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
