We have civil rule, not democracy, says Okocha

Onueze C. J Okocha SAN, who was formerly the president of the Nigeria Bar Association (NBA) and a former member of the National Judicial Council (NJC), told KELVIN EBIRI that Nigeria currently has a civil government and not a democratic one. He argued that the 1999 Constitution as amended, woefully failed to make adequate provisions for democratic institutions to operate independent of the government.

Assessment of democracy in the last 17 years
Let me say this without mincing of words, we have not fared well at all. When the civilian administration returned to power in 1999, one would have thought that the first priority of that government headed by Chief Olusegun Obasanjo, would be to look at the Constitution that was bequeathed and imposed on us by the departing military administration of General Abdulsalami Abubakar. Under Obasanjo we held what was supposed to be national conference. Under President Umaru Yar’Adua something was started and under President Goodluck Jonathan, we also had another national conference. There are several unresolved issues about the constitution that we have and the provisions therein. We are still not happy with the structure of the federation. We are not happy with the levels and powers given to the various levels of government. We are still not happy with the bogus or exclusive legislative list that gives virtually every authority to the Federal Government to legislate on anything in this country, including matters that should actually be on the residual list. We are still not happy with the structure of the judiciary and the mode and manner by which judges and superior justices are appointed. So, we have a lot of difficulties, which have led to a lot agitation by various ethnic groups that feel they do not have a good deal from this country. These are issues that indicate that Nigeria is standing on wobbling foundations. We don’t have democracy. What we have is civilian rule. And the civilian rule is such that government institutions are weak. We have not set up proper institutions that will drive this democratic dispensation that we are acting under. The President, at will, can remove anybody from Chief of Army Staff to Inspector General of Police.

The National Assembly that says it is making law for the good governance and peace of this country has failed in its duty. How many laws of relevance have they passed since 1999? In my profession for instance, we have had before the National Assembly, a bill to restructure the legal profession in Nigeria. The Legal Practitioner Act was made in 1975. And they have been making minor amendments to it. We have the law of Council of Legal Education Act of which I was the chairman for four years that ended in 2015. We sent an amendment to that Act, up till now the National Assembly has not attended to it. We also have this vexed issue of revenue allocation and resource control as we call it in Niger Delta. We are a federation and the constitution we have does not really indicate this is a federation that will make progress. So, I am totally dissatisfied with our democratic dispensation. Look at the question of elections. The Independent National Electoral Commission (INEC) as they call it, is still waiting cap in hand for the Federal Government to disburse funds to it. It is a totally unhappy situation and I hope that those who are in the National Assembly now will rise to the occasion. But, unfortunately, their own representation of us as a people is in doubt, because you know the means by which they got elected into office.  Up till now, elections are yet to be concluded in certain parts of the country, even in Rivers State. I am totally dissatisfied with the democratic dispensation and I hope that some thinking should go into it so that Nigeria can become a country that we can all be proud of.

So Nigeria is not yet a democracy?
When you have a democracy; you have institutions that derive their authority from the constitution, not from particular individuals who is heading the state, such as the President of Nigeria. Democratic institutions are self sustaining based on the constitutional provisions and the laws that are made with regard to their funding, their constitution, their tenure of offices and so on. This is what I am talking about when I say we don’t have democratic institutions in place, because the constitution did not make adequate provisions for such institutions to operate independently of the government of the day.

So elections are not true reflection of the democratic will of Nigerians?
I have said that they are not, because the electoral process is very flawed. INEC is still looking up to the executive to release funds to it before it can organise elections. Look at what happened during our rerun elections here (Rivers State). Before elections were held, an institution like INEC was telling us that insecurity was making it impossible for them to hold election, when we know that security is the sole responsibility of the government of the Federal Republic of Nigeria. Elections were held in the North East where Boko Haram was ravaging and rampaging, yet, they could not hold election here in Rivers State. And yet, the day they held rerun elections, military forces massively overran the place. Is that a democracy? Anybody who emerges under those circumstances, can he truly say that he was elected by the will of the people? We need law and order. Unless you establish law and order, institutions that are strong enough to deal with these pockets of disturbances here and there, you cannot have democracy. These are the issues and I hope that the Federal Government and all concerned will deal with them as at when they arise.

