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Yar’Adua’s action constitutes an impeachable offence but, says Richard Akinjide

Richard Osuolale Abimbola Akinjide! When some two years ago, Vanguard sought his views, the interview dwelt more on the controversial 12 two thirds majority of the 1979 presidential elections which brought Alhaji Usman Aliyu Shehu Shagari to power as Nigeria’s first executive president.  A legal luminary by every standard both in Nigeria and in England where he also has a very thriving law practice, Akinjide brings to law an uncommon candour.

Therefore, when the argument about the propriety or otherwise of the action of the National Assembly on its resolution making Dr. Goodluck Jonathan Acting President, according to Akinjide, “is what I will describe as a severe contest between intelligence and unworthy timid ignorance, obstructing the progress of Nigeria”. Bringing a view never before expressed, regarding extraordinary doctrines employed in arriving at the Senate’s resolution, Akinjide declares:

Richard Akinjide

“The first one is what is known as the doctrine of necessity.  The National Assembly is right and was properly advised but what it did not mention are the doctrines.  “There is also the doctrine of efficacy, because if there is necessity and you take steps which are not provided by the Constitution or are not foreseen by the Cconstitution and the steps you take are not efficacious, then the doctrine of necessity is not meaningful. Akinjide also discusses Nigeria and how Britain created the state it wanted for its own good.  This is the first part of a truly engaging interview”.

Section 145 of the 1999 Constitution says the President should transmit a letter to the National Assembly; he did not.  The National Assembly recently passed a resolution empowering the Vice President to act.  There are views for and against the resolution.  What is your own view and how does an interview with the BBC translate to a letter from the President?

Let me tell you that the recent crisis and contest is what I will describe as a severe contest between intelligence and unworthy timid ignorance, obstructing the progress of Nigeria.

There are no two constitutions in the world that are exactly the same – the evolution and the history of all nations are subjective.  The way US emerged is different from the way France, Germany, Australia, Nigeria emerged.  So when you’re talking about constitution, there are certain fundamentals that you must always bear in mind.

Those interpreting constitution have to bear in mind that you don’t interpret written constitution like the law of contract or the law of tort or criminal law.  The interpretation of the constitution is peculiar unlike all other laws and, therefore, a number of things have to be taken into consideration.

I must say categorically that what the Senate did is right.  Anybody who says they are wrong does not know what he’s talking about.  In written constitution, to interpret it, you look at the words but that is not the end of the matter.  Apart from interpreting written constitution like those of Canada, Australia, South Africa and Nigeria, there are three doctrines you have to take into account.

The first one is what is known as the doctrine of necessity.  The National Assembly is right and was properly advised but what it did not mention are the doctrines.  There is also the doctrine of efficacy, because if there is necessity and you take steps which are not provided by the constitution or are not foreseen by the constitution and the steps you take are not efficacious, then the doctrine of necessity is not meaningful.

Apart from these two doctrines, there is also the doctrine of consequences.  If it is necessary on the doctrine of necessity; if it is efficacious on the doctrine of efficacy, then you have to take into account the doctrine of consequences.

But some arguments have tended to…

(Cuts in) I’ve heard a lot of arguments in the papers and I’ve heard a lot of comments on this matter, whether the Acting President can do this or can do that; all those arguments are unnecessary and futile because the situation is already covered by the Interpretation Act. Under our Interpretation Act, anybody acting in an office already has all the powers of the substantive owner of that office; it’s as simple as that.  So, when you make somebody an acting minister, he has all the powers of that office. The same thing goes for the person acting as the President because he has all the powers of the substantive owner of that office.It is in our Interpretation Act so all the arguments to the contrary are totally futile.

For those who watched while the drama lasted, some have argued that the National Assembly ought to have acted long before now?

Yes.  Absolutely, I agree with that. I don’t know why the National Assembly took so long to do what they did.  The National Assembly must remember that it is the National Assembly for Nigeria, not for the Peoples Democratic Party, PDP, not for the North, not for the East and not for the West.  The moment you have a National Assembly, you must know that you are there for Nigeria and not for any section.

The Senate President was practically blackmailed when all these started.  Some insinuated that whatever he planned to do, he should forget about any possibility of his creating another power shift of sorts and this had something to do with his Middle Belt origin, if you like.  Then there was this issue of zoning and national character?

You’re absolutely right. I think one of the problems we are having is this zoning system but people must remember that this zoning thing is for PDP alone.  Zoning is not for Nigeria and it is not for other political parties and it is not binding on Nigeria and it has no force of law.

