INTERVIEW
Professor Ben Nwabueze, one of the 13 distinguished lawyers awarded the Senior Advocate of Nigeria (SAN) in 1978, is today not only one of the oldest SANs in the country; in fact, he is one of the two still alive. The other SAN is Chief Richard Akinjide, former Attorney General of Nigeria and minister of Justice. The 1978 list included the late Premier of the defunct Western Region, Chief Obafemi Awolowo. In this interview with Ikechukwu Amaechi, the legal luminary who has retired from active legal practice, though people still bring complicated cases to him. Prof Nwabueze insists that the Supreme Court justices are overworked and overwhelmed; that is the possible reason they ascribed “quasi-criminal jurisdiction” power, which means nothing, to Code of Conduct Tribunal (CCT) to try Senate President Bukola Saraki, while insisting that President Muhammadu Buhari must dialogue with those agitating for Biafra secession. Excerpts:
You don’t seem to agree with the recent Supreme Court judgement that the Code of Conduct Tribunal (CCT) has the constitutional power to try Senate President Bukola Saraki, for a criminal offence…
Yes, I don’t agree. In my article, “Matters arising from the judgment of the Supreme Court,” I set out very clearly the reason why I think so. The Supreme Court based its ruling on what it called the quasi-criminal jurisdiction, whatever that means. I don’t know what quasi-criminal jurisdiction means. But whatever it means, they tried to derive it from the Constitution as well as from the Code of Conduct Bureau and Tribunal Act. Now, can you really derive that quasi-criminal jurisdiction from the constitution? The answer is no. Nowhere can you derive such from the constitution because it is so clear that the constitution in Section 36, Subsection 12, says nobody should be tried or convicted for any criminal offence unless that offence is defined and penalty therefore prescribed in a written law. And it goes on to say that in this subsection, written law means an Act of the National Assembly, a law of the State House of Assembly, a subsidiary legislation or instrument. That makes it very clear that the constitution is not one of the written laws. It is in accordance with the universally accepted notion of the functions or purpose of the constitution. There is nowhere in the world that the constitution creates criminal offence. I happen to have looked at every constitution in the world, not for this purpose, I mean generally, and I have never come across such provision. It is in accordance with that that we have this provision in our constitution that the written law within the meaning of this subsection means an Act of the National Assembly, the law of the State House of Assembly, or subsidiary legislation or instrument. So that rules out the constitution. You can’t derive criminal jurisdiction, call it quasi or whatever, from the constitution. The constitution does not confer such a jurisdiction and how can our Supreme Court in its ruling say that quasi-criminal jurisdiction derives from the constitution? How can that be? It is inconsistent with Section 36 Subsection 12.
That is one. The other reason which is equally fundamental is section 6 of the Constitution and subsection 1 vests judicial power in the courts, the judiciary. And that is why I said our constitutional democracy may be in jeopardy as a result of the judgment of the Supreme Court. The constitutional system vests legislative power in the National Assembly and Section 4 vests executive power in the President. This is the framework of our constitutional system and it is that framework that this judgment undermines. Now, Section 6 vests judicial power in the judiciary and in subsection 5, it names the courts in which the judicial power resides. There are nine of them, listed by name and the CCT is not there assuming it to be a court at all, but it is not one of them. And what is the significance of vesting judicial power in the nine courts named in the constitution. What is the implication? What are the incidents of judicial power? The High Court of Australia, the highest court in that country, speaking through Chief Justice Griffith in a renowned decision said that the trial, conviction and punishment of persons for a criminal offence appertains exclusively to judicial power and that it is only the courts in whom judicial power is vested that can try, convict or punish anybody in a criminal case. It is so clear. And our own Supreme Court has applied that principle in Sofekun versus Akinyemi during the time of the best justices we have had in this country led by Justice Fatai Williams who was then the Chief Justice of Nigeria in which they ruled that whenever any citizen of this country is accused of a criminal offence, he must be tried by court of law and that no tribunal, no panel, nothing else can do it. And that to allow that is to allow judicial power to be usurped.
Would you then say that the justices of the Supreme Court are not aware of these pronouncements or they merely gave political judgment?
