A Memorandum To The Committee On Law, Judiciary, Human Rights And Legal Reforms Of The National Conference, 2014, On Sundry Issues In The Committee's Thematic Areas.
CHIEF MIKE A.A. OZEKHOME, SAN,
CONSTITUTIIONAL LAWYER AND HUMAN RIGHTS ACTIVIST
FEDERAL GOVERNMENT DELEGATE
Mr Chairman Sir,
I forward herewith, a written version of sundry points which I have already canvassed orally at the sitting of this Committee on Tuesday, the 22nd of April, 2014.
INCREASE IN THE NUMBER OF SUPREME COURT JUSTICES.
Consequent upon the herculean workload of the Supreme Court, where cases of 2005 are just being considered, inspite of the nerve-racking handling of these cases by the Justices, I hereby canvas for an increase in the number of Justices of the Supreme Court. This will lead to more hands being engaged to speed up the process of attaining justice in Nigeria and making the process of Justice delivery easily realizable.
RETIREMENT AGE OF SUPREME COURT AND
COURT OF APPEAL JUSTICES
The present compulsory retirement age of Supreme Court and Court of Appeal Justices which Section 291(1) of the Constitution of the Federal Republic of Nigeria, as altered, pegs at 70, is not helpful to justice delivery. Most of these justices retire when they are still very healthy, more mature, more experienced, more courageous, less prone to corruption, and at a time their services are mostly needed by their father land. This Constitutional provision has been given statutory support by section 3(2) of the Supreme Court Act, 2004, and Section 4 of the Court of Appeal Act, 2004.
The country spends a fortune on their training and retraining, only to lose their services at a time they are most needed. The legendary Lord Denning, was still handling cases at the age of 84. Justice Chukwudifu Oputa headed a panel, the Oputa Panel, long after he retired from the Supreme Court Bench.
The Hon. Justice Kayode Eso, was very much useful to the Nigerian Nation years after his retirement, chairing many Panels, Commissions of Inquiry and heading the Multi-Door Court in Lagos. In this very Committee, Justices George Adesola Oguntade (Chairman), F. F. Tabai (both retired Justices of the Supreme Court), Abdullahi Mustapha, Peter Akere, Baba Alkali Ba'aba, Adamu Bello, HRH, Lawal Gumi, etc, still display bubbling energy, strength and agility in their deliberations, laced with clarity of thought and fecundity of mind.
My respectful suggestion is that Justices of the Supreme Court and Court of Appeal should be given an option to retire voluntarily at 70, if they so desire, and compulsorily, at 80.
FEDERALISM AND HIERACHY OF COURTS
Nigeria, by its present hierarchy of Courts, is operating a unitary system of Government. In the United States of America, each State has a hierarchy of Courts from the lowest Courts up to the Supreme Court. Only matters that are of serious Constitutional import and which involve grave issues that affect the citizens' fundamental rights and entire Nation find their way to the hallowed chambers of the United States Supreme Court.
Why should a simple case of stealing a tuber of yam, or a goat by a poor farmer who has been convicted in a Magistrate Court in my Iviukwe town, for example, go on appeal to the High Court,(at Agenebode, formerly at Auchi), then Court of Appeal in Benin, and end up finally at the Supreme Court in far away Abuja?
This is against all known principles of Federalism where each Federating unit is permitted to develop according to its pace, and take care of its peculiar problems and challenges.
It is in the same vein that State Police is desirable to ensure community Policy, rather than the unwieldy, behemoth, elephantine Police Force presently recognized in Sections 214 and 215 of the 1999 Constitution. It is in like manner that each Federating Unit should control its resources and pay tax to the Government at the centre as was the case up to 15th January, 1966, when the first Nigerian Military coup was enacted by Major Kaduna Nzeogwu Chukwuma. At that time, each of the four regions controlled its own resources, took 50% share, paid 25% as tax to the Tafawa Balewa Government at the centre, and partook in sharing with the other regions, the remaining 25%.
Permit me to state that the unitary system of Government being practised in Nigeria has led to the over dependence on a mono wasting resource called crude Oil, and the now less than 300 trillion cubic Ft of natural gas reserves. While the vast resources in our lands have not been explored or exploited. For example, Plateau State has the largest Mineral deposits in Nigeria (25); followed by Nassarawa State (22); Kaduna state (19); Kogi and Sokoto States (13); Ondo and Benue States (12); Edo and Oyo States (11), Anambra State (9); Bayelsa, Imo and Kwara States (8). Yet, these Minerals remain unexploited.
We need to embrace and operate true Federalism through genuine devolution of powers from the centre down to the Federating units. Why should the Federal Government for example, be concerned with controlling marriages, traffic, mines and minerals, or be responsible for building Prisons to house inmates of crimes committed against the States? Why should the Federal Government alone control 68 items on the exclusive legislative list, leaving a miserly 30 items for the States in the concurrent legislative list? Yet, under the Doctrine of “covering the field”, entrenched in section 4 of the Constitution, a Federal Act will override any State law in the event that there occurs a conflict. The Federal Government in a true Federal set up should only be concerned with few critical issues like defence, central Banking and currency, External affairs, Immigration and customs, Federal Revenue, Copyright and Patents, arms and ammunitions and extradition matters.
SPLITTING THE OFFICE OF THE ATTORNEY GENERAL AND
THAT OF THE MINISTER OF JUSTICE.
By virtue of Section 174 of the Constitution of Nigeria, 1999, as altered, the Attorney General of the Federation is the Chief Law Officer of the Country. He undertakes, prosecutes and discontinues cases for and on behalf of the Government. The provision makes him the guardian of public interest as he is expected to carry out his functions in furtherance of the public good, public interest, the interest of Justice and to prevent abuse of legal process.
