For one who had been in the trenches fighting autocratic military dictatorships, it could be disheartening to note that after over two decades, Nigeria has not made much progress in the march towards a free, just, democratic and equitable society. Former NBA President, Dr. Olisa Agbakoba, SAN played host to the THISDAY LAWYER team at his Ikoyi Office last week, where he fielded a wide range of questions from Onikepo Braithwaite and Jude Igbanoi. He spoke unabashedly about his Chairmanship of the NBA Board of Trustees, and why they did not overturn the last election of the Association, despite the wide criticisms that trailed the exercise. He also spoke about the nation’s quest for true democracy and federalism, economic challenges, and why he is optimistic that things will soon change for the better
The Board of Trustees of the NBA recently upheld the 2020 NBA elections. What informed this decision, knowing that almost half of the registered voters were disenfranchised and some of the provisions of the NBA Constitution were clearly breached by the ECNBA, like releasing the voters register a couple of hours before the voting portal was opened, instead of at least 28 days before the election? What was your personal stand on this issue? How do you think the decision of the BOT which seems to go against the rule of law, will impact on how people see the NBA which is supposed to be the upholder and promoter of the rule of law?
First of all, you will appreciate that I cannot go into the details of who did what and how, because that is confidential to the Board of Trustees of the NBA, other than to say that we clearly recognise that the elections were not as perfect as it should have been,; we were disappointed about the outcomes. But, we were satisfied that there was no untoward motive which was part of what Dele Adesina, SAN alleged. We felt that rather than untoward motive, the NBA had become so huge that, there was clearly demonstrable ethnical challenges. For instance, when I got elected, it was only 800 votes. This time, it’s 30,000.
When the elections opened at midnight, five minutes into the process the entire IT platform collapsed. I think that gave rise to considerable challenges and difficulties. So, part of what we recommended is that, the time has come for the NBA to begin to think through whether it has internal capacity. It was a capacity problem. As Lawyers, we are not election management people. Do we really have the capacity to run a sophisticated election process that is generated by signals, emails and other things? I don’t think so.
Whilst a number of Lawyers were unable to vote, I could see from the report of the guys who were brought in to take over from the local guys, were from an American election monitoring outfit. And, these guys are credible; I don’t think they are the type that anyone can bribe. I saw that they had done things for UNESCO, International Organisations. So, it’s beyond question that anybody would have reached them to say, ‘rig the election in my favour’. That is why we ruled out foul play; but, we established that there were considerable irregularities.
On the whole, we felt that overturning the election would not serve any interests, unless we could establish the sort of foul play that Mr Adesina had alleged, which we couldn’t establish. So, I decided that we would go in a particular way. But, here are six people on the Board. Som I have received criticisms. Some said ‘you are the Chairman of the NBA Board of Trustees!’ Well, I am only one person. So, whatever our personal views might have been, we were sitting as an institutional body. The mandate was to deliver an opinion, not as Olisa Agbakoba, but as the Board of Trustees. That is what we did.
Learned Silk, you talk about irregularities. But, is it a mere irregularity? For instance, the voters register – the NBA Constitution makes it mandatory that it must be published at least 28 days before the election. That was not done. Is that an irregularity? Then, also the fact that half of the registered voters, 14,000 out of the 29,000 that registered did not vote. Its almost 50%. Is that an irregularity or fundamental? A lot of Lawyers felt that there was enough grounds to either allow the 14,000 that did not vote to vote, while preserving the votes of the 15,000 that already did. Then couple up the results.
Again, the evidence before us, because at the end of the day the evidence would be based on proof of the allegation by the Petitioner. It was difficult to determine exactly what was the number. But, even if there were two, it doesn’t excuse their not voting. But, as I said, why did this 8,000 or 14,000 not vote? Was it because there was some sort of conspiracy, or was it due to technical challenges? We clearly established that it was due to technical challenges.
Of course, we also had problems of Lawyers’ names sent to the wrong branches. The point you also make about when the voters’ register should come. There were two versions. One said that the verifiable voters register would come out by July. There was evidence that the ECNBA did in fact do so. But, Dele Adesina’s evidence showed that it didn’t come out as required. So, there was a difficulty as to who to believe. For all of these reasons, and in particular, when we were able to agree among ourselves that there was no fraud, it changed the perspective.
If voters were excluded as a result of conspiracy, there would been a lot of concern.
But, if voters were excluded because some Lawyers in Ihiala Branch couldn’t access the platform as a result of technical challenges, that is a challenge. But, it was very clear to us from the report of this Body Voters (I hope I’m getting that name right), and I say again that Body Voters are absolutely internationally credible organisation that has a long history. I don’t even know how they were found, but they came in at the right time. They couldn’t have conspired with anybody.
