* Believes legislators need guidance
*Says zoning is constitutional

By Jide Ajani, Deputy Editor, & Anthonia Onwuka

For Olisa Agbakoba, law is not about making money any more.It is about improving the society.
Well, he can afford it.
In a society where the fog of poverty, need (and even want) have conspired to make those with sight appear blind, it should be consoling that some members of the public would continue to demonstrate a commitment to the Nigerian project in whatever capacity they can.
Therefore, when Agbakoba engaged in the legal voyage of clarifying whether the National Assembly can amend the 1999 Constitution of the Federal Republic of Nigeria without the assent of the President and Commander-in-Chief, the naysayer immediately read mischievous political motives into the action. But just on Monday, November 8, the Federal High Court vindicated Agbakoba by delivering a judgment which categorically states that the President is a part of the amendment process.
That was why Sunday Vanguard went after him because we were also part of the story when he proceeded to the law courts earlier in the year.
In this interview, Agbakoba explains why he went to court and the goodness in the judgment he got.
But beyond that, Agbakoba expressed angst against a system whereby the Minister of Justice and Attorney-General of the Federation would “file a preliminary objection that the matter ought not to be in court and that, also, he was not an interested party. But I was happy that the judge said “‘NO!  Attorney- General of the Federation, you are an interested party; you should have even brought the matter to court’”.
For Agbakoba, whose CV reads like a chapter from a book, it is very consoling that all is not lost in Nigeria.
Agbakoba told Sunday Vanguard that it was the way Ike Ekweremadu, Deputy Senate President threw it in the face of Nigerians that whoever was not satisfied with the National Assembly’s position that the President did not have to give his assent before the amendment is carried should go to court that made him take his action.
Excerpts:

Based on the judgment you got from the High Court regarding the matter of whether the President and Commander-in-Chief should assent to a bill before it becomes law, can we have a sense of what has been achieved?

First, I am happy I won.

But, let me say that as a concerned Nigerian, I was somehow taken aback when I discovered that the National Assembly allowed itself to fall into a simple error of not following simple parliamentary proceedings which is about making laws for the good governance of this country.  And, when you have the Deputy Senate President, Ike Ekweremadu, telling Nigerians that anybody who doesn’t like what they have done should go to court that was what spurred me into action.  At that point, I said this is the height.
Just a day before, Professor Ben Nwabueze had spoken on the matter and what he said formed the basis of my brief.
Prof. Nwabueze told a simple story about how every country has its culture, norms, precedents and that in the amendment of the Nigerian constitution, you couldn’t look to the American Constitution even though we are both practising the Presidential system and, therefore, the starting point of his argument was that, does the National Assembly have the powers to amend the Constitution of the Federal Republic of Nigeria?  Yes, it has! But, was the National Assembly right in saying that the amendment does not need the assent of the President?  What they said is that the amendment process had been concluded without a presidential assent.
He then referred to Section 12 of the Constitution to show the intent of the drafters of the Constitution.  Section 12 deals with the President submitting international treaties to the National Assembly and that make it participatory so that it can become Nigerian law.
That is the only time that a presidential assent is not required in that sense but even that one is very clear because the President has assented.  So, assents are required on both sides.  It is so clear.
Then there is Section 9 (2), and Section 68 (5), makes it very clear that amending the Constitution is not so special.

* Olisa Agbakoba

Would you then say that the National Assembly was misled?
Yes! I think the National Assembly was misled by what Prof. Nwabueze called the entrenchment process.
What does that mean?

All constitutions have entrenchment processes, meaning that you entrench provisions of the constitution so that it would not be easy to amend.
Can we have examples, please?

For instance, the Land Use Act is entrenched. The creation of states is entrenched and the entrenchment is a procedure whereby you can amend, going round the 36 states and all that.  That does not, therefore, make the procedure to pass a bill different and I think that was what made Senator Ayogu Eze said that if the President’s assent is required, why then is there no need for the assent of the 36 state houses of assembly?
But he missed the point.  The real reason why it goes round is just so it is difficult to amend.  The constitution is not lightly amended.

Constitutions have been amended all over the world, can we just look at some?
The American Constitution has not had more than 50; the Indian Constitution has had, I think, about 70; the Brazilian Constitution, I think, about 80.