I will even advocate that the PDP should abolish it. From our recent experience, it has not done the country any good at all.  You should allow the best person to do the job irrespective of where the person comes from whether Sokoto or Anambra or wherever.

I am even happy that circumstances and geography have put Jonathan there as Acting President.

The Senate had initially said that the President had the discretion to write or not to write?

I think that Section 145 should be expunged completely – it should not have been there at all.  Whosoever put it there has done a very great disservice to this country.  But having said that, the National Assembly has done the right thing by invoking the doctrine of necessity because the situation warrants that; and also they didn’t mention it but they invoked the doctrine of efficacy, which means that whatever they do, under the doctrine of necessity, must be accepted by the Army, the Police, Air Force and the Navy.  And from what has happened within the last couple of days, all of them have acquiesced to what the National Assembly has done.

The question again is that, based on your understanding of law, can the President transmit the letter applying discretion?

He has no right to do that because any President who thinks like that is acting against public interest and not only public interest, he is acting against his oath of office because he swore to protect and uphold the Constitution and if he chooses not to write, then he’s not protecting the Constitution and he’s not living up to the standards expected of his office and, therefore, he has committed impeachable offence and he could be impeached and removed.

But the North would say that this argument is now being made because it is their turn?

I’m saying that talk about turn by turn would not do us any good in that context.  Look: isn’t it ridiculous, that whenever we want to talk of the presidency of Nigeria we talk in terms of Hausa Fulani, Yoruba or Igbo.  Totally unfair!  In the US, Obama comes from a minority of the minority.  But look at him now, because he was the best man for the job, the people of America said he should go and do the job.

The truth we must understand is that in a particular circumstance or a particular period, the area you zone the office to may not have the best man for the job. One of the flaws in our Constitution is the matter of this geographical spread thing and candidacy or national character thing.

But you were one of those who drafted the Constitution, its flaws, watts and all?

Yes, I contributed to it.  I was one of those who drafted the Constitution. This national character thing is nonsense.  That doctrine was introduced in India, we are not the original owners of that doctrine but it is subject to quality in India.  It doesn’t mean that if the geographical spread must apply to your area and you then bring a buffoon or a nonentity then he must be imposed on all of us, no.  It’s not right, it’s been abused.

I would advocate that this national character thing should be abrogated as regards certain offices.

You mean the issue of geographical spread does not make sense any more?

Where we put it and which seems to make sense and which we should continue is in the election of the president and the governor.  If you want to elect the President, you must satisfy two conditions.

One:  If you want to be elected as President, you must have majority of the popular votes. Two: You must have geographical spread of 25% in two thirds of the states of the federation.  That is very good because you don’t want any particular group imposing itself on the polity.

And in the case of a governor, you must have majority of the popular votes and two thirds majority of the local governments – at least 25%.  But when it comes to important public offices, federal character and the issue of rotation should be abolished completely.  Because in a particular time, I repeat, the area to which you zone an office may not provide the best candidate so why should you impose that person on the country.

But what is wrong with the 1999 Constitution?  Other countries making progress have not complained so much about their own Constitution, why is Nigeria’s own like this?

I’ll give you an example.  The Constitution of the United States of America is the only Constitution that the country has ever had, done over 250 years ago and it is the same Constitution that they are using today with only some amendments.  When that Constitution was enacted, there were only 13 American states.  Today, there are 50 states and they’re still using the same Constitution.  What they do is that apart from making amendments, there are interpretations by the Supreme Court of the United States and that is why the role of the court is very, very critical.

The judgment of the Supreme Court of the United States in the case of Gore versus Bush was in effect the doctrine of consequences.

Many people do not know that in the US, you do not necessarily have to swear in the President of the United States of America.  That has been settled by case law and interpretation.  Once an American President has been declared elected through the Electoral College, not through popular votes, on a particular day, whether you swear in the American President or not, he automatically takes over as President of the United States, even without taking oath of office.

The reason for that is that the consequences of the United States of America having a President are too grave and too serious not to have one and I think we should borrow a leaf from that and we should enact such a provision either through an amendment or a law of the National Assembly that on a particular day, whether or not you swear-in our President, he becomes the Commander-in-Chief and also to even go further, because of our recent experience that if such a thing happens again, the vice president should automatically become the Acting President of Nigeria.

You were a minister in the First Republic and you were also one of the leaders of that era.  Some people look back and insist that the bulk of Nigeria’s contemporary problems have their roots in the emergence of Nigeria as a nation and the way the country got its independence?

You have raised very, very important points and for me to be able to handle it, I must clarify certain critical confusion in the minds of many people and that is, to use your own words, the way Nigeria emerged as Nigeria and that is quite different from the way Nigeria got her independence.  These are two different things but people continue confusing them as though they were or are synonymous – they are not.