Therefore, the principle in Obasanjo v INEC established by Oguntade when the Electoral Act of 2002 was defective; and Oguntade found that it was indeed, defective, but they denied the declaration to cancel the results, because of the chaos it would have caused. So, we invoked that doctrine, that clearly there were challenges; but, on the whole, to nullify that entire election would have created chaos, so we allowed it to stand, and recommended very strongly that all these challenges that came out in the elections, because this is the third time, 2016, 2018 and now, that this is occurring; and it must be dealt with. Otherwise, tha confidence that the NBA can have credible elections, will be affected.
Kindly, comment on NBA NEC’s disinvitation of Governor El Rufai to the 2020 AGC and the fallout therefrom, that is, the decision of some Lawyers to establish the New Nigerian NBA Personally, I felt it was wrong. You have invited somebody to come, then disinvite him – I didn’t think it was courteous. I then called George Etomi to say, ‘I am not sure that Governor El Rufai should be disinvited’. If the issue is the challenges in Southern Kaduna, then I was also in touch with the President of the Southern Kaduna People’s Union – just simply invite him and let him have his say.
But, to disinvite someone you have invited, I didn’t think it was a smart thing. As you can see, in the end I am proved right. Because rightly or wrongly, it gave rise to the secessionist tendencies we now see. That is what caused the problem. But, if he had been allowed to come, and say his own part, that I think is the right he is entitled to. Whether you like what he says and not, anyone could have countered him, whether virtually or otherwise.
So, it thought it was a wrong decision . If you muzzle opinion, that strikes at the very heart of free speech. I would have liked to hear what he had to say.
How about the New Nigerian NBA, how do you think that will fare or whether it can stand?
And following the Attorney-General’s deletion of some of the provisions of the Rules of Professional Conduct, people are saying that these deletions sort of show that the AGF is aligned with some of these secessionists and that it paves the way for breaking the monopoly that the NBA has enjoyed so far. That if you don’t want to use your stamp and seal, or if you don’t want to, fine. That you don’t even have to be a member of any NBA branch. So, people are saying the New NBA can stand.
There is no right answer to the question. There is also no one proper answer to what the AGF did or did not do right or wrong. So, I would rather approach it from asking ‘is the legal profession and its structures and institutions, not outdated?’ I think it is. And that’s why when I was NBA President, I started a campaign for a new legislative framework for legal services, not the profession, but legal services. This is because a lot of people now, don’t need to be Lawyers to deliver legal services, but the legal profession, LPA, makes it the exclusive preserve of Lawyers. So, I was very much interested in the Sir David Clementi Report. Clementi was charged with reviewing legal services, prescribing new ways in the United Kingdom. When I read it, I felt this is the new way we should be pursuing in our profession.
I submitted a Bill. Part of the challenge is that, the tenure of the NBA President is too short to make lasting and meaningful changes. So, I submitted the Legal Services Bill. If that Bill had gone through, it would have shattered the process and framework of the NBA. First of all, legal education, discipline, all the parameters of the NBA and practice, I found, to my chagrin as NBA President, were controlled by the government. The NBA President is nowhere near as important, as people think. It’s a glorified big name. You can’t as leader of your profession prescribe educational standards, like ICAN does for Accountants. The government controls it through the Council of Legal Education, through the Body of Benchers. The Body of Benchers has gone way out of its remit; in the UK, that is not what they do. Here, the Body of Benchers is concerned with discipline – it’s not their job. The AGF is concerned with discipline, it is not his job. The NBA is concerned with discipline, and it is not their job.
And, this new structure of the Body of Benchers, is as a result of the problem of Gani Fawehinmi and his challenges, when he wrote his book and called himself ‘that famous Lawyer.’ He was indicted for infamous conduct. At that time, it was only the AGF that could lay charges, but the problem was that, the AGF investigated, prosecuted and determined. So, Gani went to court and a strong Supreme Court then said “no, no, this is not possible” and recommended that no Lawyer could have fair hearing if this structure was maintained. And, that is what led to the Body of Benchers being the Judiciary, if you like, and the NBA being the investigators.
That is not what happens abroad. Because, even the NBA itself has sometimes been accused of hiding people. The Clementi Report recommended that for a new legal service, it must be accountable. So, the first thing they did was to appoint an independent regulator, outside of the control of the Attorney-General. This is called the Legal Services Board. They do everything regulating their own NBA, and because their own NBA is also a strong organisation, they recognise them as an approved regulator.