A constitution is a sacred document and, so, you lock in the provisions and say you can amend easily unless you do the following and having done the following – you propose the amendment, it is supported by two-third majority and then it does same in the 36 states and it comes back and it is passed by the National Assembly, the President has to assent.

You expressed the concern while the case was on that you expected the executive or the Presidency to go to court to clarify the matter?
Yes!

But, at that time, too, some people insinuated that may be it was part of a grand design to cause the date of the election to be shifted because the INEC Chairman, Prof. Attahiru Jega, was quoted as saying the litigation created an air of palpable uncertainty.  In short, the allegation was that you were working hands in glove with the same executive…

(Cuts in)  No.  That I am doing the bidding of….

I’m coming.  The Minister of Justice and Attorney-General of the Federation opposed you in court on the matter.

Yes!  He filed a preliminary objection that the matter ought not to be in court and that also he was not an interested party.  But, I was happy that the judge said “‘NO!  Attorney-General of the Federation, you are an interested party; you should have even brought the matter to court’”.

The reason why that allegation gained fervency then was because some people took a long, hard look at the way things were going and suspected that by the time the legal processes are exhausted, it might affect the elections of next year. So, now, what effect do you see this judgment having on the polity?
Nothing except that we should be governed by the rule of law. That’s all.

The rules must be followed.  The President is entitled to participate in the legislative process and to exclude him, in my view, is wrong. And, to have a challenge thrown just like that by Ike Ekweremadu, it was wrong and it wasn’t going to be tolerated.  I was incensed by that casual statement: ‘If you don’t like it, then go to court’.
He wasn’t talking to me directly but to Nigerians.  I mean, come on.  It’s a democracy.  Even President Obama accepted that he may have done badly and he would try to improve, but here in Nigeria, we have politicians who think they can’t do any wrong.  And, I know where a lot of these guys are coming from.  I’ve known Ekweremadu for a long time, when he was Chief of Staff to Governor Chimaroke Nnamani.  We should have more and more people in the process.  Look at what Pastor Bakare did with the Save Nigeria Group.  If they had not done what they did during the Yar’Adua crises who would have been able to predict what would have happened?  Society would always have people who feel called upon and I’m happy we’ve moved from that narrow confine when we were called meddlesome interlopers.  Thank God we’re not.

You did not address the earlier matter adequately and that was, why would the Attorney-General oppose the case you brought to court on behalf of his principal as a concerned Nigerian?
I’m confused because I later learnt that in the case filed by Bamidele Aturu on the same point, the Attorney-General is supporting him; after your own.  In fact, I got their brief, the Attorney-General wrote a brief, supporting the position of the President on assent. What I see, without knowing much, is that there are some internal power struggle.

Quite honestly, I’m unable to see why the leader of the Peoples’ Democratic Party, PDP, cannot summon his people and say ‘I must sign,’ at least in their caucus, call them and make them understand and see reason why he, as President, must sign.  Is it that the President could not have summoned David Mark and Dimeji Bankole and I ask ‘what is going on here’?

So, what I see is a schism in PDP, a big crack and that’s why you find the debate about zoning funny.

What I’m saying in essence is that I’m not sure that we know all that we ought to know going on in Abuja because you are quite right because I had thought that the Attorney-General should be the one leading the crusade in that matter at the highest level so there would even be no matter of appeal but rather, he opposed my case and the judge rebuked him, that ‘Attorney-General, you are the one who is supposed to be the plaintiff and you’re saying that you don’t want to be in the case’ and I’m happy that he did that.
In fact, it came as a shock when that happened.

Yes, and that is why you wonder why some people do certain things and others do not. But I have no regrets and I am happy and I hope the effort, humble as it is, is being noted.  We did not just start.  We did something before at Yaba.  Then , we didn’t see why Sani Abacha should be the presidential candidate of five different political parties and we opposed it because we felt somebody must say something and I am happy that such contributions from us on that day, March 17, 1998, began the demystification of Abacha.  Some people must be called upon.  Why was Martin Luther King called upon?  Why did Gani Fawehinmi did all that he did?