Emergence of Nigeria.  Nigeria emerged as a nation because it was so created by the British and the three critical persons in that deal were Lord Harcourt who was the colonial secretary (1900 – 1914); two, was Lord Cartright who was the Chairman of the Royal Niger Company; and three, Lord Lugard, who was first of all, Governor of Southern Nigeria and Governor of Northern Nigeria.  Lugard was Governor-General of two countries – Southern Nigeria and Northern Nigeria, at the same time.

When amalgamation took place in 1914, he became Governor-General of one country. Britain created Nigeria not for Nigerians or in the interest of Nigeria but for the British economic interest.

First oil find in Nigeria?

Britain knew there was oil in Nigeria as far back as 1896 – that is the reality of the matter but they hide that from many people. The areas of specialty of my legal practice are oil and gas and banking.

Significance of Benin Kingdom and implications of its conquest by Britain?

So when they discovered that, Britain decided that there must be one Nigeria.  Therefore, that led to the expedition to Benin in 1897 because Benin refused to join Southern Nigeria because you had the Oil River Protectorate in the East.  From River Niger, you had the Southern Nigeria, which was what we call Yoruba land, then you had in the middle what was called the Benin Empire which was a sovereign state – it had ambassador in Portugal, it had ambassador in Spain and it had ambassador in Brazil.

When Brazil was celebrating its independence, the Kingdom of Benin sent a delegation there, but Britain was not happy because it was a clog in what Britain wanted to evolve mainly to have one single Southern Nigeria which would merge with the others and form one Nigeria and that was why that expedition of 1897 was carried out with 10 ships.  Alhaji Babatunde Jose’s father was one of the soldiers on the British side.

Though they captured the Ovwerami of Benin, and then conquered Benin and incorporated it into Nigeria and by 1900, you had Southern Nigeria for which Lugard who came in 1898 became Governor and of course, you already had Northern Nigeria.

By the time of amalgamation in 1914, Britain had been ruling Northern Nigeria for 14 years.

The amalgamation of Nigeria and British economic interests?

In 1914, Britain was incorporating into Northern Nigeria to form what was already in existence – that is the reality of the situation.  And in that same 1914, immediately Britain did the amalgamation, the first thing Britain did was to pass the mineral ordinance investing all the mineral resources in Nigeria in the British crown because they had already discovered oil in Nigeria and they didn’t tell Nigerians and they had already discovered so many mineral resources in Plateau, not tin alone, there were other massive things in Jos; they also discovered massive coal deposits in Udi in Eastern Nigeria.  So that is why you have that network of railway, which looks like Pythagoras Theorem:

You have rail straight to Lagos, you have rail through Aba to Port Harcourt, and you have rail branching to Jos because of the British economic interests; the rail to the North for transportation of cotton and hide and skin, through the West because of the cocoa, through the East because of the coal and the rubber, so in the evolution of Nigeria, Britain was not creating a modern state in the real sense.

Creating a British-Nigerian State

What Britain was creating was to suit British economic interests and they did it. Many people think Awolowo, Sardauna and Azikiwe created Nigeria the way we know it.  They merely fought for Nigeria’s independence, they are not the creators of Nigeria.

The independence they got for us was structured in a way to suit their interests. They created three blocs: Hausa Fulani North, Yoruba West and Igbo East.  Unfortunately for us, Awolowo, Sardauna and Azikiwe swallowed that and that is the root cause of our problems till today.

Azikiwe, NCNC and the British mistake in India

In 1956, there was something dramatic that happened: The NCNC won all the elections to the House of Representatives in Southern Nigeria:  They won the West, they won the East and in alliance with Aminu Kano’s NEPU, NCNC also won seats in some parts of the North.  Britain panicked because of that victory, wondering what was going on because their plan was beginning to collapse like a pack of cards.  Their original intention was to ensure that no such thing happened.

Lugard came to this place to create Nigeria and they didn’t want to make the mistake they made in India where Britain allowed Gandhi and Nehru to emerge and create a united India and if the same mistake was made in Nigeria, controlled by one single political party, NCNC, led by Azikiwe, and who was a nationalist – and mind you the spirit of nationalism was not going to be subservient to any foreign interests and Britain took cognizance of that.

A death to forestall NCNC’s advancement

There was something which happened which is little investigated and on which I am not going to say much now: the death of Adelabu on 25 March, 1958, through alleged – and I repeat the word alleged – motor accident.  I wouldn’t say more than that but….


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