So, the NBA here will be an approved regulator, and will have the status and title of a self-regulating organisation, which ICAN has achieved. So, we don’t wait for the Supreme Court to disbar an offending Silk. And there are so many offending Siljs as you well know, who qualify to be disbarred. But, they know how to find their way round, and the system is clogged, so the Legal Practitioners Privileges Committee never sits.
How can the CJN be Chairman of the Committee, when his full time job is to be CJN? So, we need new structures.
The ICAN guys appoint their SANs, they are called Fellows, because they know the best. The ICAN guys prescribe their own educational qualities. We don’t need the Council of Legal Education, to do that for us. We don’t need the Law School. So, that is what the new process says, and because the Legal Services Board gives the Bar the authority to discipline, we can take immediate action. But, if we have a President who can’t discipline a Lawyer, then what is he President of? He’s the President of nothing! What is NEC? NEC is just a glorified talk-shop. The NBA is statutorily, powerless to do anything about legal education, legal discipline! That is why you have a mess. That is why the AGF can do what he did.
But, that is why I sent a text to Olumide Akpata to push that Bill. It is not to clash with the AGF and say ‘you can’t do this or that’. That clash would go on forever. The structures of the legal profession in Nigeria, is completely decayed. We need something new. Why would ICAN get it right, and we cannot? Why would 10,000 Lawyers cram into Abuja to lift their wigs! Its crazy! We all cram into Abuja for one day? Because, there is governmental control. And we are still wearing those completely outdated wigs and gowns, whereas the Supreme Court in England where we borrowed it from, don’t wear it anymore. Even when they open their assizes, they don’t wear it.
So, I think that is the challenge for Olumide Akpata – to completely overhaul the way the NBA works and the way the legal profession works.
What is your opinion of the Senate’s proposed sweeping constitutional amendments? Do you think anything will come out if it? What are the major areas which you believe require amendment? Or should there be a new Constitution entirely? Kindly, share your thoughts on Restructuring, and explain your concept of Cooperative Federalism.
I think the first mistake that people make, is this. I have tried to explain this, without success. They confuse two notions. The Constitution is as good as a political process. So, every nation first has a conversation about its marital arrangement. If you are going to get married, you must first discuss how you are going to get married, to say ‘look we want this or that – it’s a voluntary union of one man and one woman, to the exclusion of all others’. We have never had that conversation. That is a problem.
The Constitution is merely an agreement. But, unfortunately the argument goes the other way round. ‘Constitution, Constitution, Constitution!’ it will never work, which is why the argument is so intense on both sides of the divide. I have absolutely no confidence that restructuring will ever work. Not because it’s a bad idea, but because in this nation of Nigeria consisting of about 400 sub-national entities, they have got to agree.
You can’t have Afenifere, Ohanaze and PANDEF sitting Lagos issuing press statements, when it doesn’t go down.
There has to be that conversation. So, whenever the National Assembly starts this process of what they call constitutional amendment, I ask myself ‘do they know what they are saying?’ you don’t amend a constitution without first determining whether there is a marriage. If you read any book on federalism, federalism is best adapted when you have a large population of people who are heterogeneous, and have such spread that there are homogeneous entities in the divisions. So, you’ll see the Ibos in the South East, Yorubas in the South West and all that. Those for me, are the building blocks. But, they have not had a conversation about what they want to be. Do they want to be federalist? Do they want to be confederal? In all of this confusion, I wrote a book on this with George Anderson who is the President of Forum of Federations, where he breaks the myth of the so-called True Federalism. There is nothing like true federalism. Federalism is what you want to make it. If you want to have a strong centre, its up to you.
We haven’t had a discussion about what type of federalism we really want. There can be no restructure without the consent of the two major building blocks – the North and the South. For reasons that are unclear, the North doesn’t want restructure. Period!
If they don’t want restructure, then I would invoke Abiola’s great quote ‘you can’t clap with one hand’. Who are you restructuring with? Yourself? So, you cant make shout all you want in the South, its not going to work. You need the North to be on board. Therefored, you need to use diplomatic language. And that Corporate Federalism, is diplomatic language.
When I listen to the Northerners and Southerners, what I seem to hear is that there is too much power in the centre. So, what I did years ago (but no one listens), I designed an Act called ‘Constitution Operation Devolution of Powers Act.’ Look at the 98 items of power, I actually have it in my office; 68 items are federal and 30 are concurrent. For the 68, it means that the States cannot have a bite. The 30 that are concurrent, means that the States have a bite to the extent that the federal does not cover the field. Therefore, the States have no power. So, you tell the federal, particularly now that money is tight ‘why do you want to issue drivers license? Why do you want to be in primary health care and primary education? Why do you want to be in commerce? Why do you want to be in arbitration?’ If we are sensible, these are things you allow the States to do. All we need to do, is to just to open the Constitution to the page where it says ‘Concurrent and Exclusive’ and say, ‘Federal Representative, where do you want this to be? States, where do you want this to be?’ I can pass a Constitution with devolution of powers, in exactly one day. But, when you have a cacophony of unreasonable voices shouting restructure, secession, conservatism and so on, we’ll be here.