These are the reasons why some people are not concerned but for someone like me, I am concerned.
Look, there is a case in Enugu Federal High Court.  I feel that the South East is discriminated against and I felt we should take it to a different level, let’s go to court and ask the court to help us interpret, given the schedule of the acts of discrimination that I have alleged, am I right to say that the Federal Republic of Nigeria should do more than it is doing for the South-East.  I am waiting to also see the National Assembly pass that electoral act that gives them the right to remain there forever.  I’ll be in court.

You are a citizen of this country and you’ve seen people get elected to public office in trust but they get there and begin to make laws for selfish intents, yet, everybody comes out to complain that Nigeria is not where it is supposed to be.

We are on the floor.  It is very clear to everybody that the country is not working because people in Abuja feel invincible.

But the people in Abuja believe the country is making wonderful progress
They can think and feel so.  That is putting their heads in the sand like the proverbial ostrich.  But Nigeria is not working and anybody with his head on his neck would know this. Medical services don’t work.  Schools don’t work.  There is unemployment. The infrastructure is grounded, so what is working?  Our oil is half stolen by foreigners and we cannot even say how much oil we produce on a daily basis:  we have no idea and yet you say we have political leadership, we don’t.

You talked about a crack in PDP but Nigerians have always seen cracks in that party but somehow after overheating the polity, the members paper over their differences and they move on.  Is it that the opposition elements can not build on that?

There is no opposition in the history of Nigeria apart from Chief Obafemi Awolowo.  Apart from him we’ve never had any other.

But we have people in some political parties – ACN, ANPP, APGA, CPC – trying to wrest power from the PDP.

Those ones are not opposition.
They are political parties jostling for power.  But in terms of an effective opposition that would be like a government in waiting to reform and change things, these ones are not it.
ACN is not an opposition, Labour Party, LP, is not an opposition party, otherwise why is LP and ACN opposing one another and going into the same contest for offices?

I would have thought that the nucleus of an opposition would have been ANPP, ACN, LP, APGA but I don’t see that.  We just have parties struggling for power at all levels. We form parties because of the fault lines we have – the ethnic, linguistic and religious faultiness we have. Because of that, such political parties can survive at the state levels.  ANPP is one of such; APGA is another; and ACN is another.
But the only party that can play the game at national level, as far as I can tell, is PDP but PDP, because of that same reason, suffers from an internal contradiction of who would be president.

So, within PDP, there are opposition parties and it is those opposition parties that still allow us to wonder why we still have this contradictions.

Because if PDP was flowing and it does so many of those things it ought to be doing rightly, then it would hold firmly together.

There are merger talks going on amongst these parties we mentioned.
It won’t work.

But they are still holding talks?
It won’t work. Take it from me. It won’t work.  They’ve always done that since 1979 and the only time there was real opposition was by Chief Obafemi Awolowo. Look, who has left office to go to the opposition or who has resigned or opted out of office to go to the opposition like Chief Awolowo.

I know of those who were pushed out.

That is different, because those ones wanted to stay but they were forced out, but I am talking about those who would say, ‘I am moving on on my own,’ it was Awolowo.

All what we see here is about contest for political and personal power.  The parties don’t exist; they only serve as platform to seek the kingdom of political power.

In the event that they merge…
They won’t merge.

In the event that they enter an alliance, what are those things you would expect to see from them?
What I would expect to see is that they should collapse into one party and if they don’t do that then they are not serious.  You cannot say you are ACN and be contesting for office against another party in the merger at another level.

Look at Edo State, the man is labour yet he is in ACN.  Look at the contradictions.
I asked the question at the NBA meeting in Kaduna when everybody was blaming INEC. I said blame the political parties – Mimiko was there, Gbajabiamila was there and the governor of Akwa Ibom was also there and they were all blaming INEC and I said INEC is not the problem but the politicians we have in Nigeria because you guys can’t come together.  Today you hear Mimiko is in Labour and tomorrow he is in PDP.  Most of the people in these parties we talk about are there because they have been pushed out and not because of any principle.

