12 Aug 2008 |
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Reasons Why The Governorship Tribunal Ruling In Abia Cannot Stand: Part Three By: Aloy Ejimakor On July 20, 2008, I honored an invitation by a group of American Lawyers who had converged on Washington from all corners of continental United States for a one-day seminar captioned ‘The Place of Constitutionalism in Emerging Democracies’. The conveners stated that they invited me for two reasons: One – the legalities of Nigeria’s 2007 election was slated to be on top of the agenda; and two - the conveners had happened on several published essays and treatises I have written in this regard and they were intrigued. They also wanted me to present a paper on the test case of the day. It turned out that the seminar was far more enriching than I had thought. Attendance exceeded the best projections and that was pointer enough that the conveners might have waxed very serious on the seminar from the get-go. And now this: the tribunal ruling against Governor TA Orji was on the calendar as the test case of the day and I was later to marvel at the sheer level of raw scholarship these other lawyers brought to bear on the subject. When I wished to find out why the Abia verdict would receive such prominent mention, one of the conveners told me that they picked cases that, in his words, ‘posed the greatest threat to democracy anywhere’ or ‘judgments that are the best exemplars of judicial misadventure’. He told me that the last seminar was on Pakistan and that country’s ‘judicial tug-of-war with General Musharraf’. But one thing he said that struck me the most was that ‘Nigeria stood to benefit from seminars like these if she is serious about rule of law and wished to look to nations that have traveled the same route when time comes for her own trials and tribulations like the one posed by the Governorship Tribunal verdict in Abia’. Intrigued, I proceeded to settle in to listen, take notes and prepare my own presentation. Whether Okija shrine is a ‘constitutionally barred’ secret society or not formed the kernel of several scholarly papers that were to follow from disparate groups of lawyers, including the one I eventually presented. Below is the summary of my presentation and other journal entries I made from other learned treatises on the subject: Secret society is a lose term used to describe a variety of organizations. Although the exact meaning of the term is often disputed, majority of the definitions advanced indicate that a high degree of secrecy is the common factor. Other common attributes include denying membership or knowledge of the group and negative consequences for acknowledging membership, strong ties between members of the organization and exclusion of nonmembers from its ceremonies and inner sanctum. It includes mythical organizations described in conspiracy theories as immensely powerful, with self-serving financial or political agenda and global or national (not local) reach. Take a moment to marry above universally settled defnitions with the Nigerian Constitution’s narrower definition of same, which strictly provides that the activities of such a society “ … are not known to the public at large, the names of whose members are kept secret and whose meetings and other activities are held in secret”. Looking at these wordings side by side, you will find that, ejusdem generis, the ‘testimony’ procured before the Abia tribunal is, in reality, in opposite to even the broadest or vaguest definitions of a secret society. I say so for the following reasons and more: Okija shrine did not hold a secret knowledge of anything different from what the public already knew the shrine to be all about. Its activities were open including the fact that the shrine had a thing for corpses; yet vast numbers of Nigerians knew and accepted the shrine as some sort of a traditional tribunal for arbitration of native disputes – customary and commercial. And there is more. Members of the shrine never made any attempt to conceal the existence of the organization when they were previously arrested for unrelated offenses (that in the end never held any water) and there was no credible evidence put before the election tribunal demonstrating any tangible consequence for anybody (like member-witness Akubueze) who openly acknowledged his membership, otherwise witness Akubueze could have gone wacko by now, expelled by the Shrine or worse. Further, I don’t see any strong ties or blood bonds, which must be typical of a secret cult in a scenario where witness Akubueze seemed all too willing to implicate a fellow ‘member’ – TA Orji’; and even went beyond the scope of his testimony by reeling out the names of other ‘members’ who had no case before the tribunal. And it doesn’t make any sense that in Nigeria, where contest for public office is determined by other factors such as