30th April, 2013
By Bamidele Aturu
Second, in real terms the state is above the laws as it has the power to alter them at will. Regardless of the insight drawn by political scientists in their studies of advanced capitalist societies which has led them to draw distinctions between rigid and flexible constitutions, whenever the dictates of the Constitution are outmoded or serve as cog in the wheel of capitalist progress, or as we have seen in Nigeria whenever there is need for elite consensus on intra class succession and there is need to restore a semblance of sanity and maintain stability of the class in power, the constitution can be amended in a matter of days in spite of its alleged rigidity. One explanation for the constitution not containing rights which the dominating class that constitutes the state enjoys by virtue of their means is that they are above the Constitution.
The lesson that can be drawn from this is that rather than focusing on the text of the penal statutes the better strategy is to direct the energies of the working class or the labour movement against the class that fashions the penal laws; for if that class is overthrown its laws will crash with it. Thus the mobilization strategy of the labour movement should be geared against the author of the laws and not against the laws except to the extent that criticism of the text facilitates the ultimate overthrow of the author.
A penal statute in essence, therefore, is the will of the dominant class in a given society for the perpetuation of its rule and interests and for the concomitant subjugation of the dominated class. Now one should not be misunderstood as saying that every provision of a penal statute is geared towards this end. We are concerned with the essence of those laws. Of course criminalizing assault or battery or even rape does not wear a ruling class garb and is not aimed at protecting the interests of members of the ruling class alone. The essence of all penal statutes is the preservation of order and to the extent that the existing order is fashioned to protect the interests of the propertied class our main thesis on penal statutes remains unassailable.
The points being made in this segment can be summarized as follows: the class in power determines conducts that are criminalized, which of the conducts are actually punished and how they are punished. Thus, when a judge (a member of the ruling class) sentences a petty thief to three years imprisonment without the option of fine and a big man who stole billions of Naira is given a handshake of a punishment by asking him to pay a fine from part of the stolen public funds, it should be realized that it is all part of the discretion given to the judge by the penal law. The discretion has to be exercised in favour of the authors of the law. In other words, we can paraphrase Howard Becker by replacing social groups with dominant classes and deviance with crimes and say that:
dominant classes create crimes by making the rules whose infraction constitutes crimes, and by applying those rules to particular people and labelling them as criminals. From this point of view, crime is not a quality of the act the person commits, but rather a consequence of the application by others of rules and sanctions to a criminal17.
We have enough insights from history and political science to know that hegemony is not maintained by the ruling classes through the coercive forces of the state alone. Culture, through the potent instrumentality of education, religion and the mass media, is the most ‘legitimate’ medium of class control. This is why no one really should be surprised that sponsored articles and editorials have flooded our newspapers and airwaves justifying the lenient sentence handed out to Yusuf and the presidential pardon granted Mr. Alamieyeseigha. It is instructive to note that all the justifications for the two reckless acts of impunity are anchored on their legality, which buttresses our main thesis on law. We have been told that Justice Talba acted within the prescription of section 309 of the Penal Code. That is not accurate and we should not let the shameless spinners get away with fraud. Section 309 goes thus:
‘Whoever commits criminal misappropriation shall be punished with imprisonment for a term of which may extend to two years or with fine or with both’
It is clear from the plain wording of the section that the judge could have, if he so wished, imposed both a term of fine and imprisonment. But as we have hinted discretion of the state or of its functionaries, particularly the judges, is part of the laws of the state. That discretion is routinely exercised in favour of the haves and not in favour of the have-nots. The rationalization of the infamy on the basis of the alleged plea bargain between the prosecution and the accused person is nothing but bunkum. Plea bargain itself as the name indicates is commercialization of the criminal process which is itself a reflection of the profiteering that the state superintends. Expectedly, it is available always for the highest bidder. We would never have an idea of how much each of the ‘bargains’ really costs18.
An editorial by a highly respected medium supported the pardon granted Mr Alamieyeseigha on the ground that ‘state pardons are meant for sinners not saints’ and concluded thus:
‘Government’s handling of the pardon, from the denials to the confirmation, is possibly the biggest indictment of its management of a decision that has left many wondering where government stands on corruption. It should not have been so.’19
Maybe the newspaper was suggesting that the government should have boldly declared for corruption by not showing the initial prevarication as to whether or not the state had granted the pardon. In other words, the government should not left us wondering where it stood or stands on corruption. After all, this is a rogue state!
