Without devolution of power, Nigeria future uncertain — Agbakoba
Without devolution of power, Nigeria future uncertain — Agbakoba

Without devolution of power, Nigeria future uncertain — Agbakoba
A former President, Nigerian Bar Association, Mr Olisa Agbakoba (SAN), shares with TUNDE AJAJA his thoughts on the calls for restructuring and the state of the nation

Years ago, you filed a suit about the disparity in the cut-off mark for students from the North and South as regard admission into Federal Government Colleges, what prompted the suit at that time?

I filed the suit because I have grandchildren. I said to myself that if my grandchildren would have to enter a university on different grades from that of people from elsewhere, something was unfair about it.

In 2014, Justice John Tsoho of the Federal High Court ruled in your favour by ordering uniformity in the cut-off marks but nothing has changed. What’s the update on the case?

The government appealed and given the slow process of adjudication in this country, the case is at the Court of Appeal. The present President of the Court of Appeal (Justice Monica Dongban-Mensem) has done two important things when she came in; first is that she has called for an extensive review of the rules of procedure, which is what determines how fast the court runs. We copied our current rules of procedure from the United Kingdom and the rules are about 100 years old. But if we transform the rules, a lot of cases can go quickly. Happily, COVID-19 has opened our eyes to the possibility of other forms of dispensing justice, like virtual hearings. When the review is complete, I hope we would see a more swift process. The second thing she did was to set up 23 panels, comprising three judges each, drawn from across the country to deal with the backlog of appeals in Lagos, because Lagos has the highest number of appeals. So, hopefully, ours would be part of the cases that would be taken. It’s been six years but the case is still at the Court of Appeal.

Successive governments seem to have penchant for disobeying court orders, if the appeal goes in your favour, do you see this government implementing the order?

The general enforcement of court judgement in Nigeria has been very poor, across the last 20 years or more. So, assuming we are victorious, I can only hope that the judgement of the court would be implemented.

There is a common feeling in southern Nigeria that the north is always looking for ways to suppress them, do you think that was what informed the disparity in the cut-off marks or it was purely based on merit?

In fairness, it was based on what is called affirmative action. That applied in the United States when they needed to boost the black’s employability. Clearly, the south is ahead in terms of education, and therefore the principle of affirmative action to give a chance to people from northern Nigeria was introduced as a policy. I understand the policy, but unfortunately it’s unconstitutional. However, a question to ask is why education is a matter of national policy? Why should government own schools when you have the private sector, churches, non-governmental organisations and educational trusts that can go into that? In Anambra State where I come from, if we establish our universities, primary and secondary schools, we should be able to set our standards. Why should there be a national standard? That’s the problem. Why should everything be nationalised? The problem is that when you make a policy and lower it in respect of areas where you want to do affirmative action, it becomes a problem. Nigeria is not working because it’s too centralised. Look at the courts too; why should there be only one Court of Appeal? We should have Courts of Appeal localised around Nigeria, like systems of Courts of Appeal for each of the geopolitical zones. Why must there be only one? Why would Justice Kabiru Musa from Katsina State sit in Awka, Anambra State? Why would Justice Okeke from Enugu State sit in Taraba State? What are we trying to prove? We need to decentralise. Nigeria will become a stronger state if it is decentralised. Look at the way America conducts its elections; each state has its own rules. There is nothing like Independent National Electoral Commission, but here we have INEC, which is unable to cover Nigeria in terms of logistics. What is going to make Nigeria a lot more governable is decentralisation.

The disparity in the admission into Federal Government Colleges has spread to governance, which the Federal Character Commission was set up to correct, but some people believe that has failed too. What is the problem?

It’s because the Federal Character principle is not being applied properly and it’s not just about this government, it’s from the time of former President Olusegun Obasanjo. The Federal Character principle did not say merit should be compromised, but it seems that is what we are doing. The federal character principle in the constitution did not say every ethnicity must be represented; it only said in making appointments, one would need to see a fair representation. It may not be equal, but a fair representation. It doesn’t mean everybody must be there. It’s not an all-comers affair. The element of merit is still part of federal character.

