‘Best form of government is anarchism’
Vocal lawyer and renowned activist, James Chukwunenye Ezike in this interview with YETUNDE AYOBAMI OJO, suggest that the best form of government is anarchism.
James Chukwunenye Ezike, 70 was born in Ihiala, Mbosi of Anambra State. He started his early education at St. Patrick’s School Mbosi, after which he attended Kings College, Lagos. He thereafter proceeded to study law at the University of Nigeria, Enugu campus. He was the president of the Law Students Association between 1973 and 1974. In 1974, after a competition at the Nigerian Institute of International Affairs, Lagos, he was selected to represent Nigeria at the Philip Jessup international law moot court competition in Washington D.C, USA. At the end of the competition, his team won three out of the four prizes. He is a member of the Nigerian Bar Association and a member of the American Society of International Law.
What is your opinion about Nigeria’s democracy? Some argue about true democracy, while others believe it does not even exist?
I have said it over and over again that we don’t practise democracy at all. What we practise is a continuation of military rule. The military is still in power. They have never left. And if you are looking for improved dictatorship, I am afraid, there is not going to be any. Most of the people who present themselves as democrats even across the states are crooks. And I have no exception. Media houses are not independent. All the arms of government are virtually non-existent. If we want a revolution, then that is the only way out. There is no way we can have democracy from what we are practising today. There is no difference between Atiku Abubakar and Muhammadu Buhari. The most fundamental principle of a democracy is that the people are the sovereigns. The constitution says that sovereignty belongs to the people. Let me explain it to you.
The best form of government is anarchism and I am sure you are shocked. It is one of the several systems of governments but it has its weakness. The weakness of anarchism is that everybody must be consulted before any decision is taken. This is because sovereignty belongs to the people. When the United States was being formed, they decided to embrace anarchism and it was the same thing with France after the revolution. The merit of anarchism is that every body has to be consulted therefore they find a solution to a problem. Therefore people appoint delegates to speak for them. Elected people are delegates. As a matter of fact, in France they are called delegates and not just members of house of assembly or house of representatives. The governor is also a delegate. The sovereign is not the governors but the citizens. Governor or president should be saying sir to the citizens. The duty of governors and the president as delegates and representatives of the people is to defend the interest of the people.
Ironically, our courts don’t seem to know this, because you see judgments, which refer to the president or the governors as leaders or rulers. There is nothing like that in democracy. There is nothing like ‘rulership’. To make the matter worse, in the case of Nigeria, we are running a federation, a republic. Nigeria is not a republic in the first place because in a republic, nobody is given a privilege. For instance, if you go to airport, there are sections where people who have national honours sit. You don’t have such things in America. America can give people medals but not national honours sit. To make it worse, people who called themselves lawyers have what they called privileges committees.
Is the legal practitioners’ privileges committee not in tandem with law?
It is insane for lawyers of all people to have legal Practitioners’ Act in a republic. I have asked many of them to debate it with me, but nobody wants to. And some of the best brains agree with me. How can you have a privilege in a legal profession particularly in a republic? England operates monarchical system of government. Even there in England, the reason why Queens Counsels mention their cases first is because they do lots of cases pro bono. That is to enable the lawyers mention go and do cases free of charge for people.
In Nigeria, there is no such thing. In England people want to be Queens Counsel because they want to be judges, they want to leave the middle class and become nobility. In Nigeria, we have people who called themselves princes’ who go to high court, bow and say my lord. If you are a prince, what business do you have with practising law? I have a friend who is a prince in England, he is a lawyer and he doesn’t go to court. How can a prince bow to a judge? That is the English system. Here, we have a republic where everybody is ideally supposed to be equal before the law.
The anarchy continues. In Islam, the faith is a complete way of life, where the head of state is the head of the religion and head of government. And so, where you have Islamic country like Morocco, Jordan and in Egypt, they have kings. Some countries call their leaders emirs, like in Kuwait, while some it is sultan. In Nigeria we have uncountable emirs. These are the contradictions in Nigeria, which we have never resolved and so, there is no way we can survive with these contradictions because there is no country in the world that is more complex than Nigeria. It requires what the Americans call national conference. Not just conference but constitutional convention, which will last for years to work out a system that works. To make matters worse, a sultan can be appointed and also sacked by a governor. The whole thing becomes a joke. So where do we start? If we have a well-defined government, those won’t happen.
What about the problem of minimum wage?
Nigeria must be the only country with the problem of minimum wage. What is the Trade Union Congress in Nigeria doing? They are busy attending conferences everywhere in the world. In civilised countries, workers don’t go on strike because of minimum wage because they index-link it to the cost of living. That is the major job of the Federal Office of Statistics everywhere in the world. When there is inflation, the salary goes up automatically and when it goes down, it automatically decreases but here in Nigeria prices doesn’t go down.
I want you to elucidate more on Nigeria’s democracy?
As I earlier said, democracy is derived from anarchism. Instead of everybody being in charge, the society delegates people by electing them. If only our courts and politicians had recognised this, they would come to terms with the fact that they are representing the interest of the people. Simply put, Nigeria is not practising democracy not to talk of true democracy. This is not a democratic country. If they understand what democracy is, would they rig elections? Why would the courts not recognise that the people are suffering and give substantial judgment? The so-called elected officials should also realise that they are there as delegates to represent others. Any politician who knows that he doesn’t have the mandate of the people, should not go to court to challenge their opponent’s victory.
