By Innocent Anaba
MR Joseph Daudu, SAN is a former President of the Nigeria Bar Association. He is known for baring his mind on an issue, no matter whose ox is gored. In this interview, he spoke extensively on the on-going national conference, the crisis in the Rivers State Judiciary over the appointment of a Chief Judge for the state and other issues.
What is your view on the on-going national conference?
The on- going conference is in my view and with respect to its organisers and attendees a farce, it will end up as an appalling fiasco. The conference was conceptualized initially as a Sovereign Conference then as a National Conference and finally as just ‘Conference’. These terminologies have different constitutional and political connotations.
With the coming into effect of the 1999 Constitution, all political, legislative and judicial authority took its root from that hallowed document. Some may have argued that the constitution was not sufficiently autochthonous and that it told a lie against itself referring to the preamble which declared that the constitution was bequeathed to the nation by the People, when it was bequeathed by the military, yet the same critics took benefit from the constitution in the guise of high political offices, etc.
Thus it is my humble view that any political change must come at this point of time from or within the framework of the said constitution. It borders on treason and political adventurism to seek political change outside the 4 walls of the 1999 constitution. However, the constitution provides for freedom of expression and association, so it is permissible for people to come together and review or chart a way forward for the nation.
So any group of people can meet to discuss the direction of the nation or even discuss our problems. But the real question is what is the business of government in organising a constitutional conference which people expect will lead to a positive change for the nation?
Is it part of its remit under the constitution it has sworn to uphold to propose change outside the ambit or contemplation of the constitution? Is the conference anticipated by the current or proposed Appropriation Acts? Where is the money for the conference coming from? And who will account to the nation at the end of the day or implement the supposed proposals of this talk shop? The answers to these questions are obvious.
No one will account or implement. This is indeed constitutional irresponsibility and that is why the National Assembly is carrying on unperturbed with its own process of constitutional amendment. The scenario can be likened to squabbles by the wives of a rich permissive polygamist.
The truth is that government and governance is seen by a majority of Nigerians as a wayward cash cow to be milked mercilessly for the benefit of a few so-called political gladiators and their chosen acolytes. That is how this conference is envisioned. Government was initially opposed to the idea, but as it has not performed as projected or expected, a school of thought is of the view that it wishes to place the conference as part of its achievements.
Finally, with the squabbles within the conference now eclipsing the short-sighted objectives of government; the latter may well have begun to regret ever dabbling into this venture. In my humble view the conference is unnecessary and it is a colossal waste of precious time and resources.
Do you think the conference will address the fundamental issues confronting the country?
The question is what are these fundamental issues bedevilling Nigeria? Traditionally, they are thought to be tribalism (i.e. ethnicity) corruption and indiscipline. Since independence the nation has generally produced corrupt leaders, who hid under the cover of ethnicity and sectarianism to promote their private agenda of wealth accumulation propelled by greed and indiscipline.
Thus, in order to advance their unfortunate agenda, our leaders use the cloak and dagger tactics of divide and rule to achieve their wealth pursuit at the expense of the people. The existence of this kind of conference is a manifestation of the parasitic existence our leaders have always craved for and relished. Consequently, our problems are well known and the solution achievable without the convoking of a conference.
Indeed, conferences of this nature and in the circumstances Nigeria finds itself are usually an avenue to entrench those ills that have plagued the nation.
This is because all those in attendance have benefitted from the skewed system as it is and they are very unlikely to commit class suicide and advocate a real change to the system.
What Nigeria needs is a nation that is run according to the due process of law, i.e. the rule of law. Our leaders must recognise that they are the problems of this great nation and until we start punishing transgressors and corrupt personalities, no matter how highly placed we cannot make any progress. The problems are therefore, not with (a) principles of revenue allocation, zoning and allocation of political positions, federal character, adoption or non adoption of state religion, among others, the problem is simple but deadly. It is corruption.
Fight it and you would have removed from our system the cankerworm eating the fabric of this nation. Understandably, over 90 percent of our leaders do not want a real fight against corruption. Inevitably, they will be fighting themselves. In answer to the question, the conference is a waste of time. We have already elected people into political and legislative offices to do the same work the delegates to this conference have been called upon to do.
