1999 Constitution is defective, makes governance expensive – Clarke
1999 Constitution is defective, makes governance expensive – Clarke
Chief Robert Clarke, a Senior Advocate of Nigeria, has over 40 years behind him in legal practice. In this interview with OLADIMEJI RAMON, the septuagenarian legal luminary shares his perspectives on the festering restructuring debate and sundry issues

In 2017 the Federal Government voted N280m to buy cars for ex-Presidents. This year, another N96m was voted for the same purpose. Many Nigerians think that this yearly ritual is part of the wastage that characterise our government. Do you share their view?

I have always maintained that the way and manner Nigerian politicians exercise executive powers in dispensing their duties to Nigerians leaves much to be desired. With that background, I do not see the rationale for doing this. An ex-President is only entitled to be looked after minimally and if one is buying vehicles for an ex-President with such a huge amount of taxpayers’ money, it leaves much to be desired; because a former President cannot use three or four cars in a year and replace the same cars the following year. That is extravagance. But you realise that this is Nigeria and nothing will amaze anybody. But I think the people of Nigeria are correct in raising brows at such a huge amount being spent to buy vehicles for ex-Presidents. What will they be spending on the present President, if they are spending such a huge amount on ex-Presidents? I align myself with the views of the common man in Nigeria.

Are there areas of our law that encourage wasteful spending?

No law will encourage wastage. Wastage is a form of corruption which is very rampant in the executive arm of government. Wastage can be allowed if you are doing a manufacturing job because in the process of manufacturing, there are pieces that will fall out. But why should wastage be allowed when the purpose of executing the budget is mainly to follow what has been appropriated by the National Assembly? As I said, wastage is a form of corruption and there is no provision in the constitution that allows for wastage.

What steps can the citizens take to stop wasteful spending by government?

This is the problem in Nigeria. The common man is not yet in a position to challenge government in many of its areas of operation. But we have, within the system today, organisations that claim to be watchdogs of what the government does. I believe your question should be addressed to the watchdogs, the civil rights organisations, SERAP and the like. These are the people who can help you and I and the common man to challenge many of these atrocities perpetrated by our leaders.

What kind of restructuring do you think the country needs?

Nigeria cannot afford to maintain 36 states. It is foolhardiness for anybody to, in spite of all the things that we have seen in the past 18 years, say we should continue with administration of 36 states within the federation. Twenty-eight out of the 36 states cannot even pay salaries; not for six or eight months but more than two years. Why should we continue with a constitution that creates 36 states but cannot maintain them? Nigeria spends 80 per cent of its revenue in maintaining public servants and members of the various Houses of Assembly and the National Assembly. Only 20 per cent goes to capital project and out of this 20 per cent, only one-third of it is actually involved in the capital project, the most portion end up in many hands as bribes and various forms of corruption. So, if we see that this system we are running has not proved effective – it is 17 now, 18 years we are going into, that we have been going with this 1999 Constitution, which, I believe, is a rotten egg; and you cannot build anything on it; you cannot amend it; you cannot do anything that will make you and I happy in a country where there is honey and milk and we are still in want of many things – shouldn’t we jettison it? Restructuring is a must for Nigeria to survive.

What form of restructuring?

My own view is that we should reduce the number of states. This is a country where we have 36 attorney generals, 36 state governors, 36 this and 36 that; we should reduce to a situation where we can effectively govern and effectively utilise the money we have. If we reduce the number of states to say six or 10, the next question is: what sort of government should we now have? The presidential system of government, which is an American-based system of government, was inherited by us in 1999, through the military dictatorship that we had. (Ex-president Olusegun) Obasanjo, in 1978, created the presidential system of governance and made Nigeria to start the presidential system of governance in 1979. That system, which is the American system, has many checks and balances; it is an ideal system of government but in Nigeria the checks and balances have been thrown overboard. The state governor takes over the control of the House of Assembly; a governor is an all-in-all in the state, you can’t criticise him. If you criticise him, if you are a contractor, you will not get a contract. Members of the House of Assembly are under the control of the governor. So, the checks and balances that are in a presidential system of government, which we also have, by corruption, by our way of life, we have jettisoned them. Now, a governor is free to spend as he likes and nobody looks into it; he will have a security vote that is unknown to the members of the House of Assembly. So, I will suggest that we jettison the presidential system of government because, although it is good, we have not grown the literacy aspect of Nigeria.

A parliamentary system of government is what I will advise us to look into and try. With the parliamentary system of governance, there will be no more presidential election where a candidate will have to canvass for votes in the 36 states. Canvassing for votes under the present constitution by a person or a party will cost nothing less than between N12bn and N20bn – just only to campaign. Parties that are conducting their ordinary primary will spend so much money. In the parliamentary system, canvassing of votes is restricted to your local government area. Once canvassing of votes is restricted to a local government area, the amount of money you spend will reduce and it will not give room for looting. After spending N12bn  to campaign under our current system, the first thing is to be looking for  how to recoup that money or if you have godfathers who have spent money on you, who, immediately you get to that office, will start asking you for favours, the first thing will be to settle them.

Therefore, the parliamentary system, as is being done in South Africa today, where the President is elected from his local government but he’s answerable to the parliament, is what we need.

With Nigeria still battling with the issue of ethnicity, don’t you think the parliamentary system will further polarise the people and threaten the nation’s unity?