What were your expectations in 1999?
We had expected that the government under Obasanjo would settle down and look at the constitution. If they had done so, we would have had a constitution that was made by Nigerians for Nigeria and we would have been operating with it. And that constitution, in my humble estimation, would have made adequate provisions for these unresolved issues such as the structure of the federation; how many states should we be? Should we be in zones or regions? It would have made adequate provisions for revenue allocation, which is at the crux of the matter because it is this question of revenue that has given the people from the oil producing area, the reason to say we are not getting a fair deal from this country. We would have had a proper justice system that meets the aspirations of all of us. We have a court system now that people go to and for ten years, they are pursuing one matter. People are losing confidence in the judicial system.  The mode and manner of appointment of judges is very unsatisfactory. Government institutions are what drive democracy. If you set them up they will run on their own without any interference by the powers that be. Look at Brazil and South Korea. Presidents in these countries have been recently impeached because they infringed on the laws of these countries. This is what it should be.  Nobody looked and said this man was appointed by me or appointed me. They discharged their responsibilities because they have a workable constitution, workable laws and workable resolutions for the operation of their democratic system.

Why is pushing for amendment so difficult?
The institution vested with the power to amend the constitution now is the National Assembly and that is where you will lay the blame. The House of Representatives and the Senate are more interested in their personal interest, mundane matters like allowances, vehicles, accommodation and so forth. We know that the administration of Obasanjo adopted what is called monetisation policy and yet government is still giving money to Senate and House of Representatives to buy cars after they have made appropriation on their own funds.  The judiciary is looking at the National Assembly to appropriate funds, and they still don’t appropriate funds adequate for the establishment of the judiciary as we expect it to be. So it is them that I lay the blame on. I had written a memo and proposed to Chief Adolphus Wabara when he was Senate President, that the first thing he should do was to pass a law to convoke a national conference. And he said to me that I should propose a bill and send it as private member bill. I even got some lawyers like Nimi Walson-Jack to begin work on it. The next thing we heard was that Obasanjo had called a national conference. Of course, we didn’t know that he was diverting attention and seeking an endorsement of the National Assembly for his third term agenda. So, it is in the National Assembly under our present constitution, weak as it is, that the power is vested to amend the constitution. And I have told them that they should make a law to convoke a national conference that will be representative of all the peoples of Nigeria. They can then use that as a basis to amend the constitution.

Why have they failed to do the needful?
Those who have been constituted as committees to propose these reforms have difficulties. The perception of generality of Nigerians is that they have been selected to serve particular parochial interest. They have not been democratically selected. Secondly, they go there and they dance to the tune of their appointing authorities. Nigerians did not select them to go and discuss about the future of Nigeria and how we can restructure this country. How we can have a constitution that will meet the aims and aspirations of most of us? So, if they have to organise a proper national conference, then there must be a law in place to backup it so that we can be sure that every interest in Nigeria is represented. And these must be people who are altruistic and nationalistic and who have no selfish interest to serve. It is only then that the people will be satisfied that this is a credible report, which we all should accept. Nigeria’s representation is so lopsided and so unevenly balanced that we will continue to have difficulty if we do not change that mode of representation.

On widespread agitations despite civil rule
We have weak institutions for the maintenance and enforcement of law and order. How can one local government claim that cult boys, militants prevented them from holding an election for instance? Are those cult boys superior in their armoury and their armament than the regular law enforcement agencies? We have a military comprising the Army, Air Force and Navy and we have the police force and yet you are saying that militants, cults group will be better armed, better mobilised and better trained to subdue the military. That means that we do not have hope that even the territorial integrity of the country can be secured.

They should look at the institutions. If the military is weak, retrain them, re-equip them and properly motivate them. Our military have been given credit on peacekeeping operations. They went to Liberia. They even mobilised to Senegal to dislodge a man who was defeated in an election in Gambia. When he saw the force that was mobilised against him, he beat a hasty retreat. If we cannot maintain law and order in our own country, then we have not started. Law and order is at the root of everything. Without law and order, you cannot say you have democracy, as people cannot come out to vote to exercise their will. That is not how it should be. We need to build strong institutions.

How can Nigeria be restored on the true path of democracy?
We have to set up proper government structures. And this is at the root of it. Over and above it, is that we have to have a constitution that has provisions that meet the aims and aspirations of the majority of the peoples of Nigeria. That is the main issue. The constitutions needs to be re-engineered, modified, amended and updated. Not this piecemeal thing that the National Assembly is doing. The National Assembly should pass a law that will give impetus for the convocation of a proper national conference where all Nigerians will sit and decide what is the best way forward. We should look at how to amend our constitution and what provisions should be put there, not this thing about one Head of State waking up one morning as Obasanjo and Jonathan did, in calling a national conference. Once that is in place, people will be elected and they will go there and debate the constitution; produce a constitution for us which should be put to national referendum so that the peoples of Nigeria can agree that this is the constitution which we made for ourselves to govern us and all our institutions of governance.