HOW FALANA AND THISDAY DEFAMED IWU AND NIGERIA

By: Aloy Ejimakor

This essay is intended as an opposite view to any notion that Professor Maurice Iwu’s tenure as Chair of INEC has expired, as the duo of Femi Falana and Thisday have been purveying since the past few days. The basis for their submissions is that Maurice Iwu was appointed to the Commission as a member in 2003 and that his tenure as Chair of INEC must count from that date instead of from 2005 when he was appointed (not promoted) as Chair of INEC. To be sure, Femi Falana and the Thisday that is being used for cheap publicity are wrong, on points of law and fact. That they are wrong is so self-evident and trite, yet it is sadly the basis upon which Mr. Falana was priming himself to go to court to seek removal Iwu.

When I read Thisday’s back-to-back publications of this fallacy in the past days, I immediately had a sudden sense that Falana was poised to yet again embarrass himself and the legal silk he wears so proudly and loudly. Recall that it was the same Falana who also was the first to loudly proclaim a while back that Maurice Iwu’s appointment as INEC Chair breached a certain section of the Nigerian constitution on dual citizenship. Falana was so cocksure and loud that the AC was goaded by his theories to sue Iwu to court, seeking his removal as INEC Chair. At the time, I had written and published an opposite view which ultimately prevailed in court. Femi Falana and AC were embarrassed but neither of them apologized, not did the NBA see fit to reprimand Falana for breaching cannons of legal ethics on false and malicious interpretation of the law.

This time around, Falana used Thisday to yet again embarrass himself, and in the same breath, through a subsequent edition of Thisday, they rebutted themselves by their own words. Here is how: The first publication on March 22, 2009 was ‘absolutely’ sure that Iwu’s tenure has since expired in August last year. Falana and Thisday were riding high, National Assembly and the Presidency were embarrassed, and the whole nation was in panic that what Nigeria has had all along in Professor Iwu was an imposter umpire-in-chief. But Falana and Thisday, driven mad by hatred of Iwu, were not yet done.

The next day on March 23, Falana and Thisday gloated that the Presidency (and the rest of the Federation) has been suckered by their expose and is in quandary. Here is how they put it: “The realization that the tenure of the national Chairman of the Independent National Electoral Commission (INEC) Prof. Maurice, may have expired last year is causing ripples at the National Assembly and the Presidency, THISDAY has learnt”. Really? How did these people learn of these ripples? Are we to believe that part of their intention was to publish falsehoods and then run to the Three Arms Zone to look for ripples? Talk about making things up and shouting fire in crowded movie theatres and I will show you a Falana and Thisday lurking in the shadows. Falana never reckoned that both the Presidency and the National Assembly have fine lawyers not given to emotional outbursts and false reading of the plain terms of the law.

So, it came to pass that, most probably, after Falana and Thisday were tutored that they were wrong, they ate their own words on the front page of Thisday of March 24, in the following words: “But it emerged yesterday that Iwu who joined after the 2003 elections as a national commissioner was actually screened by the Senate for the chairmanship position on June 1st, 2005 and sworn in by former President Olusegun Obasanjo on June 13, 2005 for a five-year tenure”. Common, why don’t you guys just say that you are sorry or that you goofed?

So, Thisday and Mr. Falana, are you going to now apologize to Maurice Iwu, the National Assembly you called ‘ignorant’, a President you lied was having ‘ripples’ and an innocent Nigerian nation you sought to mislead and send into panic? Or is it the polity you both sought to destabilize so nakedly and wickedly?

I will not, in this piece (like Falana loves to do), begin to rehash the Nigerian constitutional provisions on Maurice Iwu’s tenure, except for the following remarks: Mr. Falana stood the basic cannons of interpretation of plain legal provisions on its head in a deliberate (and malicious) attempt to mislead the public and to cause confusion. The provisions he cited are clearly in contradiction to his postulations and wild theories and both he and Thisday knew it, yet they still chose to travel the path of perfidy and self-embarrassment, their famous self-rebuttal notwithstanding. They knew that being a member of INEC and Chairman of INEC are two different appointments unless Iwu was also appointed Chairman the same day he was appointed a member of the Commission.

