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In Remembrance of Ken SARO WIWA -

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Wednesday, January 02, 2013 / By Professor Olumide K. Olusegun-Obayemi, LL.M., SJD.**

DIFFERENT STROKES: HOW THE UNITED STATES AND NIGERIA SELECT THEIR HEROES AND VILLAINS—A REVIEW OF THE WATERGATE SCANDAL VERSUS KEN SARO WIWA MURDER

I.  INTROUCTION:

Nigeria and the United States have similar legal histories—having fashioned their precedent-based and their grundnorms on the English common laws of yore. In fact, most attorneys from Nigeria can just submit their transcripts to the New York and California Board of legal examiners and then qualify to take the bar examinations. Pronto, they become attorneys in the United States.

But that is where the similarities end. The United States legal and political systems do not forgive easily. Those who have betrayed the trust and who may have abandoned the rules of legal ethics and canonical rules of professional conduct are not highly esteemed to hold higher posts.

Conversely, in Nigeria, it is the reverse. It seems that we have neither ethics, professional conduct rules, memories nor values. Otherwise, how else, can one explain the ascension of Justice Ibrahim Ndah Auta as substantive Chief Judge (CJ) of the Federal High Court in Abuja? How can we explain the appointment of Joseph B. Daudu as the President of the highly esteemed Nigerian Bar Association? This is the same position that was held by the heroes of our labor past—such as FRA Williams, Adetokunbo Ademola, CJN, Alao Aka-Bashorun, etc

Many of us would remember the judicial murder of the environmental activist, Kenule Beeson Saro Wiwa by the draconian, evil-minded and satanic regime of General Sani Abacha. Ibrahim Ndah Auta was the Chairman of the Military Tribunal that quickly disposed of Saro Wiwa. This renegade and conscience-less “NBA President” Joseph Bodunrin Daudu was the lead prosecutor.

In the United States, both Auta and Daudu would have been censored, discipline and/or disbarred.

In Nigeria, they were elevated. And then, Nigerians complain of decadence, corruption, impunity and/or lack of accountability in the land.

In this short work, we shall examine the nominations of Robert Bork by President Ronald Reagan and of Harriet Myers by George Bush, Jr. During the Watergate Scandal, Robert Bork, stepped in to fire the Watergate prosecutor at
Richard Nixon's behest. This haunted him greatly. He failed, in the 1980s, over his nomination to the Supreme Court

Bork was accused of being a partisan hatchet man for Nixon when he fired Watergate special prosecutor Archibald Cox in the Saturday Night Massacre of 1973. Bork's drubbing during the 1987 Senate nomination hearings is unrivalled. Americans have a strong sense of history and would do everything to protect their values.

In concluding, a dispassionate reader will be left wondering—how on earth did Auta and Joseph Daudu end up in such highly exalted positions? This can only happen in Lasgidi—as Nigeria is referred to by Nigerians in Diaspora—a place where anything can happen at any time. A land of impunity.

II.  THE WATERGATE SCANDAL: THE SATURDAY NIGHT MASSACRE

If there is any dark event in the American history that every American wishes to forget it is the Watergate Scandal during President Richard Nixon’s tenure which led to his resignation. The Watergate scandal was a political scandal that occurred in the United States in the 1970s as a result of the June 1972 break-in at the Democratic National Committee headquarters at the Watergate office complex in Washington, D.C., and the Nixon administration's attempted cover-up of its involvement. The scandal eventually led to the resignation of Richard Nixon, the President of the United States, on August 9, 1974, the only resignation of a U.S. President. The scandal also resulted in the indictment, trial, conviction and incarceration of 43 people, including dozens of Nixon's top administration officials.

The “Saturday Night Massacre”—the burglary at Watergate, began with the arrest of five men for breaking and entering into the Democratic National Committee (DNC) headquarters at the Watergate complex on June 17, 1972. The Federal Bureau of Investigation (FBI) connected cash found on the burglars to a slush fund used by the Committee for the Re-Election of the President, a fundraising group for the Nixon campaign. In July 1973, as evidence mounted against the president's staff, including testimony provided by former staff members in an investigation conducted by the Senate Watergate Committee, it was revealed that President Nixon had a tape-recording system in his offices and he had recorded many conversations. Recordings from these tapes implicated the president, revealing he had attempted to cover up the break-in. After a protracted series of bitter court battles, the U.S. Supreme Court ruled that the president had to hand over the tapes to government investigators; he ultimately complied.

