“The controversial aircraft on the service of Governor Rotimi Amaechi is operating illegally in the country,” the NCAA boss stated.

With those words, the Government of President Goodluck Jonathan grounded the aircraft carrying his arch opponent, Governor Amaechi of Rivers State, and the President’s potential adversary, Speaker of the House of Representatives Aminu Tambuwal. The aircraft was grounded in Akure, of all places. When your aircraft is stranded in Akure, there is no easy way to get out.

This smacks of a classic abuse of discretion to achieve a political objective. It has been said severally that the President and the Governor have been at dagger points on several political issues. In a simple move, the Nigerian Civil Aviation Authority (NCAA), under the control of the Minister of Aviation, decided to ground the Rivers State Government-owned aircraft used by the Governor and otherwise called Amaechi’s jet by the Nigerian media. Apparently, the Federal Government decided to use its discretionary powers to harass and contain the Governor, as well as to send a strong message to all the other Governors.

In the State of Maryland where I live, as is the case with most other states in America, when my driver’s license or my car registration is about to expire, the Motor Vehicle Administration (MVA) would send me a letter or notice advising me that my registration or license is about to expire and informing me on the steps I need to take to renew it. In this case, we are dealing with an aircraft, not a car. How come that the NCAA did not advise the operators of this aircraft that its clearance approval was about to expire? How come they waited till that precise moment when it landed in Akure carrying the opponent of the President?

One does not need to be a rocket scientist to understand what is at play here. Jonathan’s Government is abusing its powers and inventing ready pretexts to justify such abuses. It is purely a game of political control using pretexts. From a legal point of view, the NCAA is going to say that it has that discretionary power to ground an aircraft under certain circumstances. But the manner in which it has been used here constitutes an egregious abuse. That power has been used arbitrarily and capriciously to embarrass, intimidate, discomfiture, and contain a political rival of the President. Those are not legitimate purposes of that law that granted the power to regulate the Nigerian aviation industry. It is particularly troubling when one remembers that it was this same NCAA that repeatedly failed to perform its standard duties that would have prevented the crashes that took the lives of many Nigerians.

This country has had a long history of this sort of abuse of power. Right after the Nigerian independence, Chief Obafemi Awolowo was indicted by the Nigerian Government for treason. Awolowo decided to exercise his constitutional right to hire a defense counsel of his choice. He hired a lawyer from London, who was clearly authorized to practice law in Nigeria. But in order to frustrate Awolowo and to deny him his choice of lawyer, the Nigerian Minister responsible for visas refused the British lawyer a visa to Nigeria. Their argument, like in the case of the grounding of this aircraft, was that the Minister had the discretionary power to deny any non-Nigerian a visa. The question then, as the question now, was why would the discretionary power to deny visa override a constitutional right of a Nigerian citizen (right to counsel then and freedom of movement now)?

Also, in the case of Abdurrahman Shugaba, President Shehu Shagari’s Government tried to get rid of his opponent by declaring him a non-Nigerian and having some immigration officials haul the poor man over the border of Nigeria and Chad, dumping him on the Chadian side of the border. In that case, too, the discretionary powers over immigration statuses of foreigners were terribly abused, particularly because Shugaba was indeed a Nigerian, and not a Chadian.

Similarly, we see again and again how the Jonathan’s Government, like those before him, have abused powers (sometimes the prosecutorial powers of the state and the criminal justice system) to intimidate opponents. The Government formulates criminal charges against opponents to justify their arrest, detention and humiliation, all as an instrument of political control. This is so unbecoming of a country that claims to be a democracy. The worst danger here is that the Government has been known to forge the factual premise for the abusive exercise of discretion. In Shugaba’s case, for instance, the Government lied about Shugaba’s nationality just to be able to justify the exercise of discretion to remove. In Awolowo’s case, it was believed that the entire treason charges were contrived to justify imprisoning him. Here, the factual premise of the NCAA might have been fabricated by the Government in order to justify an abusive conduct.

Whereas this has been the practice of Nigerian past governments, both civilian and military, it is time Nigerian youths stood up and said enough is enough. It is unfortunate that the Nigerian civilian governments since after General Abacha’s regime have recorded the highest number of instances of such manipulated use of regulatory discretions. Take, for instance: President Obasanjo repeatedly abused the constitutional principles of federalism and checks and balances by using the EFCC to impeach only those Governors he did not like, or to discipline anyone that opposed him. Now, President Jonathan has continued to maintain such abuses. He used the EFCC to prosecute Speaker Dimeji Bankole, in a sham prosecution. Yet, the same EFCC was impotent when a few friends of the President colluded to defraud the country to the tune of billions of dollars under the fuel subsidy program.

This is where the defenders of due process must rally together to ask questions and challenge these abuses of power. If there is a constitutional right vested, such right cannot and should be eviscerated or emasculated by the same discretionary power of government officials. Such discretionary power must be exercised in a manner that preserves the vested constitutional rights. A simple illustration: The fact that you have the power to clean the room in which I am sitting does not mean that you should injure me with your bloom and bucket. Why not start cleaning the room from the other corner while giving me the chance to move over the cleaned part when you decide to clean the spot where I am sitting? That is what a reasonable and responsible person exercising the discretionary power over the cleaning of the room should do. Presidential spokesman Dr. Doyin Okupe’s justification of these abuses as collateral damages is sheer nonsense and arrogant ignorance.

•Emeka Ugwuonye, Esquire, is a US-based lawyer and Group Founder/Principal Administrator of Due Process Advocates (DPA). He originally wrote this piece for the DPA.

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