By Dayo Benson (Editor)
Mr Dele Adesina SAN is former general secretary of the Nigerian Bar Association NBA. An active Bar man, he has participated in various NBA activities including its crisis period . In this interview he spoke on the role of the bar in the society, his expectation from the on-going national conference on federalism and the justice sector. Excerpts.
What role do you think the bar should be playing in the society especially at this critical stage of the nation’s democratic dispensation?
We all know that law and order determine the function of a nation. Without law you hardly can have a system. When there is law and order in place there will be progress of not only the nation but also of individuals. And i don’t see how you can have an effective, functional and efficient maintainance of law and order without a very dynamic justice system, driven and powered by the Nigerian Bar Association.
What are your expectations from the on-going national conference in view of current challenges facing the nation?
If the ongoing national conference fails to produce a new Nigeria then it has become a wasted exercise .
Powers must be devolved to the component states. Let the states be viable, and this is directly related to the devolution of powers and fiscal federalism because once there is concentration of power in the centre as we have it, we must also have to back it up with money to run it. And that is why the Federal Government has about 62 or 63 per cent of the nation’s revenue. When you compare that with other federal systems in the world, you will discover that Nigeria’s Federal system is not working. That is why we are in some of these problems we have found ourselves today. Ours is neither unitary nor Federal; it is a hybrid situation as there are few examples to show that Nigeria is running a confused federalism. One of them is the issue of police structure.
Issue of police force structure must be looked at by this conference. It has been argued that we are not yet ripe to have community police or a state police on the grounds that it will be abused, misused and all that . But my response has always been that have you ever seen any item of human nature that has only advantages and does not have its disadvantages? No. but once the advantages are more than the disadvantages,then you find a balance of convenience in favour of doing that thing.
There must be a practical and ideal federal system in place; there must be a serious consideration for devolution of powers with the federating units , so that it can be more viable ; so that the rush to the centre or national can be reduced and by the time that is done, it would impact positively on the electoral system. By this, many people will be more interested in becoming governors than president,and also want to go to the senate and the House of Representatives.
Another issue is the way we are running the presidential system of government. Ours is the most expensive in the world;it does not have to be so. We have ministers in excess of 60 , because there are states that have about two ministers from the 36 states of the federation, after about 42 ministers, there are advisers of the same rank as ministers.
The emoluments can be slashed . The National Assembly has been described by people as a drain on the economy;it is too expensive to run.
In 1979, there were some members of the legal profession who were in the House of Representatives-Chiefs Debo Akande and Abraham Adesanya were a few example who were attending sittings at that time and were still running their chambers as they were attending to their cases in court while at the same time serving as members of the House of Representatives. But today we have made it full time even when the Constitution arguably says it is a part-time. I am aware that the Constitution says once they sit for about 182 days in a year, they have satisfied the requirement of the provisions of the Constitution. So, these are some of the issues.
Do you expect the conference to come up with draft of anew constitution for the country?
There is the argument that we don’t really need a new Constitution . While some believe there is a need for a new one. I am one of those who believe there is need for a new Constitution. If we draw example from the practice we are in when you file your writ and statement of claim and you are amending and keep amending, at a point the judge will tell you to withdraw it and refile.
It was Chief FRA Williams at about the third week after the 1999 Constitution came into effect, precisely on the 18 of June, 1999 , who said the 1999 Constitution was a fraud against itself. I don’t believe that amendment upon amendment can cure the defect in the Constitution. It suffers popular legitimacy although it has legal and legitimate mechanism following a decree that backed it up but a Constitution must be a product of a popular will. South Africa did it and we can do it also. So , if the delegates at the conference can take us to this level, we would have a new Nigeria; the Nigeria of our dream.
Do you think there is an ideal federalism in the true sense of it because democracy is an evolving process?