Robert Bork was Nixon's solicitor general and became acting attorney general during the "Saturday Night Massacre. He actively participated in the cover up.

Facing near-certain impeachment in the House of Representatives and a strong possibility of a conviction in the Senate, Nixon resigned the presidency on August 9, 1974. His successor, Gerald Ford, then issued a pardon to Nixon.

III. THE JUDICIAL MURDER OF KENULE SARO-WIWA BY GENERAL SANI ABACHA, IBRAHIM AUTA AND JOSEPH BODUNRIN DAUDU

The case/charge number was: OCDT/PH/1/95.

No-one, living in Nigeria during the mid-1990’s would readily forget evil dark-goggled one--General Sani Abacha who raped Nigeria, financially, physically, emotionally and mentally. Abacha did not act alone, Abacha used the military tribunals to kill and maim Nigeria. One of such tribunals was that headed by Ibrahim Auta along with the Kaduna-based prosecutor—Joseph Bodunrin Daudu (I am repeating his full name deliberately—History must never forget the role played by Joseph Bodunrin Daudu in violating the human rights and in assisting the elites in stealing our oil wealth)

As we all know, Ken Saro-Wiwa, one of Nigeria's leading environmentalists and authors, was executed by Nigeria's former military regime in November 1995, provoking international protests and calls for punitive measures against Nigeria. Mr. Saro-Wiwa, a popular author, playwright and television producer, had been one of the Nigerian government's most articulate and determined critics. He had built a campaign against environmental damage by oil companies and for a fairer share of Nigeria's immense oil wealth for the regions where it is produced. The highly eloquent and intelligent Ken Saro-Wiwa and others, were accused of killing four Ogoni chiefs opposed to the campaign by the Movement for the Survival of Ogoni People (MOSOP), which was headed by the late author, were convicted after a controversial trial that attracted global condemnations. MOSOP was at the vanguard of the agitation against the environmental degradation of Ogoniland arising from oil exploration.

Mr. Saro-Wiwa's organization, the Movement for the Survival of the Ogoni People, grew to become the largest political organization in the 350-square-mile homeland of the Ogoni. This ethnic group, to which he belonged, includes 500,000 people who live in the oil-rich but desperately poor swamplands of Delta State. The group began to demonstrate for an end oil spillages, gas flarings and the destruction of the mangroves to make way for Shell pipelines. They also demanded a share of the revenues from the oil pumped from their land. In response, Nigerian troops mounted a kind of scorched-earth campaign against the Ogoni, burning villages and committing murders and rapes, international human rights groups say.

Shell, Nigeria's largest oil producing company, had acknowledged frequent spills but had said the Ogoni movement exaggerated their impact. Mr. Saro-Wiwa was arrested in 1994 and put on trial before a special military court along with other Ogoni advocates, on charges that human rights groups and Western governments said were trumped up. Despite international pressure, Shell initially refused to intervene, saying at the time, ''the company does not get involved in politics.'

The Chairman of the Civil Disturbances Tribunal (chaired by Auta) was set up by the late brutal dictator, General Sani Abacha in 1995, to try Mr. Ken Saro Wiwa and eight other Ogoni activists for the alleged murder of four members of Gokana council of Chiefs and Elders: Chief Albert Badey, Chief Simeon Orage, Chief Theophilus Orage and Chief Edward Kobani

Earlier on, in May 1994, Ken Saro Wiwa was denied entry into Ogoni land by Federal Government and the four chiefs who opposed his movement were murdered by some unknown youths of the community. The leader of MOSOP [Saro Wiwa] and eight other members of the group were accused and subsequently charged for the murder of the chiefs.

Abacha selected Auta. Ibrahim Auta, who was born in Jos, but had his ancestral root in Borno state conducted the trial in suspicious manner that eventually led to the withdrawal of the defence counsels. Late Chief Gani Fawehinmi [SAN], the attorney to Ken Saro Wiwa submitted that every requirement of fundamental right of fair hearing was violated by the tribunal, “we observed that every norm of due process was ignored.”

The tribunal that convicted Saro-Wiwa turned out to be one of the most controversial in the history of this country. Headed by Justice Ibrahim Auta, the current Chief Judge of the Federal High Court, the panel delivered a speedy, but severely criticized verdict on October 31, 1995, barely nine months after it was convened.

