ByÂ Â AbdulwahabÂ Â Abdulah
Chief Robert Clarke (SAN), is our guest for the week. In this interview, he spoke on some national issues, including the recent judgment of the Court of Appeal on the suit by Chief Chris Uba, governorship candidate of the Peoples Democratic Party (PDP) in the April 2007, election, who had prayed the appellate court to declare him, ‘Governor in waiting’.
According to him, Ubaâ€™s lawyer misinformed him (Uba) on taking the case back to the court. He argued that such development should be curbed, so that the judiciary is not ridiculed.Â He also said that for the country to move forward, something urgent needs to be done on the electoral law in the country. He also noted that the problems facing the country today, are mostly man made.
What is your reaction to the last Court ofÂ Appeal judgment in the Andy Ubaâ€™s case, in which he hadÂ asked the appellate court to declare him the â€˜Governor in waitingâ€™?
The matter was a clever way by Andy Uba to turn this country upside down, by trying to get what he could not get from the electorates in the law court. It is very unfortunate that this type of matter had to go the Court of Appeal. The matter ought not to have gone back to court at all.
A lay man, even a one year old lawyer, knowsÂ that the election, AndyÂ Uba was purportedly holding on to, is a stale election.Â Section 178 (2) of the 1999 constitution clearly states that for an election to be valid, it must be held not earlier than 90 daysÂ and not later than 60 days,Â beforeÂ a vacancy exists. Therefore, if Governor Obiâ€™s office is going to be vacant in February next year, an election that would be valid for that vacancy must be held within 90 days. It shouldnâ€™t be earlier than 90 days and later than 60 days.
If you look at this, Andy Ubaâ€™s election does not fall within that category, so a lawyer should have told him thatÂ the election he want theÂ Court ofÂ Appeal toÂ recognise was already stale.Â This is Nigeria. It is sad, because he (Uba) has the money,Â he is ready and willing to pay lawyers for this job. It is very unfortunate. Is he trying to tell us that the incumbent Governor, who has the constitutional right to a second term in office shouldnâ€™t ask for it?Â You can see that right from the beginning, there was no basis for him to go back to the court.Â I pray that God in His infinite mercies will make usÂ learn a lesson from such development.
Ahead of the Court of Appeal judgment, there were series of controversies trailing the case. Those who were sympathetic to Uba, argued that it was better for him to go to court and test the law rather than resort to extra- judicial action, while those opposed,Â argued that Uba and his lawyers went too far. What is your reaction to this?
If I want to be honest with myself, I will blame the lawyers. As a lawyer, if I am approached by a client and he ask me to go to court on a case thatÂ has no fact and basis in law, I will in good conscience tell the client so, despite the fact that he maybe ready to pay me.Â Money is not everything in practice. One has to look at it from the statement made by the Court ofÂ Appeal, which talk about morality.
We have to know in this country, thatÂ money is not everything. If I know that a client has no case, I will tell him, you donâ€™t have a case. As I said, Ubaâ€™s election is a stale election, which cannot be valid for 2010. Every lawyer knows that. I do not know why his lawyer did not tell him so.
What do you think can be done to put a stop into this type of frivolous cases, which is also a waste of the courtâ€™s time?
The bandwagon like this must be stopped. I believed the Court of Appeal has stopped it.Â The Supreme Court has also stopped such practice in other matters. I know that very soon in Nigeria, many developments will come into our legal practice and seriously, a stop has to be made by the courts.Â Lawyers will observed that they are not favourably being looked upon by the people. I believed that the bandwagon will not continue.
There was a Bill presented by a lawmaker recently, asking the House of Representatives to consider a law restraining the Police from arresting lawmakers when they commit an offence, especially while carrying out their official duties.Â What does this portends for the country?
I donâ€™t know the real position of that bill. Are they asking for immunity from prosecution, are they asking for general immunity?Â To me, there is no where in the constitution where they are regarded as special class of citizens, who are protected from investigation or prosecution.
Even the Governors and the President,Â who enjoy immunity guaranteed them under the constitution, do not have the power to stop investigations. The Supreme Court had consistently maintained that the Governor or the President, who has immunity can still be investigated.Â Therefore, I do not see the basis upon which a legislative arm of government could be asking for immunity from prosecution or investigation.Â I do not agree with that at all.
Nigerians have been calling for the amendment of the 1999 constitution. However, there are disagreements on whether some sections should be amended or we should have a complete new one.Â What is your view on this?
The constitution as it is,Â reflects a federal form of government in Nigeria in a presidential form of sovereignty. Now, there are two ways to look at it. If you want to change the constitution in totality, are you changing the system of government or you are bringing in the parliamentary system of government as against the presidential system we have in place?Â I believe and strongly hold the view that the best system of government for us in Nigeria today,Â is the parliamentary system of government.Â The presidential system is too cumbersome and expensive. I can tell you that President Umar Yarâ€™ Adua today,Â cannot name all his Ministers. He does not even know them by their first names. He does not know how many Special Assistants he has. The Governor as well do not know some of their aides, who are being paid to advice them.
