Festus Ogwuche is a renowned Nigerian constitutional lawyer, broadcast expert, and public affairs analyst. He’s been happily married to Patience Ogwuche, a businesswoman, for 25 years, and they have five children together. Ogwuche is also known for his advocacy work, particularly in supporting female entrepreneurs and promoting good governance.
A Conversation on Christian Persecution, Sovereignty, Economic Challenges, and Democratic Decline
INTERVIEWER: How can the Nigerian government balance its sovereignty with the need to protect Christian communities from escalating violence, and what role should international partners play in addressing this issue?
INTERVIEWEE: It is acknowledged that sovereignty is not steeped in absoluteness of the sort that forecloses all exceptions. While it is veritable for the expression of nationhood and independence in international law and relations, there are circumstances that allow the breaking of its veil. This could be on humanitarian grounds, on the failure of the state to protect its citizens and several other acts that threaten its existence. The Nigerian example represents a classic case where the whole idea of sovereignty and its twin concept of non-intervention can be kept aside or in abeyance for a proper international scrutiny or intervention. That is part of the principles provided under the UN Charter and enunciated in the Montevideo Convention on the principles on the minimum standards of statehood in 1933.
INTERVIEWER: Is the threat of US military intervention in Nigeria a justified response to Christian persecution, or does it undermine Nigeria’s sovereignty and exacerbate regional tensions?
INTERVIEWEE: Nigeria seems to have accepted the application of the exceptions to its circumstance by its collaboration with the US in the Christmas day attacks on ISIS terrorists in Sokoto. One can now fairly deduce that it has reconciled itself with that reality. But the point to be made however is that there are certain prescriptions made by international law for such intervention and that’s the point Professor Oona Hathaway pointed out in her most recent discourse in international law. The idea of unilateral actions no matter the cogency of the situation, does not fit appropriately into the purview or agenda of the form of international intervention by a state envisaged under international law. It rather smacks of undue interference which is clearly forbidden by the UN Charter and this has raised some genuine fears from authoritative quarters on its sustainability and the likely ugly consequences it could ensue.
But then, while we were yet to settle with President Trump’s tweet and his threats, we were jolted by Nigeria’s invasion of Benin Republic and that’s where we lost the entire sail on those discussions. In criticizing Trump, Tinubu adopted a positivist stance in the manner of Prof. Hathaway’s postulations, asserting that the international rules be engaged fully, but in Benin Republic, he invoked non-existent moral rationale which undermines predictability in the legal order. This is essentially because unilateral actions without Security Council endorsement risk establishing precedents that make powerful states act arbitrarily under moral or democratic justification, thereby undermining consistency and credibility. Therein lies the palpable errors that evidence shortfalls in foreign policy framework and orientation of the Nigerian state.
One can safely say that the US intervention is justified to the extent of the international responsibility of protecting the populations within a state from killings, genocides, pogroms… of the sort that shocks humanity, threatens humanity and the existence or survival of the state and to some extent, international peace and security. The justification becomes accentuated when the particular state exhibits total lack of capacity to abate the crimes or there are factual proofs suggesting state complicity through the direct or subtle involvement of state actors in the perpetuation, funding or operations of the terrors. These can be proved by the reluctance of the state to prosecute the terrorists and their sponsors and this has been the case of Nigeria, a circumstance that should invoke supranational interventionism and responsibility.
INTERVIEWER: Allegations of forgery surround the gazetted tax reform bills. How can the Nigerian government ensure transparency and accountability in the legislative process to address concerns of executive overreach?
INTERVIEWEE: There’s no problem with the so-called ‘tax reform Act’ which has been discountenanced by the National Assembly on its dubious representation and fraudulent value. Unfortunately, the legitimacy continued in its inherent error by demanding a re-gazetting, as if by doing so can transmute a dubious instrument marked with criminality and illegality overnight to one that is legal and capable of enforcement. No, far from it – and this tells us volumes of the quotient and capability of our legislators to make law for the peace, order and good government of our country.
