Is the Doctrine of Separation of Powers Being Eroded?
Before I go into ‘the word for today’, I cannot but briefly comment on President John Mahama’s recent suspension of the Chief Justice of Ghana, Hon. Justice Gertrude Torkornoo (CJG) on allegations of misconduct. In Ghana, unlike Baron Montesquieu’s theory of Separation of Powers, the three arms of government are not co-equal. Article 57(2) of Ghana’s Constitution of 1992 (with Amendments through 1996) provides that the President takes precedence over all persons in Ghana, followed by the Vice President, the Speaker of the Parliament and then the Chief Justice. Article 146(6) of Ghana’s Constitution provides that, where there is a petition for the removal of the CJG, in consultation with the Council of State, the President will appoint a Panel of Inquiry to look into the allegations and recommend to the President whether the CJG should be removed. Also, when the petition has been referred to the Committee of Inquiry, in accordance with the advice of the Council of State, the Ghanaian President is empowered to suspend the CJG (see Article 146(10)(a) of Ghana’s Constitution).

In Nigeria, I have always maintained that we pretend that the three arms of government are co-equal, particularly as the 1999 Constitution of the Federal Republic of Nigeria (as amended)(the Constitution) doesn’t provide for a hierarchy like Ghana; but, in reality, it appears that we have adopted the same hierarchical arrangement as the one provided for in Ghana’s Constitution. The Constitution doesn’t endow the Nigerian President with the same powers of discipline that the Ghanaian President has over the CJG, with regard to the Chief Justice of Nigeria (CJN), even though President Buhari used a warped, unconstitutional process to remove Chief Justice Walter Onnoghen. See Nganjiwa v FRN (2017) LPELR-43391(CA) per Abimbola Osarugue Obaseki-Adejumo, JCA on the discipline of a judicial officer.

Though the procedure of discipline of the CJG raises questions of the independence of their Judiciary since the Judiciary is subject to the President, for now, however, constitutionally, President Mahama appears to be standing on ‘terra firma’, but only if the allegations against the CJG are not contrived, baseless or malicious, which some have argued that they are. The President’s powers of appointment of a good number of the members of the Council of State, 3 in consultation with Parliament and 11 by himself, aside from the President of the National House of Chiefs and elected members from the various regions, also gives him a considerable amount of power in the Council of State (see Article 89 of Ghana’s Constitution). Can this power be abused?

Last week, Milwaukee Circuit Court Judge, Hannah Dugan, was arrested in her court room by FBI Agents, for allegedly allowing a man who ICE Agents were seeking to deport, to evade them. She has been released, pending arraignment for felony charges of obstruction and concealing the proposed deportee. In this case, the FBI didn’t wait for any Judicial Conduct Commission, before taking action.

Sadly, it appears that what we are seeing these days, or what the Executive may be trying to achieve, is the subjugation of the Judiciary to it in order to be able to do as it pleases, without any check or balance. This will certainly impact negatively, on the independence of the Judiciary.

“Three things cannot be long hidden: the sun, the moon and the truth.” - Buddha

Criminals are Criminals, But….
I do agree that crime is crime, and criminals are criminals; and instead of quibbling about the colour, ethnicity or religion of criminals, bringing them to justice to reduce insecurity in Nigeria should be the prime focus (see Section 14(2)(b) of the Constitution and Tanko v State (2009) LPSLR-3136(SC) per Pius Olayiwola Aderemi, JSC). However, the study of Criminology and research has shown that following trends is helpful in solving crime, and has revealed certain patterns of crime between groups of people and types of crime. Therefore, a branch of Criminology, Trend Analysis, is devoted to identification of patterns in crimes, changes in them, causes of the crimes and development of strategies to prevent same. So, for instance, if people are usually robbed in traffic on Eko Bridge, particularly in the evenings when they are going home after work, Trend Analysts will observe that pattern of crime - maybe it occurs between 5pm and 7pm on weekdays. And, if many of victims of the robberies and eye witnesses observe that, a good number of the thieves are young men who are or pose as street hawkers selling different items, would it be profiling or simply telling the truth to warn people to be careful of street hawkers on Eko Bridge, as a good number of them are really robbers, some simply masquerading as street hawkers?

