A Senior Advocate of Nigeria, Mr Yemi Candide-Johnson, shares with TUNDE AJAJA his thoughts on the new power devolution bills signed into law by President Muhammadu Buhari the recent elections and implications of the rising election petitions on the judiciary, among other issues

About two weeks ago, the President signed some bills on power devolution into law, and by virtue of that, states can now legislate on and control prisons, railways and power, among other provisions. Many Nigerians have yearned for this for years, why is there no excitement over this?

Some of the amendments are fundamental, like the devolution of power regarding prisons, power, independence of the courts and autonomy of state Assemblies, while some of the amendments are irrelevant, like changing the names of local governments, etc., However, the power devolution is a critical change to our constitution, it will have highly significant impact and show a path to reorganising our dubious constitutional document to reflect the best interest of the country. Devolving power is an important tool of development. It enables more accountability, and different regions and states can organise their affairs in a way that is most efficient, effective and advantageous to their people. So, it’s very important. But another important point to make is that I have been struggling for the past two weeks to get a copy of the amendment. The first I heard of it was the announcement in the newspapers. I don’t understand how it can be a secret. I appreciate many of the changes, but it’s remarkable that something as significant as amending the constitution would be almost secretive. I have asked people, even those who are in government and they can’t give me a copy of the amendment. That’s a problem. If people know more about it, there will be beneficial results.

Those provisions have become law, but there seems to be silence on the issue at all levels, including from states, except Lagos where the governor has unveiled the state’s electricity policy. What should be next for all concerned?

When the constitution is amended and the President signs it, it takes effect immediately. So, legally, states can now legislate and control those areas. As the Governor of Lagos State (Mr Babajide Sanwo-Olu) announced, they have a power initiative, so obviously Lagos is ready for this change. It’s for the states to occupy the areas they have been empowered to control. Law has no practical effect until somebody takes advantage of it. The Federal Government will always control interstate commerce but states can now take advantage of those critical sectors.

Are you hopeful that there will be optimum performance of these sectors under the states?

It’s a million dollar question. The power exists and the capacity exists. Kaduna may take advantage of it. Lagos will take advantage of it, Oyo State may. I hope others will. So, instead of expecting the minister to act, we make demands of the governor to determine how prisons, for example, are being managed. It’s easier for me to tell the Chief Judge of Lagos State if he is not fulfilling his functions than to tell the Chief Justice of Nigeria who lives in Abuja. So, the devolution is also about accountability, which improves the quality of the product.

You described the constitution as dubious and some people have said instead of the piecemeal amendments, we should draft a new one. Which do you think is best?

Certain things are fundamental and certain things are true. It is true that this document was created in secret by the military government and imposed on the nation. It is also fundamental that a constitution is a political and social agreement. If the people who are being ruled in Nigeria agree by whatever means to continue to operate under a certain constitutional arrangement, whether it’s the 1960 or 1963 or 1979 or 1999, the law recognises that as the fact. So, if we accept that it is our constitution, it’s a bit of a distraction to be talking about how it came about and whether we should redraft it or not. What is important is that, and this will continue to happen as is shown by the recent devolution, the constitutional arrangement will continue to evolve by a number of changes. The ideal situation would be for us to write a fresh constitution to take into account the interest of all the groups and all the interests, how they want power, how they want to live and how they want to be governed, but such a political solution is a monumental task. A far more efficient use of political capital is in making changes at the most key points. We can stand on the barricades and wave the flags and say we must abolish the constitution and create a new one but the work of constitutional development is so time-consuming that I’m not so sure this is the priority for Nigeria.

What do you think is the priority?

The primary function of a President, especially in a nation that is as diverse and riddled with conflict and crisis is to unite and inspire the people. If you unite them, you will have peace. If you inspire them, you will make progress. You need people to believe that they have the same opportunities as their neighbours, that their dreams, hopes, liberty, freedom and happiness can find expression in this society. So, the president needs to show the people that the government belongs to everybody, including those who didn’t vote for him. You have to enforce the law and those you put in positions of power must exemplify that. Will the security agencies enforce the law? Will the Attorney General promote the rule of law? If a minister breaks the law, will he be disciplined accordingly? These are the tributaries of human development.

The impact of the naira crisis has yet to abate, and many people frowned at the way the Central Bank delayed in implementing the order of the Supreme Court and the argument by some lawyers that the apex court did not have jurisdiction on the matter. What are your thoughts?

