By Abdulwahab Abdulah

Mr. Eyitayo Jegede, a senior advocate, SAN is the Ondo state Attorney-General and Commissioner for Justice. In this interview he spoke on the National Minimum Wage Act 2010, Freedom of Information Act, call for merger of Economic and Financial Crimes Commission, EFCC and Independent Corrupt Practices Commission, ICPC, amnesty for Boko Haram, and other issues.

Excerpts:

The Boko Haram sect has posed serious security challenges to the country. Do you support the call for amnesty for them?

•Mr. Eyitayo Jegede, SAN

Amnesty is a general pardon granted by government to political offenders. It can also be a pardon granted to a group of people who have committed a crime against the state and it is a way of government either showing mercy or promoting negotiations.

So, it is within the political power of any legitimate government to decide and take a position in respect of the need to or not to grant pardon to a group of political offenders. It depends on the government attitude to such infractions and the need to promote cohesion, general welfare and also to find other less expensive way of ensuring peaceful co-existence of the generality of its people.

You apply amnesty basically to political offences not necessarily offences that are infractions against our penal laws like where people go and steal and kill people, where you murder without cause, where you rob without cause. I must admit however, that the line between a political offence and a criminal offence is a very thin one.

Nevertheless, it’s a political decision that can be taken by any government, whether it is right or wrong is not in my place to say.

How possible do you think the Freedom of Information Act, FOI Act can be effectively implemented, especially at the states without its adaptation in states of the federation?

The National Assembly is empowered by the constitution to legislate on matters of public records relating to public officers within the federation. State Houses of Assembly are also empowered to enact laws in relation to public records in their states.

To that extent, the legislative powers of the National Assembly ordinarily should be restricted to public records within the offices in the federation.

By extension, the state legislatures also have powers to legislate in respect of public records within their state.

The Freedom of Information Act, no doubt remains an effective law in respect of records in the federation or departments in the federation.

For those who desire to take full advantage of the Freedom of Information Act in respect of public records within the state or in the departments or ministries of the state would still have to contend with the restrictions and limitations that is placed by the constitution on the legislative powers of the National Assembly.

It is important and will be helpful if the Freedom of Information Act is domesticated in the states within the federation for it to have the full effect of the law.

My view about the FO I Act is that it adds just little to the extant laws because of the principle, if I understand, it is to enable every person to access information. But then there are other legislation that guide assess to information.

Now, when you have such information properly certified you can use such information even in the court of law. If however you have such information which for whatever reason is not certified you will have legal constraint in using such information in court.

The Attorney General of the Federation, recently called for the merger of ICPC and EFCC and went ahead to make EFCC an appendage of his office by adopting the provisions of Section 43 of the EFCC Act and Section 174 of the Constitution. How do you react to this?

Let us start from the obvious. In the constitution, the police are seen and recognized as the security agency of the population to ensure enforcement of security, investigate crime and prosecute.

The police under the Police Act are further given extensive powers to investigate, arrest and prosecute. I think as a result of lack of confidence in our police system, the then Federal Government came up with legislation establishing the EFCC and ICPC.

If you go to those offices you will find out that it is the same police officers in the Nigeria Police Force that were drafted to man the operations of these two anti-graft agencies.

And since inception of the EFCC those who have had the opportunity and the privilege to head the institution were policemen, retired. They also draw funds from the federal government, they also prosecute cases in the same court using the same lawyers that police also can use and which the police have been using.

You will now ask the question: What has been the problem? Sometimes, some people have argued that the setting up of some of these agencies are just mere duplication and I agree with them that if you fund the police the same way you fund EFCC, if you maintain the level of discipline that the leadership of EFCC try to maintain within the operational force and you maintain the same discipline that ICPC top echelon too try to maintain within the operational force of ICPC then there would have been no need to set up any additional anti-graft agency.

We must give credit to the initiators of these new agencies but it also confirmed the lack of confidence of the initiators in the police force that we have. I share the view of the AGF that there is need to merge these two agencies to make them more effective.

What is your take on the call for the establishment of special court for corrupt office holders?

Who will man these special courts? Are they not the same Judges? Where will the courts be situated? Is it not within the same premises? Who will prosecute? Is it not the same people who prosecute in other courts? My own view is that the courts that we have are courts of records established by the constitution, their jurisdictions are very clear.

Where the constitution in its wisdom believes there is need to create special tribunals like the election petition tribunals for the purposes of governance and because of the time limit, it has so stated.

Then you ask the question: What about cases that have to do with murder? Do you create special courts for murder cases because when you take somebody’s life it is also heinous crime?