It is possible they are not aware. I have some sympathy for these justices. I think they are overworked and overwhelmed. I was thinking about this some time ago. You know I have retired from legal practice but occasionally, people still bring complicated cases to me and I see the records of Appeal to the Supreme Court – two volumes, not to talk about other papers not included in the records. Each of the volumes runs into well over 900 pages and if a Justice of the Supreme Court wants to be thorough, he is supposed to wade through the nearly 2,000 pages-plus other papers in the appeal, and this is just one appeal. This is humanly impossible within the time available to them. So, you find out that sometimes they give judgments, what we call among others, per incuriam. Judgment given per incuriam is judgment given in ignorance or forgetfulness of either relevant provisions of the constitution or statute or previous decisions of the court. So, in more mature democracies, for instance in the U.S., each justice of the Supreme Court has attached to him what they call clerks. These are the people who do the research on an issue, who try to find out all the relevant decisions bearing on that case and analyse them and discuss it with the justice before he writes his judgment. We don’t have that here. Justices are left on their own and it is impossible for them to know of all the judgments, the decisions bearing on a particular issue. It is not surprising, therefore, that you find that a judgment is delivered without regards to relevant provisions of the constitution or statutes or previous decisions of the Supreme Court.
I have often suggested that we need attorneys to give such services to justices as it is done in other countries. Apart from that, I have suggested that there should be created within the Supreme Court a special Constitutional Law Division to be made up of judges who specialize in Constitutional law. This practice of a judge hearing a case on contract or land today and tomorrow he is hearing a case on maritime and yet on another day, he is called upon for adjudication on constitutional issue doesn’t make for specialization. Constitutional Law is a complicated matter in the sense that the kind of complex, intricate issues affecting society arise on a daily basis. Our constitution is based on so many concepts. To understand the issues means to read and read and read. It is not like mathematics. So, we are not being fair to our justices. We must remember that the Supreme Court is the court of last resort. After that you go nowhere else except the court of public opinion and public opinion in this country, you know, is almost non-existent. You journalists are doing your best but you are only part of that court of public opinion. The ordinary man and woman in the street is supposed to be part of that court, but they have no idea what is going on. They don’t care. They have no time. Their primary concern is how to feed themselves. In this country, it is becoming increasingly difficult for people to feed themselves. The increasing incidence of poverty is so much and ignorance of course. The level of illiteracy in this country is staggering. You won’t understand it until you come into contact with these artisans – the plumber, electrician, bricklayer, carpenter, etc. They are all semi-illiterate. Most of them are stark illiterate. This is what we have in this country. So, you can’t have public opinion or at best very little of it.
Senate President Bukola Saraki claims his trial is political, and that has given the impression held by some that the Supreme Court may have been blackmailed into giving the judgment they gave in order to be seen to be politically correct…
I will be reluctant to make a comment on that. It is a political issue as you said and I should not be the one making a judgment on that being a senior member of the legal profession. Today, Richard Akinjide and I are the oldest and most senior of the Senior Advocates of Nigeria (SANs). We belong to the first set of SANs awarded in 1978. There were 13 of us including Chief Obafemi Awolowo. Richard and I are the only surviving of the 13. I criticise the judgment on purely legal grounds which I am trying to explain to you. But for me to say that it is a political judgment will not be right.
What do you make of the ongoing war against corruption?
I am totally in support of the fight against corruption provided that the war is waged in accordance with the constitution. We must at all times apply and adhere to the constitutional limitations on power. You know, it is a question of do you want total war on corruption, disregarding constitutional limitations on power? That will be anarchy. I can tell you this. That the day you say to hell with the constitution and its limitations on power because of the war against corruption, then you are facing anarchy in this country because the constitution is the glue that holds all of us together whether you are Igbo, Yoruba or Hausa. That is what we have in common. And for anybody to come and say to hell with the constitution, because of the war against corruption, you are courting the end of this country as one. You are courting the dissolution of that glue. So, fight corruption by all means but please fight it within the framework of the constitutional limitations on power.
But some people will say that you have even called for a revolution in the fight against corruption. Which is more extreme?
I haven’t deviated at all from my call for a revolution in this country because I believe that corruption is only but one of the ills bedeviling this country. This country is rotten, thoroughly rotten. And I believe that the only way to effectively cleanse this country of the rottenness is a revolution. But are we ready for a revolution? I will support a revolution, not a fighting revolution. People always think that a revolution only means carrying arms. By revolution I mean social and ethical revolution led by a president who understands what it means, who is prepared to mobilize everybody’s support.
When you talk of a revolution, even social and ethical revolution, it means an end to the constitution, an end to constitutional democracy. Are we prepared for it? Is this country prepared for that?