I had expected the ICPC’s swift intervention to investigate the circumstances that led to a situation where a Bill passed into law by Parliament turns out in a different format and content upon assent by the President and Commander in Chief. That’s a grave criminal act that aligns with treason. Since the young gentleman raised the issue on the floor of the House and until this moment no one had given a plausible explanation to this deep shame and absurdity – and they still have the audacity of talking about re-gazetting. Re-gazetting of what and for what purpose? This is a direct manifestation of deceit, bad governance and representing an underlying chicanery and roguery in the running of public affairs.
In most democracies, the government would be forced to resign – yes, it is as grave as that, but here we see Tinubu insisting that the law must be enforced by the 1st of January. That alone makes him the principal suspect in the forgery and uttering of the instrument. Then we have this court decision that gave its stamp of authority on the law few days ago – that is the High Court of the Federal Capital Territory, Abuja per Hon. Justice Bello Kawu removing all doubts about how servile our judiciary has become. In a manner of judicial deference, he declined jurisdiction but upheld the tax law and ordered its implementation while considering an ex parte application before it seeking restraining orders against the implementation of the law.
As bizarre as the procedure adopted by the court sounds, that decision has not conferred Tinubu’s tax law with any shade of legality or legitimacy. A court of law cannot transmute an illegality to a legality because it said so. Just as the court cannot under any circumstance resurrect a dead law so also it cannot suo motu render a fraudulent law enforceable. I still wonder what law or jurisprudence inspired the judge to take that responsibility and make such pronouncements notwithstanding the palpable boldness with which the judge exerted the position.
Then we look at the tax law itself and we see that it is yet another subterfuge to take from the poor and further enrich the wealthy, something akin to the fallouts of the removal of the fuel subsidy regime. Despite the huge amounts generated since the removal, Nigerians have been laboring painfully under the excruciating yokes of poverty and deprivation. The federal government and the states are monthly celebrating bountiful harvests of allocations with a corresponding squander not reflected in the livelihoods of the population.
Tinubu’s idea of ‘hitting the ground running’ is manifested in his proclivity and passion for taking loans left, right and centre with little infrastructural visibility of only a small fraction or percentage of the entire amount taken as loans and subsidy withdrawal funds. While the President is still seeking National Assembly approval for more loans, he’s also tinkering with the idea of an expansion and harmonization of the tax regime! For what, if I may ask? You don’t play on the docility of the people and subdue them further into economic deprivation because it could boomerang by accentuating their resistance and pushing it into eruption!
Fortunately, for now, as a lawyer, I can say with every dint of confidence that the tax law is not in existence, notwithstanding the null validations of our obviously subservient judiciary.
INTERVIEWER: With 29 out of 36 state governors belonging to the ruling party, how can Nigeria’s opposition parties effectively check the government’s power and prevent a drift towards a one-party state?
INTERVIEWEE: The drift towards a one-party state portends grave danger to our nascent democracy. It is the reflection of the political character of our political elites and their recourse to desperation in the face of dwindling claims to popularity reminiscent of the character of most African political elites. This happens because the world is yet to take a strong position and insist on the application of the contextual norms and mechanisms as prerequisites to the practice of democracy anywhere in the world. Those could be ascertainable conditions to the application and running of a constitutional and democratic order beyond the spheres of international conventions, declarations and observation.
What we have in Nigeria today has no bearing whatsoever with democracy as you cannot truly ascribe electoral heists that suggest state capture or political power hijack as leeway accessing state resources by a few as meeting the standards and traditions of democracy, or the doctrines and principles of constitutionalism. And you can also see how party stalwarts and chief executives of states are moving shamelessly into the ruling party without a damn or concern for the interests of the people.
The implications of such mass exodus expression can be anchored on three multi-dimensional fronts: firstly, that the brand of ‘democracy’ practiced in Nigeria has nothing to do with the people but one that thrives on the total loss of sovereignty and political power of the people which should function as the foundation of every true democratic ambience. Secondly, that the governance of the country is not people-centric and this thereby puts a huge question mark on the legitimacy of government. Thirdly, that the party systems are weak, faulty and incongruous to a proper political order.
