Femi Falana, SAN

By Femi Falana

INTRODUCTION

I am honoured by your invitation to deliver this Keynote Address to such a distinguished gathering. I welcome specially to the ever bubbling city of Lagos, our brothers and sisters from West Africa.

Our desire as a people is that we all should be one country, as a step towards the greater desire of our illustrious fathers like Kwame Nkrumah and Sekou Toure, that Africa as one people, should be one country with a single capital, one currency, one defence and one foreign policy.

If almost all West Africans oppose the planned invasion of Niger Republic, it is because a people should not attack themselves or shed their own blood. Yes, we do not want military rule primarily because our civil liberties will be curtailed and our development compromised.

But who says the alternative are compromised leaders like Macky Sall of Senegal who equally curtail our civil liberties and retard our development, or, Alhassan Qattara of Cote d’Voire who carry out coups against the constitution and continue imposing themselves as Presidents after their constitutional two terms have been exhausted? We do not accept that the alternative to military rule in Africa are leaders controlled by foreign interests or maintained in presidential palaces by the bayonets of foreign powers.

I have been asked to speak on the topic, “Effective Civil Society action for open civil space and regional development in West Africa – The way forward.” Let me place a caveat from onset; that like the famous Brazilian pedagogue, Paulo Freire posited, both the teacher and the tutored are learners and they ultimately learn from each other. So, I am also here to learn from your experiences, and together, we can work out a way forward.

DEFINING CIVIL SOCIETY IS COMPLEX BUT SIMPLE

When states emerged by the amalgamation of communities, they were led by people of means or the powerful. In the feudal era, states were led by the feudal lords, and when the capitalist revolution occurred, they were led by those who own capital. In both cases, the landowning, capitalist or business class could not be separated from the state.

So there was the need to distinguish the state and business class from the rest of the citizenry. This is the whole idea about non-state actors or civil society. The civil society includes market persons, trade unions, community or faith-based organisations, professional and trade associations. Such associations are usually open with clear membership and they never really dissolve because they are part of life and usually outlive all members. This why they are not just associations, but movements such as the Student Movement, the Trade Union Movement, the Labour Movemen0074.

So, although the state arose because it was able to subordinate the civil society, but the latter constitutes such a force that it can call the state to order. In the case of current African States, they mainly came into existence because the colonialists brought their constituent societies together by force.

So civil societies are communities in a state with peculiar objectives and working together for common goals in the overall interest of society. However, in the Cold War era, Non-Governmental Organisations NGOs striving for civil liberties in supposedly authoritarian states came to be regarded as the civil societies.

NGOS AS INCLUSIVE AND EXCLUSIVE OF CIVIL SOCIETY

NGOs across the world, have done marvellous work defending civil liberties, pushing the boundaries of the open and democratic space, giving voice not just to the poor, but also the environment.

Nobody can deny the incalculable service to humanity NGOs like Save the Children, Amnesty International, Oxfam International, Greenpeace, Doctors without Borders and Media Foundation for West Africa have rendered. In Nigeria for instance, we have NGOs like the Socio-Economic Rights and Accountability Project (SERAP) and the Committee for the Defence of Human Rights (CDHR) which I once had the privilege of leading.

The world would certainly have been poorer for it if such NGOs had not stepped in to help develop countries and the universe.

NGOs, whether they are membership or non-membership based, are supposed to be voluntary, not-for-profit and non-partisan organisations. However, in practice many receive monetary rewards for work that is supposed to be voluntary, and could be non-profit, or mainly to escape paying taxes. As for non-partisanship, this depends on the position of the NGO on matters and the interests of the funders which in most cases in Africa, are foreign.

NGO EXPERIENCES IN NIGERIA.

Civil societies are native to all countries. However, NGOs are more recent. One of the earliest and most active in Nigeria was the National Council of National Awareness founded in the 1970s by veteran journalist and human rights activist, Niyi Oniororo.

However, the more conventional NGOs began springing up in the late 1980s with the Civil Liberties Organisation (CLO) led by Mr Olisa Agbakoba, SAN, followed by the CDHR. They were timely because when the Babangida military regime decided to abort the Transition to Civil Rule by annulling the June 12, 1993 Presidential Elections, and bodies like the trade unions sided with the military, it was the coalition of CSOs led by the CDHR and CLO that took on the junta.

In those pro-democracy struggles that went on until the birth of civil rule in 1999, although there was repression and many lives were lost, but the groups never gave up. However, what happened after those early NGOS were established, was that all sorts of NGOs sprang up. Many of them were nothing but employment centres and proposal-centred agencies willing to do the bidding of any donor. So, NGOs became a vogue and many otherwise conscientious, patriotic and bright young Nigerians were swallowed in the vortex.

