June 12: The Law and Politics of MKO Abiola and Gani Fawehinmi’s National Honours

President Muhammadu Buhari on Wednesday, 6th June, 2018 announced a posthumous conferment of the title of Grand Commander of the Federal Republic (GCFR) on the acclaimed winner of the June 12, 1993 presidential election, late Chief Moshood Kashimawo Olawale Abiola (MKO).

President Buhari similarly announced the conferment of the Grand Commander of the Order of Niger (GCON) rank on accomplished human rights lawyer, late Chief Gani Fawehinmi SAN (Gani) who, among other feats, played a major role in the clamour for restoration of MKO’s mandate.

The June 12, 1993 election, often referred to as the most free and fair election in Nigeria’s history, was annulled by the military regime led by General Ibrahim Babangida and so began MKO’s long walk against injustice that sadly ended in his death on July 7, 1998, the day he was purportedly due to be released.

In the immediate aftermath of President Buhari’s announcement, a number of concerns have been raised regarding the possible lack of altruism and alleged illegality of both the conferment of posthumous honours and the declaration of June 12 as a prospective public holiday in replacement of May 29 which has been celebrated as Nigeria’s Democracy Day since 1999.

It is, without a doubt, fair to be cynical about the motivation behind the conferment of the honours. We are a year away from a presidential election and the incumbent who appears to have frittered away goodwill garnered prior to the last election may indeed be seeking ways to appease a voting bloc deemed crucial to victory. This sentiment must however be considered alongside the reputation of the beneficiaries of the honours and their efforts in pursuit of democracy prior to their death.

Gani lived an exemplary life as a lawyer and human rights advocate. He protested against injustice, corruption, military rule and the theft of a mandate entrusted to MKO by the Nigerian electorate, among other ills that plagued the country. As a member of the National Democratic Coalition (NADECO), Gani championed the cause of democracy and later contested to be president on the platform of the National Conscience Party which he floated. He was a man who walked the talk at the expense of his liberty and health.

Like Gani, MKO held a special place in the hearts of many Nigerians and while he had his flaws, he was at the centre of history on June 12, 1993. Living true to his title of Aare Ona Kakanfo, MKO displayed courage in the face of adversity and stood in defence of the mandate entrusted to him by millions of Nigerians knowing fully well it was at the risk of his life, even if the forces he was contending with comprised of his former allies. MKO was however not the only martyr from that trying period but one of many people who died across the country including his wife, Kudirat Abiola who was allegedly assassinated by presumed agents of the state.

By standing in defence of his mandate till his death, MKO upheld the names of those other martyrs who now mostly remain unnamed but in whose collective memory, June 12 should indeed be commemorated as Nigeria’s Democracy Day. Those who posit that Buhari’s announcement is solely to procure votes are choosing to forget the prolonged efforts of NADECO and allied groups to see Abiola’s mandate validated and June 12 declared a national holiday in honour of MKO and others.

It is perhaps not a coincidence that some of the major popular faces behind NADECO and similar movements are now members of the ruling party and may have influenced the decision but this in itself shows that such people can be held to task on other reforms they have always championed on an ideological basis before getting into government.

The above said, the questions around the legality of posthumous conferment of national honours now need to be addressed and it may help to proceed from a previous attempt to immortalise MKO and the June 12 struggle. On May 29, 2012, former President Goodluck Jonathan in his nationwide Democracy Day broadcast announced that the University of Lagos would be renamed after MKO but was forced to rescind the decision following protests over the disregard for due process. While it was a politically correct decision, due process required that an institution established by an Act of Parliament be renamed only after amending the law establishing it.

Jonathan’s noble step of honoring MKO could perhaps have been salvaged if his team had intensified consultations with stakeholders and the National Assembly but for reasons to be disclosed, the administration shelved such plans. To be fair to the administration however, an executive bill to regularise that decision may have taken a while or forever to accomplish the goal, just like some other bills before the 7th National Assembly.