That Iwu was (later in time) appointed Chair of INEC in which he also served as a member is a mere coincidence. In public administration parlance (relating to political appointments), it is called ‘intra-departmental appointment’, meaning that the subsequent appointment triggers a new tenure. It is not a promotion because Iwu was not on civil service track or secondment. Iwu could have been appointed Chair of any of the other Federal Commissions enumerated in the said section of the constitution without some ignorant Falana trying not to see the single incident that meant that the two appointments are unrelated and separate in time. That single incident is the Senate confirmation of Professor Iwu as Chair of INEC in June 2005, which triggered a new term of office that survived his initial appointment in 2003. The related provision in the constitution, bearing the reference to Chairmen having the same tenure as members is just for the sake of avoiding a repetition of the conditions for serving in all the federal Commissions named therein. That is a basic rule of drafting that Mr. Falana, as a lawyer of silk, sadly failed to understand.

Now this: ‘The model rule of professional conduct and ethics for lawyers in the Commonwealth requires that a lawyer must not wilfully (with intent to deceive or with malicious intent) mislead the public or the courts on a point of law or fact and with such reckless abandon as to bring the legal profession or any other person into disrepute’.

Mr. Falana, the above rule is a paraphrase of the general rule that has been long adopted as a code of ethics for lawyers by the American Bar Association, all the Inns of Court in Great Britain (and the Commonwealth), and of course, the Nigerian Bar Association, of which Falana is a ‘ranking’ member. I will be surprised if the NBA fails to reprimand Falana over this. Or is the NBA going to pass this over and give Falana a free pass like it did when he also led the way to the conspiracy to mislead Nigerians with his deliberate misinterpretation of Nigerian constitution on dual citizenship – over Maurice Iwu. Without more, Falana’s reckless and serial falsifications of our supreme law on the matter of Iwu’s appointment and tenure is malicious and therefore a sanctionable professional misconduct.

Now to Thisday: ‘A newspaper is bound by law not to publish falsehood or publish anything in reckless disregard of the truth. It is no defence that the subject of the falsehood is a public official or a government unit if there is evidence that such newspaper knew its publication to be false or should have known that it is false’.

Above is roughly the provision in our tort law concerning false and malicious publications, otherwise generally known as libel or defamation. On March 22 and 23, Thisday published falsehoods with malice aforethought. On 24th March, Thisday, at paragraph 6 of its banner front page headline, admitted explicitly that its publications on Iwu’s tenure expiration were false. In evidence law, that is called admission of party opponent or admission against self-interest. In other words, it is an open and shut case, as Perry Mason used to say.

Therefore, Professor Maurice Iwu, the National Assembly (that Falana called ignorant) and the Nigerian nation Falana and Thisday sent into a panic have cause to take some action against these two despicable parties (Falana and his Thisday). If Nigerians let them off, it is likely that they will again go prancing around looking for the next opportunity to panic the nation and cause instability. Yet, I will not be surprised if Thisday, following previous traditions established in the Okonjo Iweala case, eats the humble pie by apologizing to Maurice Iwu and the nation. On the contrary, I will be surprised if Falana apologizes to anybody because the man has gone berserk and appears irredeemable.

Ejimakor is an attorney and analyst alloylaw@yahoo.com

SIMON KOLAWOLE AND HIS MANY TERMINAL DISEASES

By Aloy Ejimakor

On the back page of THISDAY of March 15, 2009, one Simon Kolawole impliedly claimed to have been privy to a grand Nigerian conspiracy of an Imo variety where Professor Maurice Iwu, INEC and Ohakim got together someplace and ‘awarded’ the governorship of Imo State to Ohakim on a platter. After reading the sadly rambling contents, I became more bewildered than informed because the allegations spewed by Kolawole could not check out with events in Imo (or even rest of Nigeria) during the time-line leading up to the 2007 transition. And worse still, Kolawole strained the cannons of civility and free speech by going as far as calling Professor Iwu a ‘terminal disease’ – a strong language and fighting words I am troubled that an enlightened THISDAY allowed in print. As a Nigerian who also observed the 2007 elections and read accounts turned in by numerous realistic observers, I feel it is my duty to the Nigerian public to write this rejoinder (or right of reply) and send it to Kolawole’s email address listed in his column. I hope he and Thisday will publish it as such. My submissions now follow:

Regarding the conduct of the elections in all of Nigeria, the ‘Observer Group of Organizations of Nigerians in Diaspora’ (OGONID), in its official report had concluded as follows: “We praise Maurice Iwu and INEC for their courage; and we agree that the result of the election is a true reflection of the popular will of Nigerians. Parties prevailed where they were predicted by the strength of their numbers and structures to hold better chances than their opponents. Parties condemned the election wherever they lost and praised it wherever they won – thus corroborating the notion that the election was acceptably free and fair for the most part, even if it failed to meet the highest standards seen only in countries that have operated uninterrupted democracies for more than two centuries. While Nigeria should strive to attain the same standard, we should not be enslaved or destabilized by the pursuit of it”. To date, I still stand by this assessment as the most accurate and realistic characterization of what happened in 2007; and it is on this notion that most Nigerian Diaspora came to closure on the 2007 elections, which if I may add, is also viewed by our vast majorities as an ‘historic and difficult transition’.

Better yet, the following week (on March 22, 2007), the same Simon Kolawole in his Thisday column, under the caption ‘Understanding the Fashola Phenomenon’, sadly contradicted himself by stating that “The conventional wisdom is that if you control the motor parks, you control the thugs; if you control the thugs, you control the polling booth; if you control the polling booth, you control the votes! That is why associations such as National Union of Road Transport Workers (NURTW) and Road Transport Employers Association of Nigeria (RTEAN) are very strategic to politicians and there is always a fierce battle to control them”.

Well said Mr. Kolawole. By your own hand, you embarrassed yourself and Thisday by your self-rebuttal of the invectives you penned against Maurice Iwu the previous week. Second, you implied that in Lagos State, it is the duo of Tinubu and Fashola that control the mass of hardworking Nigerians you called “thugs” and “touts” and that it was these people that helped them to rig elections in Lagos State; though, in the same piece, you also implied that this phenomenon applies throughout Nigeria. Now, I ask you the following questions: Are you now going to write another piece where you will also call Tinubu, Fashola, NURTW and RTEAN ‘terminal diseases’ like you called Maurice Iwu? And can you explain where Professor Iwu fits into this your new theory that whoever controls the thugs controls the polling booth? Does Maurice Iwu control the thugs in all of the states of the Federation of Nigeria? While Mr. Kolawole ponders these questions, let’s turn to Imo State, which he used as the test case (or evidence of Iwu’s ‘terminal disease’).

To be sure, the situation in Imo was entirely different from the rest of the federation. There, PDP, OBJ and Udenwa publicly (at the stadium in Owerri) disowned a judicially reinstated Ararume and directed PDP’s bewildered ranks to vote another party’s candidate; and this was after INEC had already printed ballots that bore Charles Ugwu’s name and picture. But thanks to Maurice Iwu’s sense of fairness and quick reaction to unfolding events, INEC still redoubled to add Ararume’s name to the ballot in record time. But with the airwaves, newspapers and grapevine awash with Ararume’s total rejection by his own party, prospects of victory for him plummeted dangerously. I am from Imo and I am personally aware of the potent rumors that, concerning the first ballot on April 14th, PDP could not make up its mind between PPA’s Ohakim and APGA’s Agbaso. This wishy-washy attitude on the part of the PDP created a lot of tensions around the Governorship elections (as contrasted with the concurrent Assembly elections); and explained why it was possible for the contest to be marred while the Assembly elections (held on the same day), but which had no similar uncertainties, could have proceeded without incident.