Do we need to amend the law that established the FCC?

The reason why everybody wants to be in the system is because the Federal Government is too strong. If we have strong federating units, whether they are the six geopolitical zones or the 36 states, which has been termed devolution of powers or restructuring, the quest to be in the federal process won’t be there. So, it’s not about amending the federal character provision, it’s about putting in place a system where power is devolved to the federating units.

The discourse around restructuring has continued to dominate public discourse, why has it been impossible for government to do something about it, seeing how it interests the people it governs?

It is because there is no understanding among Nigerians about what restructuring means. There is also the politicisation of restructuring. I feel that advocates of restructuring in southern Nigerian have played the game wrongly. They have not understood that there has to be an agreement with northern Nigeria. Northern Nigeria has a different concept of restructuring from the south, but what is common to everybody is to ask what does restructuring mean? From the way I have read it, it simply means devolving powers to the federating unit and making the Federal Government less powerful. That happens by looking into the constitution to see that there are 98 items of power in the constitution. Out of that, 68 are exclusive to the Federal Government while 30 are on the concurrent list. So, is it not to sit and agree on the ones the Federal Government should handle and which ones the states should oversee? I was in a Zoom conference with the Deputy Senate President (Ovie Omo-Agege) and the Senate Committee on constitutional reform and I told them it’s very simple. Why should the Federal Government be interested in primary health care or issuing driving licence?

Some people have fears that governors are powerbrokers and they might abuse the privileges that come with an expanded sphere of influence?

Are Presidents not power-brokers? Political leaders are power-brokers, whether it is at the federal or state level, but this point you make also goes back to the point of making the constitution more sacrosanct. The problem is that the constitution does not contain enough structure to make strong institutions possible. What South Africa did and what you see playing out in the United States is the rule of independent, strong institutions. It’s absent in our constitution. In my address to the Deputy Senate President in the Zoom meeting, I suggested the amendment of relevant sections of the constitution that talks about independent executive agencies and I said the fact that you call it executive already shows that it is under the executive. So, I recommended that we adopt Chapter 10 of the South African Constitution that sets out about 15 institutions that must not be part of the executive, legislature and judiciary and their tenure and budgeting are so secured that those institutions do not feel obliged to report to anybody. Imagine if the Nigeria Police Force is guaranteed under the constitution as an independent body and the power to hire and fire the Inspector-General of Police does not reside in the President. The best example of an independent institution here is the judiciary. You don’t see the Chief Justice of Nigeria going cap in hand to the President, because he’s independent, and the ability of the government to interfere with the process is prohibited by the constitution. If there were no strong institutions in the United States, President Donald Trump would have won the election. But here, a strong Nigerian President can dismiss virtually anybody. That was what South Africa did differently and that is why it has a strong semblance of governance. If that is done here, Nigeria will change because strong institutions raise the level of governance at all levels.

There is a belief a typical Nigerian tends to abuse the powers of an independent institution, do you see that as a logical caution?

The fact that these institutions are strong and independent does not mean there is no scope for reviewing their powers. If you have a strong judiciary, there is something called judicial review of administrative action and if you have a strong legislature, it can also do same. That is what keeps everybody in check and that is the meaning of checks and balances, which we don’t practice here. It means executive is looking into what other arms are doing, and if there is misbehaviour, the executive can invoke the constitutional provisions to have it reversed. But now, the executive powers that reside in the President or the governor are unlimited, so nobody checks what they do, and therefore the governance process is weak.

You mentioned earlier that the North and South have yet to agree on what restructuring is, can’t the APC also implement the provision in its manifesto that it would restructure the country, coupled with the recommendations of the Nasir El-Rufai committee?