We can have an ideal federalism. To have an ideal federalism is different from having an ideal democracy. Democracy is a system,not an end in itself. Democracy is a process that will keep fine tuning itself but we can have an ideal federalism. What we have today is not an ideal federal system. What we need to ask is: what are the features of an ideal federal state? You look at those features and the Constitution that we have, are those features present in the Constitution that we have? If your answer is yes, then the federal system is ideal.
The features present in an ideal federalism is : There must be an autonomous state in a way that the state will not depend on the centre to exist.
Apart from Lagos and Kano states, how many states can exist on their own without the centre? Does Chicago need allocation from New York or Maryland in the United States before it can survive on its own?
Two ,we have independent Judiciary; look at the case going on in Rivers state, can a state start and complete the process of judge’s appointment without recourse to the federal? In Nigeria , we have states without a coercive structure to maintain law and order except by federal police via Section 204 of the Constitution.
The only police we have in Nigeria is the Federal Police. Federal Government has the federal police, the state does not have any state police. States make law but depend on the federal police for implementation, is this an ideal federal state? The answer is no.
For instance , I was in Chicago sometimes ago and as I sat in a taxi, I observed he was going against the regulated speed limit and I said you are speeding looking at the speed limit, but the driver said no problem. Less that some minutes after he said no problem, problem surfaced simultaneously as there were two police formations, five in numbers, two in one car and three in another car belonging to two different local governments.
We were at the threshold of leaving one local government to enter another one when they stopped us and immediately his driver’s licence was seized while they told the driver to take me to my destination having looked at time of my scheduled flight with an instruction that he should meet them at a particular police station. It was a community police not even a state police.
So , when we are talking of decentralisation of policing system in Nigeria, we are not limiting it to the state police but also a community police. I learnt that in America, there are over 140 police formations. In those days we had effective security people at the University of Ife, who had coersive powers to arrest and lock you up before handing you over to the police. These are just a few fundamental principles of an idea federal system of government which you yourself can see and compromise under this present arrangement in Nigeria.
How do you think the conference should address the problem facing the justice sector?
Today, everybody has accepted that there is an undue delay in our justice system and the concomitant effect of this delay is located in the congestion in our courts. I have argued before that I don’t know any new issue that any lawyer may want to raise on jurisdiction that has never been raised before in any matter. Why does a lawyer want to pursue an appeal on preliminary objection based on jurisdiction alone to the highest court in the land? While doing that the substantive matter is hanging. For me, the national conference must look at the possibility of terminating interlocutory appeals at the Court of Appeal so as to relief the Supreme Court of a lot of their cases.
As at December 2013, the Supreme Court was still having 2009 cases, they were about three or four years behind, the workload was so much as people continue to file appeals there and a good number of these appeals arose from preliminary objections in the lower courts. So, there is no reason the interlocutory appeals should not terminate at the Court of Appeal, they must look at that.
I do not see any reason why we have 36 states in a federation; every state having its own judiciary with some of them as many as 46 courts. In Lagos alone, there are 46 courts, each of them being presided over by a judge. So, we are having cases from 46 courts going to Court of Appeal from Lagos alone. Apart from the state High Courts, we have divisions of the Court of Appeal in virtually now all states of the federation. All these, like a pyramid terminating at the Supreme Court.
For me , I don’t see any reason why we cannot have appeal courts owned by the states; I also don’t see any reason why we cannot have the Supreme Court Justices in larger number than we have now as the ceiling in the Constitution presently is 21 Justices. So, this National Assembly or the national conference must look at the possibility of increasing the number phenomenally from 21 to much more than we have now so that at any particular point in time not less than three sessions of the Supreme Court can be running.
So that we can still have Justices sitting in there chambers to either write their rulings or judgements and studying their files because the limit of 21 Justices is no longer feasible having regards to the number of Justices we have now. Every year we appoint new judges, every year new cases are filed. It is also very unfortunate that we have never had the full compliment of that 21 in the Supreme Court. The question is: what is limiting us? I have cause to say it many times that Nigeria’s Supreme Court is the busiest in the world; and I think they can be relieved a little.