‘State governors have done little to strengthen independence, impartiality of Judiciary’
Chijioke Ifediora is the Senior Partner at Law Chest. In this interview with NGOZI EGENUKA, he talks about the ongoing Judiciary Staff Union of Nigeria (JUSUN) strike and the pervading insecurity in the nation.
What is your view on the ongoing JUSUN Strike?
I am disappointed that the Federal Government and state governors will openly violate the Constitution by holding an arm of government to ransom and still feel comfortable to cry about insecurity. The Constitution is clear. The 4th Alteration to Section 121 (3) of the 1999 Constitution provides thus: “Any amount standing to the credit of (a) House of Assembly of the State, and (b) the judiciary; in the consolidated revenue fund of the state shall be paid directly to the said bodies respectively. In the case of judiciary, such amount shall be paid directly to the heads of Courts concerned.” This provision is self-explanatory. You do not need to be a legal genius to understand this particular provision of the Constitution.
Ordinarily, if we had patriotic governors, this would not be an issue that would warrant industrial action. Imagine the current challenge the Criminal Justice System is facing. Imagine being arrested by the police and according to Section 35 (4) and (5) of the 1999 Constitution, the police is meant to charge a suspect to Court within 24 hours, what remedy would such a suspect have if the police fails to release such individual? What of those awaiting trial and those being held pursuant to a remand order? What about business or goods that have been held subject to a court order, imagine if the goods are perishable? Due to the security situation in the South East, Police no longer honour certain requests. In a case of trespass to land, which is occurring in some places, self-help is now the only option. These are the serious questions they need to ponder on. While I am not a fan of the Federal Government, the state governors have done little in strengthening independence and impartiality of the judiciary as an arm of government, not to talk of the legislature.
The 17 Southern governors met recently and discussed security issues without mentioning the JUSUN strike. Does it mean the governors consider the closure of courts inconsequential?
They have never been concerned about the progress, independence and impartiality of the Judiciary. They have no regard for the Judiciary. The Justice system in Nigeria is appalling. We complain about the duration it takes to determine cases, the integrity of the Justice system and how it has direct effect on our politics; those affect how investors perceive our system. To think that state governors will refuse to place premium on the independence of the Judiciary as the only arm that can bring sanity in a chaotic situation shows you how unpatriotic they are. The governors only discussed issues, which were politically necessary for their tenure and political safety, forgetting that beneath the insecurity is a shadow of anger that the three arms of government have not lived up expectation 60 years after independence. And there has not been any robust lift to the separation of powers as designed by Baron De Montesquieu as practiced in other African countries such as Ghana, South Africa and many others. What we have in Nigeria is either marriage or a rubber stamp of the three arms of government. However, the supposedly fourth arm – the office of the citizen is the only arm that has been dynamic, active and responsive from independence till date.
What is your reaction to the suggestion that organised labour should join the JUSUN strike?
I fully support the proposal. Communal action towards a pivotal issue of governance brings expedient result than sectional act of civil disobedience.
Any action with the objective for a maximum result must be decisive, unwavering and practical. Labour should learn to carry out an industrial action based on the long-term ancient principle of “All for one, one for all”. The idiocy exhibited by politicians cannot be cured by sectional industrial action. It can only create temporary relief, where you get your demand in principle or on paper, then tomorrow you start fighting for implementation. What sought of society lives with such precedent? Now, the principle I mentioned is what happened in Kaduna. I admire what Nigeria Labour Congress (NLC) did. An industrial action that started with just Kaduna State Civil Servants, then National Union of Electricity Employee (NUEE) and National Union of Petroleum and Natural Gas (NUPENG) immediately joined by cutting electricity and gas supply respectively.
In making it more effective, Aviation Unions joined– National Union of Air Transport Employees (NUATE), Association of Nigeria Aviation Professionals (ANAP) and National Association of Aircraft Pilots and Engineers (NAAPE). Again, the Banks joined too. Everywhere was shut down. Power belongs to the people. Once a politician is privileged to occupy public office, he assumes the position of a tyrant and discards all sense of public responsibility.
Government seems to have lost control of security in the country. What do you think should be done to address the situation?
Insecurity is a political problem that can only be solved politically. Any solution other than this is a faux. The key to ending insecurity is simply returning to the 1963 Constitution. It may sound shocking. If the regions had more powers, issues such employment, electricity, health, education, security and many more will be competitive amongst states. Investments will move towards regions that have greater business environment. There is strong relationship between crime and standard of living. Once you mention regional government, politicians would think you want to promote division in Nigeria or you want oil in the South not to be beneficial to the rest of Nigeria. Nigeria as a State is over 60 years, if Nigeria was a human being what would be the success story, he or she will be willing to share? The exclusive list of the 1999 Constitution has so many items, which should be directly residual, that is, for the state and local government to handle. These governments are closer to the people. Imagine if mining was residual and state governments can make legislation, as well the local governments, many people will have no reason to leave their home towns in search of greener pasture in the cities, which ordinarily will eliminate insecurity.