That is why I don’t believe in that word, restructure. I believe in devolution of powers. There must be cooperation, that is what cooperative federalism means. Unless we understand this, 10 or 15 years down the line, we’ll be at this restructure thing.
How do we go about it? What kind of conversation should we be having towards this cooperative federalism, even if we are going create do our own homegrown type of federalism? Because, there is the argument that there is a basic concept of federalism, which you can adapt to suit your own circumstances in your own country. It doesn’t have to be copy and paste of what they are doing in America. How will it work?
How it will work is that, to the extent that you are part of Nigeria, you need to ‘cooperate’. For instance, let us say we decide on regional federalism, then the five Igbo States would need to corporate. Because no State can stand on its own.
Look at what happened in the USA on Covid-19; you can see how bellicose this silly man called Trump has been. He gives ventilators to Republican States and denies people like Cuomo. That’s is not federalism! You must cooperate.
The reason why I am lured to the Asian model sometimes is because, as America is fighting and Boris Johnson is fighting, the Chinese are moving forward and building the massive Silk Road that will soon enter Mombasa. And America owes China $1 trillion in their own currency. Do you see China in any of this nonsense? They are not there! They are just focused on economic development. They use force, I agree. But, they are getting development going. For us who subscribe to democracy, our leaders must understand that unless they cooperate, we can’t release energy to satisfy 200 million Nigerians. That spirit must be there. But, this bellicosity I see in Politicians, won’t resolve the problem.
The recent speech by Pastor Adeboye, welcome as it is, had a major retort in the shape of Garba Shehu, calling him all kinds of names. That’s not what we want; it won’t get us anywhere. Both sides – it didn’t move the argument by one iota. It didn’t help the guy of the streets. So, the way to do it, is for both sides to cool down and realise that they need to have a discussion.
If restructure is causing the problem, can’t it be presented in a different way? I would think that if restructure means, make the central government weaker, must be it called restructure if the guys in the North don’t want it? Isn’t it what comes out in the end that we look for?
What I am saying is conduct that exercise of looking at the 98 items of power, and see which one serves our best interest. Nobody will say defence or monetary policy should be a State issue. It is clear that it is federal. Or the Central Bank of Nigeria. But, why should we have a Federal Ministry of Agriculture? Or prisons. Why should have federal run prisons, when they have less than 10 prisoners and spend about N15b? I once went to the Prisons Headquarters in Abuja. I saw more epaulets than prisoners! Do you know what epaulets are? Commanders, Generals. I saw more Generals and cars with flags. It means they are spending more money on these Generals and their cars, than food for prisoners.
But, if prisons were a State issue, it will speed up the justice sector process. The Governors will ask ‘why am I spending so much on prisoners? Why are they in jail for so long?’ But, the Federal Government has no interest. Its like a ‘Kalo Kalo’ machine, throwing out money to epauleted Generals who sit in Abuja driving fancy cars. But, they have no interest.
The Federal Government has no interest in prisons. Some of these Northern States, they have less than 100 prisoners oooo! Why should it be that the High Court of Lagos State convicts Mr. Adeyemi, and they will send him the prison in Sokoto? For what?! For a State offence. Why are we throwing prisoners around Nigeria, it doesn’t matter where they come from? Why? That’s part of the problem
So, clearly, prisons is a matter for the States. That is what we need to review. And, if both sides of the argument accept this cooperate federalism and come around the table, I am sure that Garba Shehu would see the point that, prisons shouldn’t be on the exclusive list. And, I am sure Adeboye would see the point that defence, foreign ministry, foreign policy should be the job of the Federal Government. Then everything would end.
But, if every year, from the first to the 9th Assembly we keep having constitutional reforms without success; we have had three major constitutional conferences, one of which I took part. I didn’t want to take part; my daughter asked me ‘why are you taking part in this constitutional conference? You want to go and collect money?’ Which is why myself and Pastor Bakare said we are not going to take money. That N12m, we don’t want. Because tomorrow, they will say we went to chop money. But, nobody can accuse me. I took part, but I didn’t collect any money. But, if I had known that President Jonathan wasn’t going to enact it, I wouldn’t have gone there. So, there was a major opportunity lost by Obasanjo and Jonathan to have passed it. There’s another opportunity. But, it would take a bit more tact. The more Afenifere and Ohaneze are making noise, it won’t work. The more you are belligerent, the more the North would be too.