As the Minister of Justice, however, he is steeped deep in politics and is expected to be answerable to his appointor, the President of the Federation, who is also the leader of his ruling political party. Thus, no matter the pretence towards political neutrality the Attorney General cannot effectively extricate himself from political pressure to perform certain acts or resile from performing certain acts, that are not in the public good. Examples of such are the entering of “nolle proseque” for former political office holders accused of corruption and other heinous crimes against their fatherland.
It is therefore necessary to have a thorough bred legal practitioner as the Attorney General of the Federation, whilst, the President may decide to appoint a politically active person as the Minister of Justice.
JUSTICIABILITY OF THE FUNDAMENTAL OBJECTIVES AND DIRECTIVE
PRINCIPLES OF STATE POLICY.
As it is at present, Chapter 2 of the 1999 Constitution is non-Justiciable by virtue of Sections 14 – 25 of the 1999 Constitution. The rights entrenched in this chapter have since become ECOSOC (Economic, Social and Cultural) rights that are enforceable in other climes and are justiciable. It is not enough to merely regard them as ideals towards which Governments will strive to realize. Citizens should be able to approach Courts of law to enforce their breach or derogation. Why should a citizen not be able to challenge a Government to give him basic amenities of life like food, shelter, water, roads, health and clothing? In a country where less than one percent of the populace controls over 90% of the Nation's wealth, flying private jets like birds in the sky, with Nigeria ranking next to America and China in this regard, why should a citizen not be able to challenge this unequal distribution of wealth, contrary to Sections 15 and 16 of the 1999 constitution, as altered?
THE SPECIAL STATUS OF THE NATIONAL INDUSTRIAL
COURT OF NIGERIA.
This Court which came into being on the 4th of March, 2011, as the 3rd Alteration to the Constitution of 1999, has done much in fast tracking the dispensation of Justice to all and sundry. The judges there are specialized as demanded by section 254 (c) of the 1999 Constitution, as altered. Unlike the Federal High Court and State High Courts, it is only the Judges of the NICN that are required to be specialists in their areas, to wit, labour, employment and industrial related matters.
APPEALS FROM NATIONAL INDUSTRIAL COURT
The scope of the matters that go on appeal from this Court should however be widened to accommodate more items, rather than the present limited scope that deals with only Fundamental Rights. Alternatively, an appellate division should be created within the NICN. Scrapping it, or whittling down its powers should however not be contemplated at all by this Conference.
SUBJECTING DECISIONS OF THE CONFERENCE TO A NATIONAL
REFENDUM OR PLEBISCITE.
Unlike the 2005 Political Reform Conference whose decisions were jettisoned because of the third term agenda that later reared its head, the decisions of this conference should be subjected to the people of Nigeria in a popular plebiscite or referendum. This will give the Constitution the status of autochthony (home grown), enabling it enjoy the legitimacy, credibility and acceptability of the Nigerian people. The singular process of not subjecting a Constitution to a referendum of the people is what has so far robbed all Nigerian Constitutions of the desired legitimacy – the 1914 Lugardian Constitution; 1922 Clifford Constitution; 1946 Arthur Richards Constitution; 1951 McPherson Constitution; 1954 Littleton Constitution; 1960 Independence Constitution; 1963 Republican Constitution; 1979 Obasanjo Constitution; 1989 Unused IBB Constitution; 1995 aborted Abacha Constitution; and the present Abdulsalami Abubakar Constitution which is nothing but a Militarily imposed Decree 24 of 1999.
To refuse subjecting the decisions of this conference to the Nigerian people in a popular referendum will tantamount to postponing the evil day; to treating a serious ailment like leprosy with a balm meant for eczema.
Sovereignty belongs to the people of Nigeria, and only they can exercise it. (Section 14 of the 1999 Constitution). Democracy should not merely stop at approaching the people every four years to ask for their votes. It should reflect the popular Gettysburg Declaration of 1863 by the then US President, Abraham Lincoln, that democracy is Government of the people, by the people and for the people.
MODE OF ACHIEVING REFERENDUM.
Achieving a referendum or plebiscite can be done in three different ways:
1. Introducing the Constitution as an Executive Bill by the President after obtaining the concurrence or approval of members of the National Council of States under Section 153 and the 3rd Schedule part 1 to the Constitution. The National Council of State is a miniature Nigeria, comprising of the President (as Chairman), Vice President (Deputy Chairman), all former Presidents of the Federation and all Heads of the Government of the Federation, all former Chief Justices of Nigeria, the President of the Senate, the Speaker of the House of Representatives, all the Governors of the States of the Federation and the Attorney-General of the Federation. It was this same Council that jointly agreed at its meeting that the President should convoke the National Conference. The Council can conclude what it has rightly begun, by empowering the President to send an Executive Bill to the National Assembly, forwarding a copy of the proposed Constitution. This Constitution shall then be passed by the National Assembly without a single alteration.
2. Getting the National Assembly to amend section 9 of the Constitution to allow for referendum. This method may delay, as it is lengthy, problematic and may be bedeviled by politics and politicking.
3. The National Assembly can enact an ordinary, totally new, Act of Parliament, dealing specifically with the issue of referendum or plebiscite for a new Constitution for Nigeria. This law will empower the President to take the document to the Nigerian people. It will outline the process of turning the document into a peoples' Constitution..
This third suggestion will obviate the rigours of amending the Constitution under Section 9 thereof. Suggestions 1 and 3 above can be passed by a patriotic National Assembly in one day, through 1st, 2nd and 3rd readings, all in one day. Yes, this is possible! Patriotism and a spirit of nationalism are all it takes to consummate this.