Former Governor Oserheimen Osunbor of Edo State, a professor of law, is a Commissioner on the Board of Nigeria Law Reform Commission. He speaks on National Conference, revenue formula, among other issues.
By Emman Ovuakporie
On National Conference
You referred to National Conference, but I am also aware that many people are talking about Sovereign National Conference, while some are calling for Constitutional Conference. So I really need to know what exactly the people have in mind, whether it is just a Constitutional Conference, a National Conference, an ordinary conference, or a Sovereign National Conference.
I participated in the Constitutional Conference of 1994-1995 under the administration of the late General Sani Abacha. I was one of those who put together the draft constitution that we submitted in 1995. I have no problem with all of these conferences, but to talk of Sovereign National Conference is a concept that I don’t agree with, because we already have a government in place, we have a Constitution in place, there is a constitutional order which is why there are laws, which is why there are institutions. The Supreme Court, the National Assembly, all derive their legitimacy and continued existence from the 1999 Constitution ( as amended); that Constitution does not envisage a Sovereign National Conference. My understanding of what a Sovereign National Conference is all about is that, that entity, that conference will have sovereign authority, which means that its authority will be superior to that of Mr President, will be superior to that of Supreme Court, will be superior to the authority of the National Assembly and the Houses of Assembly.
You can see the monstrosity of the kind of thing we are talking about. A Sovereign National Conference in countries that have had such thing, it had the power to dissolve the judiciary, had the power to dissolve the courts. So, when people say they need Sovereign National Conference in Nigeria, are they envisaging an entity that can sack the Supreme Court, because that has happened in some countries? Are they envisaging that such a body can remove the President? Are they envisaging that such an entity can sack the National Assembly? If the conference will not be able to exercise these powers, then it is not a Sovereign National Conference. And my fear is that, if by some means, somebody decides that we are going to have Sovereign National Conference, you will find out that people will go to court to challenge the authority of that conference. If we can borrow from the Egyptian experience, when they had Sovereign National Conference that sacked the regime of Hosni Mubarak but left the country’s judiciary intact, the judiciary now declared illegal the body that drafted a new Constitution and also by implication declared unconstitutional and illegal the Constitution that was drafted by that illegal sovereign entity; is that the kind of confusion that we want to bring unto ourselves in Nigeria? If we attempt it, I can imagine that there will be many courts in Nigeria that will declare that conference unconstitutional and illegal and, whatever draft or Constitution that emerges from it would be declared illegal; and, once that happens, we would find ourselves in the situation we were in 1993, when Justice Dolapo Akinsanya declared the Interim National Government of Chief Ernest Shonekan illegal and unconstitutional, and that was the reason Abacha struck and removed the Interim National Government. So, the lesson we should draw from this is that if you constitute a body with sovereign powers which we do not have any power to do now, a court will declare that entity illegal and unconstitutional, there will be a constitutional void, a constitutional vacuum in Nigeria which any adventurist or opportunist can then take advantage of and step in, because nature abhors a vacuum.
There is the argument that the National Political Conference held under the administration of former President Olusegun Obasanjo couldn’t achieve the dream of Nigerians, and that any National Conference held now may go the same way. Do you share that mindset?
What has been very lacking in Nigeria is that people do not respect the Constitution. People do not respect law and order. The answer is that if we keep experimenting, if we keep starting afresh, every now and then, because we have made so many fresh start in the history of Nigeria, we have not had the patience to allow what we have to take root firmly and to operate successfully, we are always very impatient…… we started with the parliamentary system of government, we said parliamentary system of government is not good, we abandoned that and went for the presidential system of government, we started it in 1979; all of a sudden, people were saying the system was not good , let’s go back to parliamentary system; must we continue to move like a yoyo, going up and down. Those who are operating parliamentary system of government and are doing so successfully are human beings.