So, after all these, what should then be the next step?
The next step should now be that they should compete for political power by creating the necessary electoral support and Nigeria is so easy because Nigeria is there for the taking because Nigeria is not doing well and PDP is not doing well and because no one has seen the point about mobilising the opposition for that purpose.  There are some people who can do so; for instance, Orji Uzor Kalu, he can do that but he is more interested in running for the presidency of this country; Bola Tinubu can also do it and there are some really strong people who can do it and say, ‘I am done with partisan politics but I want to build a good culture.’ But they are not doing that.
Rather, what they are doing is how can they place governors and senators in office; that is the agenda that they are interested in. If we have these political parties merge and the only purpose is to contest for the presidency, then they are not serious. Democracy is not necessarily about power but about building a culture as it has happened in the USA and the UK.

But you stand accused of not being any part of all you have suggested.

Who!

You, Olisa Agbakoba!
I’m not interested in politics  (laughter).  I’m entitled to my choice of what I want to do.  I’m not interested in the politics I see people play here.  I don’t see myself as a politician and even when I ran for the NBA, I did not see myself as a politician in that garb. To me, it is not a natural calling. So, if I get involved, I might make an ass of myself but that does not mean that I cannot.

But in 1998, Thabo Mbeki reportedly attempted to rally the human rights community in Nigeria to participate in that transition programme but it didn’t achieve the desired objective. Would you agree that if it had worked things might have been a bit different?

Oh yes!  1998 was a watershed in Nigerian history because the space was absolutely open.  What we did wrong – and I don’t think that my human rights community people would agree – was that we did not seize the moment in not seeing the need between pro-democracy and politics and I still think that was a very big blunder.  Mbeki wanted us to see him in Abuja, we refused and ended up seeing him in Lagos and he said ‘take this chance-o’ , we refused.

So, the space that was opened closed when this type of politicians came in and when we all cried – Gani, Falana and myself and some others down the line – the walls had gone up and the obstacles had become impossible to surmount.

There is this problem of zoning in PDP and in Nigeria.
Zoning is constitutional.  It’s in the constitution.  Section 14.  We have a way to twist noble concepts in this country and we make them trivial.  As a democracy scholar of some standing and having studied different political systems, the issue is about adaptability.  Dr. Ekwueme recognised this when he proposed the six geo-political zones, but back in 1959, while I was conducting a research, I found out that one of the most thoughtful politicians Nigeria has ever produced is Chief Obafemi Awolowo.  Awolowo saw this and spoke to Sardauna and Azikiwe that we want independence but why not delay it a little while and deal with the problems of the minority but the other two refused and part of what he proposed was that as Nigeria got her independence we would deal with that problem and part of what he proposed was Section 27 of the Constitution of 1960 to safe- guard the interest of the minorities and to allow every Nigerian access to the courts on grounds of discrimination and it is Section 42 in the present constitution and which is what I’m in court for in my Enugu case.  But what was recognised by all at that time was that Nigeria had three major fault lines and which are religion, language and ethnic and we had to find a way of managing the divided society and federalism provides that platform. Zoning, or whatever you want to call it – federal character – becomes the legal tool by which we all feel included.
PDP then trivialised it when they tried to equate their own internal power arrangement with what is in the constitution. That is their own personal internal issue and they can say we want to rotate power in the following way.

But even that shows you that the reason for that is inclusion too, just as NBA has its own policy.
If you ask me, I think the reason why this zoning thing has become vexed is because these PDP people did not sit down to discuss it in principle.  We know that we agree to power rotation in principle but this is not immutable; it can change.  All they should have done is to find accommodation for an incumbent President and still insist on zoning.  What they should have done is to call all the players and have a talk and agree on changing the equation and that would have solved the problem.

Those crying wolf from the North insist that they were not properly engaged.  Would you agree with that?
Yes. I don’t know whether I would say the North was not properly engaged or vice versa but I would say  PDP did not properly engage the issue.  The PDP hierarchy should have engaged the issue in a more robust way so that while the issue of zoning is maintained, that aspect of an incumbent President should have been adequately taken care of in terms of sequence and accepted or not accepted but the issue of saying ‘Jonathan, you can run, but there is zoning’ is just talking from both sides of the mouth but PDP should have been frank. Jonathan cannot be wished away but it would have been about changing the sequence so that Jonathan himself would have been bound by that decision. Look, they didn’t write PRESIDENCY on his head and that matter was not well managed.