The legality or otherwise of the purported award of the Order of the Federal Republic to Chief M. K. O. Abiola, and other awards, is indeed questionable. The law, though not straightforward, is clear on the legality or illegalities of that action. It does not matter how good or desperate the intentions are. What really matters is whether that action of Mr President is sanctioned by the relevant laws.
The National Honours Act 1963 (which has been variously cited as the relevant law in this matter, and barring any major legislative alterations in the course of the development of the awards) is made up of 3 sections. The Act is closely followed by a List of Subsidiary Legislation. Subsidiary Legislation is made pursuant to the enabling Act, by the authority vested in the enabling Act to make such Subsidiary Legislation. Therefore, subsidiary legislation is inferior to the enabling Act as it derives its validity from the Act.
The relevant sections of the Act, and the relevant articles of the subsidiary legislation that affect the awards under discussion are: section 1(5) of the Act, and Articles 2 and 3 of the first Item in the List of Subsidiary Legislation.
Let us now examine the frequently cited portions on this subject matter.
Section 1 (5) of the Act:
A warrant under this section may provide that the warrant shall have effect as if it had been made on such date (not being earlier than the day when this Act is deemed to have come into force), as may be specified by the warrant, and an honour for which provision is made by a warrant and which was awarded in accordance with subsection (4) of this section, before the making of the warrant but on or after the date so specified, shall be deemed to have been awarded in pursuance of the warrant.
In this case, the Act provides for a retrospective award. But to ground such a retrospective award to a presumed winner of June 12 Election, that election results have to be declared first.
Articles 2 and 3 of the First Subsidiary Law:
2. Eligibility for appointment to Orders
(I) Subject to paragraph (2) of this article, a person shall not be eligible for appointment to any rank of an Order unless he is a citizen of Nigeria.
(2) A person other than a citizen of Nigeria shall be eligible for appointment as the honorary holder of any rank of an Order; and appointments made in pursuance of this paragraph shall be disregarded for the purposes of paragraph (3) of the foregoing article.
3. Mode of appointment to Orders, etc.
(I) The President shall by notice in the Federal Gazette signify his intention of appointing a person to a particular rank of an Order.
(2) Subject to the next following paragraph of this article, a person shall be appointed to a particular rank of an Order when he receives from the President in person, at an investiture held for the purpose-
(a) the insignia appropriate for that rank; and
(b) an instrument under the hand of the President and the public seal of the Federation declaring him to be appointed to that rank.
(3) If in the case of any person it appears to the President expedient to dispense with the requirements of paragraph (2) of this article, he may direct that that person shall be appointed to the rank in question in such a manner as may be specified in the direction.
It must be noted that Article 3(3) did not authorize posthumous awards. This is because although Mr President can dispense with the awardee presenting in person, the awardee must be alive. To buttress this fact, Article 2(1) stresses that the awardee shall not be entitled to the award unless HE IS a citizen of Nigeria. Abiola and Fawehinmi are not currently citizens of Nigeria as required by the Act; THEY WERE citizens of Nigeria. Honours awards are awards in personam, and not awards in rem. They, like academic qualifications, are not transferable. The Subsidiary Legislation is very clear that the awardees must be currently Nigerians, not erstwhile Nigerians.
From the forgoing, it is clear that the Act envisages a retrospective award up to the year 1963. It is also clear that the subsidiary legislation does not admit of a posthumous award as observed by Justice Belgore.
Given these two clear provisions, it is clear like crystalline that the validity and legality of the posthumous awards to Abiola and Fawehinmi will essentially depend on how Mr President couches the contents of the Warrent.
Mr President and his handlers can effectively juggle the laws to produce a legally qualified document that can pass the legality test in this imbroglio of posthumous awards. And when they do and do it right, those who cry illegalities may never have a word of criticism to utter.
Awkadigwe Fredrick Ikenna
(MBBS, LLB, MWACS, DSC)
This article can be read and shared purely for enlightenment and education of the people of Nigeria. The reader can also freely comment and argue with the thoughts of this author.
© Copyright 2018 Ikenna Fredrick Awkadigwe. All rights reserved. No part of this publication is permitted to be used in any way, copied, photocopied printed, reproduced, transferred, adapted, argued in any fora, used in Court or recreated in any form or resemblance whatsoever, without the written approval and license of the author, Ikenna Fredrick Awkadigwe.
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