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 1^st, 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 24^th 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

Robot  # 1 | 24.03.2009 16:50

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 pois...Read the full article.

churchill  # 2 | 24.03.2009 17:33

Yes !!!!! We are going to re-brand Nigeria with Maurice Iwu. Dora Akunyili MUST hear this. Nonsense

Gongo-aso  # 3 | 24.03.2009 18:03

Alloy, I can see that you are warming up for a position in Abuja. The nation rewards your likes so keep up the boy-boy attitude. For how much will you sell your soul? How hungry are you really? I feel sorry for you.

Zanderlex  # 4 | 24.03.2009 18:38

yeye article.

Anioma777  # 5 | 24.03.2009 21:17

Let me make one thing clear, I am no fan of Prof. Maurice Iwu for a few reasons: 1. Bad handling of 2007 elections overall ( and the numerous annulments by the Nigerian Judiciary is testimony to this ). 2. His dumb remarks about the USA could learn something or release of results or words to that effect after the 2008 USA elections. Nonetheless just because I may not like a particular person justified or unjustified, the writer is correct to call to order Falana and thisday newspaper. Making a genuine or deliberate smear campaign is effective if backed up with hard evidence and if its not true apologize. Falana and thisday newspapers in their misguided "MORAL CRUSADE" to get rid of Prof Iwu have actually strengthened his position. Like the old saying goes when you point a finger four are pointing back at you. This is highly embrassing. Sometimes Nigeria's so called educated men and media act like "Area boys":cry: Hopefully next year Prof. Maurice Iwu will have reached the end of his tenure as INEC boss.:clap:

Enyi  # 6 | 25.03.2009 13:02

Alloy I infer from your write-up that you disagree with Falana on the tenure of Iwu. Irrespective of who is right or wrong, such disagreements are expected and indeed welcome in a democratic set up. As a layman, I took the liberty of checking up the definition of defamation. Encarta states as follows: Defamation:The act of damaging the reputation of another by means of false and injurious communications that expose that person to contempt, ridicule, hatred, or social ostracism. Reputation:a high opinion that people hold about somebody or something. Can you therefore explain how Falana's opinion has damaged "the high opinion that people hold about Iwu and Nigeria"?