I did not think the Supreme Court should have asserted jurisdiction in the currency case. I also think the policy was political, futile and highly irresponsible. It was callous and highly damaging to the economy and lives of Nigerians. It was a wicked policy, in my opinion, perpetrated for a maligned political purpose. But the Supreme Court did intervene and gave an order and that order ought to be respected. I think it says a lot about the government and the rule of law; that an order made by the Supreme Court was not immediately complied with. One of the most fundamental rules is that the decision of the court will be enforced. It seemed quite clear that neither the AGF nor the central bank governor (Godwin Emefiele) – and I don’t know why they are still retaining their jobs, acted right, and this is the failure of the President because ministers exercise their power in his name. For the President not to tell the AGF that you cannot use my name to subvert the law and the constitution, then it’s a failure on his part.

You don’t think the Supreme Court has jurisdiction, which court should have jurisdiction in the matter?

That was an administrative law issue. The court that should have had jurisdiction is the Federal High Court, but the question was framed in a manner that it was a dispute between states and the Federal Government for which the Supreme Court has original jurisdiction. That makes it efficient because it means you don’t have to go through all the layers of courts. There was an emergency, so there was a practical reason why they would go there and I think the court took a political decision to assert its jurisdiction. The fact is that once the Supreme Court asserts jurisdiction in a case, then it has jurisdiction because it is the final court. Whether you like it or not, the credibility of the government depends on its deference to the rule of law.

The courts do not have the power to implement their orders, should the Supreme Court be helpless if its orders are not obeyed?

When you give such an order in a political terrain, you must consider how you will enforce it. There’s a principle of law that equity does not act in vain. The Courts of England, which invented equity, will say that the court will not give an order it cannot enforce. You need to consider carefully what you are doing and why you are doing it. So, they should have considered what would be the result before they made the decision. If the result is that their credibility is further damaged, then I would have avoided giving a decision. If there are political consequences for what the central bank governor did, maybe political intervention was the correct solution to the problem and not the legal approach. But the Supreme Court sought to achieve a political result through legal means, so it must bear the consequences.

Many people have aired their views on the elections, what is your assessment of the exercise?

The first thing is to give context. An election is a contest for political power. In the run-up to an election, people are organised in divergent camps, motivated by powerful passions and emotions; some are primordial, some are intellectual and some are ideological. Being a fierce contest, you must assume that when one side wins, there will be recriminations, regrets, doubts and suspicion. People will find it very difficult to accept electoral defeat in any country. You spoke about how the election was organised, I have friends who have said there were voter suppression, rigging and violence. It’s very easy to make allegations, but I only believe what I can prove. The election petitions tribunal gives an opportunity for people to prove those things they alleged. I’m a lawyer and I believe two things; that only what you can prove is true, and that the best environment for dissecting, organising, analysing, presenting and drawing a conclusion from facts is in a court of law. Peaceful political protest is part of political negotiation, but at the tribunal those allegations would have to be substantiated.

Do you imply that proving the impact of those hitches on the outcome would be a herculean task?

If you say there were voter suppression and violence, you would be asked how many polling units and how many voters are in those units. The legal question would be whether those disruptions had an impact on the outcome of the election. In any election, the question that must be asked is whether the process has produced a result, which is substantially in compliance with the electoral law, because no country has complete compliance. We saw that in the United States when Donald Trump and his people kept saying there was election rigging, at the end of the day, whether the irregularities they alleged had an impact on the election result was a matter of law and fact. My impression is that the election substantially complied with the Electoral Act and I believe the majority of the results reflected the will of the people of those constituencies.

The governorship election seemed to expose the disunity among Nigerians and the seeming intolerance among some ethnic groups, do you see it as that or it was all politics?

Politics and romance can bring out the worst in people, but it’s good to maintain your sincerity, compassion and humanity. This is something I think a lot of people should be reminded about, but it’s not unusual that people will find a way to organise themselves in a way that is most natural. When there is a crisis, for example, and people are looking for whom to support, they will look at how the other person is different. It could have been different if political parties were organised based on ideology, but we don’t have political identities far beyond primordial feelings. So, I’m not surprised. When you see people organising themselves along ethnic or religious lines, it encourages others to reflect and reconsider their respective ethnic ties. Responsible, intelligent, educated and sophisticated people have to persistently exercise their intellect and reach across to people not to allow their personal experiences to be overwhelmed by primordial sentiments, which will thrive in the heightened political atmosphere of an election.

People have accused politicians of playing up those lines for personal gains, is that the case or it is simply inherent in Nigerians?