There is nothing wrong with that at all. We are saying the same thing. That is where the south should have engaged them, rather than do all the fancy press conferences. You have to understand that you must carry them along. A marriage is not complete unless both sides agree. I want to know, how many times have Afenifere, Ohanaeze, PANDEF or Middle-Belt Forum actually engaged the El-Rufai committee, to say this is what we are saying, can there be an understanding? What I see leaders from the north do from time to time on television is to say ‘what does this restructuring really mean?’ So, we are the ones who have a duty to explain it in a way that does not threaten anybody. Like it or not, the north is threatened that restructuring means breaking Nigeria up, in which they are not interested. So, the south has presented the restructuring in a way that the north feels threatened. It is for us in the south to explain that restructuring is no more than redistributing power on the legislative list. The strong point made by the south, which I agree with, is that the 1963 Constitution is the strongest reference point for restructuring. If you look at that constitution, what it talked about was a proper distribution of legislative powers. So, why not just devolve powers? Which governor in Nigeria can quarrel with giving him more power to control his resources, like Zamfara is controlling its gold? None. But that is not what is coming out. It has developed a political tone that is not resonating well with everybody, including myself. All 36 states have to agree. If we all sit down now to say what restructuring is, you would be very shocked to see a cacophony of voices. That was why I said restructuring is no more than redistributing legislative power on the exclusive and concurrent lists. That is what it’s all about. And I don’t know whether the federating units would be states or the zones. Once we have done that, the whole debate is over.

Which do you think is more between having states or zones?

Zones, because states are not viable. There are only about three or four states that are viable. They can’t pay salaries and they have no money for development. Some states simply have no income. Once they run to Abuja to collect the allocation, they go to sleep. I would say the way to go is to have zones as the regional structure.

Can’t the President or the leadership of the National Assembly also take the lead on this matter?

Nothing wrong; you are right absolutely. I think the President and the National Assembly ought to be very active and all of us should be active. Nigeria is already in a very poor state, both economically and politically. So, I agree with you. It’s not a matter for only Ohanaeze or Afenifere. Even the Peoples Democratic Party, the so-called opposition party, is saying nothing. I may be wrong but I don’t recall the PDP making it an issue. They have governors and members in the National Assembly. The opposition party should put it on the table. It’s the duty of the opposition to push agendas.

But the opposition would also say this government is not a listening government.

Is Trump a listening President or is the Prime Minister of Britain a listening leader? The work of the opposition is to make the government listen because governments of the day across the world tend not to listen. So, where is the voice of the opposition? Our politicians have no idea of the concept of opposition parties. The one and only opposition this country has had is late Chief Obafemi Awolowo. What we have now are election opposition parties. Good opposition is what gives rise to quality debate in the parliament. But in our National Assembly, you see people who have no business being there and it seems like a place you go for gratification. That is the problem. So, the quality of leadership is very poor.

There are people who believe we need to replace the constitution entirely, while some people feel amendments should suffice, what is your view?

Amendments, because the life of a nation continues to evolve, so you can’t resolve Nigeria’s problems in one day. When President John Kennedy died, the principle of continuity in government became an issue and so there was a need to amend the constitution. That was what led to the 25th Amendment. If you amend the constitution today, in 10 years, do you know what the issues would be? It is clear that the framework of the constitution is essentially structurally sound. It just needs amendments as we have political and economic challenges as we go along. So, I go for piecemeal amendments.

People opposed to the 1999 Constitution said the military forced it on us and that it lied when it said ‘We the people’. Isn’t that a valid reservation?

Yes, it’s true and that’s why we have problems. The military has a centralised structure, so the constitution is also central. All we need to do is to amend that part of the constitution where it says ‘we the people’ and now say ‘We the people have given this constitution to ourselves’ or ‘We the people… being a constitution made and given to us by Gen Abdusalami Abubakar’ and that the members of the National and state Assemblies who represent us would adopt it on our behalf, and then it becomes a truly Nigerian constitution. That would resolve that problem.