Another commentator introduced a religious dimension into the debate when he defended the pardon thus:
‘However, in all of this, one should not be understood to be encouraging corruption in the land. That is far from it. The foundation of this argument is that after a conviction for breaching the law, the same law made provisions in the grundnorm of the land on how to lift the convicts to give them a new life, go and sin no more. Forgiveness of sin is the virtue of all Christians. The word forgiveness exists both in the Bible for Christ to forgive us our sins and also in the dictionary for it to be applied. The state pardon granted Alams and others was done within the limits of the Constitution and in good faith’.
Now, since there are people who misread the Scriptures to argue that we mere mortals are not supposed to challenge the idiocies of those who impose themselves on us as rulers, but claim a Divine Right to rule, then we must not the obtuse exercise of the power conferred on the President by section 175 of the Constitution.
We do well to remember that the state criminalizes, decriminalizes, punishes and pardon whoever it deem fits and that its central goal is to protect the existing hegemony.
The Nigerian State as a typical Rogue State
Elementary dialectics teaches us that every phenomenon or subject has its essential and non-essential characteristics. It may therefore be more scientific to characterize the Nigerian State by its more essential features as a neo-colonial bourgeois state. However, our argument is that such a characterization is inadequate to explain its deformity or deviation from the general form of a State. That the essential characterization of states like Nigeria simply as neocolonial is inadequate, we believe, led many scholars to search for and come up with such descriptions as peripheral capitalist states,21 and recently as failed or failing states, among others.
Although the term or concept of rogue states can be labelled by leftist scholars and critics as an imperialist coinage since those who popularized its usage were leaders of the United States of America and other developed capitalist societies, the content that we give to the concept or term is radically different from the conception of the said leaders. A doubtless pro-American characterization of rogue states offers that to be classified as a rogue state, ‘a state had to commit four transgressions: pursue weapons of mass destruction, support terrorism, severely abuse its own citizens, and stridently criticize the United States’22. Rogue states are generally seen not to behave rationally or act in their own best interests. Unfortunately, William Blum, who combatively, but with compelling examples, depicts the United States of America as a rogue state did not offer his definition of a rogue state.
We conceive a rogue state as one in which survival or accumulation takes place and is sustained not by production but by a system of stealing without any form of pretence and where those who control the institutions of state privatize them for the purpose of protecting the system of stealing. I doubt if any serious and decent observer or student of the debauchery that takes place in Nigeria in the name of governance would contest that Nigeria at the moment fits this definition. We may as well add that stealing is not used here in the Nigerian generic sense of describing the fat allowances that officials (legislative, executive and judicial) award or rather allocate to themselves or the venal and ‘normal’ kickbacks and bribes received from contractors but the barefaced taking of unearned public funds from the treasury by public officials for personal use just like that.
For the purpose of completeness, not necessarily for validation of what is an open shame or sore, we would cite a few examples within the constraints of time and space.
Pension Fraud
It is no longer news that public functionaries who superintend payment of pensions to Nigerians that spent the most useful part of their lives toiling for this country simply dip their dirty fingers in the till and take for themselves billions of Naira while the pensioners are left to die on queues and in abject neglect. These officials, as you are probably aware, may be arrested with the attendant razzmatazz and prosecuted. At the end they get flimsy punishment such as a fine of N750,000 for stealing over 2 billion Naira (as we mentioned earlier). In some cases, those who are detailed to investigate the pension thieves themselves become enmeshed in allegations of helping themselves to their own billions. Of course with the billions it is easy to get the judiciary (an institution of the state) to give a restraining order that the new ‘arrivee’ billionaire should never be arrested by the police. It is of no moment that even before the order the Nigeria Police Force (another institution of the State) whose men and women provide security for the suspect could not execute the warrant of the National Assembly until he escaped out of the country through the borders under the control of the Customs (another institution of State). Then after the order the suspects reappears into the warm embrace of his bosses who are thinking of restoring him to his position. That official, believe it or not, is destined for lofty heights in the rogue state. It is a matter of time before he emerges as a Minister or Senator of the Federal Republic of the rogue state. Don’t we have many of the ex-Governors who bled the treasuries of the states they governed blind now making laws or pretending to do so in the Senate? The reproductive logic of a rogue State is clear: the more roguish you are the higher you go. After all, it is a rogue state anyway.