What about cases that have to do with robbery which are now heard by ordinary criminal courts? What about cases that also have to do with traffic offences? What about cases that have to do with hard drugs,do you create special courts for them? All criminal cases, ordinarily take precedents in court, where cases are listed.

The criminal cases are treated first because of the special place that our judicial system has created for criminal prosecutions. Where you now have to clamor for special courts just because we have Federal High Court, we have State High Court, we have National Industrial Court, we have some other courts such as the Customary Courts created locally, you now desire that a special court should be created for EFCC offences or for ICPC cases.

I do believe that the reason for this clamor is because the EFCC is anxious to have their matters prosecuted expeditiously.

That is good, but the question is why do you have to over dramatize simple cases of corruption and you have situations where a public officer is charged to court just like the AGF mentioned and then the next thing is that you amend the charges two or three times and you withdraw a particular charge and substitute the charge.

The next minute you say the courts are not moving fast enough forgetting also that when you decide to amend a charge you slow down the court process. When you file 70 count charge in a matter that can be easily prosecuted with a five count charge, you slow down the process and don’t forget that those who are also charged for these offences have lawyers who are defending them just like you have lawyers who are prosecuting.

A defense counsel who noticed that you have duplicated charges, you keep on repeating the same charge, the same sum, the same victim endlessly would apply that some of these charges be quashed and the court must decide.

In most cases you find the courts quashing some of these charges and proceeding with the rest.

How would you react to the agitation by workers demanding payment of N18, 000 minimum wage in line with the minimum wage Act?

I would answer that the way our law stand now, the issue of minimum wage is under the exclusive legislative list. So, it is perfectly in order for National Assembly to legislate in respect of the minimum wage.

That does not mean it is ideal but legally speaking, constitutionally speaking, unless you amend the constitution to put the issue of minimum wage either under the concurrent list or residual list then you will have to live with the fact that the National Assembly will continue to legislate on minimum wage.

But I think the National Assembly in its own wisdom in amending the old minimum wage Act also took into consideration the fact that in some of these limited enterprises, limited in the sense that they have quite a few number of employees and because the level of their business would not also accommodate such a fantastic amount to be paid to their workers make exemptions and there are also provisions for additional exemptions where for whatever reasons such will not be applicable, where you have part time jobs for instance, where you have issues of the employee not been able to effectively perform and actually draw on that minimum wage.

I think it is important for the National Assembly to know that if we are going to operate a truly federal system and when we know as a matter of fact that resources available to all organs of government are not the same, it is not realistic to legislate across the board and expect that what the Rivers state government will pay is what Kano state government must pay, what Borno state government will pay is what Ondo state government must pay.

There are instances where you have revenue accruing to some of the states completely not identical.

In other words, you have some states drawing large pool of funds, you have others drawing on minimum funds and yet you now legislate that they must pay the same thing. I think it runs against common sense, it is contrary to reason as far as I am concerned and I think that is why they call it a minimum wage.

What I am saying in effect is that there is need to urgently amend the constitution.

If you can effect three alteration in the constitution in a space of about six months we can as well go and now pick some of these areas that needs legislation and all the National Assembly and the state Houses of Assembly have to do is to remove from the exclusive list the matter relating to minimum wage and that will automatically take the wind off the sail of the National Assembly minimum wage Act because you will now allow the state to legislate for their own employees.

Why can’t federal government that takes about 52 percent of our revenue legislate only in respect of workers that are working with the federal public service and allow the states to legislate for workers within the states for public service and then allow private or commercial concerns to legislate with their workers?

Why can’t the local government that takes some little amount of money also legislate on its own? And why should you force all states to pay the same minimum wage across the board for its workers? I think it’s being unrealistic and that is why we have this problem.

I think there should be a freedom to negotiate between the employer and the employees; I think that is the best attitude to it. In other countries, what is done is that when you go in there, you go and log in, if you work for an hour you get paid for one hour, if you work for two hours you get paid for two hours, but in this country whether you work or not you earn what they call the minimum wage and it affects our productivity.

It also turns the entire government offices into a less effective and none result oriented enterprises.

These are areas that I think we should look at and I think there is need for us now as a matter of policy to look again at our federal system the way we run it and the way it is provided for in the constitution to allow for a lot of independence on the part of the states to be able to control their own affairs, to be able to generate their revenue, to be able to deal with agriculture, to be able to deal with exploration, to be able to deal with energy, to be able to generate electricity, to be able to have their own security apparatus, for them to have police of their own that will effectively tackle all these menace of robbery, of violence, of terrorism, of murder, of corruption and the rest of it.

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