The Attorney General of the Federation said last week that the House of Representatives could not invite the President but some people disagreed. What is your position on that issue?

I’m surprised it’s an issue. The nature of power that the National Assembly has to summon people relates to their investigative powers prescribed in Sections 88 and 89. Shell has taken this matter to court and I’m surprised no one mentioned it. Shell was summoned and it said the National Assembly had no right to summon it. The problem started by the Speaker going to invite the President and coming out to say the President had accepted. We all saw him on the television. It was a simple invitation. If the President then declines to honour the invitation, that is the end of the matter. If I invite you to dinner and you accept and the following day you called to say you can’t come, that’s the end. I don’t know why this thing became an issue. I think even the Attorney General didn’t need to make any statement, because an invitation is not compulsory. If the President had been summoned pursuant to an investigation, the question whether he can be summoned is one that, to be honest with you, I don’t have a clear answer. Generally speaking, around the world, in presidential systems, Presidents are not summoned. The only time the US President is required to go to Congress is for State of the Union Address and when he’s presenting the budget. The only time the President of Nigeria goes to the National Assembly is to present the budget. So, conventionally, not legally, the President does not go to the National Assembly. The question as to whether he can be summoned, I would expect the National Assembly to invoke the original powers of the jurisdiction of the Supreme Court to test the matter there if they want to push the matter to a logical conclusion. If you ask people, there will be different answers. But I have a feeling that it is not proper to summon a sitting Nigerian President to the National Assembly. I don’t know why I feel that way but I don’t think it’s proper. I think it’s undignified. It’s like saying the President summons the President of the Senate to Aso Rock.

Prior to the release of the schoolboys kidnapped in Kankara, Katsina State, many people were of the view that the President should have visited the school since he was in that same state, are Nigerians being too critical of the President?

I think it would have been a good idea if the President went there since he was in the state. It’s his home state and he was there. The role of a leader is to comfort. If I were in the President’s political team, I would have told him it’s a good idea to visit, because it would convey a very good impression to Nigerians that there is a strong emotional content. I would have thought the President should have visited.

Few weeks ago, there were debates over the Arabic sign on the naira. What do you make of those reservations?

I don’t think Arabic should be on the naira. We are not an Arabic country. I don’t know why that sign should be there. I asked similar questions when I was a member of the National Judicial Council, when the question about the understanding of the Sharia Law came up and I opposed the then CJN, Aloma Mukhtar that I didn’t see how it should be a requirement for judges of Islamic origin to understand Arabic. I’m a Roman Catholic, does it mean that a Catholic judge must speak Latin? I think these are the sort of things we need to get rid of for a united, independent nation. We are not an Arabic nation. So, it will be nice to get rid of all the Arabic inscriptions and symbols, or are we trying to say we are Arabic? I don’t get the point. If it were Hausa or Igbo or Yoruba language, it makes more sense, but Arabic is not part of our language. We should replace it with our own language.

Many Nigerians are dissatisfied with the performances of the two popular parties, since they often produce leaders, does it mean we are on a long journey to getting it right?

It’s a long journey. In order to strengthen the democratic process, many things are required. The first thing would be to strengthen the constitution. In fairness, since the last 20 years, the process has improved particularly under Attahiru Jega and Mahmood Yakubu, but I still need to see substantial amendment to the electoral process. INEC is doing far too many things, that is why it has not been very competent. It is the biggest printer of papers in Nigeria, but that should not be the job of INEC. The job of INEC is like the referee in a football match. So, we need to interrogate its roles and ask whether it can actually do the multiple roles it is doing, and if not, what can we remove from it to make them more efficient? I think the duty of INEC should be to go and count the votes on the election day. The second thing is for it to be independent. We have not seen INEC to be independent with the way it defends cases in court. INEC should not be defending cases in court. If both of us are contesting a senatorial seat, if I lose and I go to court, the role of INEC is simply to bring all the papers it used in conducting the election. INEC should not be filing any papers as a defence. When we sat in the Mohammed Uwais panel on Electoral Reform, we said INEC’s position must be neutral. If anybody questions INEC’s work in respect of vote counting, let the court decide it, not INEC. During the Buhari – Atiku case, INEC came and vigorously defended the elections. That’s not for INEC to do. It means it’s not neutral. Let the court listen to all, ask INEC to bring the papers and then decide.

