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FOI Act is federal law, can’t operate in states until… – Clarke, SAN

By  Abdulwahab  Abdulah

The recent signing of the Freedom of Information Bill into law by President Goodluck Jonathan has thrown some challenges on Nigerians on how to get the law achieving the expected result.

In this interview, Chief Robert Clarke, SAN, said until the law is passed by the state Houses of Assembly into law, it may not bite as expected, especially in the states of the Federation.

He also commented on the agitation that Justices of the Supreme Court should be partly appointed from among the practicing lawyers, maintaining that this however should not be an exclusive rights of the senior advocates of Nigeria.

Excerpts:

There are some ambiguities in some sections of the new electoral Act, which are contradictory, especially in sections 141- 143. What do you see to this?

Chief Robert Clarke, SAN,

When one looks at sections 141, 142 and 143, one will find that they are dramatically in conflict arising from 141, especially 141 and 143. Section 141 as it stands makes no sense, because if it is strictly adhered to, there can never be any election that will not have one or other reasons for annulling it.  And if it is annulled that means, fresh election must be held from the tone of Section 141 and I believe there will be no end to elections in Nigeria.

That is not the intendment of the makers of this Electoral Act that elections in Nigeria must be a continuous process because of one defect or the other.

Section 142 as it stands is ok, but section 143 would have been the ideal position, but when one looks at Section 143 it contradicts the position of section 141, whereas section 143 allows for election to stay if, the man who scored the highest number of valid votes at the election can be identified and he succeeds in satisfying the requirements of the provisions of the constitution, then his votes will count.

But when you look at section 143 in relation to section 141, it does not make any sense. This is because; section 141 says that “elections will be annulled on any ground or on any defect in the conduct of any election. One of the defects in the conduct of the election can be anything.

This can be invalid votes, it can be violence, snatching of ballot boxes or any malpractice that can be established. However, section 141 says, such election must be annulled. Tell me an election that will be devoid of any coma. It is not possible, therefore, Section 141 as it is, is a time bomb that should not be allowed to stay in our statute book.  I am sure; it is going to create lots of headache for the election petition tribunals in the near future.

In this situation, what is the remedy?

It is unfortunate that it has become the law. But fortunately again, in trying to make use of the constitutional provisions, the tribunals are always enjoined to  ensure that public policy and public interest are always predominant factors to be considered, so that one can judicially exercise ones discretion to say that instead of using section 141, one will use section 143, because it is the same law.

This is so, because if one follows strictly section 141, every election that has a mistake must be annulled. But a tribunal will conclude that instead of using section 141, It will prefer using section 143 to sustain and validate an election. So, that is the only way. Until the law is reviewed, the tribunals can conveniently omit section 141 and work with section 143.

Considering the fact that every lawyer would want to win his case to satisfy his client in court, don’t you foresee a situation where lawyers will hide under these defect to deliberately manipulate the situation?

Definitely, a lawyer who loses an election because a tribunal refuses to pronounce on section 140 (1) of the Electoral  Act and decides  to use section 143, can approach the Court of Appeal, stating that the tribunal erred in law by not applying section 141 of the Electoral  Act instead of applying section 143.

Election appeal of that nature can come up, again the appellate court will use what we call public interest in dealing with the situation to ensure there is no chaos to dominate election issues.

In view of our past experiences where an election petition takes more than three or almost four years before it is determined, how would you react to the recent amendment into the law allowing governorship and National  Assembly election petition terminating at the Supreme Court?

When you look at our judicial system, the highest appellate court in Nigeria is the Supreme Court and the constitution says every Nigerian has a right to pursue his grievances to the apex Court. So, it is a constitutional right.

The amended Electoral Act that has been limiting appeal in governorship and National Assembly petition to the Court of Appeal, if we are to be honest is unconstitutional.

If the tribunal finds as of facts and the Court of Appeal concurs on those facts, then in the Supreme Court, it becomes a  mere matter of costs, because the Supreme Court has no power to alter the concurrent findings of facts.

So, I will suggest that once there are two concurrent findings of facts, there should be no appeal to the Supreme Court. So, what should only go to the Supreme Court on election matter should only be on point of law.

If that modification can be brought into the law, that satisfies the provision of the constitution that every Nigerian has the right to pursue his case to the apex court, but with limitation as to what he can take to the Supreme Court. If it is a matter of fact, it can end at the Court of Appeal, but if it is a matter of law, then it can go to the Supreme Court.

It was alleged that the House of Representatives got a loan of N10 billion from some banks to fulfilling some obligations contrary to the provisions of the Fiscal Responsibility Act, which forbid the lawmakers from taking such loan except for developmental project.  What is your take on this?

As a lawyer, I always try to run away from issues that are not law. The issues you raised are not matter of law but that of conscience.