If parliamentary system can work in those societies, why can’t it work in Nigeria? There are countries that are operating presidential system and they are doing so successfully because they want to make success of it. If we resolve to make a success of our presidential system of government it will succeed, because no system will work in Nigeria unless the people resolve that we make what we have a success. So, I want us to make a success of what we have, we should be patient, because we have never given Nigeria the time for our system, for our institution to develop and take root firmly.
What will work for us as a country?
What we have now can work. I was reading one of the most outspoken advocates of whether we should have National Conference or Constitutional Conference or we need a fresh start, Professor Ben Nwabueze. I was reading an address he presented in Uyo recently; he outlined the items that he would want tabled at the National Conference that he is advocating. If you look at all those items, apart from the issue of referendum that ‘let the people decide,’ all the other items are the matters that the National Assembly can handle in conjunction with the states Houses of Assembly by way of amendment of the Constitution and they are doing some of them now, like devolution of power. There is too much concentration of powers at the federal level. You are aware that the National Assembly has already decided that many items would be moved from the exclusive list to the concurrent list. In other words, strengthening federalism, strengthening the capacity of the states to go into some of these items that were previously reserved for the federal level, those are the things Nwabueze says we should come and discuss at the National Conference. So, 90 percent of what people want to be discussed at the National Conference can be discussed through the mechanisms recognized in Section 9 of the 1999 Constitution as amended, through the National Assembly with the approval of two third of the Houses of Assembly in the states. On the issue of “we, the people,” first of all, I will say people are making mountain out of a molehill. The question is, do we have a Constitution now or we don’t have? There is no doubt in anybody’s mind including the advocates of Sovereign National Conference that we have a Constitution.
So, if we have a Constitution, why are you spitting hell? There are so many things that should engage our minds as a country. Even Professor Nwabueze mentioned the issue of justiciability. One of the short comings in the 1999 Constitution is chapter two which talks about the fundamental rights of the people, that talks about free health, free housing and all of that, how do we make this justiciable in Nigeria? And there is a school of thought which says that those can be made justiciable by an enactment of the National Assembly; so let us engage the National Assembly and see how the well- being of the ordinary Nigerian can be enhanced through providing for the justiciability of those provisions. Must the 170 million Nigerians participate in a referendum before you say, ‘it is we the people?’ It is only a representation of people, because at no point in time can we even have anything close to 50 percent of Nigerians going to vote, as to whether they approve of the Constitution or they do not. My view is that we are making too much of an issue of this ‘we the people’, and in summary we have a Constitution already in place, and it is the responsibility of everybody who respects the rule of law, who obeys the Constitution, to obey and respect the Constitution.
Clamour for more states and the inability of civilians to create them
Let me start by correcting that last statement, there is an exception which is Mid-West Region created in 1963 by plebiscite, by vote and, it was the only one, in fact in the whole of Nigeria, whether it is the colony of Lagos, whether it is Northern Region or Southern Region or Eastern Region, that was democratically created by referendum. But having said that, to go back to your question, do I support states creation? The simple answer is no. We shouldn’t be repeating the same thing over and over again; that is one. The second reason is that even amongst the 36 states now in existence, maybe not more than two or three are viable economically in the sense that they are able to generate sufficient revenue to run the administration of the states. One can conveniently say that out of the 36 states, 30 of the states cannot survive without dependence on statutory revenue from the Federation Account. So, if you are creating additional states, what you are merely doing is further splitting revenue from the Federation Account into more units, and many of those new units will spend these resources not on capital development but on administration because there will be governors, there will be commissioners and all other administrative structures.
On the state of PDP in Edo
All the trouble in Edo PDP is caused by only one man who may not be able to even win his ward. Because of one man, the PDP structure in the state crumbled; because of one man, PDP has lost all it laboured for in the state.
Proposed merger of EFCC and ICPC
I do not think that would be appropriate in the administration of justice because their functions are not at par.
Nigeria at 53
We have a reason to celebrate our existence because we have come a long way. On the 1966 coup, I can’t say anything because I was very young then.