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Beyond Aregbesola’s Treason Trial

 

Ogbeni Rauf Aregbesola, the candidate of the Action Congress of Nigeria (ACN), was elected the governor of Osun State in 2007. But since it was a “do or die” election for the Peoples Democratic Party (PDP),  its candidate, Prince Olagunsoye Oyinlola, was falsely returned by the Independent National Electoral Commission. The illegal declaration was fought in a protracted legal battle. Eventually, the Court of Appeal restored Aregbesola’s mandate after three and a half years.

Two months later, the appeal filed by the 30 chairmen elected on the platform of the PDP against the verdict of the Court of Appeal, which had ordered their removal from office, was dismissed by the Supreme Court. Having handled the case for the Osun State chapters of the Action Congress, National Conscience Party and All Nigeria Peoples Party from the High Court to the apex court, Aregbesola asked for my interpretation of the Supreme Court judgment in the case of Osun State & Ors v Action Congress & 2 Ors (2011) 10. Notwithstanding the pressure mounted on the governor by his party leaders to dissolve the council chairmen and councilors on the basis of the judgment he refused. He directed that they be allowed to remain in office since they had only one month left to complete their tenure.
The governor’s handling of two other issues confirmed his political maturity. The ACN members had vehemently opposed the appointment of a top lawyer in the ministry of justice in the state on the ground that she was used by the ousted regime to prosecute its political opponents including the governor. He made the appointment on the ground that the prosecutor was discharging her duty at the material time. In the same vein, he dismissed the objection of his party leaders on the appointment of a significant number of children and wards of PDP members in the state employment scheme. He made it clear that he is the governor the state and not the chairman of the ACN.

THE TREASON CHARGES
As far as the PDP leaders were concerned the stat Aregbesola of recruited 20,000 thugs under the pretext of job creation. It was also alleged that his decision to rebrand the state of Osun and design a flag, anthem and coat of arms were treasonable. It was, however, intriguing that the Director-General of the State Security Service, Mr. Ita Ekpeyong, who had discharged his duty without fear or favour, decided to team up with the ruling party in justifying the monstrous allegation that the governor had concluded arrangements to dismember the Federal Republic of Nigeria by excising Osun State there from. In a tendentious report  Aregbesola was alleged to be associating with a Muslim group, which is linked with the Boko Haram sect.
Although no one has referred to the specific provisions of any law violated by the governor, it is pertinent to examine the legal implications of the rebranding of Osun state in the context of the relevant laws. It is unfortunate to note that those who compiled the security report on  Aregbesola are not familiar with the constitutional history of Nigeria. Otherwise they would have found that in the First Republic, the Constitution of the Federal Republic of Nigeria existed side by side with regional constitutions and that there were regional police forces.

Apart from the embassies of the Federal Government the federating units had consulates and properties in some foreign countries.  Even under the defunct military dictatorship when to keep Nigeria one was a task that required absolute loyalty every state had their own coat of arms. At a time that there were 12 states in Nigeria it was only the western state, which established a regional Court of Appeal, which served as an intermediary court between the State High Court and the Supreme Court. But in line with the tenets of federalism the remaining 11 states did not establish any Court of Appeal. Under the current political dispensation the Olagunsoye Oyinlola Administration in Osun State set up the Customary Court of Appeal in 2010. No other state in the south-west has set up such an appellate court even though it is provided for in the Constitution.
Another ridiculous allegation is that   Aregbesola dispatched some Osun State indigenes for training in Cuba. In spite of her economic difficulties aggravated by the economic blockage imposed by the United States over 50 years ago,  Cuba is acknowledged to have excelled in the areas of education, medicine and peace keeping operations. Because of his implicit confidence in the Cuban educational system  Aregbesola sent his first son, Abdul,  to Havana for his first degree in informatics before proceeding to the United Kingdom for post -graduate studies. For over a decade, the Cuban government has awarded scholarships to scores of Nigerian youths to study in Cuba. The federal ministry of education, which administers the scholarship scheme, has always appreciated the generosity and solidarity of the Cuban government. It is curious that the SSS has not accused the Federal Government of engaging in treason by allowing Nigerian youths to acquire education in Cuba!

IN DEFENCE OF AREGBESOLA
A few weeks ago, I attended the convocation ceremony of the Ekiti state university (ESU) at Ado, Ekiti state. Unlike most universities in the country which have commercialised their honorary degrees the ESU conferred doctorate degrees honoris causas on three distinguished Africans  namely Mr. John Dramani Mahama, Vice President of Ghana, Dr. Kandeh Kolleh Yumkella, Director General of UNIDO and Professor Tekena Tamuno, former vice chancellor of the University of Ibadan.