The lead attorneys for the defendants—indefatigable Chief Gani Fawehinmi, SAN and Femi Falana, SAN were denied entry into the venue of the proceedings and denied the rights to confer with the defendants—in a case involving capital offenses. Auta denied all motions/application for continuances.

Let us examine significant events that occurred during the kangaroo-trial of good man—Ken Saro Wiwa, Chief Gani Fawehinmi, SAN raised a preliminary application seeking to transfer the case to a regular court because the alleged offenses conferred jurisdiction upon the regular state courts.

Judge Auta denied this. This is erroneous: because there are NO appeals from military tribunals. Thus, all mistakes of laws, errors of facts, and errors of procedure were not appealable. In view of the fact that the issues involved were capital offenses, this was erroneous and constitutes a gross violation of rules of fairness and fair hearing. Auta has no place in the Nigerian judicial system at anytime

Further, there were denial of defendants’ access to witnesses. One uzomah Kpekpe had written a letter to Saro Wiwa admitting that he had been forced to lie against Mr. Wiwa, along with a promise to set the records right. After Kpekpe’s release, Kpekpe disappeared. When Fawehinmi brought an application, pursuant to section 120 of the Criminal Procedure Act, to Auta so as to compel Daudu to produce for examination by defendants prior to Kpekpe’s release, Auta held thus:

It is not new that witnesses have changed sides. It is not something that has never happened. The observation is premature as the trial will soon start.”


To digress a little, in 2001, the serving Federal Attorney General was murdered in his bedroom, and the accused—Senator Iyiola Omisore was allowed to contest elections from jail, and thereafter he was released.

During the Saro-Wiwa trial, prior to the commencement of “show” termed a trial, Fawehinmi brought an application for bail on behalf of the accused, Auta held thus:

The likelihood of committing the same offense is also there, as relations of the victims are also there. These people that were killed have relations who may be eager to take revenge. It is therefore necessary at this stage and in the interest of the accused persons to remain in protective custody

Despite all the objections by Fawehinmi that the trial had not started, and that no one has been found guilty, no one has yet been adjudged guilty of the offenses upon which revenge/vengeance would be based, Auta and Daudu would not bulge. Defendants were remanded in a military garrison

Prosecutors produced several fake witnesses that defense attorneys had to withdraw.

Fawehinmi later stated that the trial was in violation of rules of fundamental human rights, human dignity, fair hearing, municipal laws, and internal laws. The execution of the defendants was guaranteed.

The Nigerian military rulers—Abacha’s PRC, upheld the judgment quickly. Besides its decision to uphold the death sentence, the PRC also proscribed MOSOP and used the resources of the state to weaken support for the organisation and its leaders. Their executions on November 10, 1995 without an opportunity to appeal the judgment, led to the suspension of Nigeria from the Commonwealth of Nations. Others killed were Saturday Dobee, Nordu Eawo, Daniel Gbooko, Paul Levera, Felix Nuate, Baribor Bera, Barinem Kiobel and John Kpuine.

After the verdict of death by hanging was given by Justice Auta's tribunal, the international community and the Nigerian people kicked against the judgement. But to make the matter worse for the military junta and Justice Ibrahim Auta, the 9 MOSOP leaders were executed on November 10, 1995, when the meeting of the Commonwealth of Nations was holding in New Zealand.

The execution of Mr. Saro-Wiwa and eight other  members of the Ogoni tribe led to fierce protests against Shell, which was already under heavy criticism from environmentalists for its record in the Niger Delta. The event, which ignited worldwide condemnation of Nigeria, prompted changes in Shell's approach to community relations in Nigeria and elsewhere.

Mr. Saro-Wiwa's body was burned with acid and thrown in an unmarked grave.
As we know, the execution of the Ogoni Nine, however, sparked international outrage with the European Union and the United States placing an economic embargo and other restrictions on the country. Shell Petroleum Development Corporation, which was at the centre of the unrest in Ogoniland, was also accused of complicity in the killings and in 2009, it paid $15.5 million as an out-of-court settlement to the families of the deceased persons. But the company had said the payment was not a concession of guilt, but a gesture of peace.
A dark chapter in Nigerian legal history. Abacha, Ibrahim Auta and Joseph Bodunrin Daudu will never be forgotten
IV. AMERICAN’S TREATMENT OF LAWYERS WHO HAVE VIOLATED UNDERLYING PRINCIPLES THAT HOLD THE AMERICAN NATION TOGETHER

