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‘Senate must devolve more powers to states to stem growing agitations’

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Dr. Abiodun Layonu (SAN)

Last week, the Senate inaugurated a 56-member constitution review committee to be chaired by the Deputy Senate President, Ovie Omo-Agege. But some Nigerians kicked, saying the agitation for restructuring implies having a new constitution instead. They argued that the existing constitution is so flawed that no amendment can remedy it. However, former governorship aspirant in Osun State, Dr. Abiodun Layonu (SAN), in this interview with Assistant Editor, Law and Foreign Affairs, JOSEPH ONYEKWERE, said the senate’s action is a step in the right direction, urging it to ensure devolution of more powers to component states of the federation.

The senate has set up a committee to review the constitution, but the agitation and expectation of most Nigerians have been that of total restructuring. It appears that the All Progressives Congress (APC) is not interested in that. What is your reaction to that?
First of all, let me say it is not really correct to say that APC as a party is not interested in restructuring. If you look at the manifesto of the party, restructuring is one of its cardinal programmes. The form, content and the manner of restructuring, I think are what must be properly considered so as to reach a consensus. We must seek a restructuring programme that will be largely acceptable to the entirety of Nigerians from all geographical and political zones. I believe that it was after the administration got into power, that perhaps it, to some extent, got overwhelmed with the enormity of the issues on the ground, which made the issue of restructuring less demanding of attention. Whilst I will not justify the seeming tardiness of government in setting about the restructuring programme, we must think deeply about it and avoid shooting ourselves in the foot. So the senate coming to set up a review committee is a way of commencing the programme. In the absence of executive action, the constitution amendment process can be jump-started by the legislative arm and the process achieved much quicker once all the stakeholders agree including the executive and the party in power.

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If what you said is correct that restructuring is in the manifesto of the APC and the problem is perhaps the enormity of what they met on ground, they would have at least indicated interest, but pledged to come to it later. Nigerians are agitating because there is not even a tangible response from the government. It created the impression that the government is not interested in restructuring, it appears members of the party are the ones actually showing the interest?
I think it is even better that way. Look at all the debates about restructuring and how lively they have been even as nebulous and frivolous as to what is the meaning of restructuring. Restructuring has been controversial if only in terms of the actual content. What I understand a large number of Nigerians including my humble self are saying is that there is need for serious and sincere devolution of some constitutional powers from the federal government that is from the exclusive legislative list to the states vide the residual list. The more the powers given to the states the more devolution we have, it means the more responsibilities you are putting on the states, hence more resources will be required to execute those programmes and it means there will be less money for the federal government. There is therefore nothing wrong with this, as it is Nigerians that will still benefit. The National Assembly as a major stakeholder representing the people can be in the driving seat of the constitutional process of amendment rather than the federal government itself. In order not to get bogged down or mired in unnecessary controversy, I think we should start with devolution as a constituent of restructuring.

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It appears the majority favours something like a regional arrangement?
In all the arguments and discussions about regionalising, we must remember that Nigeria had practised this before in the first republic. We must note that the federal government was made very powerful in the second republic under the 1979 constitution because of the apprehension of some people, especially in the military that the regions as they were in the first republic were so powerful that the corporate existence of Nigeria was threatened. Some people were of the view that we probably could have avoided the civil war if the regions were not that powerful. You know one of the jokers played by Gowon was the creation of 12 states, which was to a large extent meant to break down the regions and reduce the regional influence. So there is some subtle anxiety in certain quarters that going back to this system, the regions may become so strong and powerful again as to threaten secession if we are not careful.  But I don’t really think that is what matters. What matters is that a country like Nigeria can only survive and be sustained by consensus and by the peoples being substantially happy with the system. The moment one section becomes unhappy the agitation will continue to grow until eventually, they succeed. An example of a country that succeeded in parting peacefully in modern times without rancor or war was defunct Czechoslovakia. That is why we have Czech Republic and Slovakia today.

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On the other side, look at the old Yugoslavia. They did not succeed in doing it peacefully. About six nations or more came out of it with war and genocide. It was a very terrible experience. Nobody wants to go that way. If there is consensus, everybody will go the way of the old Czechoslovakia. Look at the agitation in the UK about Scotland. As far as I am concerned, it is a matter of time. If they are really dogged in their pursuit of having an independent Scotland, it will be a matter of time before they achieve it. In the last referendum they had, it was a very close call maybe 52 percent to 48 percent or closer to stay in the Union.