It is a matter of conscience in the sense that if there is a budget, the best the National Assembly can do is to ask a bank that pending the receipt of money from the budget, please allow the National Assembly not individual members access to fund to maintain the office.

But what we have now is different, though every individual member has a right to get overdraft from the bank and their salaries and advances are paid into those bank.

To my mind, what they did is wrong and it is corruption of the highest order, which should not be encouraged.

Examining section 41 of the Fiscal Responsibility Act 2007, it only encourages government at all tiers to borrow money for capital expenditure and human development, such that the borrowing must be subjected to approval by appropriate bodies. What the House of Representatives did was view to be illegal and unconstitutional.  How do you react to this?

That section of the law you read does not even allow the National Assembly as an institution to borrow money from the bank. The only money the National Assembly can borrow is for them to have a bridging loan from the bank. This will be stipulated and show that they are expecting their allowances shortly. This will be in form of an overdraft to cover their spending while their money arrives.

This is not applicable to an individual legislator but for the body as a whole. There is no room in that section of law that allows individuals of the National Assembly to approach a bank and start taking money against their salaries and allowances. That is very wrong, because their salaries and allowances are budgeted for every year and paid for. The step is corruption and nothing more.

Appointment of justices to the Bench of the Supreme Court has been under debate. It has been argued that lawyers in private practices should be allowed to move directly to the Bench of the Supreme Court due to their vast experiences in litigation. What is your view about this?

This is a very interesting issue. In Nigeria today, the highest position in the legal profession is the position of the senior advocate. I have no regret saying that many senior advocates today had no good practice before they became senior advocates.

They were not well known in the legal profession, they have not established a good practice before becoming senior advocates. But once they become senior advocates, they used it as a stepping stone to establish good practice.

Not all senior advocates are good lawyers and not all good lawyers are senior advocates. I know a lot of lawyers who are not senior advocates but are fantastic in practice.

The question is from where will they pick lawyers to go to the Supreme Court? The dichotomy will come in. The body of the senior advocates will arrogate it to itself that it is from that body. Like I said, 50 per-cent of the senior advocates today, I am sure did not merit that list.

The question is from which cadre of legal practitioners are you going to appoint directly to the bench of the apex court? This will be a difficult question in the scenario of Nigeria politics.

The senior advocates will want to arrogate or usurps that opportunity and I am not for it, because that is not completely or absolutely the best crops of good lawyers in the country today.

Many of the senior advocates haven’t got the practice. Many of them work in their father’s chambers, many of them worked in their uncle’s chambers, while many use other peoples cases to attain the silk.

They have not worked through the mill. By the time a lawyer worked through the mill and become senior advocate, he must have established himself very well that money is no problem to him again.

How do we solve the problem, because some people have said the crops of those appointed to the bench of the lower courts who eventually promoted to the highest courts are not sound and their promotion has become a normal one like in the civil service?

With my age and experience at the bar. I have traversed virtually all the high courts in Nigeria and I know the standards of practice. I can say for sure that in every state, 60 percent of judges are people brought from the civil service. The orientation is there, their background is nil. Many of them appointed judges start to learn on the job.

Even in Lagos state today, half of the judges with respect to many of them are still learning on the job. Until a system guarantees a fair assessment of who can come to the bench, we will continue to go on with the problem. It is a pity.

President Goodluck Jonathan recently signed the Freedom of Information Bill into law. What challenges do you think will be encountered in the implementation of the law?

No doubt, the bill has been passed by the lawmakers which is the National Assembly has been assented to by Mr. President, however, to give it efficacy and the effectiveness in the 36 states of Nigeria, that bill will have to be passed by each House of Assembly of each state and assented to by the governor. For instance, the states under the constitution are autonomous in many ways.

There are information relating to their activities in government which is only in the knowledge of the state government, but the effectiveness of the federal laws cannot forced them to divulge.

Therefore it is necessary that each of the state House of Assembly should pass its own freedom of information, so that the effectiveness and efficacy of the new law can be felt by all Nigerians in all facets of our life.

Are you saying that it would be difficult for Nigerians to approach some state governments requesting them to divulge information regarding the affairs of their state?

It would be difficult, because if he refused, in a way, they are not bound under that law passed by the federal government, except the information on money you are asking them to disclose is money received from the federal government. Even at that stage, you still have some restrictions.

They will inform you to meet the federal government to give you the information. If it is the law passed by the State House of Assembly, then the executive arm of government in each state is bound to answer.

What do you expect Nigerians to do in order to feel the impact of this FOI law?

Well, we are still experimenting the law presently. But with time, we may learn from what the federal government do with the law. We can start with the National Assembly, by saying we want to know how much they budgeted. Now we can ask from the clerk of the house to divulge information about the emolument of the members of the house.

The Clerk is bound under the law to disclose the information. So, let us start from that angle and see how best we can go with the new law, instead of speculation in the newspapers of how much is being spent by the lawmakers or the presidency now.


Disclaimer

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