Definition of Profiling
What does Profiling mean? It means different things, in different contexts. In terms of Consumer Profiling, it is used to identify the target market for certain products, purchasing trends, preferences or weaknesses in products based on purchase, or to design products for target markets. For example, research has shown that girls between age 3 and maybe 6-7 like Barbie Dolls. In the past, it used to be girls up to age 10, but, it appears that the taste of older girls may have changed. So, if Mattel Inc, the maker of Barbie still wants to target older girls, it would have to make the Barbie Doll more attractive or innovative to pique their interest.

Criminal Profiling is used by law enforcement agencies in the Western World, to ‘catch’ criminals. For instance, in the case of a suspected serial killer, there would be crime scene analyses to discover if there may be similarities or ritualistic tendencies that are common to the different crime scenes where people have been killed, which the Police would use to determine if it is the same perpetrator(s) that may have murdered the different victims (linkage profiling). There is the examination of the victims’ backgrounds, to discover if there’s any common thread that runs through them, and what attraction/hatred the perpetrator(s) may have towards them. The method of killing is also considered - was it the same; was it exceptionally brutal, thereby showing some kind of deep-seated hatred for the victims? There’s behavioural/psychological profiling created from these and other factors, to try to develop a possible physical and mental profile of the perpetrator(s), in short, to try to narrow down the scope of who the perpetrator(s) could be.

The Fulani Issue
From the foregoing description, neither the definition nor the aims and objectives of criminal profiling appear to fit into the complaints of the Fulani elite in Nigeria, that the Fulanis are being profiled because Herdsmen are being called ‘Fulani Herdsmen’, and whether Herdsmen, Kidnappers or ‘Bandits’, some of the most violent attacks in various parts of the country, particularly in Benue, Plateau and the farming communities across the country are being attributed to Fulanis. This is not profiling; it is simply ethnic identification, which is what politicians have turned everything in Nigeria into, since the advent of the Fourth Republic - most things are compartmentalised into religion, ethnicity, gender. With President Buhari, it was the Northernisation of appointments; with President Tinubu, it was Muslim-Muslim ticket and now, the Yorubanisation of appointments. Why then should we expect it to be different when it comes to crime, particularly when certain people appear to be regularly fingered in certain crimes?

In many instances, victims and eye witnesses have identified Fulanis as the attackers, and it is up to law enforcement to investigate these crimes and bring the perpetrators to justice. Certainly, it cannot be correct to conclude that all the Herdsmen in Nigeria, or those who have partaken in these criminal acts are all of the Fulani ethnic group, nor can we rule out the fact that many of them may also be criminals of other ethnic groups or even foreigners, sometimes disguised as Herdsmen, as the narrative of Government claims. Does it really matter who they are, as long as they are caught and punished? Their ethnicity is only important, if it would help to locate and apprehend them. And, it would also be absurd, for anyone to conclude that because the Herdsmen or those of the Fulani ethnic group are the main suspects in numerous violent attacks, it means that all Fulanis are violent/criminals. But, be that as it may, it would also be foolhardy to gloss over or ignore a criminal pattern that may have been identified in a particular group of people, just because some others abhor the connection or linkage.

The other day, I saw a horrific video of criminals in Imo State who had terrorised a village and surrounding environs, and were responsible for kidnappings and killings in the area. It looked like a scene in a Nollywood movie. They were also alleged to be cannibals, as a pot of Egusi soup allegedly cooked with human flesh was found in their camp. They appeared to have infiltrated law enforcement and had such credible source(s) of accurate information, that they had been able to evade the authorities for quite a while until law enforcement changed their tactics and were able to capture them. They were not Fulanis.

The Fulani or Fula ethnic group are African nomads, who are known for herding livestock across the continent. This is a fact that any African history book, or a search engine like Google will confirm. Of course, they are not the only ones who herd livestock in Nigeria. However, there have been too many accusations against them, and the public has seen many videos over the years of Herdsmen trespassing onto people’s farms to graze their cattle on their crops. I’m certainly not saying that all the Herdsmen who have partaken in these criminal acts are Fulani, nor do I rule out the fact that many of them may also be criminals disguised as Herdsmen. But, with the uncountable attacks in Benue, Plateau and other farming communities in various parts of the country over the years, Herdsmen have been accused of being responsible for many of the heinous attacks in their bid to look for places to graze their livestock.

