‘Nigeria’s Problem is Simply the Failure of Political Leaders to Rebalance the Federation’

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The Buhari administration has since inception been faced with several challenges. From insurgency, militancy, corruption, economic downturn to recent agitations for restructuring the federation. In an interview with May Agbamuche-Mbu, Jude Igbanoi and Tobi Soniyi, former NBA President Olisa Agbakoba SAN proffered possible solutions to the present political challenges and expounded his views on other matters of national importance.

After nearly four decades at the Bar, an illustrious career that has earned you a reputation as one of the foremost Human Rights lawyers in Nigeria, and an expanding legal practice covering the length and breadth of a full service law firm from Arbitration to Maritime law. What is it that motivates you today and how has that changed over the various periods of your career?

I am motivated by the quest to see Nigeria attain democracy in the real sense. Nigeria at best can be said to be illiberal or a semi autocratic country with institutions heavily subverted. As you know, law plays a crucial role in deepening democracy. I have a strong interest in helping our constitutional process. Generally there is a legal failure in Nigeria and a sense of civil disorder. I think I have a role to play in the resolution of these challenges. I also get motivated to use the tools of development law for economic development.

You have made it one of your goals to speak up strongly against what you perceive to be injustices and anomalies in national politics and in the application of the law in Nigeria. What injustices and anomalies do you see as the challenges of today’s democracy?

The big challenge confronting democracy in Nigeria is the unwillingness of political leaders to grapple with the many problems confronting Nigeria. With Nigeria, in low grade civil war, from Boko Haram to Niger Delta Avengers, to pro Biafra agitation and now the Bakassi Militancy, it ought to be clear that nothing short of an honest solution by our political leaders, will resolve our problems. Nigeria’s problem is quite simply the failure of our political leaders to rebalance the Federation. The Federal Government exercises 98 items of power. 68 of these items are on the exclusive list in the Constitution, while 33 are on the concurrent list. Only the Federal Government can exercise powers on the exclusive list. The states can only exercise powers on the concurrent list if the Federal Government is not interested. This means that Nigeria is not a Federation but a unitary state. The contradictions thrown up by this process is the result of the chaos and contagion you see in Nigeria.

How should these injustices and anomalies be resolved in the interest of advancing our democracy?

There has been no lack of effort to resolve the contradictions I have highlighted. We have had series of constitutional conferences going back to General Babangida and ending with President Jonathan. Many proposals to resolve these challenges were agreed at constitutional conferences but the problem has been the lack of political will to implement. My proposal, having served as a member of the Jonathan Conference is for President Buhari to implement those cornerstone agreements reached at that conference. I suggest President Buhari sends an Executive Bill for an enactment to devolve certain powers from the federal to state governments. I have produced a bill and sent to the National Assembly which recognises sub national diversities across the six-geo-political zones. Our democracy will be strongly enhanced if, to use the political cliché common in Nigeria, the federation is ‘restructured’.

Access to Justice is one of the hallmarks of democracy and delays in the administration of justice hamper this. In your opinion what short term solutions can be introduced to improve access to Justice in Nigeria?

In my view, access to justice is a small issue in the broader policy context of Administration of Justice. Administration of Justice in Nigeria is in a very parlous state. There are a number of structural challenges. First, is an over centralised judicature. This is similar to the point made earlier about an over centralised Federal Government. At the National Conference we, in the legal and justice committee, agreed to ‘restructure’ the Judicature as the third branch of government. Restructuring will mean devolving judicial authority from the centre to the states. This in turn will impact on the speed and access to justice. A related concern is how the courts work. As a former member of the National Judicial Council, I say that the operating models of the courts in Nigeria are outmoded. We need to comprehensively review our rules of court, practice, protocols and guidelines to achieve effective management of cases. The Judge should no longer be a spectator allowing legal disputes to go in court completely unmanaged. I look forward to the automation of court infrastructure, capacity building for judges and wellbeing of judges. Let me add that our courtroom infrastructure is so dilapidated that I expect the Chief Justice of Nigeria to make a strong representation on this point. You will obviously recall I went to court to seek a declaration concerning the constitutional framework of funding the Judiciary. I am happy to say that I won the case. The case freed the Judiciary from the shackles of the Executive. But to my shock the Judiciary has done nothing to enforce the judgment. I will like to make a slightly different point about the Judiciary. We need to see a very good mix of appointments coming from the Bar to the Bench as I feel it will improve its quality. Actually, I was the first to apply to be appointed to the Supreme Court under Chief Justice Uwais. Back then, it was seen as heresy. But today the National Judicial Council has agreed in principle that SANs can be appointed. But I sense that they would like us to start from the Court of Appeal. My learned brother Tony Idigbe SAN, applied to the Supreme Court but missed out on a role there. I hope one day to see one of us on the Supreme Court bench. And many others at other levels of courts.