money, ethnic bonds, loyalty to the departing occupier of the office and political party anointing, a village shrine comprised of very poor, un-influential and superstitious folks, suddenly became that all-powerful secret society the Nigerian Constitution feared will “foster the interest of its members and to aid one another under any circumstances …”. In simple terms, Okija shrine was supposed to have been arrayed against the power of a dominant ruling party – the PDP, and Okija shrine prevailed. Amazing. So, where does PPA - as a party primed to win elections - come into play? To be sure, a proper reading of the Nigerian constitutional provisions on point must include a ‘but for’ test to determine whether Okija shrine qualified or not. That ‘but for’ test requires a clear finding that ‘but for’ the intervention of Okija shrine, Dr TA Orji would not have prevailed in the election; or ‘but for’ Okija shrine, Chief Ugochukwu would have prevailed over TA Orji. In other words, the PDP and PPA as registered political parties, primed to win elections, did not play any role at all in producing the result at issue; or better still, that Abia voters would not have cast their votes for TA Orji ‘but for’ some magical compulsion conjured by Okija shrine and vice versa. It seems to me therefore, that one of the legal tests of a true secret society - as universally defined and largely adopted in the Nigerian Constitution - is that such a society must possess the superior spiritual/temporal power and clout to get a less qualified Orji elected to office over a more qualified Ugochukwu. And such power and clout must transcend the one possessed by the other forces that influence election outcomes in Nigeria, including the much-ignored pre-eminent power of the voter to make a choice. Thus, evidence should have been led by Ugochukwu to show that the voters of Abia were singularly compelled by the sheer power of Orji’s membership of a secret society to vote the way they did or that Ugochukwu captured majority of the votes but Okija Shrine intervened in some secret way to change the results in favor of Orji without regard to “merit, fair play or justice”, per Nigerian Constitution. Add that to the admission of record by Ugochukwu that he warned Abia voters of Orji’s secret society membership beforehand, yet they defied him and voted for Orji - which makes the best case yet that the ruling was more of a strike against the will of the Nigerian voter than the Governor or his party. Alan Axelrod, author of the International Encyclopedia of Secret Societies and Fraternal Orders, defines a secret society as possessing three main characteristics. These are that the organization is exclusive, it claims to own special secrets, and it shows a strong inclination to favor its own or as the Nigerian Constitution put it, “to the detriment of the legitimate interest of those who are not members” or that it possessed what it takes to punish or redline those who did not belong. David V. Barrett, author of Secret Societies: From the Ancient and Arcane to the Modern and Clandestine, uses slightly nuanced terms to define what does and does not qualify as a secret society. He defines it as any group that possesses the following characterists: it has "carefully graded and progressed teachings" that are "available only to selected individuals". Penalties, like instant death or insanity, abound for any member that breaks the oath of secrecy. That means that by their very nature, minus the bands of harmless campus fraternities of the West, secret societies are undoubtedly criminal organizations, such as the Triad, Yakuza or the Cosa Nostra organizations or illegal organizations like the ‘underground’ Communist Party in post-Solidarity Poland. Like Nigeria, Poland banned secret political organizations/societies (read: the secretive but highly influential Communist Party). It follows therefore that the ‘true intent’ of the Nigerian constitution comprised of proscribing only the variety of secret societies that possessed the sort of power capable of overthrowing the established legal and political order or supplanting the place of political parties and the voter as the sole platforms for seeking election to public office. In comparism, the folks at Okija shrine are just ‘local champions’ that can never, by any stretch, be said to have any capacity to displace the entrenched power brokers in Nigeria to any fundamental degree that motivated the framers of Nigerian Constitution to care to legislate against secret societies. Nigeria’s history shows that it was the British that initially invented the notion of ‘bad’ secret societies. It happened for two reasons: One, the British were understandably edgy about Nigeria’s freedom fighters following the example of Jomo Kenyatta to form some Nigerian version of Mau Mau – which the East African British colonialists