WHY NGOS HAVE BECOME LESS EFFECTIVE IN WEST AFRICA

One of the most effective NGOs in West Africa is the Accra-based Third World Network, TWN which was part of the international organisation founded in Penang, Malaysia in November, 1984. It dedicated itself to the struggle of the rights of people in the underdeveloped countries to a fair distribution of world resources and sustainable development. It enlightened organisations and peoples on trade issues, the World Trade Organisation, Economic Partnership Agreements with the developed world and matters relating to biotechnology. The TWN equipped CSOs like the trade unions with tools to struggle for the peoples of West Africa on such issues.

A major reason for the TWN’s effectiveness and relevance is its focus on issues rather than being swayed by the focus of donors.

So, a major challenge is for NGOs in West Africa to be focused rather than hop like butterflies from one issue or area to another depending on the new area of donors focus.

Secondly, given the quadrennial circle of elections in which many donors including foreign governments are interested, a lot of NGOs focus on being electoral observers and issuing reports which may not be quite useful. In some cases as was in the 2023 Nigerian elections, a single donor agency may run scores of NGOs and NGO electoral coalitions.

Thirdly, is a lack of understanding and consciousness. For instance, many NGOs understand democracy only within the context of donors whose interests are the notions of elections not the content of democracy. So, a lot of energy is focused on form to the neglect of content. Yet, democracy that does not lead to good governance or dividends for the people is of no real use. If democracy does not lead to development, it may be of no use to the populace. And if it is of no use, or further impoverishes the people, the populace would not willingly defend it if it comes under threat.

So in some cases, what West African NGOs understand as democracy is Western Democracy and its strong advocacy for elections even if they are fatally flawed.

Such NGOs need to understand that even Western Democracy has its variants. France has the Cohabitation system with a President sitting aloof over a Prime Minister who is responsible to parliament.

The United Kingdom has its West Minister Democracy in which a person elected by only one of its 650 parliamentary constituencies, can become Prime Minister if his fellow parliamentarians in the majority party agrees to have him as their leader. So, a parliamentarian whom the vast majority of the electorate never even heard about, can become the Prime Minister.

There is the rather convoluted United States variation in which a candidate with far higher votes, can lose the election because of its system of electoral college. For instance, in the 2016 American Presidential elections, Hilary Clinton with 65.8 million votes or 48.2 per-cent total votes, lost to Donald Trump with 62.9 per-cent or 46.1 per-cent of total votes. So, the candidate with some three million majority votes, lost the elections!

If it is about multiparty, while the US has at least five political parties, the reality is that power is exchanged only between the Democratic and Republican parties. Secondly, only multi- millionaires stand any serious chance of running even for Congress. In contrast, China has at least eight political parties, but in reality, only the Communist Party stands a good chance of winning elections.

CAMPAIGNS THAT SPLIT AFRICAN NGOS

There are campaigns like those of the Lesbian, Gay, Bisexual, Transgender, Queer or Questioning (LGBTQ) which split NGOS in Africa along the line of donors. American churches spent over $280 million on NGOs to promote anti-gay campaigns. Over $20 million went to NGOs in Uganda. In contrast, the United States Government announced a $2.6 billion foreign aid in March, 2022 to promote gender equality and equity. Some of this, under the guise of checking discrimination amongst women, is for gays right campaigns.

DISREGARD FOR RULE OF LAW BY AFRICAN LEADERS

Judgments of domestic and regional courts are disobeyed by governments that believe that they are above the law. Cape Verde has insisted that its citizens cannot access the Ecowas Court as it has not ratified the Ecowas Court Supplementary Protocol of January 2005. Benin and Cote’Divoire have withdrawn the declaration, which allows individuals and NGOs to go directly to the African Court when national tribunals fail to provide justice to them. Ironically, only the Burkina Faso and Mali that are currently under military rule have continued to recognise the competence of the African Court on Human and Peoples Rights to determine allegations of human rights.

African civil society organizations should intensify the campaign against massive violations of the human rights of the people by demanding for compliance with orders of municipal and regional courts. In addition, pressure should be mounted on Ecowas leaders to recognise the competence of the Ecowas Court and the African Court on Human and Peoples Rights.

URGENT NEED TO END TENURE ELONGATION

Following the manipulation of constitutions to pave way for tenure elongation by elected presidents, Ecowas leaders proposed to limit the tenure of elected presidents to two terms. In 2015, The Gambia and Togo opposed the proposal. In 2022, the proposal was opposed by Cote’Divoire, Senegal, and Togo. In view of the wind of military coup d’etat sweeping across West Africa, Ecowas should approve the proposal without any further delay.

