Former President of the Nigerian Bar Association, Dr Olisa Agbakoba, SAN, in an interview with newsmen in his Lagos office, blamed insecurity and lack of development in Nigeria on the flawed 1999 Constitution, which he said lacked legitimacy and validity. He disclosed that changing or replacing the constitution is not as difficult as people think, if the National Assembly understands and is committed to its functions. MUYIWA ADEYEMI was there.
What are your concerns about development in Nigeria?
One of the major problems facing the country is the inability of Nigerians to discuss how they wanted to live together. In Nigeria, do we want to be one? It is a terrible assumption that different ethnic groups in Nigeria wanted to be one. I was in Croatia recently, it is one of the big six countries that formed Yugoslavia, but today Macedonia, Slovenia, Slovakia are doing very well, and so also Croatia. It is not sacrosanct that we must be one country. If we really wanted to be one country, there wouldn’t be all these killings in Jos, Benue, Nassarawa, Abuja and all over the country.
That is why in looking at President Tinubu’s governance programme, I will remind him of a Structural Engineer, who said, he can’t build a 10-storey building on a weak structure. So, Tinubu can’t build new Nigeria on a weak structure because the governance structure is very weak.
First, any nation not at peace cannot develop. And I always love to use the analogy of a marriage. If you and your wife are always fighting, you cannot have peace and you cannot think of development. If somebody is blowing somebody’s head in Abuja and crises everywhere you go, you cannot grow.
We can learn from history, Europe went through this process, when the Catholics lost out in Europe and the Protestants came on, there were crises everywhere and almost eighty years of war, until one man came up and said why are we fighting, his name was Macmillan. He sat down and created a conference that brought peace. So, the first thing to do in Nigeria is to organise peace, because without peace and security, you can’t have good governance.
To continue to do the same thing with the same result, is a mistake. We can’t resolve our problem with a military solution. If we continue on this path to deploy the military and deploy resources, I don’t know how much has been spent by the military to acquire arms and armaments, you won’t achieve anything. The simple reason is that you don’t use a military solution to resolve irregular warfare.
When I was a student, I did counter-insurgencies and read all about Segovera and Mauston. Mauston won because he fought an irregular war against Mainland China. The Americans did all they could to bomb Cambodia and Vietnam, but they lost. The world’s most powerful army was beaten by a ragtag Vietnamese army. Why? Vietnam fought an irregular war. So, to fight with the military using the conventional method of irregular war, where do you find other IPOB and Boko Haram people? So, the military option will not give Nigeria peace. We must find a way to resolve our crisis.
Before 1914, who were the owners of Nigeria? When they organise national conferences, they invite lawyers, but we have no ethnic stake. Why not invite owners of Nigeria like the Benin Kingdom, this kingdom, in the Guinness Book of Records, has the largest man-made wall in the world. The wall they built was bigger than the Chinese wall, but people don’t know this. That is an extremely old empire, and the man who sits on that throne, the Oba, controls a humongous amount of political power. So also, the Obas, Emirs and the Obi, yet you excluded them from the process of development. It’s a huge error. There is a need to bring them in. Bring in Ohanaeze, PANDEF, and Afenifere; these are the people that would shape Nigeria and give us political peace and development.
What is the kind of new constitution you are envisaging?
The problem of the constitution is not even the content, it is the lack of acceptance and legitimacy. If you allow people to speak and own something, you will be shocked that they may arrive at the same answer or even adopt the same constitution. I heard the likes of Afenifere and PANDEF say this is not our documents. The issue is that if there’s a new constitution, it may not be different. It might be.
But the main problem is that the constitution lacks legitimacy, it lacks validity and it was imposed on the people. So, owners of Nigeria want to be at the forefront of that discussion and whatever they arrive at they can say this is our document. There may be variation but the variation may be to adopt the 1963 Constitution but if you look at that constitution, and the current constitution and fiscal federalism, you will be shocked that they are exactly the same, there’s no difference. The federal government controls most of the money but why is it that the 1963 was accepted? It’s because they see it as their constitution. Why this (1999) is not accepted is because it is not a people’s constitution.
