Chief Sebastine Tar. Hon. (SAN) is a renowned author and constitutional lawyer. In this interview, he discusses constitution amendment, security of Nigerians, appointment of Justices of the Supreme Court and Court of Appeal and sundry national issues. Legal Editor, JOHN AUSTIN UNACHUKWU met him.
Senate President Ahmed Lawan recently inaugurated a 56-member committee to review the 1999 Constitution. What areas should the committee focus on in light of the clamour for restructuring, new revenue sharing formula and true federalism?
First of all, I would like to comment on the rather extremist viewpoint that the 1999 Constitution as amended is not a valid constitutional document, hence a new Constitution ought to be written by the National Assembly. While I accept that the 1999 Constitution was written by the military, it has been in operation for more than 20 years now; and even its harshest critics have at one point or the other relied on its provisions. It is, therefore, rather late in the day, by operation of the doctrine of estoppel, to label it an invalid legal instrument. Secondly, I hope this amendment exercise is based on genuine rather than selfish reasons.
What do you mean by this?
I hope it is a not a parody or a jamboree. I say this because of our experiences as a people.
Having made these prefatory observations, I wholesomely welcome genuine efforts at further amending our Constitution. I have always said so in various fora and through many media, including issuing public statements and granting press interviews. We seriously need to look into those areas you have mentioned, which are the core areas affecting our corporate existence as a geo-polity.
States and regions are creating security outfits, such as Operation Amotekun in the Southwest, to protect residents in the face of rising insecurity and banditry. But the Attorney-General of the Federation and Minister for Justice seems to see such moves as an encroachment on Police powers. How do we resolve the legal impediments surrounding the establishment of groups like Amotekun?
With utmost due respect to the Federal authorities, Nigeria is at the precipice. The Federal Government is either willfully aloof or has completely failed in its constitutional duty to protect lives and property. From the Boko Haram never-ending insurgency, to the Fulani herdsmen assault on sleeping communities, to communal conflicts, armed robbery, kidnapping and seemingly endless bloodshed, the soul of the nation is fast leaving its body. Human life, which is the first fundamental right under our Constitution, has no value again in our dear country. In preserving this right, section 33(2)(a) of the Constitution provides that no offence shall be committed if one uses reasonable force to protect himself and his property from wanton destruction.
How will reasonable force be determined?
‘Reasonable’ force, from acceptable and accepted judicial interpretation, means ‘commensurate force. Therefore, if one attacks you with a gun, you are exculpated if you also defend yourself with another gun, if you have any. If the Constitution, the fons et origo (source) itself, says the defender commits no offence, then I wonder which law will levy criminal sanctions on him. It is as simple as that! Although one is not advocating for resort to self-help, if we as enlightened people do not talk to power and also educate our people on their rights, then we should bury ourselves in shame.
How?
Government must be even-handed, just, fair and honest to all sections of the country. Without justice, they say, there will be no peace. My conclusion, therefore, is that this is not strictly a legal issue; it is rather more political than legal. If the Federal Government wants wanton lawlessness, murder, kidnapping and banditry to end, it will end forthwith. If the laws are not enforced by the centre, those laws are mere paper works.
What is your view about calls for restructuring?
I have always maintained that the centre is too strong; hence there should be devolution of powers. The weakness of the federating units whittles down the entire federation and engenders dictatorship at the centre. Many sitting Presidents hate to hear such views, until they leave office; and it is after they leave office that they identify with those views! How temporary and transient power is! We need, for instance, State police. We are living witnesses to the recent clamour for the establishment of regional and State police. There is also need to separate the office of the Attorney-General from that of the Minister or Commissioner for Justice as the case may be.
Why is this separation necessary?
Since the Attorney-General is the General Ombudsman of the common man, who ordinarily is not a politician but a core professional with the mandate to act more for the people than the government; restoration of the botched 1989 constitutional provision that the Vice-President or Deputy Governor must be assigned executive duties to avoid, in my honest view, an imperial cum dictatorial presidency. More fundamentally, Nigeria should revert to the Parliamentary system of government, as in the days when the 1963 Republican Constitution held sway. After all, South Africa and India, even though are also federations, are operating the parliamentary system, which is not only less costly, but also ensures more transparency in governance and drastically curtails the chances of any political leader easily becoming a dictator.
How do you see the calls for a new revenue formula?
I say the centre is taking too much of the federal revenue, which, as we can all agree, is wasted willy-nilly by political and public office holders. States should exploit and manage their natural resources and then pay taxes to the government at the centre. This will strengthen the States and make the centre less attractive to predators and scavengers.
Are there other areas of the constitution that still need lawmakers’ attention?
