Femi Falana, a notable human rights lawyer. In this interview monitored on ARISE TV, the Senior Advocate of Nigeria (SAN) examines the ongoing Constitution reforms at the National Assembly among other national issues:
Recently Nigeria women were denied 35 per cent affirmation in terms of cabinet representation, political party positions…?
MY submission at the programme organized by the Nigeria Bar Association (NBA) is that following the decision of the Supreme Court in the case of the Attorney General of Ondo State and the Attorney General of the Federation, the National Assembly is empowered to actualise the provisions of chapter 2 by making laws to advance the cause of our people.
And, we have had such laws as the national minimum wage Act, Pension Reform Act, UBEC (Universal Basic Education Commission) Act, the Child’s Rights Act, even the NDDC (Niger Delta Development Commission) Act rest of them. I am saying that it is not enough to make laws, it is not sufficient to make chapter 2 justiciable, if you have a ruling class that has absolute content for the rule of law, constitutionalizing the provision of chapter 2 would be meaningless and that is what we have seen.
Where a senior lawyer, Mr. Godswill Akpabio, heading an agency like the Ministry of Niger Delta, would allow the NDDC to be run by a sole administrator contrary to the provisions of the constitution or you have a situation, whereby since 2004, all the children of school-age should be educated by the stat, but today, we have about 16 million out-of-school children and that is the highest in the world.
So, once you are not committed to democracy and rule of law, there is no amount of constitutional amendment that would change the living standard of our people. That is the point. There are laws that are being made pursuant to chapter 2, but they are being disobeyed by a government that loudly proclaimed to operate under rule of law.
Take the question of insecurity, how can the National Assembly say you are opposed to state or regional police when we already have state police in Nigeria. In the Southeast, we have what we call EbubeAgu Security Network, in the Southwest, we have Amotekun Security Network, in some parts of the Northwest, we have Hisbah security, in the Northeast, we have the civilian JTF.
Some of them are armed, they arrest people and are having them prosecuted and then you still deceive yourself that we shall continue to have only one Nigeria Police Force, meanwhile at the federal level, you have created the civil defense corps, you have empowered other agencies like the correctional centres, the EFCC, ICPC, Customs and the rest of them.
Their personnel are now allowed to carry arms. And you still say we are not going to have state police. The fear should have been addressed that state police may be used by governors to protect themselves or to harass their opponent. Why don’t we have a situation where we are going to say for the police council in every state, these organisations shall be represented. That’s all.
But, to say we should continue with this state of insecurity in our country, and that the status quo be maintained, I even wonder with profound respect whether the members of National Assembly has also familiarised themselves with decisions of our courts, which has bearing on the amendment.
For instance, in the case of Alhaji Abubakar and the Attorney General of the Federation. The Supreme Court made the point that the Nigeria Police Force shall be neutral because it is not an agency of the Federal Government. Same position was maintained by the Court of Appeal, in the case of Segun Agagu and Segun Mimiko, whereby the state security service and INEC are federal agencies not agencies of the Federal Government.
And, being an agency of the Federal Government that shall protect the interest of all Nigerians and groups equally. So, the state security service calling itself Department of State Security in the Presidency should not be allowed. Who gave them that name? Is that the provision of the law setting you up?
Meanwhile, when you sue security service in court, as Department of State Security, they raise objections, which should be compelled, so why are they calling themselves Department of State Security. These are issues that have been settled in court, yet the National Assembly pretends that they are not aware of the decisions.
So, we want to retain the status of impunity, executive lawlessness and sometimes of legislative rascality, which is what our democratic culture is teaching.
Some persons have argued that constitutional amendment being undertaken by National Assembly doesn’t amount to any kind of advancement or restructuring. What is your take?
I think what the National Assembly is doing once again is to engage in instalment amendment of certain provisions of the constitution, which at the end of the day, can be likened to movement without any progress being recorded.
In 2014, the amendments were not even allowed to be passed. I think the regime then rushed to the court to stop the amendment when we had spent a colossal sum of money on the review. At the end of the day, if you are going to be told what we have spent on this exercise again, you would be amazed and ask yourself what do these amendments amount to.
