Professor Ben Nwabueze, Chairman of The Patriots, a group of eminent Nigerians, and leader of Igbo Leaders of Thought, is a foremost constitutional lawyer, whose views on the proposed national conference have been well-sought after. In this exclusive interview with Associate Editor, Sam Egburonu, in his GRA home in Enugu, the legal icon spoke passionately on the proposed conference, current political tension in Rivers State, the National Assembly and the proposed centenary celebrations. Excerpts:
RIGHT now, Nigeria is talking about the need to get a new constitution. Can you explain to us what is wrong with the 1999 Constitution?
In identifying clearly the primary thing that is wrong with the 1999 Constitution, we, The Patriots, have tried to draw the distinction between process and content. When you talk about what is wrong with the constitution, I think you are focusing on content. Yes, content is important and we will talk about it later but a more important, more fundamental thing is the process by which a constitution is adopted. Is it a democratic process? If it is not, then the constitution is not a democratic constitution. It is not a peoples’ constitution. We have never had a constitution adopted by the democratic process of going through the people. You go through the people by first having a national conference specifically (convened) for the purpose of adopting a constitution and when you have concluded that, the thing must go to a referendum. The people will vote. It is a simple yes or no referendum. Do you agree or do you not agree with this constitution? When you have done that, and that is what more than 85 percent of the countries of the world have done since 1989, take it from me; more than 85 percent of the countries of the world have done this. When you have done that, you now have a democratic constitution, a constitution adopted through a democratic process by the people.
This is absolutely essential because the constitution is the supreme law of the land. You call this 1999 Constitution the supreme law. What makes it a supreme law? The only thing that can confer the status of the supreme law to a constitution is the authority of the people. If a constitution is not adopted through a democratic process by the people, there is no rationale for its supremacy. It is just supreme because you said so.
If you turn to the 1999 Constitution, you will find in Section 1 that it is the supreme law of the land. What makes it the supreme law? Is it because it is made for us by the military? Is that what made it the supreme law? If you want a constitution that will be the supreme law, that’s why you mention law, the only body that can confer the status of the supreme law on it is the people. That is the first thing you will settle about the constitution before you will begin to talk about the content. So the first and most important thing that is wrong with the 1999 Constitution is the process by which it was made.
When you come to the content, there are so many defects, so many faults. Is it the structure? Is it alright? We all seem to have agreed with the six zone structure. But then, what do you do with the 36 states? I think they should say. Then after that you talk about the structure of power between the centre and the zones or the regions. The structure of power is so terribly wrong. The constitution vested too much power at the centre, that’s what is killing us. That must be rectified. A lot of powers must be taken away from the centre and given to the zones or the states. You talk about fiscal federalism. Look at Section 162 of the 1999 Constitution and you ask yourself, is this a federal system and so much power over finance is vested in the centre? If I were to go through that section (162), there are 10 sub-sections, all geared towards giving fiscal power to the centre. That section must be completely abolished and replaced. So much is wrong with the 1999 Constitution in terms of content.
From what I have been reading, it seems some people are agitating for equal representation at this year’s national conference. Given that your group is insisting on a conference of ethnic nationalities, have you worked out how the representation would be? Will the major ethnic nationalities like Ndigbo, Yoruba and Hausa/Fulani have equal representation with the smaller ethnic nationalities?
Let me start by saying there is no problem that does not have a solution. There is always a solution to every problem if you apply your mind to it. Now, there are roughly, no one is certain about the number, but a research by Professor Ogigu Otite, an emeritus professor of the University of Ibadan, said there are 389 ethnic nationalities in Nigeria, some small, some large, like the Igbo, the Yoruba and the Hausa-Fulani, which are in millions in number. Ndigbo, for example, are, at least, 40 million and I believe there are more, scattered all over the place. Some of these 389 ethnic nationalities, according to Prof Otite, are so small that you will be doing a lot of violence to equity and justice if you say that four million people will have equal representation with ten thousand or one million. There are some that are much less than one million, recorded in terms of thousands. The ethnic minorities are demanding equality but surely, in doing this, you must be fair to everybody but fairness must not be carried to the point of gross injustice by saying that 40 million will have equal representation with ten thousand. So, this has to be worked out. There is always a solution to every problem.
How long do you think it will take Nigeria to prepare and get a new constitution? I am asking this question because we are scheduled to have a general election next year.
It won’t take long. For example, Ndigbo will, between today and tomorrow, conclude our position with regards to the type of constitution we want. We will print it in a book form and distribute it across the country. Other groups should do the same and we can then compare notes. From the position of each of the participating groups, we may accept some, reject some and marry the accepted positions together.