Now the pressure is on for another referendum and the central UK government, which today is against Scotland leaving the Union, is resisting by saying you cannot have another referendum so soon after the last one. They are however offering more and more devolution almost to the point of full autonomy! Further, the agitation is exacerbated because Scotland wants to be part of Europe through the UK has Brexited. It is all being done peacefully and constitutionally. It is actually part of the manifesto of the Scottish National Party, (SNP). That is what they are pushing for so they are giving their citizens an opportunity to actually exercise their rights by voting to either stay with the UK or go for another referendum soon. It is one of the cardinal points of the SNP manifesto. So drawing from the experience of others we must encourage the devolution of more powers to the states to stem the growing agitation. The alternative scenario will be a nightmare.

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Will it happen without Nigeria inserting referendum into the constitution?
There is provision for a referendum in some instances in the constitution, although it may be arguably almost impracticable. The truth of the matter is that no responsible government will want to allow the country to break up. But perhaps we are going to get to a level where a political party will emerge and make it a manifesto item to consider a fundamental reengineering. Whatever the case, it is better for all of us to quickly recognise the growing agitation and be flexible to exercise political wisdom that will allow changes that encourage the continuing corporate existence of Nigeria. Let us play on factors that will unite us against the extremists. My deep fear is doing otherwise will strengthen the extremists among us.

But a lot of Nigerians believe that the problem we have is even the constitution itself. They call it military constitution?
In my humble opinion, there is no such thing as a military constitution. When this constitution came into effect, the military was in power. So, by virtue of that circumstance itself, it could only be made with the authority of the regime that was in power then.

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The 1979 constitution was passed by a Decree of the government of General Obasanjo as the military head of state; it was the military that superintended the birth of the 1979 constitution.

Yes, there was a constituent assembly, but it was organized under a military government. Even when the final product came out from the constituent assembly, some provisions were tinkered with by the Obasanjo regime. They inserted some provisions and removed others. That is the prerogative of any government in power at any point in time, In any case, we can always amend as agreed. Remember the military itself had a ministry of justice and they had lawyers there. The present constitution is largely fashioned on the 1979 constitution. So I think this submission is just to serve the interest of some people, who are arguing that we need to amend our constitution or have a brand new constitution. I do not agree with you that the constitution is the problem. If a constitution is so good and the people are bad, it will turn out to be a bad constitution. No constitution is so bad that if the people operating it are good, that it won’t turn out to be a good constitution. We abuse the constitution, we abuse powers and we abuse laws in Nigeria.  That is the problem, not the constitution itself.

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You talked about the devolution of powers and peaceful secession if those were the wish of Nigerians. How can these things be achieved under the present arrangement without a conference of ethnic nationalities?
There is nothing that cannot be achieved even presently. I grew up in a country where I saw a better Nigeria, a country that is not this bad, unlike the current generation. So I tell my much younger colleagues that we had a country that was not this bad. Look at the current issue in the area of security. Circumstances sometimes will dictate things. Necessity is the mother of invention. Some circumstances will happen and people will begin to think that perhaps we need to do things differently. Who will want to secede when people are largely satisfied with the system? Feelings of marginalisation or dissatisfaction with the system are what will give fillip to the agitation for secession. We can get it right and Nigeria is better as one country.

Apart from devolution of powers what else do you it is a major challenge in Nigeria today and how do we fix them?
I don’t think we have such insurmountable structural problems. On the issue of local governments, we should discard a number of local governments from the constitution. We are a federation of states. if a state wants, let it create 1000 local governments. If another state wants to create 10 local government areas, so be it, as long as it does not form part of the revenue sharing formula. If that is done, you will see that there will be less agitation. Nonetheless, we will still have to come up with a generally accepted formula for the distribution of revenue.

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How do you undo what is already in the constitution, because those who are in a position to amend them are benefitting from it?
Don’t forget that the National Assembly even as it is today has people from all parts of Nigeria. It may be in varying numbers because the number of representatives in a particular state could differ from that of another, depending on the size and population. But the senate, for instance, is not the same. There are three senators per state and one for FCT. So, you can see that it is only in the House of Representatives that you have the population advantage. If you think that the current arrangement is not just good enough or unfair, then you can sit down and begin to persuade those you claim are benefitting from the current formula. You think because they have the population, they will not want to change it?  What about those who are agitating for the change? What do you do? You press for it, both constitutionally and politically. That means you can come up with a manifesto in your political party, to declare that you are going to press to dispense with this or that; probably that you are going to restructure if you are voted in, such that local governments would no longer be used as part of the revenue sharing formula. If Nigerians see that what you are proposing would work better, why would they not do it? Look at the current security challenge. Who would have thought that even the federal government, even though it is part of its manifesto, will decide and say we are now going to go the way of community policing? It is the exigency of the times, because of the security challenges. Look at the derivation and resource control. Even though it has always been there, when we had the agitation from the South-South, it was increased. So, if you keep on pressing, you will get support from other people and if you make that part of your manifesto, who knows one day Nigerians will wake up and say this is the kind of party that we want to be in power. So these are things that can be achieved politically, constitutionally and peacefully. I don’t agree with you saying that the people that will change it are unwilling. They represent people. For instance, APC as a party can during nomination process tell their candidates the agenda of the party and encourage them to press for it when they get to parliament. That is the way to go about it.