Those of us physically present in Imo State on April 14th, 2007, including the INEC Imo REC, elements of Police and SSS, Ohakim, Agbaso and Ararume (but excluding a certain Simon Kolawole of Thisday) were eye-witnesses to the violence (and legion irregularities) in their worst manifestations, all perpetrated by the bitter contestants, not INEC. We also saw that whereas the Assembly balloting was proceeding smoothly on the clarity of party lines, the confusion surrounding the Governorship segment presented monumental temptations to voters and party ranks to engage in all manners of malpractices. Because of this and the other evident irregularities, all the governorship contestants and their political parties (including Agbaso and Ararume) sat down with INEC and agreed that the aspect of the balloting relating exclusively to the Governorship contest was inconclusive and therefore should be rescheduled for another date. Again, for avoidance of doubt, it is easy to see why that aspect of the poll regarding the Governorship election presented weighty issues that warranted cancellation or the conclusion by the consent of all participants that the election was stillbirth. It was purely a matter of contrast between an Assembly election in which the contestants did not go into the race with their party telling the whole nation that it did not have any candidates and a Governorship election (even though being held simultaneously) in which the PDP not only did not disown its own candidate but was, as of April 14th, also clearly undecided on whom next to support.

On April 28, 2007 when the election that produced Ohakim was held, PDP’s rejection of Ararume was not only still total, open and subsisting, it became clear that the PDP has finally found its voice when it pointedly directed its ranks to vote Ohakim at the polls. I was there and I heard it on the radio; I read it in the papers; I witnessed it all, the choice was absolute. The only thing I didn’t see or hear was about a certain Simon Kolawole of Thisday prancing around in Imo State (looking for ‘terminal diseases’ to write about almost two years later?). Well, the truth is that I knew for sure that Simon was not in Imo State either on the 14th or 28th April, 2007 as he even admitted same in his article under reference here (recall that Kolawole claimed that he got much of his information by calling people on the cell phone and listening to hearsay and crass political gossip, with all the election-day poor cell network, mischief, warts and all). As for me, being an eye-witness to this very strange political development in my native Imo, I knew that a hithertofore token candidate like Ikedi Ohakim and his young PPA were poised to score an upset of a lifetime. An upset which surprised no one, not a consenting PDP, not Imo citizens (of mostly PDP ilk) and certainly not a lone-ranger Ararume - which explains why Ararume did the unusual by joining Ohakim and INEC to object to Agbaso’s later-day attempts to ride on an April 14th that never happened.

That was the situation in Imo – an unusual act of political self-immolation by a dominant (and favored-to-win) PDP in the midst of an important election. Then, enter Professor Maurice Iwu - the maestro, ever so gutsy in the line of fire, who defied all odds (like he did on a grander scale throughout the Federation) to see the elections through and ensure timely emergence of a new government for his native Imo despite all the bedlam. That was leadership and vintage umpiring that delivers - ramrod and focused (contrast with the 1993 election that was touted as the fairest but never delivered any result or transition). I say so because it was Iwu’s quick reaction, competence and independence that gave Imo (and even Nigeria) an end game and brought closure to a tortured transition. The plain truth is that there was a vacuum in Imo and nature abhors a vacuum. Thus, other than Ohakim, any other candidate, howsoever fledgling could have capitalized on the extant vacuum to prevail in the ultimate contest on April 28th. What made the difference for Ohakim (above Agbaso and others) was that PDP was absolute in adopting him publicly as its own and sole candidate on April 28th. So Iwu and INEC didn’t have any business helping an Ohakim that was already riding on the coattails of a PDP that had the Imo electoral environment - lock, stock and barrel. And as against Agbaso’s Owerri zone, Ohakim’s Okigwe zone was favored from the get-go, which explains why Charles Ugwu and Ararume (both from Okigwe zone) were also heavily favored but for the Supreme Court verdict against Ugwu and PDP disavowal of Ararume, respectively.