I think politicians do what is the most convenient and effective. If you are running for an election in America, you recognise that if you go to Detroit, you have to talk about carmakers and if you go to California, you have to talk about water and droughts. When they say all politics is local, it means people organise themselves around their personal, environmental and communal needs. If you can identify those needs, then religion and ethnicity will be irrelevant, but if you can’t identify them and you are in a race for political power, which is the big prize, you are going to reach to whatever is easiest. It is against Nigerian law to organise political identity on the grounds of ethnicity or religion. It is directly prohibited by our law but you can dog-whistle things. I tell young people who have been agitated by the progress of the country that they have to build their political capital. Whether a man is Igbo, Hausa or Yoruba, it is entirely irrelevant as to whether or not I have potable water in my house. This is a matter I must fight for in a political contest, and whoever will work with me is my tribe.

A successful election requires multi-sectoral input rather than the feeling of INEC versus electorate, should INEC take all the blame when those who compromise the system are also Nigerians?

You have to blame somebody. I remember so many years ago, the day before former President Richard Nixon of the United States was sworn in, he was asked what his thoughts were about the office he was about to assume, and he said, you know, the crime rate was at a particular percentage, unemployment was at a certain rate and there was earthquake in China and he said by 12 o’clock tomorrow when I take the oath, they will all be my fault. So, if you are INEC, you take responsibility. You cannot aspire for leadership and not expect to take the burden. The Yoruba has an adage that a man who wants to inherit his father’s property cannot be afraid of sudden death. If I assume the leadership of INEC, I must recognise that I must deliver a product, notwithstanding the fact that I’m going to have ad hoc staff who may be corrupt, etc. The test for the INEC chairman is not perfection but substantial compliance with the law. If 70 per cent believe you have done well and the voice of the 30 per cent who don’t agree is louder than the 70 per cent, that is part of the political spectrum.

The security agents also have their blame in the irregularities recorded during the election, was it a problem of competence or capacity?

It is a bit of both. In some cases, security agents and individuals may compromise their mission; that should be assumed and expected. What you need to do is to have mechanisms for reviewing what they have done and for imposing consequences if they compromise. That would send a signal to everybody else. Secondly, the police are grossly underfunded and undermanned, and that is the case for other agencies. How can you deploy adequately when about half of the policemen are guarding political functionaries and their children, which is a waste of manpower. We need to have more police and pay more attention to them. Also, we need to understand that the authority of the police does not only depend on numbers, it depends on their authority.

How do you mean?

In the United Kingdom, if somebody raised their hand and said stop in the name of the law, there is a culture for most people to stop and obey the law by consent. They recognise that it protects them and there will be consequences if they don’t obey and the society will reproach them because the law is for everybody. In Nigeria, some people tend to think the law is for a few people. The law says I cannot drive against traffic, but I’m a big man in an expensive car and I’m in a hurry, so there is a culture of subverting law for important persons. Therefore, very few people have confidence in the law. The police are not going to control circumstances by number. Let’s not go as far as the UK; if you go to Rwanda and there is a policeman with 1,000 persons in a polling unit, the presence of that one unarmed policeman would dissuade 90 per cent of people from doing anything illegal, because he has authority, his uniform means something; impartiality, justice and law enforcement and you are not going to take that risk. But in Nigeria, there was a funny story someone told me that someone was driving against one-way traffic in an expensive car and a policeman arrested him. When they took him to the station, the Divisional Police Officer arrived and asked what happened to Chief ABC’. The junior officer said yes, he arrested him for driving against traffic and that the road traffic law says any person who…’ You know what the DPO said, ‘does this look like any person; this is Chief ABC.’ That is the problem; we feel Chief ABC is not subject to the law. In England, they said the king is under no man, except God and the law, so everybody must be subject to the law.

Do you think Nigeria can get there because impunity has become part of the culture?

You have to start with some people. For example, get one ex-governor, American, British, Lebanese, judge or lawyer. You need to get people who are perceived to be untouchable and make examples of them. In any country where law and respect for law is established, it’s incremental. Things that are happening today are stories being written subliminally in the minds of our children, about what is important and what needs to be corrected in Nigeria. They still struggle with electoral malpractices in America and it has been a constitutional republic for about 300 years. Even in some places in England and France, they still struggle with rights of individuals and right to life. I think Nigerians should take pride in what we have achieved in the short period. There are many things we can do better, and there are many things that seem so much worse because we know so much better. Many of these countries made progress before mass enlightenment. The fact that we have mass enlightenment means that we feel more the agony of where we are, but also means we have a greater capacity to overcome that situation.