What I believe is that, if we want to change the system of government,Â I will agree with rewriting the constitution, but if we want to continue with the presidential system of government, then we only need to cut down many aspects of the constitution, as it is today. The way to go about it would be a debate for all Nigerians. Let all of us attend the constitutional conference and let us see which areas that need to be amended in the constitution.
As the 2011 general elections approach, there are apprehension that little or nothing has been done about the electoral reforms, especially months after the Justice Mohammed Uwais led electoral reforms committee submitted its reports. What do you think this portends for the political future of the country?
I have always believed that the problem today in Nigeria is not the electoral laws solely, but those appointed to exercise powers in making sure that the electoral law operates in an incorruptible manner. It is the operators of the law that are making things difficult in Nigeria. Though, the electoral laws may need some pruning down, but the operators of the electoral Act must be examined. Ghana is an example, what electoral law are they using that is different from ours?
Virtually, the laws are almost same with that of Nigeria, but they have conducted elections without any problems in recent times. Since they have started their reforms, I have not heard of any petition challenging their presidential election. But in Nigeria, there was no election held that were not challenged at the Tribunals.Â To me, it is not the statute, but the operators, Nigeria man as an animal must always find a way to cut angles to many things.
May be if the law is revised, it may put some sanity into the system. I am sure we always have our human problems. It is always difficult to pursue an election petition in Nigeria and win. There are many things that are affecting our development, especially on election petitions.
My own is that the law must set time limit for the determination of election petitions and the area of the petition must be narrowed down and it will be cleared to everybody.Â I agree that we need some adjustment, but it would be a drastic surgery that must come quickly.
What steps do you think should be adopted to address the present situation where people, who are sworn in after election, use state resources to frustrate candidates challenging their elections at the tribunal?
Candidates in an election are on the same level, but immediately one is sworn-in and assume executive position in the state, the advantage he has is enormous. He has at his disposal, all the funds belonging to the state. As the State ChiefÂ Executive, he can dip his hand into the purse of the state without accounting to anybody. Therefore, as you said, a system that allows a candidate to take that position and start acquiring all the powers and the financial opportunities, makes it impossible for the other candidate to fight him properly.
That is why electoral petitions drag three to four years, while the man enjoys the booties of office. He enjoys the financial control and does not care whether it takes three or four years to conclude election petition.Â My position is that no candidate should be sworn-in before an election petition is determined. If it is not determined within the two years period, something has to be done.
We saw it in the United State of America, their Supreme Court had to terminate the presidential petition orÂ the recount of votes in Florida, between Bush and Al-Gore, because aÂ new president must be sworn-in. When it was clear that the lower court was not in position or the system was not in position to terminate the matter, the Supreme Court came out with a decision and terminated the proceedings. That is what we need in Nigeria. Such development will bring sanity into the system.
The process of appointing lawyers as Senior Advocate of Nigeria (SAN) has been causing ripples lately, as some lawyers have alleged that the process has been corrupted, calling for its abolition.. What is your position on this matter?
Every profession has its own elites group. If you are lecturer in a University, you aspire to be a professor. If you are medical doctor, from a research doctor, you will aspire to be a consultant.Â Every profession must have its own elites group. The position of the senior advocate of Nigeria in the legal profession has its elites group. So, I will not subscribe to the call for SAN to be scrapped. I admit that there are flaws in the appointment of the senior advocates.
I must tell you that not all good lawyers are senior advocates, but not all senior advocates are good lawyers. The system is so bad and I am disturbed by it.Â There is a particular chambers in Nigeria, where the head of the chambers and a former Attorney General of the Federation were boasting in the television that his chambers produce one senior advocate every year. How can that be?Â That is corruption, because if you are going to be appointed as a senior advocate, you must have an established chambers of your own, you must have lawyers in your chambers and have an established libraries and so on.
The form you are going to fill before your appointment must show how many lawyers you are paying salaries to.Â So, if there is a chamber, which produces senior advocates every year, definitely, there is something wrong somewhere.Â So, I agree with those who say something is wrong somewhere. That, however, does not mean that
we should scrap it. We need it, for the younger ones to look up to. In civilized countries, you must have been an established lawyer before you are appointed a silk.
But in Nigeria, you are unknown. It is the day you become a silk that people will start knowing you. It is unfortunate that the situation is in reverse in Nigeria. But that does not mean we should scrap it.Â May be, like what is obtained in England, we should not have restricted number to be appointed in a year. In England, there is no restriction in the number of those given silk.
This year it may be 100, next year, it may be 50. It is when we restrict it in Nigeria that the competition starts. Any young man who has the qualification to be admitted into the inner bar should be free to apply. So, if there is no restriction, the corruption may be eroded.