Our position now is that Nigeria should call a conference to adopt a new constitution but apparently, the conference the federal government is going to convene is a mere talk shop not a national conference to adopt a new constitution. When they said they are calling a conference and that the conference will agree whether there will be a new constitution, it sounded very strange to me; it does not make much sense to me that you should first convene a conference of 500 people, which will decide whether we need a new constitution. What if the conference said yes, we need a new constitution, what happens? Do you at this stage convene another constitution since the former cannot proceed to adopt a new constitution after reaching the decision that we need a new constitution?
On several occasions, we have had national conferences in Nigeria that amounted to nothing and as a result some people are insisting on Sovereign National Conference. Now, from the point of view of law and practicality, is it possible to have a Sovereign National Conference when there is a sitting government? If not, why is it that our governments always toy with this idea?
The simple answer to your question is that it is not possible. That is why many people have abandoned the struggle for a Sovereign National Conference. You can’t have a Sovereign National Conference when there is a sitting sovereign national government. We do have today, a legal order. A legal order is established by a constitution, by institutions like the National Assembly, the Presidency, the Judiciary, the rule of law – these are some of the elements of a legal order. Once there is a legal order in existence, you cannot have a Sovereign National Conference. You will be contradicting yourself. These are two contradictory concepts. You must accept that there is a legal order in existence.
Now, the concept of sovereignty includes political sovereignty, belonging to the people; we have legal sovereignty, vested in the government on behalf of the people. So, there is a sitting government, vested with legal sovereignty of the country and that is what we mean by saying there is an existing legal order. So, you can’t create a second sovereign body. This means that the whole idea of a Sovereign National Conference is a misconception; it’s a failure to understand the nature of what we have on ground. If you want to have a Sovereign National Conference as we have had in some African countries, you must overthrow the existing legal government.
So, given this dilemma and the fact that Nigerians want a Sovereign National Conference that would have the power to…
Don’t talk about Sovereign National Conference. I think, given the explanation I made earlier in this interview, we should be talking about a National Conference. We can’t have a Sovereign National Conference when we still have a legal order in existence. The solution is to have a genuine National Conference, where we will sit, discuss and agree on a new constitution. If the conference is not to discuss and agree on a new constitution, it’s a waste of time, as Afenifere has said, a waste of everybody’s time.
Just before I leave the issue of national conference, how has your group been relating with other groups like Afenifere, which you just mentioned?
Fortunately, the position of the Igbo Leaders of Thought has been accepted by the South-West, by the two groups of Afenifere; the Afenifere mainstream and the Afenifere Renewal. The South-South has adopted the same position, the Southern Nigerian People’s Assembly, led by Dr Alex Ekwueme for the South-East, Chief Edwin Clark for the South-South and Bishop Bolanle Gbonigi for the South-West, have also adopted the same position. The North-Central has also adopted the same position, so one can say we are relating well with other groups, at least on the issue of process. On the issue of content, we intend to send an outreach committee to go and talk with the other groups.
Considering what is happening in Rivers State, an average man in Nigeria believes there is a complete breakdown of law and order there. From the point of view of the law, how would you describe the Rivers State situation?
What is it that is happening in Rivers State? I mean in which aspect?
I am talking about the relationship between the governor and the commissioner of police in the state. A situation where the police commissioner is demanding that the governor, who is supposed to be the chief security officer of the state, must obtain permission from the police before organising a rally? Is that right?
Is that what the police commissioner is saying?
Yes, he is saying that the law requires all citizens to obtain police permission before organising a rally but some people are arguing that the governor is the chief security officer of the state and as such does not need police permission. So, there is confusion.
When you read the Igbo position on the new constitution, you will see that one of the things we said is wrong with the constitution is the arrangement with respect to the police. It is fundamentally faulty. The Constitution provides that in terms of the public order and public security, the command of the police is vested in the Inspector-General of Police. But the Constitution goes on in the same sections, 214 and 215, to provide that as concerns public order and public safety, that the president can give lawful direction to the commander of the police that is the Inspector-General of Police. Sub-section says in respect to public order and public safety, the governor can give lawful direction to the commissioner of police for the state. In other words, the Constitution recognises the governor of the state as the chief security officer of the state. It goes on to say, provided that the commissioner of police will, before carrying out the order of the governor, (make references) to the president.
But in a situation of grave danger, the commissioner of police, must, as a matter of constitutional duty, carry out the orders of the governor. Otherwise, there will be fundamental contradiction. You said that this is the chief security officer of the state and you said the commissioner of police must refer to the president. The president is the chief security officer of the whole nation, but for the state, it is the governor. So, the whole arrangement is faulty. How can you have a chief security officer for a state and a mere state police commissioner begins to override him? It makes no sense.