There are yet other areas that need to be urgently and particularly addressed, like reforms in the Judiciary. I have always maintained that we need to cut down the jurisdiction of the Federal High Court, especially with respect to entertaining claims based on oil pollution and environmental degradation. I have practised law in the Niger Delta for at least 25 years now; and I was there when State High Courts, before the promulgation of Decree No. 107 of 1993, entertained such claims. This decree is now what is Section 251 of the 1999 Constitution. The reason for advocating that State High Courts should be made to entertain such suits is very simple, the cost of filing and maintaining suits at the Federal High Court is rather very high for a hapless person affected by oil spillage or other forms of environmental degradation. After paying the initial humongous filing fees, the poor litigant has to pay heavy default fees when he fails to react timeously to a process filed by his opponents. More importantly, the number of Federal Judges sitting in those courts in the affected states is rather infinitesimal, compared to the number of Judges in the State High Courts of those arears
How does this affect speedy dispensation of justice?
Speedy justice administration in the never-ending degradation of the ecosystem and the aquatic environment of the affected states and communities is, therefore, a mere dream. This accounts, in part, to the restiveness in those communities. I have also always maintained that there should be an amendment of the Constitution whereby specialised courts are created for trial of corruption matters, to aid in the speedy and more expertise delivery of justice in this area. Furthermore, I have always advocated for the unbundling of the Supreme Court of Nigeria.
How should this be done?
Regional Supreme Courts should be created to handle appeals on primordial issues like land law and intra-State disputes, while the Supreme Court of Nigeria will only be saddled with the responsibility of handling constitutional issues, federal, inter-state and State versus Federal Government disputes. Even in these matters, the Court of Appeal of Nigeria should be the final court on issues of fact. This will give the Supreme Court Justices more space to deliver grave and profound judgments, to direct or redirect public policy – that Court being, as it were, a policy court globally. Finally, just as in other jurisdictions, our Constitution should be amended to ensure that retired Judges and Justices are the ones handling election disputes. This will not only insulate the Judiciary from public ridicule, but will also restore the lost image of our respected Jurists, who have been serenaded and maligned in no small measure by politicians and their supporters, most at times for the wrong reasons.
The Oyo State House of Assembly passed the state’s Anti-Open grazing bill into law last week. It seems that Anti-Open grazing laws now provide a panacea to the farmer-herder clash across the country as many states have also passed similar laws. How can we improve this law to improve productivity in the country?
When Governor Samuel Ortom and the Benue State House of Assembly consistently maintained that open grazing was inimical to national security, national cohesion and peaceful coexistence, they were labeled all manners of uncomplimentary names. Today, even the herders who saw the Benue people as their enemies have accepted that open grazing is a time bomb. In Benue, we saw insistence on true federalism, using the instrumentality of the law which prohibited open grazing; and in today’s Nigeria, Benue remains a model for lawful resistance to imperialism and oppression. This, by no means, amounts to hatred for any tribe or group of people; but it does signify that no matter how seemingly indefensible a people might be, with God and honest intentions on their part, they will always emerge victorious. The anti-open grazing law in Benue and Taraba States have proved a success story, worthy of emulation by the states. I need not go into further details.
The Court of Appeal recently opened some Divisions across the country to bring justice closer to the people. Do you think we can improve justice administration by building more courtrooms?
The Court of Appeal of Nigeria, no doubt, occupies an enviable position in the judicial hierarchy of Nigeria. My experience as a lawyer shows that the docket of that Court indicates how fatigued the Justices have been over time. Opening more Judicial Divisions, though a welcome development, may not yield the desired result if the above-adumbrated advocated judicial reforms (and perhaps many more) are not carried out. For instance, no matter the number of Divisions of the Court of Appeal, if the number of Justices to man those Divisions does not increase, justice delivery will still be a mirage.
What do you mean?
Section 237(2) of the 1999 Constitution provides that the number of Justices to be appointed for this Court should not be “less than forty-nine.” Now, by Section 247(1) of the Constitution, for the purpose of exercising its jurisdiction, the Court of Appeal can only be competently empaneled if at least three Justices of that Court sit; and in practice, for constitutional issues, five Justices of that Court must sit to adjudicate. Clearly, therefore, even though the Constitution has given wide powers to the appointing authorities, the number of Justices manning the Court of Appeal is ridiculously very low. In the circumstance, the creation of more Judicial Divisions will itself result to more negative effects – as the existing Justices will have to leave their Divisions to travel far and near to sit in the new Divisions. If that is not possible, then the court halls will be mere edifices donning our cities
The President of the Court of Appeal, Justice Bulkachuwa retires on March 6, what is your reaction to the succession plan and or intrigues playing out in the Court? How do we get the best for the country in this unfolding drama?
Justice Zainab Adamu Bulkachuwa, the outgoing President of the Court of Appeal has performed well as the President of the Court of Appeal. She will be leaving in March, having, amongst other achievements, enacted the Court of Appeal Rules 2016. I am proud to have been nominated by her predecessor, Justice Adamu and then by her good self to serve on the Advisory Committee which drafted the Rules. As many lawyers and Jurists testify, credit must go to her lordship for the revolution in appellate practice, introduced by the 2016 Rules. I personally wish her sound and restful retirement.