feared and therefore sought to demonize as a secret society. In some sense, Mau Mau could be said to be a true secret society (judging by colonialist British Laws) because it had ‘subversive’ political aims (uhuru); held secret meetings (in the Kenyan game forests – at night); was exclusive to Negroid Africans (British and Indian settler-sympathisers were not welcome); performed some rituals (members reportedly drank goat blood); and it was willing to kill to prevail on its political agenda. However, to African realists who labored under the burden of colonialism and racism, Mau Mau was not a secret society but a gutsy, secretly organized and armed resistance to the illegal occupation of African lands by a ‘bunch of marauding nabobs and uppity Caucasians’. That means that Mau Mau was the only window to the freedom of an oppressed people and it prevailed in the end. Lesson: secret societies are not inherently bad. Some, like the Mau Mau that fought foreign occupation, are deemed good for society; ditto for an Okija shrine that Nigeria’s Supreme Court recognized as an ‘inferior’ native arbitral tribunal that brought finality and justice to many intractable disputes that regular courts could not tackle. So, as far as strict constitutional interpretations go, Nigerian courts need to bear in mind that the framers of Nigeria’s current constitution could not have intended an overbroad proscription of shrines like the Okija variety that was judicially accorded recognition as an extra-statutory part of the larger traditions and practices of dispute resolution in the federation of Nigeria. It does not matter that Okija is not mainstream and prone to basic rituals. Back in the day in Nigeria, the closest that nearly became Mau Mau was the Zikist Movement but Azikiwe’s intellectual approach to fighting colonialism – which was deemed effective enough - meant that the young turks of the Zikist Movement had no real need to travel the Mau Mau road. Yet, the second reason for importing the doctrine of secret societies into the realm of pre-colonial Nigerian psuedo-constitutionalism succeeded for other reasons and it took one small war to drive the point home – the British expeditionary adventure in the Arochukwu enclaves. That second reason is no more than the aggressive evangelism of the Church Missionary Societies (CMS) and the Portuguese/Irish Catholic’s mission to deal paganism (read: traditional religions) a final death blow. There was an urgent need to convert animist Africans to Christianity and the most effective weapon deployed was to brand their most cohesive traditional religions (like the Okija variety) as Secret Societies. Islam had attained world acclaim by them, so the British was sensible to spare it, but all others, best exemplified by the Arochukwu Long Juju – known for slave-running - were branded secret societies (meaning: one that engaged in the criminal enterprise of slave-trading and other nefarious activities). Thus, no one as much raised a wimper when the armies of the Royal Niger Company were deployed to its annihilation. But for others like Okija shrine – professing an Ogwugwu temporal deity that exists everywhere in Igboland, the British never really regarded them as true secret societies (of the criminal genre like the Aro Long Juju) but they nonetheless held them in contempt by branding them ‘unacceptable’ pagan orgainizations. It was then left to the local christian converts (or zealots) to levy a campaign of calumny and attrition geared to seeing to their final demise. Therefore, it bears no contradiction that Okija shrine may have become stigmatized over time as a result of an ingrained colonial/evangelical stereotypes that Nigerians continued to carry over from their colonial experience, forgetting so soon that if Okija shrine was - in point of law - a true secret society, the British would not have hesitated in giving it the same ‘final solution’ it’s armies meted out to the Aro Long Juju. The Governorship Tribunal in Abia seemed to have succumbed to the same prejudices, and thus missed material historical events that are highly probative of, and relevant to the fact at issue. As a consequence, therefore, plain common folks who gathered in some mangrove rain forest to poor libation and chant harmless incantations suddenly came to be seen by a learned electoral tribunal in modern Nigeria as adherents to a ‘disqualifying’ secret society – an all powerful Nigerian Triad, Yakuza or the Cosa Nostra – that held the ‘sole’ power to influence a governorship election in Abia “without due regard to merit, fair play or justice….” (vide Nigerian Constitution). In post-colonial Nigeria, secret societies again became a political issue during the term of Obasanjo as military ruler. Public records on Nigeria show that the military was driven to ‘proscribing’ secret societies because the armed forces