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Oluwole Smith

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Political tension in the country heightened in the last two weeks following the decision by President Muhammadu Buhari to decline assent to the 2018 Electoral Act amendment bill. The bill, if signed would have legalised the use of card readers and the incident forms by the Independent National Electoral Commission (INEC) in the conduct of the 2019 elections. In this interview with Assistant Editor, Law and Foreign Affairs, JOSEPH ONYEKWERE, former dean, faculty of law, University of Lagos, Prof. Oluwole Smith (SAN) decried the situation, saying there is a serious disconnect between the rulers and the governed. According to him, the National Assembly may pass the bill into law without the assent of the president. He also expressed opinion on other topical issues.

The President has declined assent to the electoral act amendment bill for the fourth time. What do you think of that?
Under the Constitution of the Federal Republic of Nigeria 1999 as amended, I think under section 58(3), the president has the prerogative to assent to a bill for it to become law within 30 days of presenting the bill for assent. That our president declined to assent to a bill is not unprecedented in the history of the presidential system of government all over the world. Examples abound where, for reasons best known to the chief executive, assent to a bill was withheld. But the good thing is that the same Constitution in section 58(5) provides a way out of the deadlock by allowing each House of the National Assembly to pass the same bill by two thirds majority in the event of the president’s failure to assent, and such a bill consequently becomes law without the president’s assent. So, the simple answer to your question is that two thirds majority of each House of the National Assembly may pass the Electoral Act Amendment bill as law without the assent of the president in this case.

Some people believe such a decision by the president is aimed at removing legal backing for the card reader and the incident forms, which would have helped to forestall electoral cheating? What do you think?
That is mere speculation and we should not go by it. Whatever the motive behind the refusal of the president to assent to that bill is taken care of by the provision of section 58(5) mentioned earlier. The 1999 Constitution is replete with checks and balances as between the Legislature and the Executive and that takes care of any anxiety, genuine or misplaced.

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The use of the 2015 Electoral Act will encourage malpractice. Do you think the president is committed to free, fair and transparent election next year, following the way and manner he refused to endorse the document?
The view that the 2015 Electoral Act will encourage malpractice may not be correct. Don’t forget that the Electoral Act has undergone some changes from 2001 to date as a result of our practical experiences and judicial intervention as contained in court decisions over the years, resulting in amendments to previous Electoral Acts. So, changes could have been brought about by legislation or judicial intervention as a result of apparent lacunae in the Electoral Act, some apparent defects in some of its provisions or absurd consequences resulting from some of its ambiguous provisions. My thinking is that whatever lacunae or defects there are in the 2015 Electoral Act would have been taken care of through judicial decisions in election petition matters. I agree of course that there could still be some rough edges to be smoothened in the course of time. The provisions of the Electoral Act are innocuous without being tested and contested. Don’t also forget that elections are regulated not only by the Electoral Act but also by Independent National Electoral Commission (INEC) guidelines meant to regulate the conduct of elections and above all, by the provisions of the Nigerian Constitution. Finally, no law passed by the legislature is foolproof. Defects and lacunae unfold with time and it is the responsibility of the Electoral Tribunals and our courts to give purposive interpretation to its provisions. It is also wrong to assume that the president’s decline to assent to the Electoral Act Amendment bill is an indication of lack of commitment to free, fair and transparent election next year. Motive in this case may be difficult to establish, good or bad. Perhaps it is too early to jump into conclusions.

Having observed the political climate, do you think the major presidential candidates have comprehensive blueprints on how to fix Nigeria in their respective policy documents?
To be honest with you, we are yet to see any remarkable improvement in our political climate over the years. Unlike in the days of the UPN, NPN and some other prominent parties in the second republic, it has been difficult to associate any major political party with significant ideology or map out plans aimed at solving the deadly socio-economic problems wrecking this country and making Nigerians a slave to good livelihood. Look around, you see and feel abject poverty, frustration, and depression with melancholy written all over the faces of many Nigerians. Many Nigerians live by the day with no plans for the future. To many Nigerians, governance has become an instrument of oppression and the prerogative of the ruling class to distance government from the governed in a ‘power-show’- like manner rendering the populace miserable. The state of Nigeria does not foster a feeling of belonging and involvement amongst Nigerians contrary to section 15(4) of the Constitution. There is a complete disconnect between the proprietors of sovereignty, that is, Nigerians and the delegate of sovereignty, making it look like a broad daylight robbery legitimised by the machinery of the state, and as if section 14(2)(a) of the Constitution is not part of the social contract between the government and the governed. Dishonesty, naked falsehood, ethnicity, nepotism, double standards, and selective justice are the order of the day rendering our fight against corruption a cosmetic high sounding nothing. In many advanced countries and some of the developing countries like Nigeria, parties are characterised by their manifestos and the electorate’ choices are guided by the utility of a party’s manifesto. In Nigeria, it is difficult to differentiate one political party from another from the ideological point of view, and I have not read a manifesto of any of these major presidential candidates stating categorically the blueprint on how to fix the various problems confronting Nigeria. Party politics has suffered abysmal abuse with many of the political parties not registered for any serious political business and with many of the so-called presidential candidates striving for mere recognition or cheap popularity. Shamefully some of them shop for candidates few months to elections, and they get either seasonal candidates or political morons. From the background I have just given, Nigerians are eager to listen to the presidential candidates and we need to know what their manifestos are.

