Buhari and the June 12 saga by Reuben Abati

There are three aspects – the strategic, the political and the legal – to the Federal Government’s decision to replace May 29 with June 12 as Nigeria’s Democracy Day, and to confer on the late Chief MKO Abiola, the highest honour in the land.

Strategy: Long before now, the Buhari government had needed to review its strategy of engagement with the public, move from blame-passing, propaganda, in-fighting, enemy-seeking approach to a more legacy-driven, result-oriented mode. It is like this: when a government is in decline, and it is losing popularity and goodwill, then it is time to change the narrative. That is precisely what the Buhari government has done with the masterstroke of a special focus on June 12 and Chief MKO Abiola at a time when virtually everyone from the Catholic Church, the opposition, prominent political figures, the media to estranged members of the APC are carrying placards against the government.

When you change the narrative, what you do is to divert attention from the prevailing negative discourse; you find something else for the people to talk about in the hope that this will give the government a breather, and allow it to get back on traction and restore some goodwill. Whoever suggested the June 12 and Abiola move to President Buhari is quite smart and I commend him and the government. But the “changing the narrative” strategy is not a deus ex machina. Its fall-out has to be managed, and government must be in a position to manage the gains or the challenges. This strategy can also prove to be a test of a government’s status. An accident-prone government may even in the long run gain nothing from such a move.

For the Buhari government, however, the June 12 move should change the narrative for a few weeks, except there is another accident on the security or political scene. But whatever happens, President Muhammadu Buhari will be remembered as the Nigerian President who successfully placed the proper historical accent on June 12, and MKO Abiola’s contributions to the restoration of democracy in Nigeria. The Jonathan government, which I served, had tried to do this in 2012 by renaming the University of Lagos after Chief MKO Abiola, but the UNILAG community – resident and alumni – reacted like cry-babies, they considered the name of their university too sacred, and too big for Abiola, and in the face of the overwhelming sentiment, the significance of the gesture was over-politicized.

The political: The politics of June 12 and Chief MKO Abiola has been a recurrent decimal in the debate about how best to remember the struggle that led to the exit of the military on May 29, 1999 and the role played by the pro-democracy coalition. Indeed, since 2000, the pro-democracy coalition and supporters of Chief MKO Abiola have lamented that the eventual beneficiaries of the struggle for democracy were the ones most determined to deny and erase Chief Abiola’s role in that significant moment in Nigerian history. They wanted Federal Government recognition for MKO Abiola. When this did not happen, the states controlled by the then Alliance for Democracy in the South West declared June 12, Democracy Day and a public holiday. In Lagos, Ogun, Osun, Oyo, Ekiti, and Ondo, monuments were named after Abiola, his statues were erected, other heroes of the struggle were honoured and every June 12, pro-democracy processions were held in these states.

The celebration of May 29 as Democracy Day has therefore been consistently opposed on the grounds that it is wrong to celebrate the exit of the military but better to commemorate June 12 – the day in 1993 when Nigeria held the freest and fairest election in its history – the Presidential election of that day united Nigerians across ethnic, religious and ideological lines. But as it happened, some military leaders considered Abiola unfit for the office, for their own personal reasons and therefore annulled the election. This brazen assault on the people’s sovereignty resulted in a prolonged protest for the restoration of the people’s mandate, and a nationwide rebellion against military rule. For six years, Nigeria stood at the edge of a precipice.

June 12 is indeed a watershed in Nigerian history. Its formal recognition is symbolic and instructive. This should assuage the pains of the pro-June 12 group, and help to restore the memory of that moment in history and the aftermath. I once wrote about how many young Nigerians born in 1993 or after do not even know who MKO Abiola is. I was asked on one occasion by a young Nigerian: “This MKO Abiola, what about him?” In a country where history is not taught, that is what you get: an emerging generation that does not know Nigeria. With June 12 now part of the country’s calendar, the story will be told, and that turning point in Nigerian history will be recorded permanently for posterity.

The decision to honour Chief MKO Abiola and Chief Gani Fawehinmi post-humously, and Alhaji Baba Gana Kingibe with GCFR and GCON is a good move, but the question of legality with regard to Abiola and Fawehinmi has been raised and here we confront the dilemma of a conflict between what is reasonable and what is legal.

The legal aspect: Are the post-humous awards really illegal? I recall that in 2014, the Jonathan administration had tried to honour Chief MKO Abiola and Dr. Ameyo Adadevoh by having their names on the National Honours List. Justice Alfa Belgore, former Chief Justice of Nigeria (CJN) who has now spoken up to declare the post-humous award to Abiola and Fawehinmi, “illegal” was the Chairman of the National Honours Committee at the time. The advice given at the time was that the awards could not be given post-humously, and that the law should not be bent to accommodate political interests. The Jonathan government, with the uproar over the re-naming of the University of Lagos still fresh in the minds of its officials, chose to tread with caution. It is noteworthy that this same issue of legality has again cropped up. By giving post-humous national awards, the Buhari government has now provided us an opportunity to interrogate the law.

The relevant law is the National Honours Act No 5 of 1964 – Section 3(2) thereof reads: “Subject to the next following paragraph of this article, a person shall be appointed to a particular rank of an Order when he receives from the President in person at an investiture held for the purpose –

(a) the insignia appropriate for that rank; and

(b) an instrument under the hand of the President and the public seal of the Federation declaring him to be appointed to that rank.”

The operative phrase here is “in person.” Can a dead person be honoured in person? I think not. But it would appear that upon a careful and calm reading of Section 3(3), the President is actually given the power of discretion to vary Section 3(2).