feared their vaunted powers and figured that - if left unchecked - they could constitute a ‘secret’ counter force to the military’s exclusive hold on power. Party politics were banned, and so the military reckoned that politicians will scurry to the secrecy and ‘superior spiritual’ powers of such societies to re-organize and overawe the military regime. But on the surface, Nigerians were told at the time that secret societies were banned because they constituted a drag on the country’s new-found quest for meritocracy in the bureaucracy. To make matters easier to sell, official credence was given to the laughable rumors that activities of these societies are unwholesome; that their members ate small children, betrothed their first issue to some tin gods for money, buried their lawyer members face down instead of face up; but above all, it was clear that the military’s main target was the Ogboni Fraternity and like organizations - mostly foreign - such as the Rosicrucian, Freemasons and AMORC. Okija Shrine hardly qualified; and Freemasons rode the storm and survived to this day, with many eminent Nigerian politicians stubbornly and openly remaining in membership without any adverse legal consequences to their careers or reputations. Today, when Nigerians talk about secret societies, their minds wander mostly to their ‘bad’ garden varieties – the murderous secret cults of campus young men – that the whole nation will be collectively glad to be rid of, not a harmless Okija shrine that boasts a disappearing band of old men struggling hard to make a buck or two by constituting themselves as an alternative tribunal for the very few that will rather supplicate to the ‘infallible’ authority of an ‘impartial’ shrine than taking chances with a court of law run by lawyers and judges who are deemed to be sometimes prone to be fallible and partial. In the United States, many student societies established on university campuses have been considered secret societies but not of the sort that can be imagined to influence elections in the United States or even influence anything at all; and they are much more powerful than Okija Shrine and also can boast members possessing some international stature that Okija Shrine will envy. Examples are collegiate secret societies like the Flat Hat Club (founded in 1750) and Phi Beta Kappa (founded circa 1776), both founded at William & Mary. The most famous member of the Flat Hat Club was Thomas Jefferson, the third President of the United States. In a published correspondence, Jefferson noted that the Flat Hat Club served "no useful object" (meaning that it possessed more hype than any real power or influence). Perhaps one of the most famous secret societies is the Skull and Bones, of which both presidents George H. Bush and George W. Bush and Senator John Kerry are members from their college years. Yet, both father and son – George H and George W – went on to become Presidents and leaders of the free world, including the Christian free world. None was ever confronted by the specter of disqualification from running for office for belonging to secret societies that held and wielded far greater power and influence than Okija shrine. The Skull and Bones did not elect (or influence election) of America’s two Bushes. The Republicans and the American voter did. In Nigeria’s Abia, Okija shrine did not elect (or influence election of) Governor Theodore Orji. It was clearly held by the same tribunal that it was the Abia voter that elected Orji in a fair and free contest. Therefore, I expect that the Appeal Court – as a court of equity and original jurisdiction on constitutonal issues - would not have to look far to find the one and million reasons to hold for the appellants on points of law and fact. At that time, the world will no longer be left in any doubt that Nigeria is fast maturing to a nation of rule of laws. A nation of well-reasoned judgments, a nation where the ‘free and fair’ expression of the popular will must be held to transcend some bizzare upliftment of a shrine the Nigerian Supreme Court had long held to be a mere traditional tribunal for arbitration of customary disputes. Finally, in preparing this ‘learned treatise’, I crossed referenced to the following: Whalen, William Joseph (1966). Handbook of secret organizations. Milwaukee: Bruce Pub. Co.. LCCN 66-026658; Axelrod, Alan (1997). The international encyclopedia of secret societies and fraternal orders. New York: Facts on File. ISBN 0-8160-2307-7; Roberts, J. M. (John Morris) (1972). The mythology of the secret societies. New York: Scribner. ISBN 0-684-12904-3; Robbins, Alexandra (2004). Pledged: the secret life of sororities. New York: Hyperion. ISBN 0-7868-8859-8; and 1999 Nigerian Constitution, etc. Aloy Ejimakor is of Albon & Law Group, Washington DC alloylaw@yahoo.com
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