Unfortunately, the persons involved are beating their chests over a potentially dangerous course that threatens democracy at its very matrix. It’s time international law becomes strengthened and advanced towards entrenching rules and standards of democracy as enforceable jus cogens normative order applicable in municipal jurisdictions that profess to a democratic system rather than do nothing but tolerate all manner of electoral frauds including heists, state capture, hijacking and brigandage of state apparati and resources in the name of democratic elections. The mass exodus of prominent politicians including state governors to the ruling party affirms a democracy that has no bearing whatsoever with its underpinnings and traditions.
INTERVIEWER: What strategies can the Nigerian government implement to address the country’s poor economic state and reduce its massive lending?
INTERVIEWEE: The economic challenges facing the country are all self-inflicted – not by the people, but by its leaders. You can’t imagine a country like Nigeria with a terrain that’s flowing with milk and honey turning out to be the global headquarters of penury. I will refrain from going into the nitty gritty of this aspect of the discussion as we won’t have the space and time to do so.
Even at that, the government is out there reeling out facts and figures most of which the World Bank discountenances and not corresponding with the figures from the National Office of Statistics. For instance, the unemployment rate is hitting 32%, yet the government is placing it somewhere at 2%. Sometimes propaganda could be counterproductive. And President Tinubu has been telling anybody who cares to listen that Nigerians are better off in his government and I wonder if the gentleman is talking tongue in cheek.
It’s disheartening, to say the least, that almost all the sectors are either dead or comatose. Show me one that can pass the test of viability any day. Currently, there’s no manufacturing sector, the health sector is dead, the financial sector is over-regulated by a CBN that appears overwhelmed on how to go about formulating and pairing fiscal and monetary policies to strengthen and enhance the purchasing power of the currency. Then, the almighty corruption which has assumed endemic proportions very lately. Where can we go from here?
INTERVIEWER: How can the Nigerian government effectively combat Boko Haram and other extremist groups perpetuating violence against civilians, and what role can international cooperation play?
INTERVIEWEE: Your question becomes necessary only when the Nigerian government has shown a commitment to do away with the terrorists. The menace started at the early years of Yar’adua presidency, and we all witnessed his dedication to the cause of eradicating Boko Haram even in his frail state. Then Jonathan came, and it was heartwarming then to see the world converge in the North East, even including war mercenaries. It was indeed a glorious era until the big supporters of the sect oiled their propaganda machinery, and we heard statements like the onslaught against Boko Haram is a battle against the North. Buhari was most prominent here, and a group chose him as spokesman and chief negotiator.
While the herdsmen were busy devastating communities killing natives and his government looked the other way, he was busy fetching every idea on how to settle his kinsmen – Ruga, cattle routes and colony, River Bank federalization… Recall one time when herdsmen occupied the forest reserves in Ekiti, and the then Governor, the late Akeredolu (SAN) gave them a marching order, and he was rebuked by the presidency on the ostensible ground that he lacked the authority to send them away as they were entitled to their fundamental right to freedom of movement!
The world is aware that Nigeria does not lack in capability to tackle terrorists in their land, militarily speaking. The Maitatsine sect is even more daring and deadly than Boko Haram, herdsmen and bandits, but Nigerian troops knocked them out with huge blows and wiped them out in few days during the Shehu Shagari era. There was commitment and tenacity then. But how do you compare that to the policy of having deadly terrorists arrested, released, treated to a banquet and rehabilitated at the taxpayer’s expense? It sounds incredible, doesn’t it?
Soldiers that shoot and kill them even for self-defense are dismissed and prosecuted. Ditto for civilians and Sunday Jackson is a leading example, with a lackey judicial system that’s readily available to bend the law in their favor. Those arrested by the police are immediately released upon ‘orders from above.’ That’s the official Nigerian policy. What that tells any discernible mind is that the individuals behind the terrorist activities in Nigeria are more powerful than the state.
Throughout eight years of the Buhari presidency, Malami kept telling us that he has a list of the financiers of the deadly activities, but failed to reveal who they are and did nothing about having them face the law before departing office. At the time those names were later revealed, it was very glaring that there’s a special state shield covering them that makes identifying them an uphill task. Then stories kept flying in all directions that some governors, including Matawalle were purchasing Hilux trucks for bandits. Incidentally he sits in office today as Minister of State in the Defence Ministry.