Some critics say legal and justice sector in Nigeria is dead for the simple reason that cases take five to 10 years to resolve. Do you agree and what is the way out?
Well, let me start from a positive note that legal and justice sector in Nigeria is not dead. I am not trying to defend the legal or judicial system because am a lawyer or a member of the inner bar, but talking from the point of view of objectivity. Before I talk about the vigorous efforts of heads of the judiciary in Nigeria in tackling the challenge of delayed justice, let me quickly share with you some of the causes of the delay. One of the causes of the delay is the multitude of cases being filed in our courts stemming from disputes which could have been averted had parties had the means and or opportunity of seeking legal advice. This problem is woven around poverty or impecuniosity of parties in civil relationships. The socio-economic problems in the country and the neck-deep corruption in our society have soared the number of criminal cases which would have been reduced significantly if we had good governance. With congested courts, we need more court rooms and more judges and magistrates which would gulp a chunk of the country’s revenue if we are to go the whole hog. Not many state judiciaries are attractive as some states in the federation barely manage to pay judges and magistrates and generally offer no attraction to competent hands. Not all our courts are technology- compliant and remember that these judicial officers are human beings like us with limited carrying capacity or strength. I actually feel for them. These challenges are compounded by lawyers who are also Nigerians, bringing frivolous applications and interjecting flow of proceedings at the court below by taking simple procedural issues to appeal thereby congesting the appellate courts further. However, the delay in the dispensation of justice is being tackled at the various levels of the judiciary. For example, many court rules now frown on delays in the conduct of proceedings with some penalty in sums of money attached. Today, there are better chances of striking a matter out for non-diligent prosecution now than before, and the civil procedure rules of many states have provisions encouraging settlement of disputes by mediation and making it mandatory for parties to subject themselves to such mediation. There is the growing trend in encouraging specialised courts to deal with more technical matters with reasonable speed and appellate courts are now discouraging interlocutory appeals. All these and many more are significant efforts by the heads of the various courts in Nigeria aimed at improving on the time scale for the dispensation of justice in our courts. Now, to my suggestions. There is the urgent need for the rejuvenation of the legal aid system in Nigeria to cater for the poor masses with need for legal advice. Lagos State already takes the lead in this respect through the Citizens Mediation Centre and the establishment of the multi-door court house to cater for various disputes resolution in many civil cases; all other states should follow suit. Our legal system should make it mandatory for every contracting party to act through a lawyer either hired by him or provided through legal aid to obviate disputes which could be averted through sound legal advice. There is the obvious need for the appointment of more judges and magistrate and provision of more court rooms which of course require a higher budget for the judiciary, and making the bench attractive to lawyers in terms of their remuneration, perquisites of office and retirement benefits inclusive of good health care schemes for judicial officers. Above all, lazy and incompetent judicial officers should be shown the way out.

To tackle the challenges in justice administration, some stakeholders are calling for a separation between court administration and justice sector administration, to allow head of courts concentrate on judicial matters only. What do you think?
That idea is good and in line with international best practices. While there is everything worthwhile in the heads of court focusing on many issues relating to resolution of disputes in the courts such as the formulation and review of the Rules of Court and practice directions, superintending over court Registries, the Sheriffs Departments and welfare of judges, the general administration of the judiciary at the state and federal levels should be the prerogative of the respective Judicial Service Commissions. For example, I do not see the head of court as an accountant or as an officer in charge of award of building contracts or supplies. I do not see the head of court as a horticulturist or as a maintenance manager. These are pure administrative duties which may be an unhealthy distraction from the core business of the judiciary. The earlier we heed this advice, the better for us.