The issue of zoning the presidency is another issue of interest to Nigerians, what’s your view?

It’s an emotional question, because we have done ‘chop I chop’ politics, so the South-East feels it’s our turn. But that kind of politics is unfortunate because politics is seen as very personal. It goes back again to what I said about the devolution of powers. I am now 66. I was 22 when the different governments of Nigeria began to construct the dual expressway between Onitsha and Enugu. Up till today, the road is not there. What is the reason? How can the Minister of Works in Abuja be in charge of Onitsha – Enugu Road? But if we devolve power as I suggested, this quest and fight for who should be the President of Nigeria will be less intense. So, emotionally, I think it should go to the South-East. But in terms of competence, I don’t believe in zoning. What is the point having a South-East President who would be incompetent? I would rather have a President who would be competent, but like I said, it’s an emotional question; that everybody has had their turn and if you don’t give it to us, then we feel marginalised. That’s the argument, and there is a lot of emotional sense in that argument, but the other side of the coin is whether simply by having a south-easterner as the president Nigeria’s problem are resolved. That’s the question I can’t answer. When I watched Dr Michael Opara, the Premier of Eastern Nigeria, I said he was probably the greatest Igbo leader of all time. He established things across Eastern Nigeria using a corporation called Eastern Nigeria Development Corporation. Awolowo established in the South-West what he called Western Nigeria Development Corporation; Ahmadu Bello established his own called Northern Nigeria Development Corporation. These three corporations have been the biggest development engines in Nigeria of all time, which was because the premier had real power. At that time, the regions could send ambassadors to the United Nations. That shows you how devolved power was. So, central to the success of Nigeria is the devolution of powers. Without that, we are going nowhere and everybody will keep competing for who controls Abuja.

How do we change that narrative?

The lesson is for us to return to the 1963 political model, when we had devolution that enabled the regions to compete. The regions were giving the Federal Government money to maintain itself. Then, the regions owned the Federal Government, but today, the Federal Government owns the states. The reason why some sectors are lying comatose is because governors go and collect stipends from Abuja, but they are not seeing the untapped resources in their states. Outside oil and gas, maritime is the next biggest sector in Nigeria. The closure of the border, which I fully support, brought in extra N20bn monthly to the revenue of Nigeria, but if you go to Apapa, the place is very disorganised. Why is the Federal Government not interested in a place that can give that improved revenue? It is because the port is too far from the Federal Government. That port should be owned by the Lagos State Government. The big Niger Port in Onitsha is controlled by the National Inland Waterways Authority, sitting in Lokoja. Once the Federal Government owns something it belongs to nobody. So, by devolution of powers, the port in Onitsha should be under the control of Anambra State. The gold in Zamfara should be under Zamfara State and that is how you can maximise revenue. Nigeria is an extremely well endowed country but the strangulation by centralised political control has made it difficult for us to harness our resources. Regardless of the sector, Nigeria is bleeding badly because of the political configuration. This is the Nigerian story. We should commend the Minister of Finance. She has worked tirelessly without noise to increase our revenue. If you look at our Finance Act of 2020 and Finance Bill of 2021, that is going to increase government revenue substantially, and her target is fantastic.

Given the enormity of problems Nigeria is facing, are there times you give up on the country?

I’ve been in this for about 40 years, so yes, sometimes I lose hope and sometimes I become hopeful but I’m cautiously optimistic. I need to see more than what is happening now. Some of these things should be apparent to our leaders; these are not rocket science. They are straightforward. Why am I seeing these things and the leaders are not seeing them? Is it that they have too much work.

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