So, the problem is the process not the content. If I am to add what will be in the content, I would suggest there’s a need to devolve to have a loose federation. The centre is too powerful. Allow the states to be economic drivers. That I think should be the small differences. If they accept what I said, then we would see constitutional replacement and devolution of powers under President Tinubu.
How will you advise the National Assembly on constitution review or replacement?
From my research, I have found Prof. Ben Nwabueze’s theory very interesting. He said the National Assembly (NASS) may not be aware of the nature of their powers. The first is that NASS is the sitting house assembly of the federal government. Second is that NASS is the sitting house assembly of the FCT and thirdly NASS is the sitting house of assembly of the Federal Republic of Nigeria, it is a power they have never used. Nwabueze suggested they can use that to just establish a new constitution. All they need to do is to consult people.
The constitution is not as sacrosanct as it sounds, because it is an act that attaches the schedule, just delete the schedule, that is, the current constitution and add the new one. From all the discussions, write up something that is agreeable, send it around Nigeria, once it is accepted, you go to the NASS, invoke the powers of section 4 (1) and exchange it. This happened when the Republican Constitution was established in 1963. The parliament removed by deletion – the Independence Constitution and put the Republican Constitution in exactly one day.
Our NASS has spent 23 years to change some sections of the constitution with so much spent on it. If you don’t have a strong political foundation you can’t go anywhere. We don’t have security, our political foundation is weak, and our constitution foundation is also weak.
Recall that both Rotimi Amaechi and Babatunde Raji Fashola ran around Nigeria to resolve railway and road problems, did they resolve the problem, just two persons? What about the structures? Governance entails understanding the structure of government, a minister is not an implementer; he creates policy. All the running by Amaechi and Fashola was unnecessary because there are institutions set by the Constitution to deliver and implement what the executive does and that is why we call them the fourth branch of government. They are the one doing the lifting of the heavy load of government. All the renewed hope agenda of the President will fail if ministers execute it. It ought to be executed by the administrative states, what we normally refer to as the MDAs, they are the ones that are responsible for carrying out policies of government. Now, the ministers continue to usurp the powers of the administrative states, the likelihood of Nigeria developing will be zero.
What will you say about the judiciary as one of the structures for development?
Look at what happened during the 2023 elections, the judiciary in my 45 years of my legal profession, is never as low as this. Even the Supreme Court, Justice Okoro castigated the Appeal Court judgment when they removed all the lawmakers in Plateau State. We can’t grow if we have a weak judiciary, therefore, the only way to grow is to break up this mafia in the Supreme Court. It is like saying no woman should be entitled to political office in Nigeria that is what they have done to us, no lawyer is entitled to become a Justice of the Supreme Court. They created a mafia to block us out, only them and ancestor’s relationship, they can be their best.
I advised NASS to distinguish between the administration of justice, that is when judges write and judicial administration. In judicial administration, the NASS can intervene. There are laws; there’s the Federal High Court Act. The only thing the constitution says is that you must be 15 years old to become a Supreme Court Justice, nothing else. We need a law, a Supreme Court appointment Act, or whatever to regulate the appointment of and composition of the courts. In the case of some of the courts, it specifies that some learned in Sharia law and customary law must be part of it. So, why should somebody who is from the Bar not be considered in the composition? To keep excluding the Bar and the academics will result in a weak judicature. So, if you want to build a country, you look at every step.
What will you say about the economic policies of President Tinubu?
Here is the area where I think the government should have an absolute rethink. I think some of the economic decisions President Tinubu took were painful and correct. What needs to happen is major legislation, major executive action to support the hardship people are facing now.
The removal of fuel subsidy was the right thing because it’s a corrupt process but where is the money? Can the money go into funding institutional palliative rather than personal palliatives?
Institutional palliative measures are more transparent and they have better coverage. People will feel it more. For instance; if you say all Nigerians under the age of 12 should not pay school fees, immediately you find the impact.
Tinubu got off with a good start, and the most difficult time for the pilot is going up but remember that a pilot can always radio air traffic control that he wants to make a return. So, we are at a point where we can’t say we cannot reach cruising height. But an air return is a possibility unless all what I have said is given due attention because they are very vital components of how Nigeria can reach cruising height, otherwise the Captain may be looking for the next airport to return to and land.