A.        Robert Bork

Robert Bork was a famous conservative and was Nixon's solicitor general and became acting attorney general during the "Saturday Night Massacre." Nixon, fearing that Special Prosecutor Archibald Cox was close to uncovering the truth about his involvement in Watergate (Cox was requesting tapes of Oval Office conversations), ordered then-Attorney General Elliot Richardson to fire Cox. The unwilling Richardson resigned, and Nixon passed his order on to Deputy Attorney General William Ruckelshaus, who also refused, and resigned.

Nixon then turned to Bork, who carried out his wishes. Still, the firing would turn out only to be a stopgap. The Supreme Court eventually ruled that Nixon had to present the infamous tapes.

Bork later forgot this—but Americans did not forget. In 1987, when he was a U.S. Appeals Court judge, then-President Ronald Reagan nominated him for the Supreme Court. Senate Democrats, wary of his conservative philosophy and positions on abortion, affirmative action and First Amendment rights, rejected his nomination. The U.S. Senate rejected his nomination.

Supreme Court Justice Lewis Powell was considered a moderate, often referred to as a "swing vote" in close decisions. Even before his expected retirement on June 27, 1987, Senate Democrats had asked liberal leaders to form "a solid phalanx" to oppose whomever President Ronald Reagan nominated to replace Powell, assuming that it would tilt the court rightward. Democrats warned Reagan there would be a fight over the nomination. Reagan nominated Bork for the seat on July 1, 1987. Within 45 minutes of Robert Bork's nomination to the Court, Senator Ted Kennedy (D-MA) took to the Senate floor with a strong condemnation of Bork in a nationally televised speech, declaring,

"Robert Bork's America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens."

A brief was prepared for Joe Biden, head of the Senate Judiciary Committee, called the Biden Report. TV ads narrated by Gregory Peck attacked Bork as an extremist, and Kennedy's speech successfully fueled widespread public skepticism of Bork's nomination. The rapid response of Kennedy's "Robert Bork's America" speech stunned the Reagan White House; though conservatives considered Kennedy's accusations slanderous, the attacks went unanswered for two and a half months.

A hotly contested United States Senate debate over Bork's nomination ensued, partly fueled by strong opposition by civil and women's rights groups concerned with Bork's stated desire to roll back civil rights decisions of the Warren and Burger courts, and his opposition to the right of the Federal government to impose standards of voting fairness upon the states. Bork is one of only three Supreme Court nominees to ever be opposed by the ACLU. Bork was also criticized for being an "advocate of disproportionate powers for the executive branch of Government, almost executive supremacy," as demonstrated by his role in the Saturday Night Massacre (Watergate Scandal).

Bork was roundly rejected, Americans did not forget his role in the Saturday Night Massacre (Watergate Scandal)

B. Harriet Miers’ nomination

On October 3, 2005, Harriet Miers was nominated for Associate Justice of the U.S. Supreme Court by President George W. Bush to replace retiring Associate Justice Sandra Day O'Connor. Miers was, at the time, White House Counsel, and had previously served in several roles both during Bush's tenure as Governor of Texas and President. From 1995 to 2000, Miers chaired the Texas Lottery Commission (having been appointed by Bush when he was Governor of Texas).

In 1997, the Commission hired Lawrence Littwin as the lottery's executive director; five months later, he was fired. Littwin brought suit over his firing, alleging that the lottery contractor, GTech Corporation, had influenced the Commission to fire him for improper reasons. GTech settled the case by paying him $300,000, with Littwin agreeing not to discuss the case or the settlement. Upon Miers' nomination to the Court, GTech, at the request of the Senate Judiciary Committee, released Littwin from the confidentiality provision. Conservative columnist Jerome Corsi has called Littwin's testimony "potentially explosive" because it could have implicated Miers in an attempt to cover up the George W. Bush military service controversy.

Miers' nomination drew criticism from both political parties. Principal complaints included: (a) That her credentials under objective standards were not sufficient to qualify her for the position; (b) That her nomination was the result of political cronyism. Since her legal experience did not compare to that of other possible candidates, like federal appellate judges Edith Jones, Priscilla Owen, and Janice Rogers Brown, it was deemed likely that President Bush nominated Miers for her personal loyalty to him rather than for her qualifications. She was compared to Michael Brown, a Bush appointee alleged to have gotten his position based on loyalty rather than experience. Brown had resigned as chief of FEMA exactly three weeks prior to Miers' nomination, amidst nearly universal condemnation of how he and his agency handled Hurricane Katrina.

