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‘We must unbundle the 1999 Constitution’

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Obiaraeri. Photo: Ifeanyicy

Professor Nnamdi Obiaraeri is the former Dean, Faculty of law, Imo State University. In this interview with COLLINS OSUJI, the legal scholar answered the question of insecurity, governance, and rule of law, concluding that the 1999 constitution as amended must be unbundled.

A prominent cleric had identified among other things, corruption, insecurity, poverty, and ignorance as factors militating against the enforcement of the rule of law in Nigeria. Are there more to those?
Yes. I will add judicial rascality because the doctrine of rule of law suggests that it should be ruled according to law with a view of attaining the edge of justice. For this reason, the executive as an arm of government must stand prepared to obey all decisions of courts.

The executive must also be prepared to enforce all laws made by the legislature. But in all of these, you have the independence of the three arms of government with the view of ensuring synergy. There is rascality from the bench to the extent that judges will make pronouncements that have no bearing on the living law, particularly the constitution of the Federal Republic of Nigeria or to the extent that the executive finds it unable to obey judgments of courts or laws lawfully made by the legislature. So those are the things that militate against the enforcement of the rule of law in Nigeria.

What is your take on the recent suspension or dissolution of the council members of Imo state by the executive governor?
Well, it is a mixed bag. Firstly, we are in a democracy. The constitution preaches very clearly, I think in section 8 that the system of governance in the local government should be by democratic means. So what you call Interim Management Committee or Transition Committee are all constitutional aberrations. And they constitute naked usurpations of constitutional powers as endowed in the constitution. It means that anywhere you see anything called Interim Management Committee or Transition Committee whether, in the time past or present, they run against the grain of the law.

However, in some cases, people have hidden under one reason or the other to wreck constitutional havoc with specific reference to Imo State. You can see that the governor of the day is smart by half by trying to hide under the reason that he has suspended the affected chairmen. But if you go back to common sense and I think that the governor is very well advised because he has a Senior Advocate of Nigeria as his Attorney General. It is either that the Senior Advocate of Nigeria has failed to get the proper advice placed at the governor’s disposal, or the governor has found himself unable to obey the man he has employed. And none of them is good for the Attorney General.

Every councilor elected holds office at his own pleasure. If you have a local government council where you have 10 councilors, it does not mean that all of them must go the same day. Each of them stays in office subject to the number of years they are elected to stay. So in no circumstances can all of us be sacked the same day by one stroke of the pen.

If you look at the constitution of the Federal Republic of Nigeria, of all the sections guaranteeing rights, the right to fair hearing has no exception. There is nowhere the constitution allows you to deny anybody right to be heard. So if there is a petition against Okigwe Local Government, it does not follow that it must affect Aboh Mbaise, Local Government chairman, because everybody had his own election. 

But what if the process that produced them was not democratic?
We are dealing with the law. If the Imo State Independent Electoral Commission, which is the body recognized by the constitution conducts an election and issues Certificate of Return, the presumption is that whatever they did is lawful until otherwise proven. It does no longer lie in the mouths of members of the executive to say it is not right. It has to be something that has to be issued from the court. And I am saying that assuming without considering that there is any power in anybody including the House of Assembly to exercise such powers, you cannot do that without listening to the people.

The challenge here borders on the issue of lack of fair hearing because if you are dealing with rule of law in a democracy, it means you must hear somebody out first and fair hearing does not mean you must believe the person. 

Insecurity across the country is rising by the day, will you support the call for state police and how can the fears of the opponents of the idea be allayed in setting up the outfit?
My take on this is that we must unbundle the 1999 Constitution. It is just that Nigerians have this meal mentality. During elections, people come and promise to restructure and at the end of the voting, everybody forgets the direction the nation should go.