On that occasion the anthems of Ghana, Nigeria and Ekiti State were played to mark the commencement and conclusion of the ceremony. The state governor, and  the Visitor to the university, Dr. Kayode Fayemi, was present at the occasion.  Last week,  Fayemi presented the staff of office to the Oba of my home town, the Alawe of Ilawe Ekiti, Oba Adebanji Alabi. The anthems of Nigeria, Ekiti and Ilawe were played to the delight of the audience. My wife asked me if the SSS would not accuse  Fayemi of treason for leading the audience to sing the Ekiti anthem. I reminded her that no one has ever been charged with any crime for singing the famous Egba anthem, which was composed by Fela Anikulapo’s grand father several years before Nigeria was born.
In a country where religious bodies, schools, trade unions, political parties, clubs and other friendly societies have their constitutions, anthems, mottos and emblems it is bunkum to accuse a governor of committing treason for causing a state to have a flag, coat of arms and an anthem. Indubitably, section 1(2) of the Constitution prohibits any person or a group from taking over the government of Nigeria or any part of it. Having contested and won the governorship election of Osun State  Aregbesola cannot be said to have taken government by force.

It is also submitted that the 68 items in the exclusive legislative list in the Constitution on which only the National Assembly can legislate does not include flag, coat of arms and anthem. To that extent,  Aregbesola cannot be said to have usurped the legislative powers of the federal government. Neither has his decision to call the state the “State of Osun” violated Section 3 (2) of the Constitution, which states that there shall be ” a Federation consisting of states and a Federal Capital Territory”. In the United States of America from where Nigeria copied her Constitution most of the states have their courts of appeal, supreme courts, flags, coat of arms, police forces etc. Even counties (local governments) and corporate bodies including universities have their own police or quasi military institutions without being accused of courting treason.
The attempt by the SSS to link Aregbesola with the Boko Haram sect is dangerous. It should not be taken lightly as it was deliberately designed to promote religious crisis in a peaceful environment. No doubt, Aregbesola is a devout Muslim  but certainly not a fanatic. On the day of his inauguration he led the huge crowd at Osogbo to sing many Christian songs while thanking God for restoring his mandate. Last year, I attended a public function at Osogbo presided over by the governor. Before the commencement of the event he invited a pastor, an imam and an Ifa priest to pray for Osun state and the Federal Republic of Nigeria. To the embarrassment of the Christian and Muslim members in the hall there was a prolonged ovation when the Ifa priest said prayers in undiluted Yoruba language. At the end of the programme a born again Christian friend walked up to the governor and questioned his blasphemous policy of promoting idolatry. To which Aregbesola replied “you saw the reaction of the audience. The people were not clapping for the Ifa priest. They were applauding our decision to recognise and promoting traditional religion. That is in line with section 10 of the Constitution which states that the State shall not adopt any particular religion”.
It is germane to draw the attention of security forces to section 37 of the Criminal Code Act which defines treason as the act of levying war  against the State, in order to intimidate or overawe the President or the Governor of a State, and any person involved in the offence is liable to the punishment of death. In Dokubo-Asari v Federal Republic of Nigeria (2007) 30 WRN 1 at 75 the Supreme Court held that “a charge of treasonable felony is a very serious offence and is prejudicial to national security”. The late jurist, Dr. Akinola Aguda was of the view that a person accused of treason  “must be shown to have had the intention to intimidate or overawe the President or any state governor by any physical or unlawful means”. On intimidating or overawing the President the learned author opined that it “involves creating a situation where the government feels compelled to choose between yielding to force or exposing its members or the public to a very serious danger”.
From the foregoing a charge of treason or treasonable felony cannot be sustained against Aregbesola for having a state flag, coat of arms and anthem. So far no scintilla of evidence has been adduced to show that the governor has planned to levy war against the State with a view to intimidating or overawing the President. Instead of demonising the governor he should be commended for embarking on massive job creation in a country where mass unemployment has led to unprecedented wave of armed robbery, kidnapping, terrorism and other violent crimes.

However, it is ironical that while the state security service was reading treason into the Osun State Aregbesola of treason the World Bank led officials of the federal government and 15 states to Osogbo to understand the employment generation programme of his administration.

•Falana is a lawyer and member of THISDAY Editorial Board.

-Thisday