You are the founder of the Human Rights Law Society (HURILAWS) the NGO with particular focus on influencing and advancing Human Rights Law in Nigeria. Could you briefly evaluate the state of human rights in Nigeria?

The state of human rights in Nigeria is far from satisfactory. That’s all I need to say on this.

What is your assessment of the Government’s fight against corruption? Do you think the Rule of Law is being strictly adhered to?

The Government has shown some muscle to deal with endemic corruption in Nigeria. The rule of law has not been adhered to in this process. But it seems Nigerians are not interested in this. While I do not support bending the rule of law, I can understand why Nigerians take this view. Corrupt practices in Nigeria beggar belief, so no wonder the perception that popular justice is alright if it gets at the thieves. But I think the Government can design a more institutional process to combat corruption. This will mean major institutional changes to the work of the EFCC, for example in developing capacity. I have always felt the strong need to unbundle the EFCC into two agencies; one dealing with investigation and the other with criminal prosecution. This is the standard international best practice.

Recently, the Federal Government set up a committee led by the Attorney General of the Federation to prosecute high profile cases. Is there a legal basis for the committee? And does it not amount to duplicity since we have the EFCC and ICPC?

This question has been partly answered by the preceding question. I recommend that the Attorney General of the Federation redesigns the legal and institutional framework for dealing with corruption cases. As I said earlier, separate investigation and prosecution. Agencies can and should be introduced. There is no reason why the EFCC and ICPC cannot be merged so that there is a stronger platform to prosecute crimes falling under their respective mandates.

The report of the Sovereign National Conference, of which you were a prominent member, still has not been published nor have any of its major findings been adopted by the Federal Government. What parts of that Conference’s findings do you believe to be of paramount importance and necessary for implementation?

I have touched on the conference report in an earlier question and I would like to deal with what I think is the best way to proceed. As you recall President Buhari has said that the Jonathan Conference report will go to the archives. I think in Nigeria, there is lot of emotion about the phrase “restructure”. “Restructure” is a more commonly accepted term, in the south than in the North. I think we can all agree, and this would ordinarily, include both President Jonathan and President Buhari, that our country faces severe political and economic problems. Proceeding from this, what President Buhari can do is leave out the emotively charged term, ‘restructure” and simply proceed to rebalance the Federation. Rebalancing the Federation involves matters as simple as transferring power to issue a driver’s license from the Federal to State governments. In my draft bill on devolution of powers, I identified 36 items that can be transferred from the Federal to the State and Local Governments. The President can initiate this process without too much fanfare and without reference to divisive issues.

The Nigerian Bar Association will in a few days’ time elect its national officers. What is your advice to Nigerian Lawyers on choosing the next NBA President, having held that office before?

Merit must be the most crucial attribute to guide Nigerian lawyers in deciding the next NBA president.

Stakeholders in the Electoral Process have raised concerns over the legal regime governing elections in Nigeria. What are your comments on the adequacy of the legal regime governing Elections in Nigeria?

The legal regime relating to the electoral process is far from satisfactory. As you probably recall I was a member of the Justice Uwais Electoral Committee and we made far reaching recommendations. Some of the recommendations have been implemented but others remain unimplemented. INEC needs to be unbundled of the responsibilities for registration, regulation and supervision of political parties. It is inconsistent with INEC’s work as a referee and umpire. INEC may be accused, of partisanship if it disqualifies a political party, even though all INEC is doing is exercising its regulatory duty. When I was being strongly considered for INEC chair, I took time to review how many parties complied with electoral regulations and to my shock, very few did. This point remains true as most parties always fail to comply with electoral laws and ought to have had their registrations withdrawn. This is why the Uwais committee recommended the Political Regulatory Agency and also the Electoral Offences Commission. I look forward to the National Assembly enacting these commissions.