And so the story got clearer and clearer each day which suggests government complicity beyond the reluctance to take definitive action to crush the terrorists. The opinion becomes more nailed when you notice the agility and enthusiasm with which separatist agitators of Biafra and Oduduwa are pursued. Tinubu came in and gave some softening to his kinsmen who are still pushing their agitation peripherally, but tightened the knot against those of Biafra and left no stone unturned in getting the courts to imprison Nnamdi Kanu for life.
The recent carnage on the Plateau and Yelwata happened right under his nose and he did nothing. How would anybody rule out the idea of complicity? The Tucano jets purchased from America at huge costs are lying unused since they were delivered. They are meant to be used for the battle against the killings in Nigeria. Trump’s intervention is the only perceptible rescue for Nigerians, if not this onslaught should have continued unabatedly till their Islamic agenda is accomplished. Thank goodness, the Nigerian government has collaborated with the US and the likely involvement of Israel accords it with a multilateral character.
INTERVIEWER: What measures can be taken to hold accountable those responsible for human rights abuses, including the killing of Christians and other minority groups?
INTERVIEWEE: Human rights violation has become a high-ended project of failures and disappointment, not only in Nigeria but in the entire African region. Chiefly amongst them is the reluctance of Africa’s political leadership to allow for greater freedoms that would curtail their overarching penchant for power and domination.
For Nigeria, the problem essentially is the state of weakness of the critical institutions of democracy particularly the courts and law enforcement agencies. Then, the condescending and indifferent posture of the National Human Rights Commission that is the main advisor to government on human rights issues. Human rights abuses in the country have quadrupled over the years since the terror activities that the Commission itself does not have a handle on the figures and I seriously wonder how its officials meet their yearly reportage responsibility.
Most disturbing is that till this moment Nigerians are denied access to the African Court of Human and Peoples’ Rights in circumstances that are unjustified, outrageous and questionable.
INTERVIEWER: What reforms can be implemented to strengthen Nigeria’s governance structures and reduce corruption?
INTERVIEWEE: On the issue of the appropriate institutional reforms to make for good governance, we don’t have to look too far. Focus must be on electoral and judicial reforms. Electoral, because it is the farcical and fraudulent elections that enthrone the worst Nigerian citizens and dubious characters into sensitive and important elective positions where they display their wares.
Indeed, there are a great many decent and well-groomed Nigerians that can turn our national misfortunes to bountiful blessings but would be wary to dabble into the dangerous political arena. The electoral system has created hotbeds of violence and killings in such manner that elections are viewed with fear and trepidation. When the proper electoral system is put in place, the people can exercise their franchise and elect their leaders who they know, away from the current situations of imposition and hijack of state that is making democracy look like a Frankenstein monster.
Judicial reforms are also important because as can be seen, the bulk of people sitting in elective positions received their mandates not from the people but from the courts. Indeed, the greater portion of the problems the country faces today are the direct consequences of judicial failure. The incongruity, indiscretion and inconsistency that churn out of judicial chambers in the form of decisions, particularly in more recent times, can pose serious challenges to the entrenchment of good governance. If the courts abdicate their position to serve as the watchdog of society, it can result in the sort of situation we find ourselves in Nigeria.
INTERVIEWER: What steps can the Nigerian government take to address these pressing issues and promote national unity, stability, and prosperity?
INTERVIEWEE: The path forward is for Nigeria to consider its journey so far and determine the possibility of either continuing by moving forward, or sitting down at a table to discuss whether they should go for a disintegration or allow for a loose confederation. This must involve the people, not a select few. This is so because the bonds of unity are so weakened by the growing mistrust and suspicions of the different ethnic nationalities that the idea of component and ethnic harmony is more of a mirage than reality.
The calls for the convocation of a sovereign conference for ethnic nationalities is long overdue since the days of Tony Enahoro, and for as long as it is ignored the more the country gets deeper and deeper into political abyss. That’s the same call the Chief Emeka Anyoku group is making for a pluralistic constitutional framework, both complementing each other on the ideals of a participatory democracy for constitutional governance, respect for the rule of law and fundamental rights and freedoms. Thank you.
