Wike was on the wrong side of everything: law, common sense, decorum, & ministerial propriety —Odinkalu

By Chidi Odinkalu
For the record, let me be clear: Nyesom Wike is a Minister of the Federal Republic & an appointee of the president. He is neither a police officer nor a bailiff.
A lot of people who claim to be lawyers go about this thing with no regard for the law.
Wike was plainly on the wrong side of everything: law, common sense, decorum, & ministerial propriety.
The only thing he had on his side was alcohol.
Wike had no right to be where he was. There is no ministerial right or power to enter land in adverse possession without a court order.
Ideological purists like me may quarrel with it, but a lot of people forget that Section 33(2)(a) of the Nigerian constitution grants a right to kill lawfully in defence of property rights & effective possession is an intangible property right.
Wike was a trespasser using force to enter land in adverse possession & without a lawful Court order or warrant. He was on a mission of Ministerial Vigilantism.
He was lucky to come out without injury or worse.
An officer of less discipline or one who takes Johnnie Walker for breakfast – like Wike – may have been less parsimonious with a projectile. The Shiites in Zaria did a lot less & see what happened to them.
I am not sure people realize what amount of trouble this puts Wike in. This affects the authority of the president as C-in-C. The officer corps will be looking out for how the C-in-C handles this.
In case anyone wonders who wrote this, my name is Chidi Anselm Odinkalu.
This nonsense has to stop!

Let me add:

There are 2 things here. 1st possession, no matter how tenuous, is a protected intangible property interest. You can only defeat it by a court order.
Even as Minister, Wike cannot lawfully clear our squatters without a court order. Squatting as a matter of law strictly speaking, is a protected interest in land.
The Minister has a right under the Land Use Act to inspect land the subject of a right of occupancy at a reasonable hour & reasonable notice. But if he is not granted access, he needs a court order to enforce, not self-help.
When I was chair of the NHRC, we found the Department of State Services, DSS, & the Guards Brigade liable for the unlawful killing of squatters in an Abuja building. The Attorney-General required them to pay up the damages we ordered & they did.
There is a 2nd issue: Strictly speaking, the constitution valorizes property more than human life. So, it grants wider latitude to kill in defence of property than it does in defence of human life.
There is an inherent requirement of proportionality in respect of the latter, which is not there in respect of the former.
Colonialism is the context to s.33(2)(a) of the Constitution. White people were few. The lands were ours. But the white people could kill our people as they liked because black life mattered little. But their property mattered a lot. They ruled by expropriating our lands.
We failed to change that mindset after independence. Thus far, it has not mattered much because the lives involved were the “expendable” lives of citizens for the most part.
Now we are dealing with the egos of big people. But the underlying legislative & constitutional structure of hierarchies of life & of property has not changed.
Let me put it this way: if something had happened to Wike in the fracas he manufactured & those guys had been court-martialled, I’d wager that they would have gone free.
There is another aspect that should be addressed – whether military men should ordinarily protect the property of their boss.
The answer to that question actually is fact-specific & has to be based on evidence. Wike did not have enough facts in that altercation to determine the facts, nor do you or I. Let me explain a little more why this matters.
As a matter of law, there is a difference between void & voidable. Was it manifestly unlawful for the soldier to be where he was? The answer is no. Why, you would ask?
Because it is the seat of power, Abuja is actually military territory. That is why its ultimate protection is in the hands of the Guards Brigade.
So, its administration is under a mix of civil and military law, all designed to protect the civil authority of the president as head of state & his military command as C-in-C.
A soldier in Abuja enjoys a presumption of regular & lawful command & deployment until the contrary is proved.
But the fact that a deployment is not void as a threshold issue does not mean that it is not voidable. To determine whether or not that is the case, however, you need more facts & more evidence.
That is why there can be no room for ministerial self-help.
If Wike had a warrant or court order, then, of course, I can tell you right away the officer was out of line & what he did was unlawful. But he didn’t.
Whether the officer was there on private business is not what you or I can determine without a process of adjudication or inquiry. Law & Society Magazine