The cliché now is go to court if you are aggrieved and some people feel it is somewhat convenient to compromise the system and just show people the way to the court. Is that ideal or that’s the essence anyway?

There are two questions hidden in that. One is whether or not when people challenge you to go to court it shows contempt for the process. I don’t think it does. I think the process of elections and any political contest or any human dispute in a civil society is meant to be resolved by the courts. So, go to court is not a taunt, unless you have not had confidence in the outcomes from the court. That leads to the second question, which is implicit in what you have said, as to whether Nigerians have confidence in the products of our judicial system. I think they may not. I think aberrant decisions in the political sphere, in particular, the bulk of the court’s work is in contract, torts, criminal law and minor cases and that is a very important bulwark of the court’s work and establishing people’s confidence in the understanding of law. But in the high ticket items, presidential, governorship and senatorial elections, the courts have given many decisions which appear to the ordinary man so perverse and so potentially perverted that people doubt the integrity of the judicial process. That has an impact on the judicial process, even in the areas that are not political. So, the problem is how do we strengthen our judicial process, make it independent, impartial and reflect the necessities of a modern society, which includes access to justice and efficient disposal of remedies, which inspires confidence that I have a 50 per cent chance of victory. This is very important and is a big responsibility for the judiciary because the fact that people are making that taunt indicates that it is accepted that confidence in the integrity of the judiciary is at an all-time low.

Some people have said that with the volume of election petitions being filed before the tribunals, the judiciary seems to be on trial, especially with reference to precedents. Do you agree that this round of election cases is a crucial test that the judiciary must pass?

It is a test of the judiciary and there is no doubt about that. The problem I have is that before you take a test, you should have revised and made preparations. I’m not sure the judiciary is ready for this test. Jurisprudence is organised in a way that promotes certainty in outcome. It should be possible to say that from the body of law, 90 per cent of these cases will be decided in this way. If we knew with certainty how the courts will decide on a number of questions, there will be less cases going to election petitions tribunal, but because there is so much uncertainty and so much incredibility in some decisions the courts have made, people reckon it’s a toss of the dice, like take your chance, file a case, and who knows. You know the purpose of elections is to decide what the view of the majority is, but the courts have given decisions which subvert the will of the majority. That means there is no philosophy about elections which promotes a democratic result. So, the courts then become an enemy of democracy and they become a maligned participant in the political process, and that is very dangerous for the courts, their credibility in the political sphere and across the board, which goes towards rendering them almost incompetent to achieve the function that they have in a democratic government.

The statement issued by the Supreme Court is still very fresh in the mind, when it decried the way people were criticising its judgments. Some have said the backlash was self-inflicted while some believe such was unavoidable in political cases. What do you think?

I think it’s self-inflicted and I think judges are responsible for their reputation. One thing the judge must consider when giving a decision is how it will be digested by the public. A judge would ask themselves, what language will I use; what is the rationalisation; how will I explain it; does it fit within the political objective of my office; does it fit within the corpus of the law as something that is valid, will what I have decided been recognised as fair and just by the vast majority of right-thinking people? These are things a judge must consider. So, if a judge gives a decision that is perverse and legally suspect, they must expect it to be digested by the public, and the public is not to be silenced. There’s a famous case where Lord Denning was asked whether it was contempt to criticise the judgment of the court and he said no, there was something more important; the freedom of speech. He said we do not fear criticism, we do not run from it and we will not punish people for criticising us. What we would do is to rely on our conduct for vindication. He said let people look at what we have done, but we will appeal to you that as judges, we cannot comment and we cannot enter the controversy with you, so if you criticise us, we cannot answer you. That brings me to the question of the Supreme Court issuing its extraordinary statement. That is a political statement that is made by the Supreme Court. It was a reflex to respond to public criticisms by threatening consequences when you know that you are operating a public service at the public expense and the constitution under which you operate guarantees freedom of speech. Who are you to tell people not to criticise your judgment? Your conduct must be its own vindication and people have the right to criticise Supreme Court judgment, analyse it and disagree with it. I would urge them also,

as Lord Denning said, to be respectful, have reference to the fact that judges cannot answer you. This is probably the only country where judges would issue a statement entering into something like this. You are being criticised for entering into the political fray, then you enter into the political fray to argue with unknown individuals commenting on your judgment. I think it was

a serious lack of judgment to have issued that statement.

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