When you talk about a state, not just in terms of a state government, but a state as a concept, whether federal or state; the state by definition means a body, an entity that has the power, the coercive power to enforce, to maintain its existence as a government; to enforce its authority, to enforce its laws. Anybody, or entity that does not have that coercive power is not a state. So these things we have today are not states in the proper connotation because they don’t have coercive power. So, when it now gets to a situation where the governor of a state gives directive with regards to public order and public safety and a state police commissioner begins to override it, the only solution is to have state police. A state government must have a state police. That is the only way to reconcile the idea of a state. The state government must have a state police; otherwise, they cannot be referred to as states or governments. This is one of the things we are canvassing for – state police.
There is also a raging controversy over threats to declare vacant the seats of some National Assembly members who defected from the Peoples Democratic Party (PDP) to the All Progressives Congress (APC). From the point of view of the law, can the Senate President or any other official declare the seats of these elected officials vacant?
When a member of the National Assembly or any other assembly member defects from the party on which platform he was elected to another party, his seat can be declared vacant. But there is an exception. If this defection is as a result of division, factionalisation within that party, then his seat cannot be declared vacant. So, it boils down to this, is there division, and is there factionalisation within the PDP? If there is, then their seats cannot be declared vacant. If there is no factionalisation, no division within the PDP, then they cannot defect without their seats being declared vacant. So, the onus would be on whoever that sues to prove whether there was factionalisation within the PDP.
The Independent National Electoral Commission (INEC) has just released the 2015 election timetable. Given the current political situation and the visible signals, do you think Nigeria would get a free, fair and credible election next year?
It is difficult to predict. Whether the 2015 elections would be free, fair and credible depends on a lot of issues and the political situation then. We have not had free and fair election in this country because the stakes are too much. People are prepared to rig because of the high stakes and the high stakes are complicated by the political situation which creates this necessity for do or die. The election that is coming is an attempt or an opportunity to displace the PDP from its position of control or rulership. PDP has ruled the country up till now. If you are going to try to displace it, don’t expect that it would be a free easy ride. The PDP, according to the methods in this country, will not sit and watch you take power away from it. So, this is the factor that will affect the elections. It is the factor that will go to a considerable extent to determine whether the election would be free and fair.
This year, the country will be celebrating its centenary; it’s 100 years as a country. As one of the few elites that have seen it all, can you assess how we have fared as a nation?
I have written an article on this before where I disagreed with the idea of celebrating the so-called centenary. What are we celebrating? Is it our enslavement? Before 1914, the different segments of Nigeria had been colonised and so in 1914, the colonisation of these different segments was consummated by the amalgamation. So, the amalgamation marked the real colonisation of Nigeria. It marked the origin of our enslavement. You know what colonisation means; it means enslavement. It means you are a slave and ruled as a subject nation, as a subject entity from 1914 to 1960 when the country gained independence. All the deprivations, all the degradations involved in colonisation, we suffered for those long years. Is it what we are celebrating? Secondly, what did amalgamation bring in its wake? A North-South divide, a North-South dichotomy, is the greatest obstacle to the unity of Nigeria. Yes! Take the north, they now see themselves as a separate group, their vision, their attitude, their outlook are different, notwithstanding that what they call the north or northern Nigeria is an artificial creation of British colonialism. As a journalist, you should know; think of all the many problems we have in this country and you will agree that the greatest of all the problems is the North-South divide, the North-South dichotomy. It is the greatest problem we have for Nigerian unity. We have Arewa, which means Northern Nigeria. We have Arewa Consultative Forum, etc and recently, in 2012 the formation of the Southern Nigeria Peoples Assembly. That completes the dichotomy between the north and the south, creating attitudes, different divergent attitudes and visions and aspirations in the people. Is that what we are celebrating – the creation of this divide by the British colonialist, who fostered and handed it down from generation to generation up till now. Tell me what amalgamation has brought that we are celebrating? Yes, it brought the two entities, northern and southern Nigeria, together; is that what we are celebrating?
Can you also comment on the fortunes of the Igbo people in the Nigerian project. You know how the race started out and where they are today. Some people said Ndigbo lost out at some point. Is that true, if so, at what point did they lose out and is there any hope for them?
For the Igbo in Nigeria, we have suffered a setback as you said. And if you ask me, I will trace the origin of the set back to the civil war. Yes, that is what has brought about this set back and Ndigbo must strive hard to correct the set back. I believe that all hopes are not lost. Ndigbo can still regain their lost position and glory in this country.