Once, you are consolidating the politics of exclusion. I mean we have women who are not less than 50 per cent of the population; you are simply saying they do not matter. We have the youths that constitute about 60 per cent of the voting population and you are saying they are irrelevant. We have people with disabilities, who are not less than 20 million in the country. They are not taking into cognizance and you are saying you are amending the constitution. When you look at the totality of the amendment, you will discover that there is nothing really. No provision has been made to address insecurity in our country.
The collapse of the economy, what have they done other than to say we are passing a bill, want to entrench a clause to allow a virtual hearing in the court. I beg your pardon, the courts have already used their own provisions of the law; practice directions were issued last year and they are already conducting virtual proceedings. I patronize the ECOWAS court in Abuja, since July last year, that court has not conducted any physical hearing and it is the same with our court and it is when a lawyer objects, you can come for a physical hearing. You don’t need to go and put that in the constitution. When you look at other areas, you ask yourself, what do these men and women in the National Assembly think they are doing, is it about addressing the problem confronting our country and we can’t make this a regular phenomenon, you must embark on holistic amendments of the constitution and its review because what they are calling the constitution is the decree no 24 of the 1999 constitution signed by General Abdulsalaam Abubakar, it is not our constitution. So what is the problem in saying let all interest groups be given the opportunity to put their demands across. We then write a constitution for Nigeria, which should be enacted by the Nigerian people. But how can you be amending a military decree and you are deceiving Nigerians that you are amending the constitution of the country. But if the dominant ruling class of Nigeria agrees that we are not going to have a holistic review, what we are going to do is, occasional or instalment amendment of the constitution, but at the end of the day, what do these amendments amount to. Do they address the problems confronting the country, do they address the question of patriarchy and that is what we are seeing. How can you in this age and time, say that women should not be given slots or seats in the parliament or slot in the executive arm of government. It is unacceptable.
Now, how would you react to the issue of VAT, vis-a -vis the fact that the case is currently in court?
Now, it is clear to all and sundry that as the law stands today, it is not the business of the Federal Government, because it is not on the exclusive legislative list. So, the Federal Government cannot insist it would retain the status quo.
Why do you want to continue to concentrate more powers on Abuja, which is already overburdened? I think they know it is not going to work. And that is part of the demand of our people that, let’s run this country in a way that each state can engage in economic affairs. And at the end of the day, you pay some tax to the federal purse and not the other way round.
For instance, a section says four per cent of the total VAT collected should be retained or deducted by the FIRS (Federal Inland Revenue Service), all the customs duties collected, seven per cent would be deducted by the customs board and you ask yourself, where is this coming from?
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This is part of the legacy of military dictatorship in Nigeria that we must now sit down and determine who is taking what from where and for what purpose. The economy was not addressed in the whole amendment; nothing serious about the economy was addressed in the constitution. The court had already ruled that the VAT thing is not the business of the Federal Government.
An attempt was then made through the constitutional amendment to overreach the court, but I think the majority of the members felt no, we should not concentrate more powers on the centre. When you look at the all amendments, none has addressed the question of official impunity, which has made a mockery of democracy in our country.
Take, for instance, you have the Niger Delta Development Corporation, the law provides that that body shall be headed by a board. That board, which consisted of people or the representatives of the Niger Delta oil-producing communities in Nigeria, but what has happened? You have a minister with the backing of Abuja, I am talking of the Minister of Niger Delta, who is a lawyer, a senior lawyer, running the place with the appointment of the interim administration, caretaker committees or even now, a sole administrator; contrary to the provisions of the law.
Now, you can’t justify that in a democracy. Right now, I have three gentlemen, who were just released recently. They were detained on the orders of a General in November last year. We’ve done everything to get them out until we went to court. In January this year, a Nigerian, I think Azeez Akintunde, was ordered to be released by the court of law, up till now, the General that detained him has not released him.
Last week, a village in Imo was invaded by Policemen and what happened? Some criminal elements burnt down a Police station in Isu Local Council and the Police descended on the village without looking for the criminal elements, the place has been occupied militarily, houses are being burnt, about 15 people are detained, including women who went to give food to their husbands.