If you are not prepared for a revolution, then it means we have to stick to the constitution. Fight corruption within the constitutional framework if you cannot really mobilize this country for a social and ethical revolution, which is the only effective answer to our problems. Is this administration with the incumbent president prepared for that? Is it what he is doing? There is no point pretending that you are still a constitutional democracy and fighting corruption when you are doing the contrary. If you want a social revolution, come out openly and you will have my support. Come out openly and say this country is too rotten, let us keep the constitution by the side because we have to try to end all this rottenness of which corruption is only one.
Is there any evil in this country bigger than corruption?
Oh yes. There are too many evils. There is total decay of the moral values. Moral values are gone in this country. We no longer have values. Kidnapping, armed robbery, racketeering of every kind, all these things are there. They are worse than corruption. Our number one problem is not corruption. I have said so in a number of my write-ups. The national question is there. This country cannot be a nation until that question is answered. That is why it is called a national question.
What is that question?
How can you coalesce the 369 ethnic nationalities into one nation? That is the national question. There are 369 ethnic nationalities in this country, research has been done on this and published in Volume 3 of my autobiography. How do you coalesce all the 369 ethnic nationalities brought together by colonialism into one nation? Nigeria is a state created by the coercive fiat of colonialism. A state is not a nation. They didn’t make us a nation. How do you create a nation? People talk about national unity, nation building, are we making any progress? We have the North/South divide that dichotomizes this country into North and South. The North/South divide which also includes the religious divide is a bigger, more fundamental issue than corruption. How are we fighting that? Are we really serious about that? Do we really understand, from the statements the President has made what the issues are? Does he really understand what the national question means?
Do you think that President Muhammadu Buhari’s government is fighting corruption?
I think he is. At least he is doing more than his predecessors. I will put it in comparative terms. Compared with the war against corruption under Presidents Goodluck Jonathan and Olusegun Obasanjo, he is way ahead. I think Buhari is more sincere, more serious about the war than these other people. Under the other presidents, the war was a façade, a make-belief. They were not fighting corruption and that was why corruption instead of going down blossomed. Under Jonathan and Obasanjo, the corruption graph was going up, not down. But I think Buhari is more sincere, more determined. He has constraints, no doubt, because of the issues of seriousness and sincerity. The question is, is he prepared to withstand these constraints? When you talk about limiting the war to the immediate-past administration of Jonathan, you are not showing sincerity. Jonathan’s is not the only corrupt administration. How can you justifiably say that you are fighting corruption when you are limiting it to just Jonathan’s administration and closing your eyes to the corruption under other administrations? But he is doing more than the others. Whether the war will succeed in eradicating corruption is the ultimate question. We must understand that corruption has become a way of life in Nigeria. It has eaten into the blood of every Nigerian, into the fabric of the Nigerian society. How can you eradicate it? You cannot eradicate it by sending one or two people to prison or by confiscating the assets of one or two people. How do you deal with the ordinary man who on a daily basis is committing corruption? Ninety percent of people in this country perpetrate corruption. You can’t get anything done in this country unless you are prepared to grease the palms of either public or private officials. And it has become, like I said, a way of life. You have to do this to get on. And that is where my call for social and ethical revolution comes in. How do you get this out of the mentality of the ordinary man and woman? You cannot except by social and ethical revolution. Does Buhari understand this? Is he prepared to lead such a revolution? Has he ever thought about it? And he thinks that it is by all these probes by the Economic and Financial Crimes Commission (EFCC)? And what is the EFCC by the way? One of the most corrupt institutions in this country.
Really? That seems rather too strong and many Nigerians may not agree with you on that
What happened to all the money EFCC claimed to have recovered through plea bargain? You said many people won’t agree with me? Why has Buhari sacked Ibrahim Lamorde, the former EFCC chairman? Have you looked at the report on the sale of assets of Tafa Balogun and Diepreye Alamieyeseigha forfeited to the Nigerian state? Have you looked at the report? What happened to the buildings? What happened to the money realized from the sale of these assets? There is a committee set up to investigate the sale of these assets under the former chairman of the EFCC, Nuhu Ribadu. The report is there and you say many people will not agree with me. Maybe, there is a new dispensation in the EFCC. Maybe! With the sack of the old people, Lamorde and Co, you need a thorough overhaul of EFCC, thorough overhaul. The law setting it up – the 2004 Act re-enacting an earlier 2002 Act needs to be overhauled. The EFCC has become an instrument of terror which undermines our constitutional system. I have tried to analyse this in some of the writings.
The new EFCC chairman, Magu, came down heavily on lawyers and judges the other day pointedly accusing them of frustrating the fight against corruption and in fact profiteering from corruption. Shouldn’t lawyers defend those alleged to be corrupt?