Security Votes
One of the most creative ways the public is fleeced in our ‘rogue republic’ is through the conduit known as Security Votes. Heads of governments at all levels and tiers have appropriated to their offices huge sums of money as security votes. These moneys are spent, as you probably know, not on security or at least not on public security, but to fund party thugs, girlfriends and for the private security of the heads of governments. Now the stealing is that, according to the roguish logic, security votes are never to be accounted for. They are not audited. It is only in a rogue state that moneys appropriated by the legislature can be spent anyhow, again, just like that. We have challenged the nitwits who peddle this nonsense to show us one law that states that security votes cannot be audited. They have not been able to show us one25, and they have not even deemed it fit to manufacture one. Of course, in a rogue state the only law that matters is that which protects the institution of stealing. We see then that all our Governors and anyone who subscribes to unaudited security votes are part of the racketeers tearing the moral fabrics of our society apart.
Yet in spite of huge trillions of Naira stolen under the guise of providing security for the people and the emergence of all sorts of funny security contractors, Nigeria has become one of the most insecure countries in the world. This insecurity and the utter incompetence of the security apparatuses to contain regional and ethnic insurgencies is what some analysts have in mind when they regard the Nigerian State as either a failing or a failed State. But we need not quarrel over terminologies. It is a matter of time. A rogue state ultimately becomes a failed State, and most states fail precisely because they became roguish.
Making the rogue state fail: Imperative of Political Organising
Conscious citizens certainly cannot wail over the failure of a rogue state. Indeed, it is the duty of all such citizens to do all they can to accelerate the failure of a rogue state. The point, we believe, has been sufficiently made that the rogue state cannot be brought to its knees through moral suasion or preachments. The state is a political tool; it can only be negated and replaced by political means.
Based on the foregoing premise, there is no alternative to political organizing as the sound strategy for uprooting the existing rogue state in Nigeria. But what exactly is political organizing? It is the critical creation of platforms and forums in society in general to change the way we relate with one another and with the existing institutions of the state with a view to democratizing them. This would be the emergence of the real civil society as opposed to the uncivil and coopted and state-created society that constitutes part of the hegemonic structure of the existing state.
The first element of the new civil society is the attitude of ownership, ownership of our lives and of the resources within our geographical location. Of course, attitudinal change must be predicated upon the existence of a conscious cell of committed change-agents; for there is no such thing as automatic consciousness. People may be dissatisfied with their conditions and may even be willing to act to change those conditions. They stand no chance unless they act consciously. Those who are sufficiently incensed at the comprehensive degradation of lives and humanity by the rogue state must step forward and volunteer to help create the Change Cells. The cells must be established in our schools, public institutions, professional organisations, political parties, market associations, security organisations and among peasants.
When people become conscious that they own all except the lives of others, they would readily do everything to resist the privatization of social life. Governors will not be able to spend public funds without accounting for them. Even Vice-Chancellors will conduct the affairs of their institutions openly and transparently. It is this critical culture that can lead to the ultimate weakening, removal and replacement of those who control political power by means of exclusive access to and monopoly of the resources that belong to all. While in the process, legal reforms will be forced in many areas of life, it must be understood that legal reforms without more cannot destroy the rogue state.
Many of the existing political parties cannot survive the political awakening that we have in mind. At the moment they are led by political entrepreneurs who see politics and governance as their main investments. These overlords cannot survive in the new atmosphere of democratic culture that we envisage. There is therefore the need for an existing Vanguard Party of the People. How the party will emerge is a question that can only be resolved in the crucible of the struggle by the Cells empowered by the new democratic attitude and imbued by the loftiest ideal of inclusiveness and equity. It cannot be decided upon the fancy of anyone, and certainly not on the basis of sterile academic treatises. What is clear is that without a Vanguard Party, the rogue state cannot be defeated. Some wily members of the ruling class may create the impression that they are different from those who directly run governments today at levels, but the truth is that these people are essentially one and the same. They are united in the way and manner they exclude the people from the use of the country’s resources. They are united in their vision of Nigeria, the vision of privatization of our lives and resources. This is why they must all be resisted politically.
•Concluded
•Aturu delivered this lecture at the Faculty of Social Sciences, Osun State University, Okuku Campus.