Constitution amendment: ‘Confab has no mandate of Nigerians’

What is your view on the reported smuggling of the draft constitution at the National Conference?As a Nigerian and a lawyer, I had my reservations when the national confab was set, the way the membership of the conference was recruited and its terms of reference. I felt that there was no time to determine the […]

What is your view on the reported smuggling of the draft constitution at the National Conference?
As a Nigerian and a lawyer, I had my reservations when the national confab was set, the way the membership of the conference was recruited and its terms of reference. I felt that there was no time to determine the way we exist and what should be corrected. I felt it was not the duty of a body called national conference to do this. We have a lawmaking body that can take care of this; even if it will lead to constitutional amendment. I don’t think that a group of people selected by an individual can just sit down and pick the membership of such committee.
My definition of that committee is that it was an advisory body set up solely to advise Mr President on certain national issues. And how can an advisory body have more powers than the National Assembly and other law making bodies. From the beginning we suspected that there was an ulterior motive and for you to understand what went on in the confab you must look at how President Goodluck Jonathan, then vice president became president after the death of President Umaru Musa Yar’adua. He was in acting capacity and then president. After the expiration of Yar’adua’s tenure he contested and won the election. Now the argument posed by the people is whether he is now spending his first or his second term in office. The position of the constitution is President Goodluck Jonathan is in his second term already. The definition of election, the way I understand it, is when you are sworn into office either by reason of election, resignation, incapacitation or even impeachment.
So when one is removed, either the president or the governor or the vice as the case may be, takes over then the issue of defining that context of election does not give us something that can drag. If we take that precedent, saying that in 2010, Jonathan was not elected before he assumed leadership of the country, then we don’t know what happened to former Governor of Adamawa State, Boni Haruna, who was not elected in 1999 but ended up as Governor of Adamawa State, then we don’t know what will happen to Governor Ibrahim Gaidam and Governor Mukhtar Yero of Kaduna State and so many examples.
The constitution is about the institution of the corporate entity called Nigeria. The draughtsman never contemplated the ambition of an individual; it is about the existence of a country. It says you have only two terms or eight years. This is Section 137 sub section 1b of the Nigerian Constitution. And then the tenure came under Section 135 sub section 2 of the constitution. The latter section talked about tenure, the other about disqualification.  You are disqualified the moment you spent two terms in office.
With the new draft constitution introduced at the confab, one will agree that the whole aim is to change the constitution and  give the present executive the power to exist beyond their limitations. Because once you change the constitution there will be no limitation as you will not have the constitution to rely on. You cannot go to court and say this man is spending his third term in office contrary to the provision of the constitution: Which constitution?
Nigerians know how the constitution came about. The court will not ask that as its duty is to interpret the law. The whole issue is once the new constitution becomes law, then the courts are duty bound to interpret the law as it is and not the other way round.
So the confab was designed to ensure that Goodluck contests election next year, 2015. And the way I view the constitution is that Jonathan is not eligible to contest election in 2015 and once he contests under the present constitution then it is as good as setting the tune for the creation of a perpetual president who is not willing to live office as the constitution of the country must have been breached.
The provision is clear,  two terms of eight years, but which says you cannot spend more than that. But you can spend less than that. Because you can resign if you want, death can snatch you, you can be impeached or incapacitated. Within the contemplation of the draughtsman, you can spend less than eight years, just as the case of Yar’adua. And for anybody to say that Jonathan completed the tenure of Yar’adua is a most unintelligent reasoning.
What is your view on the outcome of the just concluded National Conference?
Whether the report or the recommendation goes to National Assembly, it is not more than advisory and it remains so until the National Assembly  deliberates on it. As an individual, I can write a bill and send it to the assembly to deliberate on it,  if they find it suitable they can pass it into law. But for anybody to think the confab has any legal mandate to direct the National Assembly and insist the outcome must be implemented is absolutely not true. It has no mandate of Nigerians. And this is not how to review the constitution,  when you sit down under that arrangement and you now call yourself a constituent assembly. Constituent assembly is never handpicked. Members are elected based on democratic principle, these ones were handpicked. The membership was lopsided. To me the whole exercise was time and money wasted. Somebody just sat down and wrote a draft constitution and  they decided to distribute the documents to the delegates to study and come back for deliberations. How do you deliberate what you did not discuss? How can you deliberate what was never canvassed at the conference. That is one area where the leadership did not do justice to itself,  to this country,  as jurists they know that issues not discussed in a matter cannot be brought at the end of a hearing.  This is a well-known principle of law. If the issue of new constitution was discussed, you can say this is the recommendation of the committees set up so let’s discuss it. But this matter was never discussed, as the time it was brought it was trashed out and automatically it became a non-issue at the National Assembly. And I said earlier they have not done justice to themselves, the law profession and the people of this country.
Are you happy the NBA withdrew from the conference?
Of course, the Nigerian Bar Association (NBA) saw the whole trick even before it commenced. That is how the minds of legal luminaries are supposed to work. NBA was able to see the loopholes, lopsidedness, the defects of the confab. There is no how you can say the bar will have only a representative being a professional body if you know what you are going to do there, because it has much to do with law, more than any other thing. For you to pass so many recommendations they will go through legal processes but that they have only one representative. I commend them for withdrawing and at the end of the day, you see the  outcome and the end result of the conference itself. It wound up with nothing they have never discussed.
What do you think should be done to address the strike action by Judiciary Staff Union of Nigeria, JUSUN?
It is for those concerned to address their grievances. Let them see how genuine it is and let them do the right thing, because everybody has the right to protest injustice and on the judiciary workers, something must be done urgently to address it. JUSUN knows it is not in their best interest but what will they do if there is no alternative. I think something urgently must be done to address the issue. They are human beings too and whatever they are entitled to should be addressed. Justice should prevail everywhere.
What of the scrapping of local governments and the creation of 18 states as proposed in the National Conference constitution amendment?
Confab cannot create a state, not even a ward. This is done to divert attention. So that if a state will be created for you, then you will insist the recommendation of the confab should be put into practice. They know that.
Do you have confidence in the National Assembly?
I believe that no matter the weakness of the National Assembly, they know the procedure for law making. It is a herculean task. The National Assembly cannot sit down and amend the constitution without input from the state assemblies. There are issues that require referendum. It is not that the National Assembly can sit down under the comfort of the legislative chamber and decide the fate of Nigeria as far as the amendment of the constitution is concerned; it is something that every Nigerian must be involved in. The President cannot send the confab recommendations for referendum. He does not have the power.