In the instant scenario, due process for the conferment of national honours is laid down in the National Honours Act, 1963 while the Public Holidays Act of 1979 regulates the declaration of public holidays. The National Honours Act contains 5 subsidiary legislation which include the Honours Warrant (applicable to civilians like MKO and Gani) and the Honours (Armed Forces) Warrant. The contention on legality of award MKO the GCFR title and Gani the GCON title has revolved around Section 3(2) of the Honours Warrant which mandates a recipient of a national honour to receive it in person.

The above provision has been interpreted by many including a respected former Chief Justice of Nigeria (CJN) to mean that MKO and Gani being now deceased and unable to receive the honours in person are thereby disqualified. Proponents of the argument however fail to pay attention to Section 3(3) which gives the president an unfettered discretion to direct that a person be appointed to a rank of the national honour in any manner the president decides as far as the president considers it expedient.

The operative words discernible in Section 3(3) mentioned above are expediency and discretion. If many Nigerians have been clamouring for the recognition of MKO’s mandate for 25 years and a former president tried to immortalise him by renaming a federal institution after him 6 years ago, there is surely a basis to resolve the issue of expediency in favour of President Buhari.

If in addition, the law says the president can “dispense with the requirements of paragraph (2)” which border on physical appearance of the recipient, and determine the manner he wants to confer the honour, the issue of legality is similarly settled in favour of the president.

The Honours Warrant does not contain any prohibition in the above regard but rather expressly recognises the president’s discretionary powers. While the motive for the award can be questioned, which we have in any case put to bed, the legality of the conferment of the honours is not in doubt.

Reference has been made by some persons to the express mention of powers of the president to award a service medal to a fallen member of the armed forces posthumously as contained in Section 3 of the Honours (Armed Forces) Warrant and a further reference to the ‘Express mention of one is to the exclusion of others’ interpretation rule. The error in such argument is however occasioned by the mistaken belief that the Honours Warrant is one and same with the Honours (Armed Forces) Warrant. They are two distinct subsidiary legislation and the latter makes no reference to the Honours Warrant in a bid to invalidate any of its provisions.

Furthermore, it is understandable that the drafters of the Honours (Armed Forces) Warrant would have been more minded of the need to stress the posthumous award of service medals to fallen servicemen knowing that death is a foreseeable occupational hazard in the armed forces.

In respect of the declaration of June 12 as a public holiday, all that the Public Holidays Act prescribes in Section 2(1) thereof is for the president to issue a public notice appointing a special day to be kept as a public holiday in addition to the days already identified as a public holiday in the Act. There is no requirement for an amendment of the law to make June 12 a public holiday.

Concerning replacing May 29 with June 12 as Democracy Day, all that needs to be done according to Section 3 of the Act is for the Minister of Internal Affairs to make a declaration announcing the alteration. May 29 was not originally listed in the Public Holidays Act but was added by a gazette following former President Olusegun Obasanjo’s exercise of his powers under Section 2(1) of the Act. In similar vein, President Buhari has now directed that June 12 be similarly gazetted and it is difficult to argue that a president can be granted powers to add a special day as a public holiday but will be unable to by the use of that power, replace a day previously added to mark that special day.

In any event, even if the president merely adds June 12 as Democracy Day, his minister of internal affairs can immediately thereafter announce that it is no longer expedient for May 29 to be celebrated as Democracy Day and that the date is to be replaced by June 12 which he is allowed to do by Section 3 of the Act.

In conclusion, by honouring MKO and Gani, it is arguable that President Buhari has heeded the charge in the national anthem not to render vain the labours of past heroes of democracy. The president must however do much more to uphold democratic ideals by directing the release of such persons like Sheikh Ibrahim El-Zakzaky and Rt Col Sambo Dasuki who continue to be detained at his pleasure contrary to court orders. They can face trial for criminal allegations against them without their rights being flippantly tossed away.

President Buhari can do better to show he believes in democracy by reforming the military, the Nigerian police and other security agencies that have become tools of oppression and repression of the freedom of expression, human dignity and personal liberty which are the fundamentals of a democratic society that Gani lived, suffered and died for. The president can and should coordinate his cabinet to deliver the dividends of democracy to all Nigerians regardless of their ethnicity and religious persuasions which was the focal point of MKO’s campaign in 1993. That will be a more honourable recognition.

*this article first appeared on Olisatv