The second issue that will solve insecurity, which would work better if we have a Constitution like that of the 1963, is the right to bear arms. Nigeria became independent in 1960, with it came a Constitution. Interestingly, the exclusive list, part I Item 11 provided for defence, while the concurrent list, part II Item 2 provides for arms and ammunition. This development was from the fact that at the time local ownership of arms was prevalent, considering that conservative African lifestyle, tradition and the culture of ownership of guns was much in vogue and communally acceptable, as well as the fact that the regional government had relatively more powers with respect to issues that border on livelihood and welfare of citizens. This meant that state legislatures could make laws with respect to issues not covered by the federal legislation on gun.
However, years later came the 1999 Constitution. The Second Schedule, part 11 Item 2 and 17 of the 1999 Constitution provides for arms & ammunition and defence. These two items were placed under the exclusive list unlike the 1960 Constitution.
I know people will say, it will degenerate and people will kill themselves, but we had this right to bear arms before and after independence. Many hunters still have guns, private citizens and vigilante still have. We can clamour for regulations and basic mental and physical training for good citizens to undertake before owning them and not to suppress or discard the idea. No matter how much you dislike the idea, your dislike for it will not solve insecurity. Any effort, either now or in the future geared towards tackling insecurity that does not accommodate the right of responsible citizens to bear arms will fail. However, if we fix or restructure the political system of governance in Nigeria, the right to bear arms will be an added advantage because the elements that push people into crime are primarily economic needs.
What legal mechanism is available to curb insurgence?
The insecurity we are witnessing today or we may witness in future are political. You cannot solve outcomes of political problems with legal mechanism or apparatus. For example, unemployment amongst other things is caused by corruption and lack of electricity. “Mr. A” feels disgruntled and kidnaps an innocent man and in exchange asks for ransom. If you kill or jail Mr. A, you have not solved insecurity. What you have simply done is to execute or detain an individual not an idea. Once there is unemployment, corruption and lack of electricity, many more “Mr. As” will nurse the idea to engage in banditry. You cannot cultivate, breed and nurture a vile process and reject the result. The absurdity of pretending not to know the origin, cause or way out is the height of lunacy amongst Nigerian politicians.
Nigeria has anti-terrorism law. Can you explain some its provisions?
Basically, Terrorism according to Section 1 (2) Terrorism Prevention Amendment Act 2013 means an act, which is deliberately done with malice, aforethought and which may seriously harm or damage a country or an international organisation or unduly compel a government or international organisation to perform or abstain from performing any act or an act that may cause grievously bodily harm. The Act provides for proscription of organisations. Once the National Security Adviser, Attorney General of the Federation or the Inspector General of Police makes an application with the approval to a judge, an organisation becomes proscribed. This provision, which is Section 2 offends the principle of fair hearing. The Act does not make room for fair hearing to any defendant. Penalties under the Act can range from 20-year jail term to death sentences depending on the severity of cases.
Does lack of enforcement of anti-terrorism law not pose any problem to the nation’s security?
Of course it does! When action towards amnesty for criminals are supported by legislators and bills for funding their amnesty are openly celebrated, then the question of enforcement becomes academic. Soon we may start apologising to those who were sentenced to prison for not giving them the opportunity to repent. As far as things appear in this country, criminal justice laws are selectively applied and to that extent, any progress towards implementation is superficial.
How can victims of terror and violence be compensated?
Legally, I would suggest they bring representative or class action against the State and federal government respectively under Chapter II of the 1999 Constitution, which provides for Fundamental Objectives and Directives Principles of State Policy. Though the Court has held in the past that this Chapter of the Constitution is not justiciable, but those times where different from now. We have serious humanitarian crisis. We have serious refugee crisis at this point. I believe the court will make the requisite distinction in giving judgement. I have always believed that the court is a living institution that grows with the people. It must reflect the spirit of our times.
Another option would be for National Emergency Management Agency (NEMA) to pay compensation to victims, but the NEMA Act makes no provisions for compensation for victims of natural disasters or crisis but allowances only for politicians. This means victims will be left to petition the government, which is a herculean task. In my opinion, they can sue NEMA requesting for court to order the Agency to make compensation from the National Emergency Trust Fund or any funds operated by the Agency. This falls under the incidental powers of the Agency. If you can make provisions for relief during crisis in times of emergency, that responsibility shall extend to compensating victims of emergency crisis. Instead of consistent relief delivery and keeping the individual under perpetual penury and dependency, the court will agree with the argument that such victim should be compensated to contribute to the economy through individual labour.
For victims to make progress, the courts have to be liberal in their interpretation. The third option will be civil disobedience. They can find their way to any government institution and camp there till their needs are met, especially the government house. This in my opinion is faster and more effective. All other options will take time.
How can the courts effectively adjudicate on terrorism related offences?
The courts can cope, given the required funding. Though terrorism is a class of criminal offence, it is tried with the basic procedures of criminal prosecution. However, the mode of taking evidence of witness is one of the elements that distinguishes it from other criminal prosecutions. Witnesses are often not allowed to be seen by the public. They are sometimes veiled. With adequate resources, the court can make use of technology to handle these cases. Availability of prosecution witnesses, which often cause delay in criminal trial, militates against justice. Cost of protection of the judges handling these class of cases as well as long delays in handling them as a result of industrial actions, poor staffing, low number of courts and absence of technology, can be saved with adequate funding. Investment in technology will assist the courts in disposing matters, which will save time and cost. The duration it takes for criminal cases to get to the Supreme Court will also be affected positively. To the extent that the Judiciary is financially autonomous, they can handle it.