It therefore follows at basic logic that Ohakim did not have to feel indebted to Maurice Iwu for a victory he garnered on the goodwill of the PDP plus the political capital brought by his hailing from Okigwe zone. On the contrary, Ohakim’s appointment of Iwu’s sibling – Cosmos, as the SSG, is unarguably because of only two reasons. The first reason is that Cosmos Iwu, aside from being Iwu’s sibling, is also a valuable PDP top facilitator to any political rewards the PDP extracted from Ohakim as a pre-condition of deploying its better structures to assist him to victory. So, Mr. Kolawole, if you must point fingers to where Ohakim might have all the reasons in the world to show some (deserved) gratitude, you should point to an Imo PDP that openly adopted him in full view of all Nigerians who listened to radio and read newspapers at that time. I am assuming that you did neither, otherwise you would not have succumbed to the temptation of risking a libel action by maliciously calling another fellow Nigerian a ‘terminal disease’, just because he is an Igbo from Imo State, who also happens to have umpired an election you did not like the result. That Professor Iwu is a public figure hardly justified the unabashed malice you purveyed against his person.

And there is more. SSG Cosmos Iwu has the cognate experience and personal political clout (PDP Deputy State Chair) required for the job and thus qualified on that score alone – in a government that was bound to be bipartisan and which he helped to power. In other words, there are other weighty considerations totally unrelated to his being Maurice Iwu’s sibling that qualified him for the job. Do you expect Chief Cosmos Iwu, an upstanding Imo citizen by any standards to suddenly grow cold from cashing in on his stellar qualifications and political capital simply because his brother happens to be the INEC Chair? Please, give me a break.

In the United States (a democracy of higher rank, ideals and experience), President Kennedy appointed his younger brother Attorney-General because he was a Democratic Party apparatchik as well as one of America’s finest lawyers; and that even paved the way for the younger Kennedy to nearly win the American presidency but for the assassin’s bullet. Mr. Kolawole, I am sure you would have also called the senior Kennedy (loved so much by the rest of the world) a ‘terminal disease’ and run the risk of Americans sending in their Marines after you. While you ponder that, let me ask you this question: Are you going to object to Thisday employing a relative of yours who is otherwise qualified for the job, simply because you are an editor at Thisday? Or do you want me to reel out the names of all those you assisted to some plum job at the Thisday? Don’t bother.


Ejimakor is an attorney and analyst alloylaw@yahoo.com

FEMI FALANA versus THE PROGRESSIVES

Femi FALANA Versus The Progressives

By: Garba Mustapha

Femi Falana’s (the Lagos lawyer, activist and politician) recent comment on the silence of National Association of Nigerian Students’ NANS on what is obviously a coordinated campaign of the camp of the so-called Progressives against Professor Maurice Iwu caught my attention. My first reaction on reading Falana’s expression of despair with the disposition of NANS to the Iwu matter was surprise. I have always known it to be the culture of the likes of Falana to intimidate and abuse those who do not share their perspective on certain national issues or act in their very predictable ways. Even if a member of their gang dares to differ, contrary to their espoused position, he is surely going to be tagged and blackmailed as a “sellout”. You need to understand this background to comprehend how Femi Falana’s mind works and why he berated NANS, whose voice he said “had not been heard against the fraudulent elections since INEC allegedly began to fund the association”. If Falana alleges that NANS is now under the undue influence of the Independent National Electoral Commission, INEC, questions the former Ekiti state governorship aspirant must be asked are: when, in the history of NANS did INEC attain such paymaster status to NANS? If NANS is now suddenly for sale, then who was the previous paymaster before INEC took over? What went wrong in the relationship between NANS and the Falana’s ‘Progressives’? And finally, why would Femi Falana now direct his “friendly fire” at NANS just for the sake of Professor Iwu?

I should know the Progressives’ modus operandi and thought process. I came to this knowledge as an undergraduate on campus, their breeding ground. I knew them as stirrers and eternally antagonistic group with stock-phrase speaking and routine words memorized from Marxist literatures and mainly Walter Rodney and Frantz Fanon books. These books were obligatory ritual for aspiring members and the ability to quote them by rote would have made you “conscientized” (their term for brainwashing) - a qualifying membership prerequisite. To do otherwise, you are maligned as a bourgeoisie or one possessing such tendencies. There is this experience I had with one we would regard those days as a “Femi Falana boy”. I recall that run-in with amusement to this day. A certain guy (name withheld), who today is a national voice in the Progressive camp, denounced me vehemently for eating a piece of cooked egg. Coming from an abject financial background, to eat an egg was a luxury to his queer understanding. As typical and by his definition, I was tagged a ‘bourgeoisie’. However, some months later, when his lot became a little better economically, that is, only when he became a member of the students union government, I met my Progressive friend with a tin of Milo, milk and the same egg I was accused. That is the lot of the Progressive’s hypocrisy; that was my experience; that was my first awakening to the underbelly of Falana and Co.