Americans always look at past records: Most prominently, Jan Crawford Greenburg reported that Miers' abysmal performance in murder boards before the hearings.

The nomination almost immediately drew criticism, virtually all of it from within the President's own party: David Frum castigated an "unforced error", and Robert Bork denounced it a "disaster" and "a slap in the face to the conservatives who’ve been building up a conservative legal movement for the last 20 years." Hearings before the United States Senate Judiciary Committee had been scheduled to begin on November 7, and members of the Republican leadership had stated before the nomination that they aimed to have the nominee confirmed before Thanksgiving (November 24). Miers withdrew her nomination on October 27, 2005.

V.  IN NIGERIA, JUSTICE IBRAHIM AUTA AND JOSEPH BODUNRIN DAUDU SAILED ON IN THE PLIABLE WATERS OF “LASGIDI” POLITICAL TERRAIN.

Daudu went on to become a Senior Advocate of Nigeria and later a President of the Nigerian Bar Association—a slap on our collective faces.

On June 1, 2011, Chief Justice of Nigeria (CJN), Aloysius Kastina-Alu, swore in Justice Ibrahim Auta as substantive Chief Judge (CJ) of the Federal High Court with an admonition on him to give Nigerians justice. Auta's swearing-in followed confirmation of his appointment by the Senate upon request of President Goodluck Jonathan. During the brief ceremony, the CJN charged Justice Auta not to be intoxicated by the powers of his office but to instead dispense justice dispassionately. Kastina-Alu's words were as follows:

"[D]on't be carried away by the powers of your office. Don't mind whatever lawyers will say against you, you are not answerable to them but to God.

"Give Nigerians justice and you will go home and sleep very well. We as judges owe Nigerians justice and fair play.

"In some cases you will face lawyers who will not prepare well for their case and yet criticise you for taking any decision; to such lawyers, ignore them. You are not working for them but for Nigerians."

Justice Auta has been Acting CJ of the Federal High Court since March 16 following retirement of the former holder of the office, Justice Dan Abutu.

Nigerians have short memories.

VI.  SALUTE TO UNITED STATES, CANADA, AUSTRALIA AND NEW ZEALAND
Unlike Nigerians, the western worlds have not forgotten the dark acts of Abacha Junta and its henchmen such as Auta and Daudu. Thus, the Chief Judge of the Federal High Court, Justice Ibrahim Ndah Auta is still on the list of those barred from entering the United States of America by the authorities of the country, over the role he played in the brutal hanging of the famous writer and humanist, Mr. Kenule Beeson Saro Wiwa and eight other members of Movement for the Survival of Ogoni People [MOSOP].

The leading members of the Abacha military regime, including the now Chief Judge of the Federal High Court were sanctioned by various world bodies. The government of the United States then declared Justice Ibrahim Auta as a persona non grata in her country. Other members of the Abacha regime, which included the then military administrator of Rivers state, Colonel Dauda Musa Komo, who jostled for Kebbi governorship in 2003, under the platform of the Peoples Democratic Party [PDP], were equally barred from entering the country.

VII. CONCLUSION

It is a no-brainer why we are where we are today. We “move on” too quickly and have no strong values. What good can Auta and Daudu do for Nigerians?

Can anybody readily point to a decision of interest rendered by Auta that has become a subject of intellectual discuss? Yet, he is the Chief Judge of the Federal Capital Territory. Imagine the head of the US District Court in Washington DC being a destroyer of human rights rules? It can never happen. ACLU, NAACP, EEOC, etc will rise up. Nigerians have no strong civil institutions. NLC’s leadership such as Bafyau, Oshiomole etc go on to join the oppressors.

Can anyone point to an enduring achievement of the Joseph Bodunrin Daudu’s rulership of the NBA or a landmark case that he has argued that changed the legal terrain forever? NO

Nigeria, we hail thee.

**The author, Professor Olumide K. Olusegun-Obayemi, LL.M., SJD. Is an attorney admitted both to the State of California and the Federal Republic of Nigeria’s Bars.



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