What is your take on state police?
Policing in Nigeria is a big problem. I agree we should have local police. Even in England, they have local police, which is the London Metropolitan Police. They don’t have police that belong to the whole country in England. Police is local even in the United States. But the major problem with our police is that we do not know the basic things they do. Who will police the police? Under Peter Obi in Anambra then, they came up with a programme in every community and recruited the local vigilantes. It worked perfectly. With this kind of police, you will feel free to walk around and the possibility of herdsmen coming to your community to attack you will not even occur. The people know that they are there to serve, so they don’t even ask for money. They don’t select the bad ones among them for such roles. Therefore, we must have a body to police the police if we must move forward in the area of policing in this country.
What is your view on the call for the review of the composition of the National Judicial Council (NJC)?
Why are we talking about NJC when we don’t have proper judiciary and proper constitution? It is when you have proper constitution that you know how to address the composition of the NJC. First of all, we don’t have a court system that works. Lagos and some other states have established multidoor courthouses for the purpose of settling cases out of court and such action makes me laugh. It does not work. Why? Because where money is involved, a defendant in Nigeria never loses. And the plaintiff never wins. So if you are a defendant having a case in court, you will keep delaying it. So many cases never finish and the plaintiff gets tired or dies.
When Shehu Shagari was in power, if you file a case in high court, it would get to the Supreme Court within three years. If you file a suit at 60 years old now, you may not live to eat the fruit of the judgment because we don’t have a judicial system that works. In the United States, we met lawyers who have been in practice for many years and never conducted a trial. They concentrated on interrogatory discoveries. By the time you make your interrogatory discoveries, you will know who is most likely to win the case and what happens next, you settle it. If you don’t settle and go to trial and lose, if you are a company, you must be wound up because you can’t pay. They have what is called triple damage award. In other words, if you are awarded N20 million on the date of trial, it will be multiplied by three. And of course, there is interest rate calculated in either compound or simple interest. In England now they charge interest rate automatically from the time the cost of action arose and not the time you file the suit.
Can we say that such practice lends to arbitration?
No. It is a way of discouraging frivolous applications. Over there, if you advise your client to go for litigation and he goes all the way with the case and loses, he will sue you for malpractice. So, you are the person who would advise him not to go because he will lose the case. In United States, once they award damages, the amount doubles for everyday after the judgment. So they avoid it. I also want to suggest that people should stop going to the Supreme Court for things like admiralty matters, banking, land and commercial matters, unless there is something constitutional about it. The Supreme and Appeal Courts are supposed to be filled with intellectuals. The courts should not be for everybody. There is no judge in the United States who did not attend Harvard or Yale. The best of the bests few are there. In Nigerian today, if you go to some court of Appeal, they will tell you to adopt your brief. That is horrible! Why they are there is to listen to your argument, your submissions and anecdote. If you read their judgments, they are full of anecdote. When they delivered judgment in Pen Oil Versus Texaco, you will think you are reading a published book written by Stephen Hawking, because the judges all read it and guide their thinking based on it.
But the way they write judgment in Nigeria, I do not know whether we need those judges. What they do is to get a computer, type out the facts of a case and get-out the legal authorities, but that is not what the courts are all about. What makes court of Appeal what it is, is the jurisprudence of law. You listen to the peculiar facts of a case and apply the wisdom. But our court of appeal doesn’t have advisers as brilliant as those judges in the US Supreme Court. Each of them has five clerks from Harvard or Yale who conducts research for them. They know the ideology of the judge and getting the authority is not a big deal. Over there, a case that has been decided can come up over and over again.
Do you think that judges’ practice guide, which mandates them to make quarterly returns of their decisions contribute to the unsound judgments you complain about?
Yes it could. But it is not really how long their judgment is that matters. I don’t think an application seeking leave of court to appeal should waste the time of the court because the principles are well known. A sound judge looks at the papers and grants or strikes it out but unfortunately, it may take six months to one year for some judges.
You said we don’t have a working judiciary, do you think judicial autonomy can help in this situation?
That makes me laugh because by Nigerian constitution, the courts are autonomous. It is those practising in them who decided to behave like domesticated tigers. Judges are poorly paid. Why should members of the National Assembly earn more than judges? A Judge of High Court and Appeal Court should be so comfortable that he does not need to take any bribe. They should decide how much they would earn and live comfortably, and then temptation will not be there. But the judiciary is totally helpless because of corruption and nobody is fighting corruption in Nigeria. So, autonomy is in the hands of the judges and also in the constitution.
Why is it that in Nigeria, courts don’t award cost against the state or prosecution?
We have not developed the system unlike in England where court awards cost against state in criminal cases. In England, if a judgment is based on fact and you appeal on facts, if you have to pay heavy cost and you lose, you will pay such heavy cost. In fact, our courts have done nothing except technicalities in the last years.
Democracy is derived from anarchism. Instead of everybody being in charge, the society delegates people by electing them. If only our courts and politicians had recognised this, they would come to terms with the fact that they are representing the interest of the people. Simply put, Nigeria is not practising democracy not to talk of true democracy