But, who would be the players? This conversation by different groups, who would be there? Is it like we had in 2014 were some people were just handpicked to go for National Conference? Because people doubt government’s sincerity about having a conference, like in 2014 when the government nominated whoever they wanted. Gani Fawehinmi for instance, suggested people should elect representatives from each of the 774 Local Governments, while another Lawyer, Nwobu suggested that 70% should be come from each ethnic nationalities to represent their people, while the rest should be picked from NASS, religious bodies and civil society groups, the NBA and so on.
Your question belies the ignorance in constitutional conferences. When all the conferences leading to independence were taking place, there were so many distinguished Lawyers, but they were never invited. My grandfather, the second Igbo man to read law wasn’t invited, because he wasn’t representing anybody. He is not an ethnic representative.
Its so simple. In discussions surrounding the constitution of a country, it is the ethnic sub-nationalities that represent the people, not a Lawyer, not NBA, not NUJ. That was why I had doubts about whether I should be going to Jonathan’s conference. In fact, we already the semblance a good sub-national structure, like Enahoro used to say. The guys talking now, should be the ones to come forward. And I am sure there are more. Like Afenifere, Ohaneze, PANDEF, Middle Belt Forum, provided that they are not press conference people, that they are really carrying their people along.
For me, the process is already in place, but the language is wrong. Process is in place in the sense that they are saying what they should say, except they are like Napoleon and Hitler who continued an ill-fated war, which is why they were beaten in the Russian cold.
Don’t these ethnic sub-national groups understand that they have been aggressive without progress? And that its time to do like Mandela, and change. Mandela was in prison when he realised that, war would not bring liberation, and he switched and he got the same result.
If Mandela with all his stature, coul sacrifice his principle that war was the only way to go after the Rivonia Trials. But, after a considerable length of time in prison, he saw that this wouldn’t work. And he reached out to the point where his fellows – Mbeki, Sisulu and co, doubted him when they came to visit him in his new prison palace – they wondered if he had betrayed them. He convinced them that this was they way to go, and soon after South Africa got independence. That is my best example.
If one goes down one path and it doesn’t work, switch to another path, so long as the strategy is the same and goal is the same. Restructuring is not working. Can they consider switching to devolution of powers and cooperative federalism to see f it will work? I guarantee it will work. What I have just said here is simple. There is no State Governor in Nigeria, who doesn’t want to be a real chief security officer of his State – so that’s one thing common to them all. In fact Kayode Fayemi said it recently; that all 36 Governors are helpless. That they feel tired. My Governor, Obiano feels tired of seeing the River Niger that he has no control over. Whereas, if he had control over River Niger, billionaires from Onitsha to the Nnewi trade axis can silt out and dredge River Niger. If that happens, all the choked traffic in Apapa will disappear, because all the barges will alight at Onitsha. But, he has no control.
What is your opinion of the RUGA and Water Bill? Is there a connection? What do you think of it?
Its part of the suspicion that I am describing. Don’t forget that, the Water Bill is as old as the last 30 years. So, there is really nothing new in it.
But, what does it seek to do?
It seeks to harness the water resources of Nigeria that cross between two States, not locally. So, you must make sure that we have enough irrigable waters. You put the dams where they are supposed to be. You create huge baskets of fertile land that water can irrigate. Essentially p, it is harnessing water resources for the common good of Nigeria. Nobody believes it, and for good reason. This point you make, is at the heart of the confusion and suspicion. We are all suspicious of each other. Once there is suspicion, even something that is harmless becomes a problem.
People think Government wanted to use RUGA to take land from people, that failed, they now want to use the Water Bill. That it is a roundabout way to take land from the people for herdsmen.
We are describing very fast waters. The type of water that would benefit herdsmen, are slow waters that you can drink from. You can’t go to River Niger and drink water, or River Benue. That is not correct.
But, that is not the point. It’s the underlying suspicion that is the problem. Because, perception is 90% of the answer. There is no logic that the Federal Government can use to explain to people who feel that the herdsmen is the reason behind it, that it is not.
Its not enough to say that Nigeria is 60, and we have national parades and all that. That is not going to solve the problem. It is leaders resolving to change the way we do things, so that this RUGA thing will not be a problem. RUGA thing is bad because it has now enabled a lot of non-Nigerians to infiltrate, given the fact that we have extremely weak borders; given the fact that we have crisis in the Arabian countries have collapsed and they have come to Libya, down to Mali and here. They have mingled, and they find that this is a place where they can’t be expelled. They are comfortable and they have blended with hitherto peaceful cattle rearers that carry sticks, and now terrorise everybody.