I don’t think his statement is in relation with defending those alleged to be corrupt. He should tell us the relationship between the EFCC and lawyers it engages to prosecute corrupt persons. That is where the corruption is. Not lawyers defending alleged corrupt people. No! They are briefed by accused persons and they charge their fees. Where the loot comes in is between EFCC and the lawyers it engages to prosecute accused persons. Go and investigate. So many EFCC lawyers are multi-millionaires. This is on record. There is evidence that those lawyers share the so-called fee with officials of EFCC. One of the most profitable areas of legal practice in Nigeria today is to be a lawyer to EFCC for prosecuting those accused of corruption. That is one of the most profitable. They have amassed so much money. So many things go on unnoticed by the public. They should tell us. It is more or less an exclusive thing to become lawyer of EFCC. They fight to get appointed as EFCC lawyer. If you get appointed as EFCC lawyer, then you are made.
Few months ago, when we came to interview you, you were of the opinion that despite the change mantra of the APC, Buhari may not be the messiah Nigeria needed. Nine months down the road, how would you assess his government? Have you changed your mind?
No! I haven’t. I said it at the beginning that Buhari does not have what it takes, he does not have the academic and intellectual credentials to rule Nigeria. No, he doesn’t. From School Certificate to the army. Does training in a military academy adequately equip anybody to govern this country, knowing what it takes, what it means to govern Nigeria? Can what you are taught in a military academy without a university background prepare you? No! Today, many of them go to the university before joining the army, but many in the Buhari generation, they went from School Certificate. Do you know what it means to govern this country? The complexity of the Nigerian society, the sheer intellectual complexity of the Nigerian constitution. How many Nigerians understand it? How many have read it? We don’t have a reading culture. Have you asked yourself that question? How many Nigerians, even among the politicians read the Nigerian constitution and how many of those who read understand? And Buhari is one of them. Does he read it? Does he understand it? Is he prepared if he understands at all to abide by its commands and directives? That is part of the problem. So, the shout of a change mantra does not bring change when those who govern do not understand the basic instrument, the basic charter of governance in our country. You can’t govern. The man is a very big mistake that we all made by electing him, knowing that he doesn’t have the credentials. Should we have done that knowing our experience under Obasanjo? They lack the experience to govern and if we were not suffering from amnesia, we should not have elected another former head of the federal military government. We shouldn’t have repeated the same mistake. We have ourselves to blame. Expecting the man to do what he is not equipped to do. He is not equipped to do this neither by his intellectual nor academic qualifications nor by his antecedents as former head of the federal military government. He was trained and there was a certain mentality implanted in him, mentality of giving orders and expecting the orders to be obeyed. They call him the Sheriff. This is a fitting title. He is ruling as a Sheriff, giving orders. Saying one thing today and another tomorrow. The ministers are there waiting for him. Have you heard any of them make any intelligent statement? They are all scared waiting for the Sheriff to give orders which they will carry out. If you go against his orders, you are in trouble. After all, he said ministers are only there to make noise.
The agitation for Biafra by MASSOB and IPOB is getting bloody …
Is it still getting bloody? It was getting bloody before but I thought the violence had stopped.
Not quite sir, because recently, security men were accused of killing some youths holding a prayer vigil for the detained leader of IPOB, Nnamdi Kanu, in Aba…
My position on all this is that the cause of the agitation must be traced to the government – Buhari’s government. It is a protest against the appointments Buhari made initially, 31 of them, strategic appointments he made before constituting his cabinet. Before that he made 31 strategic appointments. None of those appointees was from the Southeast. Of course, that created the feeling of alienation and exclusion among the people of the Southeast. Injustice! A feeling of not being recognized as belonging. At that time, I warned and wrote about the development but nobody listened until eventually it broke into all these protests.
The government should recognize that these people have legitimate grievances, that their protest is a result of a feeling of alienation and exclusion leading to a feeling of disaffection. Shooting people is not a way, in my view, of solving the problem. Shooting people is not the answer. Engage them in dialogue. There is need to create an atmosphere of reconciliation. We need it as it was done in South Africa and other countries – national reconciliation. We are not trying to do that. This government, since it took over power on May 29, 2015 has not recognized the need for national reconciliation. Not only that. We are not engaging these people in dialogue with a view at reconciliation. We disobey the orders of the court. Kanu was granted bail. Has he been released? No, he is still in detention in spite of a court order granting him bail. I don’t know where this will lead us. We need to recognize the need for national reconciliation, reconcile the various interests involved. We all need one Nigeria but it must be one Nigeria that recognizes the diverse interests of all its people.