We have to restructure the country. Go to the legislative list and see the enormous powers that the federal government wields. It is very unfortunate because what you call the concept of state police is already here but it is just that we have not given the good teeth to it. Policing and security is a matter for everybody. So if you want to deal with state police, you are going to come up with the issue of logistics. It looks attractive on the face value but you must not discountenance the payment of salaries, training, re-training and then the limitation of their powers and competencies to only issues that concern the state.

So if you come to my community, for instance, we have a local vigilante made up of members of the community. Once you are not a member of my community and you enter our community, they know that an outsider is around. But to the extent that they have no powers in themselves to either arrest you or detain you, they are still a security outfit. So what I am trying to say is that we need to be careful with state police.

In the sense that one, the technology to drive it must be readily available. We must not go back to the analog system. Those who are desirous of state police must begin to think of linking it to the ICT process so that it doesn’t need to become analog. In all, I subscribe to state police but it must be technologically based.

Again, we must be able to define the powers of local police vis-sa-vis the federal offenses. If we want to establish state police, we must sit down, take away politics out of it and draw the architecture of security that can serve every purpose.
 
What is your position on the call on the establishment of specialized courts in Nigeria?
Yes. It is key. Access to justice can never be too much. And the efficacy of justice is the expeditious nature of justice. It is unthinkable, those of us who are in this business are already asking that the judiciary is giving bigger teeth and impetus.

As we speak, the election petition tribunal is going on and almost all the courts in the country have collapsed as a result of judges leaving their courts to participate in the tribunal. And it is unthinkable to believe that in 2019, we are still laying too much credence to the political right. It takes three judges in an Election Petition Tribunal to determine who is the assembly member in your local government and in some cases five to determine who is the House of representative members.

Senators and that of governorship petition go up to the Supreme Court and there are timelines, 180 days, 60 days and 60 days. Which means you can know when to expect a decision in respect of who won an election or not. But if you have a personal matter over land, it will take you 15 years or more to get out from the Supreme Court, why? And if you have a charge of murder involving 10 or more people, one judge will try them, but if you want to determine an election of state assembly member, three judges will look at it which means we value political right more than even the right to life.

So my take on this is that we must unbundle the country but not through the political process. That is why most of us spoke out strongly when the election campaigns were going on, that restructuring cannot be promised. It is not an executive thing. It is the matter for the legislature.

With the quality of what we have in the House of Representatives or even at the senate, do they understand what we are saying now? They don’t. So you cannot amend the constitution without the input of the legislature. And for me, this is where the problem is. We must begin to put in people who have the capacity to make some of these changes either from the intellectual flank or from a practical perspective. 

What do you think about incorporating ethics in the legal education curriculum?  
It is there already but it can only get better. Because I can tell you clearly that in the legal profession, either in the university system or in the law school, ethics is part of the code and every lawyer is very conscious of the rules of the professional conduct 2007. So increasingly, you know what you must not do. But then the question becomes whether the average Nigeria citizen recognizes that a lawyer either in the journey or in practice is subject to some professional conducts or codes.

Electoral reform panel set up by late President Umaru Musa Ya’Adua recommended Electoral Offences Commission to undertake the task of punishing electoral offenders. Are you not bothered that that report wasn’t implemented and that no one has ever been prosecuted and convicted for electoral misbehavior? 
I have been at the forefront of this. It is not enough if you go to the Election Petition Tribunal now and at the end of the day, we say this man rigged this particular area or this man falsified results and that is the end of it. If you have an Electoral Offences Commission, both the thug who snatched ballot paper and the big man who stayed in the comfort of his bedroom to changed or influence the result will go to prison. And when we begin to have an Electoral Offences Commission, it will place INEC officials under a strict duty of care, not to be negligent or otherwise compromise in the conduct of elections. What we see now is that we are making monsters of INEC.

INEC frustrates people in different forms. I ran an election under the platform of the APC and to get a certified true copy of INEC form, took me almost two months. It would be good if we have Electoral Offences Commission whose duty it would be just like EFCC and ICPC to fight election offenses. Both soldiers and police officers that abandon their duties posts and interfere with the process will all go in for it.


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