You can’t run a democratic system of government like that and the National Assembly members are not asking questions. All the laws and amendments we are making, are they going to work in an environment that is hostile to the rule of law?
Take the one that people are celebrating, the idea of lifting part of section 18 of the constitution from chapter 2 to chapter 4. For instance, the compulsory basic education far back as 2009, SERAP obtained a judgment in the ECOWAS court that every Nigerian child shall be educated free of charge by the state.
In 2014, LEPAD, another NGO, obtained a judgment in the federal high court based on the provisions of the Child’s Rights Act, the compulsory free and universal basic education act, every child shall be educated from primary to secondary level. These two judgments are being disobeyed all over the country. Right now, N51 billion has not been accessed by state governments to promote basic education.
So, without addressing the culture of impunity in our country, you cannot talk of amending the constitution without seriously tackling the question of impunity and this is our terrible experience.
What is it about state governors being chief security officers but cannot protect their people except fighting their political rivals with the police. Do you think that passing a bill that would whittle down the power of the executive, like removing impunity would change things?
It is not correct to say that governors are helpless when it comes to securing their states. Again, there are decisions of our courts. In the case of the Attorney General of Anambra State and the Attorney General of the Federation. This occurred during the time of Dr. Chris Ngige, while he was governor of Anambra State and President Olusegun Obasanjo withdrew Police powers from him and he went to court and the Supreme Court made the point that by virtue of Section 215 of the constitution, the governor of the state has the power to give directives to the Commissioner of Police in that state when it comes to maintenance of law and order. That is the position.
In the case of IGP and ANPP, the Appeal Court said, affirming the decision of the Federal High Court that the name of IG is not even mentioned in the public order act. Therefore, all rallies and public meetings in the states shall be controlled by the governor of a state. You have a situation where a governor wants to hold a rally that he would apply to the Commissioner of Police or the IG. I can go on and on, in ways the court has promoted restructuring by litigation.
When you say helpless but when it comes to harassing political opponents, they are not helpless. This current constitution provides that the Nigeria Police Force (NPF) shall be administered, organised and supervised by the Nigeria Police Council (NPC) constituted by the President, the entire 36 state governors, the IGP and the chairman of the Police Service Commission.
We have 36 members of the 39, who are chief executive officers of the state, what happens at the end of the day, that body never meets, that is to supervise and administer the Police force. We mounted pressure on the National Assembly.
I think in section 6 of the Police Establishment Act of 2020, it is clearly stated that the council should meet twice a year. The law came into force in September 2020, up till now, there has not been any meeting.
So, the governors have abdicated the police power to the President, so we have a situation today whereby the President, Inspector General of Police(IGP) and police commission run the Nigeria Police Force contrary to the stipulation of the constitution. Nigerians must not celebrate any of the amendments yet, because all the amendments are going to all the 36 states’ Assemblies and if one of them is not backed by resolutions of 24 Houses of Assembly in the states, that would be the end of the matter.
There is no cause for celebration yet, even for the minimal success that may have been recorded this time around.
Independent candidacy was endorsed, would like that to sail through, diaspora voting was rejected and the lawmakers are recommending separation of the office of Attorney General from that of the Minister of Justice. Are there some positive sides to what has been proposed?
I think what the National Assembly has done is formalise, constitutionalize existing development in the country. For instance, aviation and airports are on the exclusive legislative list.
Perhaps Federal Government has not been able to revive Nigeria Airways, yet Akwa Ibom has one of the best domestic airlines in Nigeria. Akwa Ibom, Anambra and Delta States have functional airports. This is a situation, where Federal Government was compelled to cede powers to the states that are willing to fund development in their states. That is the explanation.
It is now that the states are being given responsibilities to control railways and electricity, these matters are transferred from the exclusive legislative list to the concurrent list so that state government can invest in them.
So, the Federal Government has no power just as it did in the case of Lagos State, Enron Power. Whatever powers it generates shall go to the national grid, but you retain without transferring to the national grid now. That is not really new, because if I have invested in electricity, you cannot compel me to transfer them to somewhere else.