nijalaw  # 7 | 27.03.2009 09:15

Culled from Thisdayonline Still on the Iwu Tenure Debate The Polity By Yusuph Olaniyonu, Email: yusupholaniyonu@thisdayonline.com, 03.27.2009 I had almost forgotten Senator Isiaka Adeleke is a member of the Senate until he recently led some of his colleagues to pass a vote of confidence on chairman of Independent National Electoral Commission (INEC), Prof. Maurice Iwu. Iwu has come under attack from some Nigerians who believe that given the frequent rate the courts were upturning the results of the 2007 elections and indicting INEC for the shoddy handling of the electioneering, he lacks the moral ground to continue as the nation’s chief electoral officer. Adeleke as the chairman of the Senate committee on INEC felt it was part of his brief to defend the head of an executive body on which he and his colleagues are expected to exercise their power of investigation, otherwise called oversight function. It did not occur to the senator and his colleagues who formed that defence team that something must have gone wrong when the watchdog begins to flirt with the people he is charged to keep watch on. The watchdog role is definitely compromised. Senator Adeleke is however free to choose what constitutes his brief in the legislative house, particularly when it is rare to hear his contribution on other national issues. What is of concern to me today is his argument and that of Senator Ikechukwu Obioha, chairman, senate committee on housing and urban development, on the recent disclosure that the INEC chairman having been nominated to the commission as a member in August 2003, has overstayed his tenure which in view of the provisions of sections 155 (1) (c) and 161 (c) ended in August 2008. Adeleke who, characteristically, quickly joined the fray to defend Iwu, argued that the professor’s tenure in INEC started on June 13, 2005 when he was “appointed by Mr. President…was screened by the Senate and he was duly sworn in by Mr. President”. He had said: “What this means in effect is that his term has not expired. If you add five years to June 13th, 2005, I believe by simple arithmetic, it would give you June 13th, 2010.” His colleague, Obioha added that “If for one reason, a member is appointed from membership to chairman, it is a totally different procedure and that means that you have to go for Senate confirmation and you have to be sworn-in again. The act of the confirmation and the swearing-in shows you that it is a totally new appointment and that new appointment is to last for five years.” These are obviously smart argument by smart men. Their position is that the two years Iwu spent as a member of the commission is irrelevant. However, these arguments actually show the two senators as lawmakers who have not read sections 153 to 161, 318 (interpretation section) and the seventh schedule of the constitution. And Nigerians must be wary of these senators who may wake one day and say that the four-year tenure of a senator who was elected senate president two years after the senate was inaugurated will commence on the day he took the oath of office as senate president. So, when the tenure of other senators lapses at the end of the fourth year, that senate president will spend two more years because the fact of his being elected by fellow Senators, and thereafter sworn-in in his third year indicates a different and new appointment to last four years. That is according to the logic of Adeleke and Obioha. The constitution is quite clear in the above mentioned sections that a member of the executive bodies listed under section 153 has the same treatment in terms of his appointment and removal as the chairman. In fact, the focus is on a member. Except for the two mentions in section 154, the constitution continuously refers to a member. It then defines the reference to a member to also include the chairman. This definition was given in sections 161 (c) and 318, which is the interpretation section of the constitution. It is trite law that you cannot read into a law what it does not contain. The constitution has not mentioned that a member who becomes chairman will start a new tenure. By treating a chairman and a member in the same words, and together, the constitution wants them to have the same requirement. And in any case, the question is: why did the framers of our constitution set time limit for a person serving in INEC and the other 12 affected bodies? The intention is to ensure that no member over-stay his welcome or stay for too long. That object will be defeated if a member who had served for two years will have to start a fresh term when he is promoted to the office of chairman. Assuming we take the argument of Adeleke and Obioha that the two years Iwu spent before becoming INEC chairman is no longer relevant, it means upon renewal of his tenure as is possible, the professor will end up serving in INEC for 12 years. This is definitely not in contemplation of the constitution. The tenure of members of these executive bodies is five years, whether in the capacity of a member or that of a chairman, even if a person has to transform from a member to a chairman. The five years is a continuous tenure. That is why the constitution in section 159 (3) states that any member can preside at the meeting of any of the bodies. The argument that due to the fact Iwu went through a screening exercise and was sworn-in afresh when he was appointed chairman is puerile. Having been confirmed by the senate in August 2003 as required by section 154 (1) of the constitution which says the chairman and member should go through that motion in a similar manner, the second screening is superfluous. The more wasteful and unnecessary act was that of administering oath on the INEC chairman. There is no where in the constitution where the INEC chairman and members or chairmen of the bodies created under Section 153 (1) are required to have oath administered on them. The seventh schedule of the constitution listed those public officers expected to take oath of allegiance. They are president and his deputy, governors and their deputies, national assembly members, state legislators, ministers, commissioners, special advisers, judicial officers and persons granted Nigerian citizenship. All these officers are required by sections 26 (1) (c), 27 (2) (f), 52, 94, 135, 140, 142, 149, 180, 185, 187, 194 and 290 to have oath of allegiance administered on them. So, those who went on a frolic to administer oath of allegiance on the INEC chairman only did so to no effect. They cannot use that superfluous act to reinforce an argument on the tenure of the officer concerned. I want to say here that this matter should be pronounced upon by a court. The fear is that by the time we have a conclusive pronouncement at the Supreme Court, Iwu may even have concluded both his extended tenure and a second term, if President Umaru Yar’Adua reappoints him. This is because the litigants will have to start from the Federal High Court, as a court of first instance, before moving to the Appeal and Supreme Courts. That is why the argument that we need a constitutional court in our judicial architecture becomes compelling. The constitutional court will be solely devoted to interpreting the constitution when litigants bring matters before it.