Prof. Awa Uma Kalu, SAN, is a renowned advocate, prolific writer and law teacher. For over two decades, he has made profound contributions to legal education and scholarship through long years of teaching, law book writing, quality paper presentation and publications. He is also Vanguard’s Law and Human Rights columnist. In this interview, he shares his thoughts on many national issues. Excerpts:
By Innocent Anaba & Henry Ojelu
Some State Houses of Assembly have unsuccessfully tried to pass laws giving themselves life pension. What is your position on this?
My position will be informed by the general attitude of the laws relating to pensions, gratuities and severance packages.
For example, in the public service, in order to earn a pension, you must have worked for 36 years or reached the age of 60 years in the case of civil servants. For judicial officers, you must retire at 65, if you are at the High Court bench and 70, if you are in the Court of Appeal or Supreme Court.
There are subtleties to this position in relation to pension calculations. But it is sufficient to say that objectionable exceptions have been made to the legislative and executive office holders to the extent that, if you are lucky to serve as a Governor for four years or eight years as the case may be, your state becomes encumbered with the burden of “carrying you” for life. By way of elaboration, you will find that in some states, an ex-governor is entitled to a house built with state funds, in the state capital as well as in the Federal Capital Territory, Abuja. His cars will be replaced every four years and an appropriation is made for his health and so on and so forth.
The law must be forward- looking and if so, any state for instance that elects a governor every four years and then has 10 ex-governors at a stage, that state’s budget will definitely be crushed in an attempt to make provision for the welfare of such ex- governors. If you relate that to State Houses of Assembly, the outcome will be staggering.
Let us imagine a situation where the constitutional minimum for 24 legislators at the state level all lose their elections, that will give you 24 persons on automatic life pension, whether or not they have reached pensionable age. It is my belief that this is unsupportable.
Recently the Nigeria Financial Intelligence Unit, NFIU, issued a guideline to regulate disbursement of LGA funds. Do you foresee a constitutional crisis on the issue, given the provisions of section 6 and 162 of the Constitution?
Well, I think that the Supreme Court at least, 13 years ago, settled this constitutional issue and I believe without fear of contradiction, that the Constitution, as well as the Supreme Court agree that the state governments have absolute control of the affairs of local governments. It has to be stated that without an amendment to the Constitution, all the attempts by the Federal Government and its agencies to take control of local governments will continue to generate more heat than light.
Judicial officers and senior members of the Bar are increasingly facing trial over allegations of fraud. What does this portend for the judiciary and what impression does this create in the mind of the common man?
The cardinal interest of the Federal Government has been to wage war against corruption and I must say that every right thinking Nigerian is in support of the attempt to eradicate corruption to a tolerable level. Notwithstanding the unflinching support which we all give to that fight against corruption, I must state that isolating senior members of the bar as well as senior members of the judicial branch, may in the end be counter-productive. Democracy cannot thrive without the judiciary. Democracy can also not thrive if the common man loses confidence in that arm of government. Accordingly, my recommendation is that once a judicial officer is fingered, the anti-corruption agencies must make sure that the cocked gun does not backfire.
What do you think President Buhari should do differently in his second term in terms of obeying court orders and adhering to rule of law?
I believe that by the time this interview is in the public domain, President Buhari would have started his second term.
My recommendation to him, in terms of obeying court orders and adhering to the rule of law is to ensure that the executive branch does not render itself superior to the court whose jurisdiction it has accepted.
The Constitution is very clear in terms of its prescription about what should be done about decisions of courts as well as the enforcement of court orders.
I need to add that judicial reforms will come from the internal energy of the judicial system itself as well as other stakeholders.
As is well known, there are non-governmental agencies that have been active in the pursuit of the sustenance of the speed and solemnity which accompanied the obedience of the orders made by the Federal Government can be transferred to others. Inevitably, obedience to court orders will prove salutary in getting the citizenry to become more law- abiding. The benefits of following the law can never be over emphasized.
Capital punishment remains a major part of our justice system yet, many state governors refuse to sign death warrants for condemned prisoners. Do you think the provision for death sentence should be reviewed?
It is not open to any governor to refuse to sign death warrants for condemned criminals. If a person can be jailed for life or for any term of years or made to forfeit properties and the governor shows no qualms, then it will amount to picking and choosing which aspect of his responsibilities he would be prepared to carry out.
The Governor by virtue of constitutional provisions can exercise his prerogative of mercy and commute a death sentence for instance. Incontrovertibly therefore, a person who is condemned to death but does not show grounds on which the Governor may show clemency leaves no choice to the Governor to refuse to sign the death warrant.
The moral choice is not allowed by the constitution.
FG recently announced the launch of a Radio station as part of efforts to solve the Fulani herdsmen crisis. What is your reaction to this?
Many Nigerians have already voiced their concerns about this development and it is my belief that the vast majority of Nigerians who have spoken require additional clarification on this development. I will await such
The FG is working with some state governments to build more prisons across the country. In your opinion, is this the solution to prison congestion?
I have never understood the policy by which states cannot build prisons. In our criminal jurisprudence, there are state offences as well as federal offences but you find that whatever the nature of the offence you have committed, that sentence is served in prisons owned and run by the Federal Government.
It is a strange way of practising federalism. Prison congestion is something that is of concern to all lawyers as well as other stakeholders in the administration of criminal justice. To put it mildly, anything that may or will be done to decongest our prisons is welcome in my humble opinion.
Delay in cases in courts has persisted despite new innovations and rules introduced by different heads of courts to address the issue. Why is it so and what in your view should be done to reduce the time it takes for cases to be concluded in our courts?
The criminal law and its administration is always a reflection of the condition of a given society. When you have fundamental defects in the judicial
administration of justice, congestion becomes inevitable.
For instance, there are states in which Magistrates share one court. Someone sits at 9:00am, the next person comes say at about 11:00 am or 12:00noon. Another person comes at 3:00 pm and so on and so forth.
The consequences become immediate. So you must provide infrastructure as well as facilities for the due and smooth administration of justice. Rules of Court whether in the administration of civil or criminal justice must remain simple, straight forward and easy to understand. Complications in rules as well as in their understanding do not make things easy. Finally on that point, the determination of cases through the Court will always remain a challenge unless Nigerians begin to embrace alternative dispute resolution channels.
Some Nigerians are of the view that election petitions should be concluded before the swearing in of eventual winners. What is your reaction to this?
I do not see any difficulty in appreciating that a level- playing field is what is needed in the management of elections as well as its fallout. A system which permits a contestant to occupy the “house of power” while his opponent is knocking at the gate is an unjust one. Let both contestants remain outside the house until the key to the gate is delivered at the Tribunal or after an appeal as the case may be.
What is your take on calls for restructuring?
I also verily believe that the calls for restructuring have unquestionable merit. A critical analysis of our constitution as well as our geopolitical structure, the economy and other things hinged on our peculiar structure at the moment, makes it inevitable, that sooner or later restructuring will happen.