It is an unwarranted abdication of constitutional responsibility by the government in power. The question to ask is if Nigeria were a country without resources, will we be engaging in the unwarranted luxury of this jamboree? We would not and as our leaders have no sense of duty and accountability, they can do as the like with tax payers’ money. Once again, the conference is still born and will end as a colossal failure.
How do you suggest the outcome/ recommendations of the confab be treated?
There is no lawful way for the recommendations of the conference to be implemented. Some people say that they might resort to a referendum while some say that it will be sent to the National Assembly for implementation as part of the constitution amendment process. Either way, it will still amount to a waste of time and energy.
Indeed, in order to understand this dilemma or conundrum, let us pose a practical problem which even the elected legislators have shied away from dealing with. Nigeria is a country just about the size of Texas in the United States of America; the latter is one of the 50 States in the USA. It has only one executive and legislature i.e. one Governor, a bi-cameral legislative house, a few Commissioners called Secretaries and a judicature.
Nigeria on the other hand has a Federal Government headed by the President, a battery of ministers, heads of parastatals, a federal capital territory and all its governmental apparatus.
The centre also has the National Assembly consisting 96 senators and 360 members of the House of Representatives and an unwieldy judiciary. The 36 States have their governors, each with its host of Commissioners, there are 36 state legislations, speakers, 36 Chief Judges and other paraphernalia of government. There are also 449 local government councils each with its expensive bureaucracy.
The cost of governance alone prevents government from engaging in befitting infrastructural development projects. However, sentiment picked up from the conference is that some people may be advocating for more states and by extension an increase in the recurrent expenditure of the cost of governance.
In reality, the sensible thing to do in the circumstances is to contract the states into eight manageable and economically viable regions. The vehicle for development should then be the Local Government Councils. Now back to the question, can conference take such an earth shaking decision as described above and cause it to be implemented. The answer is No. This example should answer your question.
Do subscribe to it being subjected to referendum or given to the National Assembly?
The answer in view of the foregoing will be neither here nor there. There is so much distrust about the whole process that it does not really matter which process or procedure the powers that be would wish to adopt as it relates to implementation.
The truth is that the attention of the political gladiators is now firmly focussed on the 2015 general elections and there will hardly be time to consider let alone implement the recommendations of the conference. Indeed, the National Assembly has sent out its own clear signals that it is proceeding with the on-going amendment to the constitution, which will also not work in view of the clear divide in the political landscape.
The present conference is neither backed up nor supported by any legislation, therefore, there is no carefully articulated procedure for implementation. The previous exercises on the other hand i.e. the Lancaster House Conference in London of 1957 and 1958 (where meetings where the Federal Constitution for an independent Nigeria was prepared) the 1977 and 1988 Constituent Assemblies and the 1999 Constitutional Conference were
all constitutional talk-shops hinged on resolving all the problems caused by Nigeria’s diversity and our inability to be fair and dispassionate in dealings with one another. These conferences to the credit of their organisers had carefully articulated and legally defined implementation procedure.
Consequently, even if we find a formula and write it down on how to live peacefully together as a multi-ethnic and religious society, can we ensure proper implementation? Thus the problem has never been the absence of laws and checks/balances to keep us focussed; the problem has always been in our penchant to cut corners, to fail to be bound by existing rules of the game.
These tools cannot be written down or implemented without self-discipline and the collective resolve to be fair and incorruptible, especially among our leaders. If the current administration operates within the strict confines of the rules of good governance and the rule of law, it if punishes kleptocrats and looters of the treasury, if it implements even 50 percent of the rolling development plan then there will be no need for Conferences such as this.
With the on-going confab, is the National Assembly right to still go ahead with the proposed constitutional amendment?
Though the confab has no value whatsoever, it ought to, at least be a product of political party policy and consensus. The Peoples Democratic Party, PDP, is in power at the centre and in most of the 36 states. It has the leadership of both houses in the National Assembly. Even if there is no constitutional framework for the so called CONFAB and it is being run on the basis of our collective constitutional right of freedom of expression; there ought to be party unity on the matter.