Do you still hold the view that the judiciary is polluted, going by the reforms introduced by the current CJN to tackle the malaise?
One of the greatest achievements of the current Chief Justice of Nigeria is undoubtedly the cleansing of the judiciary. There is indeed now zero tolerance for corruption, indolence and incompetence in the judiciary and there is a serious attempt to restore public confidence in the judiciary. I must be quick to add however that whilst doing the cleansing, efforts should also be geared towards tackling the root causes of corruption in the judiciary while upgrading the living standards and welfare of our judicial officers comparable to standards applied in other arms of government. We should also remember that while competence is key in the appointment of judicial officers, integrity is the hallmark of a respectable judiciary. It is not enough to rely on references submitted by persons aspiring to join the bench, independent investigation about the person’s’ integrity and welcoming comments by the public as it is being done as part of the process for elevation of applicants to the rank of Senior Advocate of Nigeria, will not be a bad idea. In my humble opinion, while some inadequacies in the performance of a judicial officer may be taken care of through regular training, there is no way of changing the personality of a criminally minded judicial officer. To answer your question directly, my view is that our judiciary is gradually responding to doses of the anti-corruption medication.

No investor, whether local or international will invest in a country where there is no rule of law. What do you think of the president’s view about rule of law and national security?
It is axiomatic that many investors are not investing in Nigeria as a result of political uncertainties and national security challenges. There are issues with the supposed entrenchment of the rule of law in our democracy and both the government and the governed contribute to the morbid state of the rule of law. Government’s lack of respect for the rule of law is discernible from the way the executive arm of government violates inalienable rights of the citizens, non-compliance with the orders of court and naked violation of the provisions of the Constitution in the conduct of state affairs. The governed complete the circle with deliberate non-compliance with the extant laws, abuse of office, lack of respect for constituted authorities and by engaging in corrupt practices to influence the direction or results of official processes and decisions. There is serious national insecurity ranging from the notorious act of kidnapping for ransom and the mayhem caused by the dastardly act of the herdsmen across the country, to the sporadic activities of insurgents under the stinking name of Boko Haram. In all of these, both the government and the governed share in the blame. The country lacks adequate competent security personnel, sophisticated equipment or well mapped out strategy to combat these threats to national security. I don’t think our President’s disposition to all these challenges is right and I blame his advisers for the hopeless state of insecurity in the country. Foreign Direct investments contribute significantly to the GDP of many countries and Nigeria should not be left behind. The issue of national security is key to development in all facets and should be addressed with all seriousness by government.
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What is your view about restructuring and how do you think it should be approached?
The issue of restructuring is an issue to be taken seriously by every Nigerian as there appears to be no other options available for now in resolving the knotty political and socio-economic issues setting the country back. Those who are opposed to it have not proffered an alternative solution to our national state of quagmire and have also failed to evaluate the factors responsible for our slow pace of development. Even as individuals, we sometimes look inward to do an appraisal of our sojourn so far in life, and if things are going wrong, we do an appraisal sometimes by re-setting our priorities in life as well as reviewing our relationship with fellow human beings. It is the same thing with the proposed national re-structuring. The basic document, the Constitution which is our social contract is the starting point. Does it really mean what it says? Are there no elements of deception and abysmal misunderstanding of basic constitutional concepts? Are the present geopolitical zones meaningful? Are we right in our perception of a nation state? What informed the current position of our revenue allocation formula, and are those indices correct? What are our basic priorities as a developing country? What are those basic considerations peculiar to us that we need to take cognisance of in re-designing a new state of nationalities? These and more, are the questions begging for answers and unless we find potent answers to them, we shall remain turning in the circle of misfortune and many Nigerians would be left to wallow in abject poverty. Also, the only way to put an end to incessant crises across the country is to engender social engineering and actualise the Benthamite theory of the greatest happiness of the greatest number. No amount of military might or magnitude of military weapons can stop the political crisis and social mayhem endemic in Nigeria without tackling the socio-economic problems facing Nigerians.

Some stakeholders believe that the land tenure system in Nigeria is overdue for reforms. Do you agree?
Almost six decades after independence, various aspects of our land tenure system are in critical need of reforms. Not only has certain transformations in the socio-cultural milieu of our people keep yearning for recognition and application within the customary landholding system, our received land law and system of land registration are generally archaic and in need of reforms. Even in England where certain principles of common law of land use and conveyancing were transplanted and adapted for our purposes, there have been legislative incursions leading to significant improvement in the area of land use in particular and the English land tenure system in general. In Nigeria, section 48 of the Land Use Act preserves the pre-existing tenure systems subject to such modifications as would bring them in harmony with the Act or its general intendment, but that is not a provision to stagnate development in the law. In modern times, there are issues of fragmented title or multiple ownership; there could be issues emanating from third party interests in foreclosure proceedings in mortgages; there could be issues pertaining to the scope and enforcement of third party rights generally and so on.