Why is government not doing anything? It comes back again to, if we truly want Nigeria to go forward, talking about the problem every day is unhelpful; it is practical solutions.
So, its up to these our ethnic nationalities to really form a formidable voice. How many of them have ever been to the North, and sat down make their case? I challenge them. Why are they talking to me? I am sold! How many of them have traversed the North to say, ‘No, its not about secession. Its not about breaking up. Its not about anything, other than empowering the federating units?’ They sit in the South and make noise. I see them on television all the time, and I have never really seen any Northerner who really sits with them and takes part in the conversation. Its only Middle Belters. The tactics needs to change.
You have in the past few years postulated and pushed your vision for development law. Kindly, shed light on this, especially your idea of freeing and utilising what you once called, ‘dead capital’?
Development law is a higher theoretical and difficult concept to understand. I don’t think we are up to five in Nigeria that understand it. At the heart of development law, is economic policy law. So you understand how legal analysis and development, can create a good life. That is what people are looking for. But, when you don’t have a need for something, you don’t have to look for it. But, when you have a need, then you look for it.
This is the right time for development law is likely to flourish, so we are putting a major webinar on the 22nd and 23rd of October, having been appointed consulting law firm to the Attorney-General of the Federation and the Minister of Finance. To be opened by Vice President Osinbajo. To be attended by senior Advisers to the Presidency.
The notion is simple, as your oil receipts dwindle, diversification of the economy is relevant. What are the tools for new revenues, jobs can be created, the economy can grow, wastage can be removed, cost of governance can be reduced? It is law that drives it. We are looking at eight themes. Take trade policy for instance, we say, no country in the world will ever grow, unless the legal framework creates barriers around what is called a trade remedies legislation. Otherwise, the Chinese will keep exporting, and if people import things on the cheap, nobody will go to the farms and you’ll keep importing. You need tools of law, to generate production.
So, there is a trade remedy currently being proposed. We also say, if people are so unemployed and your revenues are challenged, President Buhari will announce on Thursday an N8 billion fiscal deficit. So, the government is technically challenged for revenue. How can the government be technically challenged, if trade facilitation contributes the second largest component trade to the GDP after agriculture?
Trade facilitation simply means, how trade moves. And, there two important vehicles to move trade around – aircraft and ships. Nigeria owns not a single aircraft. A country that wants to aspire to be in the first ten? You are joking. Nigeria doesn’t own a single ship, when ARANCO, the equivalent of NNPC has about 2,000 vessels, VLCCs floating around. ARANCO, not a drop of crude leaves the Saudi Arabian treasury from the first value chain, which is what we all foolishly look at. The IOCs are looking at number 2 to 34. So, they look at law, shipping, banking and insurance. These are four trillion Naira assets that we don’t even touch. So, what you do is that you use law to apply to economic policy, to say local content must be vigorously implemented. So, any law that implements local policy, should be welcome because you want to trap money in the system. But, if your doors are wide open – that is why I support the border closure. Col Ali is trumpeting that Customs is making N12 billion extra every day. The problem is that,p those who closed the border, have no understanding of trade law. For those of us who understand trade law, we use the term ‘border enforcement’. Even if you are in the EU Zone, and you are coming from France to enter the United Kingdom, they must make sure at the border that you are indeed, a French person. You must make sure at the border, that you show your passport.
Some these guys who come here and say ‘under ECOWAS Protocols we are entitled to free access’, we say ‘no, you can’t be entitled, if you are running cargo from Singapore, terminating in Cotonou’. That is the final destination. If you want to bring its into Nigeria, its not allowed, under the ECOWAS Protocol. You have to understand the ECOWAS Trade Protocol. Unfortunately, Nigeria is not giving good answers because our trade policy and trade laws are hardly understood, except by a those of us who speak and understand economic trade policy language. So, all that development law is, is with economic policy at its heart, to see how law can enrich economic growth.
A very good example, is the simple enactment of the Finance Act 2020. That was such a brilliant move by the person who did it. It immediately put N4 trillion on the table! That is what it is all about.
Then, if you look at the digital economy, all the multinationals in the digital space are trading actively here without paying tax. So, you have Google, Twitter, Facebook carrying out their activities here, and they don’t pay a single Dollar! Not a single one of them pays a dime, and we are still looking for money.
My point about development law which I am happy is beginning to catch on slowly, because we are now needed; if you apply it across the board properly, whether in the digital space or arbitration, because arbitration is an aspect of trade.
It was fashionable for us to ship off all of our arbitration, with great and dire consequences. So, if we block all the leakages, using law, then there is a likelihood that the money will stay here.