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There was a time in this country, the late Chief Gani Fawehinmi fought to have more political parties to be registered. Today, INEC has de-registered some political parties. Now you are talking about party manifesto, is it legal for the electoral umpire to de-register political parties? Will it not still bring us back to the point where we would have limited choices?  
INEC had tried to do this before and the court struck it down, saying that it has no such powers, constitutionally under the law. The National Assembly, as a result, passed legislation that empowers INEC to do this, subject to the verification of certain things such as whether the party is active or not. And that is what INEC has done now. INEC is saying that all those parties deregistered only existed on paper. Therefore, INEC invoked its powers under the provisions of the law to de-register them. But the de-registration should be tested in court. I am glad that at least one party if not more will go to court so we have a pronouncement on it. It is then we will know what we can do and cannot do. So, it is a good thing that INEC has done. At least, the opportunity is now there to test it. Apart from that, reducing the number of political parties makes the entire election process less cumbersome. It also means that the parties will be on their toes and to get registered, a party will need to do a lot of work because the law says such parties must have national spread. INEC will be monitoring you on a yearly basis. Then, of course, they can take your license away if you fall short of the requirements.

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What is your reaction to the emerging regional security outfits?  
I am for it. I think it is good. Everybody, even the president has acknowledged the present security challenge as overwhelming.

Did you notice the reaction of the federal attorney general initially?
Don’t forget that the office of the attorney general is both a legal and political office. The attorney general is both a legal and a political person.

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Does that not justify the agitation for separation of both offices?
That is a different debate altogether. That is why in some countries, they separate the two. But in Nigeria, it is the only ministerial position that is in the constitution. The constitution says there shall be an attorney general and put all the qualifications there. It is an office you cannot just ignore. The executive cannot by fiat take it away. A president can wake up one day and say he wants to collapse the ministry of housing and transportation, but he cannot do away with that of the attorney general because it is in the constitution. The attorney general makes legal pronouncements; he can also make political pronouncements. The constitution says the major function of government is security and welfare of the people. So once there is a security challenge, people will come with various ideas to deal with it. I do not see anything wrong with Amotekun. The initially lacking legal framework is now being put in place. Amotekun is only an alternative security initiative that involves the cooperation of those who are in the same geographical area and it makes sense. So Amotekun is about cooperation of these contiguous states. What it means is that if something happens in Lagos and the criminals flee, because of the cooperation, the commanders of the security outfits in neighbouring states would be put on red alert. The problem with Nigeria is that everything is politicised. The apprehension of some people is that it might be a way to promote the emergence of regional militias. That fear is unfounded. There must be guidelines for their operation.

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Are you satisfied with the effort of the federal government in the last five years to fix these issues?
I don’t think any Nigerian will say that he or she is fully satisfied. In qualifying my view, I will say may be when the government came in, the situation on the ground was overwhelming. Or, maybe there is no realisation of the level of the degradation we have really descended into. But I quite agree with you. Anybody can say and rightly so, that we are now in the second term, by now a lot of things should have been fixed. Yes, a lot has been done and there is so much more that needs to be done. In any case, even if you are doing well, you cannot meet all the challenges on the ground. Nigeria or Africa generally is like in the 19th century while the rest of the world is already in the 21st century. It is sad but you know we need to pull ourselves out. If you continue to think that we are going to rely on the western world to do these for us then we are deceiving ourselves. They are business people. They are not in the business of charity. Whatever they do is either to sell or to buy something in their own interest. If we begin to get it right, where are they going to sell their products? I will go to the extent of saying that to a very large extent, it is not in their interest for us to do well although they themselves have realised that if we should descend so low, it is also not in their interest. The human exodus of migrants to their content through the desert and the Mediterranean is impacting adversely on Europe. People are dying just to cross over to the other side where they believe that life is better. I do not think anybody would say he is satisfied, but we can do a lot better. We need to be able to run faster. I do not think we are going at the kind of speed we require even within the speed limit.

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