What of the intrigue about succession plan in the court?
The succession plan in the Court of Appeal should not at all engender any intrigue or controversy. We have a tradition, established over time, whereby the next most Senior Justice of that Court, once he or she has no visible or established blemish, succeeds on the throne. The Supreme Court, the Court of Appeal itself, the Federal High Court, the National Industrial Court, etc, have always followed this tradition, save in a few instances where Justices of the Supreme Court were appointed to head the Court of Appeal.
So, why would the present succession at the Court of Appeal be different?
It is simply not good for the system and the image of the appointing authorities, if this ageless succession system is overthrown for no justifiable reason. I strongly counsel that the Federal Judicial Service Commission (FJSC) , the National Judicial Council (NJC) and the President should not torpedo our established practice on succession to headship of our Federal Courts, more so at this present time when there is aggravated mutual suspicion amongst the religious and cultural groups that make up Nigeria.
The Supreme Court has recently given what seem to be controversial judgments in the election petitions in Imo and Bayelsa states. Aggrieved parties have returned to the apex court for a review. What is your reaction to this?
Learned Justices of the Supreme Court of Nigeria are highly cerebral and deeply knowledgeable Jurists, who must be respected. They are also very experienced on the job, all of them having risen through the ranks to be where they are today. In spite of that, they are not infallible; and it will be dangerous if we begin to read extraneous factors into every judgment they deliver or every judicial action they take.
What is your reaction to the near invasion of and demonstration at the home of Justice Mary Odili (JSC) over the Supreme Court judgment on the Bayelsa governorship election?
I strongly condemn the recent invasion of the residence of Hon. Justice Mary Peter Odili by political jobbers and hoodlums. I am surprised that no arrests have been made by our security agencies over this insidious action. Is that meant to intimidate the Judiciary? Then it has failed. Why even single out a particular Justice, when the panel of Justices sit together, agree on the decision to be delivered by the Court and merely appoint one of them to deliver the lead judgment? She was not even the person who delivered the lead judgment; she only presided that day, as the most senior Justice in that panel. As I said earlier, people in power not only perpetrate wantonness and abuse of power but also close their eyes thereto, only to realise when out of power that their actions have laid dangerous precedents for the tomorrow they face while out of power. What an irony!
What do you mean by this?
There is nowhere in the world that judgments of courts on knotty issues are not ‘controversial.’ This, however, does not mean such judgments are wrong in law. Section 315 of the Constitution says judgments of the Supreme Court are final.
Can the Supreme Court reverse its judgment or overrule them as the Court is being asked to do in Imo and Bayelsa judgments?
However, the same apex Court has, over time, revisited some of its judgments. In the Adegoke Motors’ case, 1989, the apex Court, pronouncing on its power to review its final judgments, stated that their judgments are final; but that this does not mean they are infallible and that the said judgments will only become final if through the process of review, correct justice is served the parties. In a great deal of cases, too, the summit Court has held that it can set aside its judgment if any or all of the following vitiating factors exist, namely: want of jurisdiction, breach of fair hearing, fraud, collusion or misrepresentation. If any of those factors exist, I see no reason why the Supreme Court will refuse to overrule itself. On the other hand, if none of such factors exist in the mentioned cases, the Court should not buckle under public pressure to mortally wound itself, by setting aside any of those judgments. In either course of action, the learned Justices of the Supreme Court must know or realise that there is a God in heaven who watches over the affairs of men, no matter how highly placed. They must also realise that Nigeria needs their candour and objectivity now more than ever before, in view of the near-combustible heat in the body polity.
The Independent National Electoral Commission (INEC) recently deregistered some political parties and that has raised some dust in the polity. What is your reaction to this?
In my personal and humble opinion, although Section 40 of the Constitution has guaranteed the right to freedom of association, sections 222-227 of the same Constitution have given INEC the power to register and regulate political parties in Nigeria. Collateral to that power is the power to deregister such political parties. If INEC has power to register, I wonder why its power to deregister will be questioned. Except if there is a clear abuse of power, INEC’s decision in this regard will scarcely be faulted. The Supreme Court made far-reaching pronouncements on these and other powers of INEC in 2002, in the case of INEC vs. Balarabe Musa. I say no more.
Chairman of the Senate committee on constitution amendment, Senator Ovie Omo-Agege stated that committee will look at the 2014 Confab report and the Governor El-rufai led APC committee on restructuring during their work to review the constitution. Do you think this is in order?
I repeat that I hope the current attempt to further amend the 1999 Constitution is not a façade, aimed at diverting our attention from serious policy failings of the government or from the pursuit of goals that are egoistic in nature and are, therefore, inimical to the common good. If the National Assembly is honest about the exercise, I see nothing wrong in the pronouncement of the Deputy Senate President. After all, humongous sums of public money were spent to arrive at those documents you just mentioned; hence they ought to be utilised now, if, as I stated above, there is a genuine intention to give Nigerians a true constitutional document.
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