I am very happy, seeing politicians beginning to ask me about Crowd Funding. These were the Abuja politicians before. They didn’t see how that their big farmland can bring revenue. But, now they are saying ‘I have this big farmland, what kind of framework can you advice?’ Its crowd funding. Its development law. But, it took a long time, because its not an oil well that brings money. I don’t blame anybody who would rather pursue an oil well than development law, because its not a profitable venture.
Two things have happened that I am so happy about, Covid-19. It has been a massive wakeup call. We were like mad people. I once went to a party where the host was proud to announce to a person that wanted water that, ‘nobody serves water at my party. You must drink the champagne!’ Now, it is not happening because money is drying. When money dries, brains kick in. The government is now obviously very interested. Because, it seems it can’t balance its books.
But, I don’t think so. Maybe for logical people, the brains kick in. Well, I am not so sure about what is happening in Nigeria. I give you an example. Recently there was hue and cry about some loan agreements that we have with China. I had looked at it, and thought that Nigeria has a lot of resources that have not been harnessed, the Chinese are even mining our gold. We are flaring gas. What we are flaring is what makes Trinidad and Tobago number 2 or 4 as an world gas exporter. So, I asked myself, why can we not, as opposed to going to take cash from China, say for instance we want our environment to be clean and therefore, harness this low hanging fruit, gas. Let us go into some kind of partnership, and we start to harness our gas and be sharing the profit, and once our debts are repaid, take it over? Why can’t we kill two birds with one stone instead? Oil seems to be going out of fashion. Meanwhile you are wasting time and money trying to prospect oil in Lake Chad. You want to have that oil in Lake Chad, because maybe Niger-Delta has it. Why are we wasting scarce and unavailable resources. Like at the start of Covid-19, oil was worthless. Why are we wasting scarce resources prospecting for more, when you have available low hanging fruits of gas being flared, make money from it and get environment being clean? I don’t think brains have kicked in.
No. You misapprehend the nature of what Professor Rizkid Joseph calls, prebendal system. These are rent seeking countries. All of these have happened because of oil, and its stupendous income. So, the general view was, in Nigeria, unlike other places, with so much money we got mad. Whereas with a lot of money you invest. Even General Gowon said back then, that he didn’t know what to do with money.
It’s a long standing problem, since 1974. At a time he went and paid all the outstanding salaries of the Caribbean countries, when he could have used it to build things.
So, it’s a process. I don’t know whether you understand what has happened. The only thinker I have seen in government for a long time, is Okonjo-Iweala. She understood development law. She laid the foundation, for all these things we are doing. There was no DMO! Borrowing was anyhow. She came in and wiped out the debts, and established an organisation to manage the debts. She introduced the Fiscal Responsibility Bill, meaning you can’t borrow more than 3% of your GDP. This obviously has challenged the financial resource base, which needs to go up to about 7%, otherwise we can’t get out of this malaria thing.
Malaria means that I have to give you the full dose, not half, otherwise you’ll be sick forever. We can’t get to where we want to go with a N10 trillion budget. Nigeria needs a budget of not less than N80 trillion every year. It will only take sense for that to kick in.
There are three things that indicate the sense is coming, even though it has gone down very badly with people. Fuel subsidy removal is the most brilliant thing that has ever happened. In economic language that is what is called, a technical correction. The second thing is electricity. Although, I think that could be adjusted. The consumption of electricity for guys who ride Rolls Royces, should be at premium! Anyone living in Ikoyi should pay premium. If it takes N20,000 a day to run your electricity, provided they can give it to you, you should pay. Then you subsidise at the lower end. That is the only problem I find with electricity. But, fuel subsidy, should go!
Then there is garri subsidy, and that is not too difficult to do. If government could remove fuel subsidy, no matter how difficult it proved, did heavens fall?
Then electricity, although labour has come to some king of understanding with government.
Then the third one which we overlook, is commercialisation of NNPC. I don’t think you guys know what that means.
I don’t think it will ever happen.
It will happen! It will happen, because the government now finds that it cannot sustain it. Do you know that King Ngwenyama Mswati 11 of Swaziland sent a message here, that he is broke. That his sugar factory was not producing. Obasanjo invested 10% of NNPC’s money in the company. And I am sure nobody knows about it till today.
That is why I am happy with the NNPC GMD. He is the first to publish the audited reports, in 40 years. I don’t care what the motive is. The NNPC was stupendous cesspit of corruption. Just to cleanse it out will save Nigeria 40% of revenue. That is a very smart move. That indicates to me that right from the Obasanjo administration to now, when they regarded NNPC as their cash cow, that takes some courage. Business is coming. This thing you are seeing will escalate.