You have also observed in different fora that the Nigerian Maritime Industry holds huge potential for the Federal Government in its bid to diversify the source of Public Revenue if properly harnessed. In your opinion, what should be the important components of government’s maritime policy?

Nigeria is a coastal maritime nation. The international practice is to have a Minister responsible for maritime affairs in order to bring high level policy making to the industry. The maritime industry is a huge cash cow and I do not believe that the Director of Maritime Services, in the Ministry of Transport, is senior enough to drive maritime policy. Government’s maritime policy should aim to improve Nigeria’s status as a maritime hub. Nigeria accounts for at least 80% of cargo throughput in the Central West Africa sub region. Cargo throughput is the technical name for cargo coming to a destination such as Nigeria. This should give you a sense of how big we are in the maritime sector. I will also like to see Nigeria attain the status of a Maritime International Centre, like Singapore and Dubai. We have absolutely no Nigerian vessels trading in our coastal waters neither do we have ocean going vessels. Revenue receipts in the maritime sector is estimated at 7 trillion in a year. But we need a coherent maritime policy to bring this all in.

In more recent times it has become a criticism of the Nigerian Justice System that ‘Capital Punishment’ is still being used. What are your views on Nigeria’s application of the Death Penalty?

Recall, I was the first to take 2 cases to the Supreme Court on the constitutionality of the death penalty but unfortunately lost both. I have very strong views on the constitutionality of the death penalty because quantitative and anecdotal evidence suggests the death penalty does not deter crime. If it does not deter crime, I do not see the point keeping it on our statute books. Most scholars agree that not only is the death penalty cruel and unusual punishment, it is also degrading and inhuman treatment. The global trend now is to abolish it. Nigeria has in place an unofficial moratorium. I look forward to its official abolition.

What is your view about the recent change of corporate leadership at one of Nigeria’s leading banks by the CBN and what legal implications do you see in the context of a challenging economic environment?

This is a good question. The answer has policy and also legal implications. As a matter of policy I have always thought the CBN does far too much work. The international best practice is that the CBN deal with financial stabilisation of the economy and monetary policy. Monetary policy includes exchange rates, interest rates and lending rates. In addition to monetary policy, the CBN is saddled with the legal framework of supervising banking risk and ethical behaviour of Banks. This is far too much for the CBN. I was appointed chair of the legal implementation committee of the CBN in respect of reforms of the financial services sector. I strongly recommended the unbundling of the CBN into three institutions; the first, to deal with financial stabilisation of the economy and monetary policy. This is the main function of the CBN. I also recommended removing risk supervision and management from the CBN and passing it to a new Prudential Regulatory Authority. The sole function of this authority is risk management. Risk is at present managed by the Directorate of Banking Supervision. I feel there is not enough capacity in the CBN to manage banking risk. This point is important in the context of the last banking crisis and the looming risk crisis in banks. Banks are carrying a very heavy debt portfolio, technically referred to as non- performing loans. The reason I suggest a third institution out of the unbundled CBN is the extremely unethical behavior in the banking industry. I am not aware that the CBN has a strong mechanism for dealing with ethical issues. The solution is to create a Financial Conduct Authority. The legal framework to create these institutions needs to be put in place immediately, so banks will be compelled to focus on their primary business of lending. Nigeria will be the better for it.

As a pioneer of Development law in Nigeria how can this concept promote political and economic development?

Development law deals with the application of rules regulations, guidelines and laws to the social and political life of a nation. It is obvious that Nigeria is going through a difficult period. Concepts of development law help to create national order in the shape of legal pillars of a viable people’s constitution. Again Development law, been about rules and precepts, creates the necessary framework for the rule of law to thrive. Development law allows for the growth of strong national institutions that cannot be subverted by strong political personalities. Development law generates wealth. For example, the concept of a viable legal framework for the mortgage market. Our mortgage market does not work. The result is that Nigeria’s Seven Trillion Naira housing stock is dead capital. Property has two values, the physical value as represented by the physic building, and more important, the conceptual legal value, represented by legal title to the building. The mortgage market has not worked in Nigeria because the law relating to mortgages is weak. But development law can point in the direction of the proper answers to “wake” dead capital in our housing market. Many examples exist about legal failure in many sectors of our economy and how development law can resolve the problem. I am always amazed at how government’s Economic Management team excludes lawyers. Lawyers can offer a great deal using the device of Development Law. I feel this is something that should be corrected. I hope someone is listening.