I am very familiar with the protest politics of Nigerian Progressives or activists to be deceived by their ploys. The statement credited to NANS PRO, Agbabiaka Ahmed on the position of NANS on the Iwu–must-go campaign laid credence to my earlier experience and should be a lesson to those who do not know how the Progressives work. According to the NANS PRO on the anti Iwu crusade, “some of us are discussing with a Lagos based lawyer and human right activist but NANS as a body has no position on the Iwu must go campaign”. As impeccable in character and popular as Progressives always want to portray themselves and their views on national issues, they are often times goaded by pecuniary interest, no matter how highly placed. It was not a surprise when it was revealed that the resurgent campaign against Iwu has been paid for up to the sum of N100m by a certain Governor to be shared to groups who participate in the exercise. The vilification of NANS is therefore as a direct result of NANS’ refusal to accept the bribery–for-protest campaign by the same people that have always used the organization in the past. In other words, this is a new NANS that Femi Falana suddenly realized he can no longer use at will. That explains why he is mixing things up by taking on Professor Iwu and NANS all at once as if NANS also umpired the 2007 elections at issue.

In the event of the Orkar coup of 1990, NANS was promised membership of the highest decision-making body if the coup succeeded. In the frenzy of the elevation of the student body and the overthrow of a dictatorial IBB regime, students on campus trooped to the room of the then NANS president, who is now a second term commissioner in Lagos state for policy direction. NANS position, as the president pronounced in his address was very disappointing to almost all the teeming students. NANS would not be part of any military regime no matter the position it was offered. I have always held in high esteem this former NANS president for his wisdom. However, a recent encounter with an ‘insider’ revealed that the laudable decision was actually taken by the ‘senior NANS executives’ in Lagos. The revelations this insider made about the character of certain Lagos-based lawyer and activist were too damning to be printed here.

People like us should understand Falana’s frustration with his inability to recruit NANS to his campaign of animus against the person of Maurice Iwu. Again, I ask, what went wrong between NANS and the Progressives and at what time? I knew the Progressives would lose out from a rift that led to a crack in their camp in 1993. I stumbled on the story on this rift in the Progressive Youth Movement (PYM), an undercover political movement known only to initiates and the birth of Labour Movement (LM) as was reported in a University of Benin campus magazine at the time. The existence of PYM was a highly guided secret. You can therefore understand the monetary overtures made to the editor (the editor revealed later) by some human rights activists and PYM members through their undergraduate surrogates to buy all copies of the magazines to prevent Nigerians knowing its existence and activities. Thank God, the editor did not capitulate. The PYM comprised mainly of known human rights activists, graduate and undergraduates who operated openly as Youth Solidarity for South Africa and Nigeria (YUSSAN). The cause of the rift between the Movements was over sharing ratio of “activism dividends” and poor judgments on certain issues like the decision to accept the IBB largesse in the administration’s parley with student leaders at the Jos conference of 1993. The parley was necessitated by constant student restiveness then.

It is therefore not a coincidence that Nigerian students, over these years, have not been diametrically opposed to anything Government or resort to burning down properties of government and innocent people in the name of protests. For the first time in Nigerian students’ history, NANS is reacting to national issues based on their own perspective and judgment. Falana’s frustration with this is quite understandable; so is his aspersion on NANS as having been bought over by INEC. It is not necessarily the way of true Progressives like NANS, but as Falana’s personal frustrations with Professor Iwu grows, those in the know are not surprised that this is vintage Femi Falana – a control freak of the highest order and a turncoat Progressive who loves to confront strong men in authority. What bothers me is that Professor Iwu might just to be a test-run for more sinister designs Femi Falana has on President Yar’Adua that he continues to see as unfit to govern.

Mustapha is a public commentator garbanaija@yahoo.com