What I see as a policy and why Nigeria is not signing this Acfta thing, is that now we are not strong enough. Why should we be signing trade agreements when Britain leaving the EU? When Trump is breaking all the trade barriers?
Anything that will make Nigeria a dependent nation, I don’t support. If I am going to invest in a poultry and I know it will give me money to feed me and my family, I will do it. But, not when I am investing in a poultry and you are going to Abuja to get government contract. So, I now look like a fool. But, if we are realising that government contracts are over, now, you have to go and till your land. I hope that this oil will never come back.
Aba guys, about 20 years ago I advised the Aba Business Council and I was very surprised that one of them was actually making underwear for Marks and Spencer. 20 years ago! I don’t know what has happened to him now.
There are skills. But, those skills will just not shine when nobody is protecting you. These government contracts, is what killed initiative.
Do you know that there are over 500 oil rigs in Nigerian waters, and they don’t want to pay? I know because I am in one of the cases. In those days, an oil rig used to be a derrick that was fixed. The new oil rigs are called FPSOs, Float, Produce, Store and Offload, they move. Once you move, you are a cabottaged vessel, and you must pay 3%. They went to court and we won, but they have appealed. I am advising the AGF to step into the case so that we can resolve it quickly, and we can get at least N2 trillion from the vessels. If you take the N2 trillion and add to our budget, it will reduce the deficit by N5 trillion. There are brilliant ideas, in this country.
You once filed an action against the government on judicial funding and independence, in which you largely succeeded. Since that judgement, how far has the government complied, in terms of implementation?
They have not complied. Rather they have appealed. That is why I am looking at what Executive Order 10 means. The NJC that I sat in refused to go to court, and when they refused, I said ‘you have to’. Aloma Mukhtar was the CJN. When they refused to go to court, I went and I won. These are the people who are now suing. The very people who would have gone to court at the time I was suing, are now the ones going to court. So, I wish they lose! Because they are not sincere people.
Almost six and a half years into the Buhari Administration, how in your opinion have they fared in terms of security?
On security, I think that the problem is that we need to modernise our security apparatus. You might not know. I have considerable intelligence experience. Part of my Masters in the 80s, had to do with Intelligence Studies.
There are several components of an intelligence architecture. One is humins, Human Intelligence. Another is Comins, Communications Intelligence and then there is Photins, photographic Intelligence, Signins, Signals Intelligence.
When I was at the Institute of International Affairs, I was a Senior Research Fellow on Intelligence. We went to Jaji to write up an architectural framework for Nigeria’s intelligence, and it has not changed. That was what formed part of what we now have as the SSS. It use to be Department E of the Nigeria Police Force. My point here is that, if you have an outdated intelligence architecture there is nothing you can do.
For instance, I just don’t know why the DSS should be involved in private contractual arrangements when they are supposed to be focusing on intelligence. We have to have the relevant modernised capacity. If you don’t have it, you can’t deal with insurgency. That is what is critical. Today we have a Police force that even Mike Okiro called ‘extremely well badly trained and illiterate’. They have no equipment. So, to modernise security apparatus will sufficiently advance the cause of containing Boko Haram. Boko Haram. Boko Haram is a ragtag army. I can understand why a ragtag army can’t be destroyed. We need to modernise our intelligence apparatus.
In 1986, during fiery military dictatorship, you mobilised and pioneered human rights activism in this country, along with a few other young courageous people. You were even brutalised and detained. Today, would you say those ideals you fought and risked your life for, have been achieved?
If they have been achieved you wouldn’t be here today, and be talking to me. They haven’t been achieved. On the oscillation of the democracy, there are four critical steps. Authoritarian, semi democratic, illiberal, and then liberal. So, we probably have moved only one step in the last 20 years. We clearly have moved from authoritarian to, if I am being optimistic and nice…..
Be brutally honest
I might say semi-authoritarian. We are certainly not illiberal. Illiberal is when you begin to see aspects of a liberal system. But, if we are still saying, like NyesomWike said ‘ an election is only free and fair, if the Police and INEC wants’. That is horrendous statement! It threw me apart.
But isn’t it true?
That is what I am saying! I am saying that what we have is that, we no longer have men in khaki. But those khaki boys, are wearing agbada. We have not moved. If you want to be charitable you can say they are semi-democratic or semi-authoritarian. It oscillates. It moves between the two. But, we have a long way to go!
How can SARS be brutalising people and there is no response, except a lame one from Inspector General of Police? And this is the fourth time in four years that the same statement is made. ‘oh I disband you’. The next thing they are back.
So, that tells you that we are in a society that can’t be anywhere near where we wish. All these things that we fought for, are still very much present. It is still work in progress.
Thank you, Learned Silk