The best constitution Nigeria ever had was the 1963 Constitution, which was a parliamentary system of government, where the regions had self government, where the regions had their own constitution outside the main constitution of Nigeria, where revenue allocation is almost 45 or 50 per cent, where revenue is by derivation. If you contribute to the budget, you are entitled to have, by derivation, a percentage more than the other states. There is nowhere in the world where you don’t have ethnic problems. You go to China today, there are ethnic considerations. China is the only country in the world, and they are very lucky for it, that despite the ethnicity in China, they have only one language. The Chinese language is one but there are many divisions. In England today, there are ethnic divisions; the Scottish man doesn’t like the Englishman, the Irish man doesn’t like the Englishman, but they have tried to stay together. In America today, is a mini world. The population of America is made up of Latino, blacks, and they have been surviving together. Patriotism is high in America even though there are diverse ethnic groups. And we have done it. During the colonial period we had 26 provinces and those provinces, with one residence, the colonialists were able to govern Nigeria properly. So, ethnicity does not mean we cannot be unified in many areas. Ethnicity is not a problem when there is good governance, when there is plenty of jobs for everybody; when there’s food on the table for everybody, ethnic consideration will vanish.

Was the Federal Government right in proscribing the Indigenous People of Biafra?

It depends on which side of the divide you are. If you are an Igbo man who believes seriously in Biafra, your views on this question will be different. If you are non-Igbo, who believes that secession will destroy this country, your views will be different. They have tried it once, they failed, we should not allow it to come up again because those of us who were young and saw the civil war in action will not want a repetition of the civil war in Nigeria. Therefore, if a group that calls itself by a particular name comes up to ask for sovereignty, it means they are challenging the territorial integrity of Nigeria; and the present government, headed by (President Muhammadu) Buhari has sworn to uphold the constitution of this country, which is primarily the preservation of Nigeria as an entity. So, if there is a group that stands up preaching isolation and sovereignty, then no government, let us be honest with ourselves, will allow that. Look at what is happening in Spain where the Barcelonans have been agitating for years and Spain is a modern country, when they had a referendum, and they said they wanted a state, you saw what the central government did, it clamped down on them and the so-called President had to run away; he’s in exile now. So, what is different? (Nnamdi) Kanu is asking for sovereignty for the South-East Nigeria, no government will sit idle (and allow that). So, the best thing to do is to proscribe them and my good friends in the East today, none of them has gone out to say what he did was wrong. The crying was only for a day or two from certain disgruntled; the majority of reasonable and educated easterners have not asked questions as to why the proscription was done.

What is the judiciary of your dream?

Let me be honest with you, I’m not happy with the judiciary today. There are some of us, we know that there is corruption in the judiciary, how deep the corruption is, for those of us who work within the court and within the judiciary, we know it ourselves. As I said, corruption has permeated every facet of our society, the judiciary not exempted. It is a bad day in Nigeria when a lawyer who has a good case and is a good lawyer goes to court and on the day of the judgment, judgment is given to the other party. It’s happening but that does not mean that overall the judiciary has failed. The judiciary has not failed. It’s only individuals; the system is still strong, you can get justice. But certain individual judges have spoilt it by undermining the rule of law.

My dream judiciary is one where, as a lawyer, I am given a brief, I go to court, I argue it and I know I have done well to come out and be sure that no intervening force will disrupt that judgment, by somebody coming to bribe the judge. It happens, we cannot deny it.

The judiciary must be independent. I cannot say it with any bold effort that the judiciary is independent in Nigeria today. It is regrettable that most of our Chief Judges in all the states are under the strong hand of the governors; appointment of judges are made on political considerations; there are many states where in the appointment of judges, political interests will be nominating judges. My vision is to see a judiciary where appointment of judges will not be done by outside forces, politicians. They should  allow the National Judicial Council to solely handle the appointment of judges. The problem today is that many interests are involved in the appointment of judges and therefore when judges get into position, these same people will try to influence them in their judgment.

You argued in the case of Justice Hyeladzira Nganjiwa that the EFCC cannot prosecute serving judges unless they have first been sanctioned by the NJC. Do you think that the NJC is up and doing in its task of disciplining erring judicial officers?

In the Justice Nganjiwa’s case that I handled the issue was due process; many of my friends who are senior advocates don’t see eye to eye with me until when they challenge me that I am representing corrupt judges. I say, ‘No, I am doing it because the rule of law is so important to the growth of the legal system in Nigeria’. The rule of law is a cornerstone of democracy and when operating the rule of law, you must follow due process. When the executive wants to prosecute a judge, who is still a sitting judge in the court and decides to go and carry him from the courtroom and take him to court, that is not the rule of law; that is not due process because the constitution is very clear.

Can the EFCC go to the Army barracks and arrest a Major General when the constitution provides that under the Army law, this is the duty of a court martial?. Any officer that walks into the Army barracks to arrest a military man will find himself thrown into the prison there because there is a rule of law that if a military officer does anything wrong, the first body to discipline him is the military tribunal. It’s the same thing with judges. The constitution says all judges are under the control of the National Judicial Council. All the discipline of judges is under the judicial council, that’s what the constitution says. And the constitution interpreted what misconduct is. So, why should the government go and carry a judicial officer who is still in service. There’s separation of powers.

I fight for the underprivileged; I fight for people who are wronged.It’s not because of money; I am fighting for those who cannot fight for themselves; these judges cannot fight for themselves, it is unfortunate. That was why I did the case, to defend the rule of law and due process.

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