should be condemned by all Nigerians because the issue at stake is not about an individual or individuals but the Rule of Law, Justice, Equity and Nigeria’s future.
Using illegality to fight legality is a ‘clear and present danger’ that must be corrected immediately in the interests of Nigeria and all Nigerians.