The desire of the National Assembly to proceed with constitutional amendment is a clear attempt to pre-empt the outcome of the conference and it amounts to a legislative vote of no-confidence in the exercise. It is also evidence that there is no party consensus on the matter of the cational conference. The whole exercise is dead on arrival.
What is your reaction to the N4million paid each delegate to the confab, following complaints by some Nigerians that the sum is outrageous?
No one knows the rationale for paying each delegate the whopping sum of N4 million even by Abuja standards.
Of course the amount itself is outrageous and shows a total lack of preparation on the part of government in the organisation of conference. By paying a flat rate, the delegate from the FCT and the ones from Borno, Adamawa, Lagos and Port Harcourt are each paid the same amount as it is assumed albeit erroneously that their expenses and inconveniences are the same. This decision on its own represent all that is wrong with Nigeria.
This has encapsulated our laziness, assumption that we are rich, corruption and unfairness. Finally, coming at a time that the incumbent head of the federal executive is possibly seeking re-election and noting that the said conference has aggregated serious political influence peddlers, some may rightly conclude that it is part of the re-election strategy.
How can we effectively resolve the Boko-Haram issue, with accusation by the Presidency that the insurgency is being sponsored?
Of course, even a toddler knows that such an enterprise can only be sponsored by agents of enemies of Nigeria whether local or international or both. That is not what government should be telling us. What government should be doing is to solve the problem. With the level of resources at its disposal it is unacceptable that government should just throw up its hand in dejection and despair mouthing what every Nigerian already knows.
We voted the government in power to provide peace, order and good government for Nigerians and in Nigeria. Their failure to do so and their defence of internal sabotage are unacceptable and it shows that they failed to address the problem holistically. The problem can be effectively resolved by concerted government action using the template of both peaceful and strong arm tactics.
You have maintained that corruption on the bench needed to be seriously addressed. But we have cases where forcefully retired or sacked judges have blamed their plight on their alleged refusal to do the bidding of some influential persons, be they former judicial officers or politicians or both. What does this portend for the judiciary when most often, such allegations are never investigated?
Any interference with judicial officers, particularly with their ability to deliver justice timeously and in a free and fair manner is a breach of the independence of the judiciary and of the rule of law. The truth is that the judiciary is a part of the Nigerian superstructure, which is visibly riddled with corruption. It i.e. judiciary cannot therefore, claim that it is insulated from the corruption that pervades the larger society or that only a few of its members are involved in corrupt practices.
Again, it is possible that a few Judges may have found themselves as scapegoats of the system, but any judge who perceives himself as having been unfairly or unlawfully treated in the matter of discipline has the avenue of the courts to seek redress from. The sky is the limit at least up to the Supreme Court.
Even though the Rivers Chief Judge case has just gone to court, but is a state governor obligated to pick as a CJ, anybody recommended by the National Judicial Commission, NJC? Does a state governor have a choice in the matter, in view of a Federal High Court, Port Harcourt, which held that all NJC can do is just to recommend and nothing more?
I cannot speak much on this matter as I participated in the matters in court leading to the present state of affairs. All I will say here is that the judgment of the Federal High Court, Port Harcourt by the Hon. Akanbi FJ is correct until set aside on appeal, that is if the NJC appeals and its appeal is considered meritorious. Until then, the sound legal analysis provided by the learned and trial judge remains the law.
The installation or appointment by the state governor of the incumbent Chief Judge is an off-shoot of the judgment of the Federal High Court. If the NJC is dissatisfied with any of the steps flowing from the judgment, its remedy available to it under section 6-(6)-(d) of the 1999 Constitution is to go to court and not engage in strong arm tactics to declare the perceived interpretation by the state governor of the judgment of the Federal High Court as wrong. That is the constitutional path that the NJC must follow.
It cannot and should not be seen to be engaging in brigandage against the rule of law when it ought to be the repository of such good behaviour. The NJC when compared to the Federal High Court or any other court of law is an inferior tribunal.
It is not above the law and lacks the capacity to adjudicate on the steps taken by the governor of Rivers State pursuant to or in compliance with the judgment of the Federal High Court. Only another superior court can engage in that exercise. Any other step, such as suspending the lawful appointee to that office amounts to a vicious assault on the rule of law that the NJC is meant to protect.