In 2016, as Governor of Kaduna State, Malam Nasiru El-Rufai, who stated that he is 87.5% Fulani, linked the killing of villagers in Southern Kaduna to a revenge/reprisal mission by Fulani Herdsmen from Niger, Mali, Chad etc (non-Nigerian Fulanis) who were caught up in the 2011 election violence in which many of them were killed, and their cattle lost. This is what Malam El-Eufai had to say in a Channels TV interview: “Cattle rustling and banditry is an essentially Fulani phenomenon. It is Fulanis, and we know where they were….Today, we have over 300 young Fulanis between age 18 and 30 in custody, for kidnapping, cattle rustling and robbery….This problem has multiple dimensions….To a large extent, we degraded cattle rustling; they moved on to kidnapping……”. Malam El-Rufai stated in the same interview that Fulani Herdsmen from other countries, migrate to Nigeria during certain seasons to graze their cattle through known grazing routes which may now no longer exist, as a result of urbanisation or farms now located along those routes. The question is, why should Nigeria be responsible for grazing routes for Malian or Guinean Herdsmen, particularly if it is detrimental to Nigerian Farmers? Shouldn’t their own governments, take up their responsibility?

In 2015, Chief Olu Falae was kidnapped on his farm in Ondo State by 6 or 7 Fulani Herdsmen, who were eventually caught, tried, convicted and sentenced to life imprisonment by an Ondo State High Court. Was Chief Falae profiling, or were the Fulani Herdsmen not responsible for his ordeal? Subsequently, Fulani Herdsmen attacked Chief Falae’s farm again, and killed one of his staff. In State v Haruna Usman, the then Kogi State Chief Judge, found 15 year old Fulani Herdsboy (about 17 at the time of conviction) guilty of culpable homicide punishable with death contrary to Section 221 of the Penal Code, and ordered his detention subject to the Governor’s pleasure. Usman had stabbed one Happy David to death, for stopping him from grazing his cattle on David’s Father’s farm at Emiworo Village, Ajaokuta.

So, what exactly do the Fulani elite mean, when they say that they are being profiled? That the public is claiming that every member of the Fulani ethnic group should be labelled as a violent criminal, or suspected to be one? I certainly do not think anyone can be saying so; and, if they are, it would be ludicrous. Should Muslims also say that they are being profiled as terrorists, because the very unIslamic Boko Haram terrorists claim to be Muslims? A friend of mine mentioned to me that there was an EFCC advertisement about fraud and 419 on television, that only featured Igbos and Yorubas. Does that mean that Igbos and Yorubas are being profiled as fraudsters, and Northerners or other ethnic groups do not commit fraud or 419? No. But, it may mean that Igbos and Yorubas may be more involved in that particular crime.

If victims and eye witnesses continue pointing fingers at Fulanis as their attackers, or victims of ‘419’ scams point to Igbos, Bendelites or Yorubas as the people that scammed them, should their observations just be ignored because their statements offend the sensibilities of others who share the same ethnic identity? Are their feelings or sensitivities, more important than the security and welfare of the thousands of Nigerians who are not only being killed, maimed and raped regularly, but driven from their farms and homes into IDP Camps? I do agree that people should not be stereotyped based on ethnicity, race etc, as this could lead to bias and discrimination (see Section 42(1)(a) of the Constitution and Lafia Local Govt v Govt, Nasarawa State & Ors (2012) LPELR-20602(SC) per Olufunlola Oyelola Adekeye, JSC), but, ignoring alleged criminal patterns instead of taking them seriously, would be detrimental to curbing whatever type of crime that requires attention.

When people say majority of the Nigerian drug traffickers caught/executed in Saudi Arabia are Yoruba, does this mean that all Yorubas who go to Saudi Arabia or all Yorubas are drug traffickers, or is it simply a fact supported by reliable statistics that they are the ones responsible for this particular crime? When they say majority of the ladies trafficked to Italy as sex workers are from the defunct Bendel State, is this borne out of reliable research and data, or is it that people just hate ladies from Bendel State and enjoy disparaging them for no reason?

Conclusion
We must move away from fruitless endeavours such as being economical with the truth, politicisation of criminality, over-dramatisation, ethnicity and this kind of general unproductive behaviour, and face this issue of insecurity squarely. For me, if the killers, kidnappers, rapists of Nigerians are from Ibadan like me, please, name them, shame them, but most importantly, apprehend them and punish them to the fullest extent of the law and curb their heinous activities. If they were called Fulani Geniuses or Yoruba Billionaires, would people complain about profiling?