Happily, Ecowas leaders have abandoned the plan to wage a war against Niger Republic. Since Ecowas has opted for dialogue and the military junta in Niger has proposed a 3-year political transition, the sanctions imposed by Ecowas should be lifted. As a matter of urgency, electricity should be restored by Nigeria.

ECOWAS AND MILITARY REGIMES

Ecowas leaders should appreciate the anti imperialist dimension of the political crisis in Burkina Faso, Mali, Guinea, and Niger. Ecowas should support the struggle to end the reckless exploitation of the mineral resources of the four countries and other African countries by imperialism.

Apart from one or two member states of the ECOWAS, democracy can not be said to have come to stay in the region. To that extent, the wind of coup d’etat blowing across the continent ought to be arrested by progressive forces in Africa. Otherwise, the civilian and military wings of the ruling classes will continue to rotate power among themselves and thereby arrest the development of Africa.

DEFIANCE OF FRANCE IN WEST AFRICA

The 30-year struggle by ECOWAS to establish a regional currency, ECO, to promote trade and development in the region has been hijacked by France. In collaboration with some leaders, France has taken over the responsibility of establishing and even printing the new currency and presenting the other countries in the region with a fait accompli. France is also keeping the new currency attached to the Euro and, therefore, aligning it with its colonial interest, as it has always done with the CFA. The implication is that the other seven West African countries can only join on conditions established by France will not accept the conditionalities imposed by France. ECOWAS should take advantage of the political crisis in the region to launch the ECO.

Last Friday, France’s ambassador to Niger, Sylvain Itte was ordered leave within 48 hours amid rapidly deteriorating bilateral ties. But the diplomat has remained in Niger despite the deadline. In supporting the defiance of the Ambassador, French President Emmanuel Macron has applauded Mr. Itte for staying put. Mr. Macron has said that, “We do not recognise those who have carried out the putsch, we support a president who has not stepped down, and besides whom we remain engaged.”

France should be advised to withdraw the Ambassador and not use the crisis to attack Niger. As far as international law is concerned, Niger is a sovereign nation notwithstanding the coup d’etat. The attention of President Macron ought to be drawn to the case of Uganda v. Commissioner of Prisons, Ex Parte Michael Matovu [1966] 1 EA 514, is a decision of the High Court of Uganda in which Hans Kelsen’s “General Theory on Law and State” and the Political Question Doctrine were considered in determining the legal validity of Uganda’s 1966 Constitution. The High Court presided by Justice Udo Udoma held alia:

“The government brought into permanent power by a revolution or coup d’etat is, according to international law, the legitimate government of the State, whose identity is not affected by these events. Hence, according to international law, victorious revolutions or successful coups d’etat are to be interpreted as procedures by which a national legal order can be changed. Both events are viewed in the light of international law, law creating fact. Again, injuria jus oritur: and it is again the principle of effectiveness that is applied.″

THE WAY FORWARD.

Distinguished Ladies and Gentlemen, my suggestions on the way forward for effective Civil Society action in the region include that West African NGOs should:

1. Decide where their primary loyalty lies; I suggest that it should be with the people and not donors.

2. Take their self-education and consciousness seriously because anybody that seeks to liberate society should himself have a liberated mind.

3. Adopt a Pan Africanist philosophy by working for the development and unity of African peoples.

4. Know that there is not a single definition of democracy, so just as there is Western Democracy, so can there be a distinct African Democracy that works for the people and delivers on dividends and needed development.

5. Realize that there are no Godfathers of human rights; we are all capable of defending and fighting for basic rights in our own way.

6. Oppose all forms of unconstitutional change including tenure extension whether by civilians or the military.

7. Be focused and develop expertise in particular fields of Civil society work and not just switch focus because a donor(s) decide to change their own focus.

8. Seek ways of independent funding rather than a perpetual reliance on foreign donors.

9. Campaign that Individual and corporate entities in the Region establish donor agencies and thrusts like their counterparts in developed countries.

10. Enlighten states in the region not to see NGOs and CSOs as enemies that need to be side tracked or conquered.

11. Lobby governments in the region to assist CSOs as necessary tools for national and regional development by providing for them in national budgets.

12. Establish coalitions amongst themselves to put up joint campaigns for the constitutional and fundamental rights of the citizenry including that to development.

13. Campaign for the establishment of ECO, the common currency for member states of ECOWAS.

14. Collaborate with trade unions, student unions, and other and other civil society organizations in the struggle for the expansion of the democratic space and control of the national economy of the member states by the people.

*Being the Keynote Address delivered by Femi Falana SAN at the West Africa Civil Society Week (WACSW) on August 29, 2023 at the Lagos Marriot Hotel, Ikeja, Lagos