Section 3(3) states: “If in the case of any person it appears to the President expedient to dispense with the requirements of paragraph (2) of this article, he may direct that that person shall be appointed to the rank in question in such a manner as may be specified in the direction.”

With due respect, at issue is this: assuming that post-humous awards do not meet the conditions set out in Section 3(2), can the problem be cured by Section 3(3)? And is there any manifest ambiguity in the provisions or are the words in their ordinary meaning clear enough? Or could the action taken result in any absurdity? Or are there issues of procedure that may have been breached? Do we even have a National Honours Committee in place and if so, what recommendations did that committee make to President Buhari in pursuit of its functions as a clearing house? Any public-spirited person can go to court to test the National Honours Act and raise these issues. It is the duty of the courts to interpret the law, and with our progressive judiciary, I believe they can and should guide us on the true intent of the Honours Act. Ordinarily, a national honour does not harm anyone nor is it likely to injure the country itself.

However, the National Honours Act is overdue for review, and the process of appointing persons to the National Orders needs to be reformed. Should it become necessary to amend the Act, the National Assembly can do so in a week at most. In terms of process, the area of concern is the manner in which successive governments have tended to give out these honours as if they were mere chieftaincy titles or civil service allocations. Section 1(3) of the Act lists the number of awards that may be given every year, but the prescribed total minimum number is so large that every National Honours investiture ceremony ends up looking like a carnival where all kinds of undeserving persons are decorated.

Still on the legal aspect, some persons have drawn attention to Section 2(1) of the Public Holidays Act CAP 40 LFN – while that section of the law gives the President power to appoint any day as public holiday, it does not grant him the powers to unilaterally substitute a day with another as he has done with May 29 and June 12. The Schedule to this Act as it is, recognizes May 29 as Democracy Day, not June 12. The Public Holidays Act would still have to be amended appropriately but since there is no plan to declare June 12, 2018 a public holiday, and the President’s statement in its last paragraph specifically uses the phrase “in future years”, the Federal Government has more than enough time to seek a proper amendment of the Public Holidays Act by the legislature. So, I don’t see a problem here.

All told, the plan to honour the Abiola-Kingibe 1993 Presidential joint ticket and Gani Fawehinmi, the legendary human rights crusader, is imbued with much meaning and significance even if this does not automatically settle the matter about the results of the June 12, 1993 Presidential election. The Federal Government should take some additional steps. First, the Independent National Electoral Commission (INEC) should be directed to release the results of that election officially and for Chief MKO Abiola and Alhaji Baba Gana Kingibe to be recognized strictly as a matter of record as President-elect and Vice-President-elect respectively. The results of that election need to be validly declared to put a closure to the injustice that was committed. This is the more important matter. The major legal issue here, however is that both men can not be accorded recognition as former Heads of State – they never took oath of office, and the Constitution under which they were elected – the 1989 Constitution is no longer in existence. It stands abolished. Since equity does not act in vain, what has been done is at best symbolic.

To further heal the pains of the affected, the Abiola family should be recognized and compensated for his arrest and detention that ultimately led to his demise. On Gani Fawehinmi: I had expressed fears about the likelihood that his family may reject the honour, Chief Fawehinmi having rejected a similar honour while alive. The Federal Government must be relieved that they have accepted the honour.

Chief Gani Fawehinmi is of course most deserving of the highest honours in the land. For more than 40 years, he was in the forefront of the struggle for a better Nigeria. He was committed to the progress and well-being of the ordinary man, the rule of law and human rights as the main pillars of good governance. He pursued this objective through the instrumentality of the law. Of him, President Buhari writes: “…the tireless fighter for human rights and the actualization of the June 12th elections and indeed for Democracy in general, the late Chief Gani Fawehinmi SAN is to be awarded posthumously a GCON.”

I can only add that there are others who were also part of that struggle for the “actualization of June 12” whose contributions were no less important, and pain and suffering no less, who should also be considered for national honour. They even did more for the struggle than Chief Abiola’s running mate, Alhaji Baba Gana Kingibe who is now being honoured, not for his contributions, I assume, but merely for being part of the ticket! They include Chief Alfred Rewane, Chief Anthony Enahoro, Chief Abraham Adesanya, Professor Wole Soyinka, Alhaji Balarabe Musa, Frank Kokori, Col. Abubakar Umar, Beko Ransome-Kuti, Dr. Tunji Braithwaite, Alao Aka-Bashorun, Rear Admiral Ndubuisi Kanu, Ayo Opadokun, Kudirat Abiola, Chima Ubani, Commodore Ebitu Ukiwe, US Ambassador Walter Carrignton and all the journalists and media owners who were lied against, harassed, shot, assassinated, or jailed. This list is by no means exhaustive but it is representative enough for the benefit of those who insist on ethnicizing June 12. It was a pan-Nigerian struggle: between good and evil, between heroes and villains, and by the way, I agree that Professor Humphrey Nwosu – the man who presided over the election as National Electoral Commission Chairman – also deserves recognition.

The reading of motives – all that talk about timing, the South-West and 2019 – is beside the point. In the South-West, there were many Yoruba anti-June 12 elements who refused to acknowledge Abiola as the symbol and focal point of the restoration of democracy in Nigeria, and who may still be indifferent today. Timing – it is better late than never. 2019 – there is no strong indication that this would have any significant effect on the voting numbers in 2019. The Nigerian voter may not be as stupid as we often think he or she is.