Other issues pertaining to registration of say, for example, the interest of an adverse possessor in the scheme of title to land have been dealt with satisfactorily by parliament in the United Kingdom. Needless to say the intricacies in some of these issues can only be dealt with by legislation which Nigeria lacks. Although in Lagos State, the mortgage and property law 2010 and the registration law of 2015 have dealt with some of these challenges, there are rough edges to be addressed and gaps to be filled. In other states including the federal capital territory, there is still heavy reliance on the common law except in the area of landlord and tenant law where pieces of legislation exist.

What are the major defects of the Land Use Act?
One of the major defects of the Land Use Act is its anti-investment provisions. For example, how could a country such as Nigeria in dire need of foreign investments be comfortable with the provision of section 1 and other provisions of the Act which give the impression that a foreigner is not entitled to a right of occupancy? While the Supreme Court held obiter in Ogunola v. Eiyekole that a foreigner is not entitled to a right of occupancy, a recent decision of the apex court directly on the point in Huebner v. Aeronautical Industrial Engineering & PM Co. Ltd unequivocally exclude non-Nigerians (i.e aliens) from the category of persons entitled to a right of occupancy under the Land Use Act thereby clearing all doubts as to the position of the law on the matter. The consent provisions are notorious for being a clog in the wheel of commerce as land transactions are subject to unnecessary bureaucratic bottlenecks and huge expense. Also, while we are told that one of the main objectives of the Act is to discourage hoarding of land and land speculation, one wonders what the provision of section 6(2) of the Act which encourages acquisition of 500 hectares for agricultural purposes and 5,000 hectares for grazing is meant to do. The compensation regime of the Act does not fulfil the reasonable expectations of the person whose right of occupancy was revoked for overriding public interest or for public purpose, and the procedure for calculation of compensation is parochial and unjust.

Corruption is said to be one of the biggest problems of Nigeria. Do you in all honesty believe that the federal government is winning the war against corruption or simply going after perceived opponents?
When we take cognizance of the depth of corruption endemic within the Nigerian society as at May 29 2015 and its negative impact on economic growth and social emancipation, and we consider the time frame within which the Buhari administration has so far tackled the malaise vis-à-vis the results achieved, I would say the federal government is winning the war against corruption. That much I know. I do not have evidence or data to conclude that the federal government is, as you put it, ‘simply going after perceived opponents.’

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Lawyers are said to be hindering the war against graft by defending alleged looters and filing multiple applications for delay tactics. Do you agree with this assertion? If yes, how can it be addressed?
Lawyers have defined responsibilities towards their clients under their Rules of Professional conduct and one of such responsibilities is to defend their clients with all the expertise and resources at their disposal. In the case of the alleged looters as you put it, such persons are presumed innocent under our Constitution until otherwise proven guilty. That right coupled with the right of access to a legal practitioner of choice are fundamental to our criminal justice administration. The issue of delay by lawyers if it arises, is meant for the courts to tackle and that is often done. You would also agree with me that the allegation of delay tactics you talked about is not peculiar to corruption cases and there are rules meant to tackle same when the situation arises.

Do you think the new leadership at the NBA will strengthen the association?
I think so.

Quote
To many Nigerians, governance has become an instrument of oppression and the prerogative of the ruling class to distance government from the governed in a ‘power-show’ like manner rendering the populace miserable. The state of Nigeria does not foster a feeling of belonging and involvement amongst Nigerians contrary to section 15(4) of the Constitution

Quote 2
There is a complete disconnect between the proprietors of sovereignty, that is, Nigerians and the delegate of sovereignty, making it look like a broad daylight robbery legitimized by the machinery of the state, and as if section 14(2)(a) of the Constitution is not part of the social contract between the government and the governed. Dishonesty, naked falsehood, ethnicity, nepotism, double standards, and selective justice are the order of the day rendering our fight against corruption a cosmetic high sounding nothing. In many advanced countries and some of the developing countries like Nigeria, parties are characterized by their manifestos and the electorates’ choices are guided by the utility of a party’s manifesto


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