Foremost constitutional lawyer, Prof. Ben Nwabueze (SAN), says he cannot continue to sit and watch things go wrong in the polity, and therefore has been forced to come out of retirement to speak out on recent developments in the country. He bares his mind on the state of the nation in this interview with Felix Nwaneri
How would you react to the recent arrest of some judges by operatives of the Department of State Services (DSS) over allegations of corruption, and the counter-claims by two of the judges that they are being persecuted for refusing to do the bidding of some people in government?
It would be too difficult for me to react on the issues that have been raised by the Justices Inyang Okoro, Sylvester Ngwuta and Chibuike Amaechi because they are still in the realms of allegation. Since they are yet to be proved by both parties, it would be wrong for me to make public comments on them.
I won’t do that. But I want to state that the problem that we are facing is that of state terrorism. Why do you have terrorise people when the instruments at the disposal of the state for coercion are irresistible. We have about 371,000 personnel in the police force.
If you mobilise all these, no individual can mobilise a counter force. The state has exclusive monopoly for the use of force but there are safeguards in the constitution on the use of such force. The safeguards are meant to protect the citizenry against arbitrary use of this force.
Unfortunately, most people don’t appreciate this. At the time of independence in 1960, our political leaders at that time were not unaware of the danger of the use of this mighty force, which is a monster at the disposal of the state. The question was: How do we control this monster?
The constitution stated in clear terms, how to control it to prevent the emergence of personal power. All these were discussed at the constitutional conferences held in London before independence. The minorities were apprehensive and they wanted to be protected against this force.
Forget about chapter four of the constitution, which talks about guarantee of rights; it has nothing to do with this. It is the control of the operational use of this force, primarily, the Nigerian Police Force and secondarily, the armed forces.
The minorities wanted safeguards and they insisted on the control of the police by these safeguards in the constitutions. And the agreed safeguards include the command of the police, which refers to its operational use of the force.
The word ‘force’ has a special significance; it is not just any word because it can be used to coerce you against your will like one of the judges alleged that he was forced to sign against his will to sign a document.
It is unimaginable that a Supreme Court judge could be coerced to sign a document. How can that happen in a constitutional democracy? That is state terrorism. We complain about Boko Haram terrorism but the state is also involved in terrorism.
Is compelling a judge or any other person to sign a document under gunpoint not state terrorism? Nobody is saying that judges are sacred cows, but they are not like you and I, we must accept that. It is not because there is anything special in their persons, but because they represent an institution – the judiciary, which is the third estate of the realm.
We must not destroy the institution. If a judge is corrupt, investigate him and if you have evidence, prosecute him, but don’t employ terroristic methods.
What do you make of the call by the Nigeria Bar Association (NBA) that the affected judges should step aside pending the outcome of the investigations against them?This question is against the backdrop that a similar call was made during the travails of the Senate president and his deputy when they were accused of forging the Senate rules but they insisted that they will not step aside until the matter was withdrawn by the Federal Government.
The two cases are diametrically opposite. In the first case, the Senate president and his deputy were accused of forging the Senate rules but the charges have been withdrawn because of what I wrote on the doctrine of Separation of Powers, which was published in the newspapers.
I stated that the three arms of government – executive, legislature and judiciary control their respective houses. So, you don’t go and coerce them on how to handle issues concerning them. But having said that, I want to make it clear that a judge is not in the same position as the Senate president; a judge is in a position, where he intervenes in disputes between you and I. The Senate president is not in such a position.
The judge settles disputes between individuals and if he is to do that creditably, he must be seen to be totally impartial, to have clean hands to administer justice. Justice must not only be done but seen to be done, but once you bring someone that is alleged to have soiled his hands, then you cannot guarantee justice.
So, there is a good reason for the position taken by the NBA. If I were one of the judges affected, I will not continue to sit on the throne of justice. I will not feel comfortable that such allegations are hanging on my head and I am still sitting on the throne of justice.
I will feel uncomfortable and embarrassed and as a person, I will step aside for investigation to be carried out. If I am vindicated, I will resume my functions. So, I agree entirely with the position of the NBA that the judges’ should step aside and be investigated.
You described the arrest of the judges as a war on the judiciary, but the belief in some quarters is that it is a battle against some individuals, who have allegedly soiled their hands. How do you reconcile this?
I think it is both. You will recall that somebody said that right from the beginning of his administration, President Muhammadu Buhari has expressed his grievance against the judiciary. He once said that his greatest problem in his war against corruption is the judiciary. So, he has a grouse against the judiciary, rightly or wrongly.
So, what it means is that what happened to the judges must have been motivated by the grouse the president has for the judiciary. On the other hand, two of the judges have alleged that they are being persecuted because they refused to do what those in government asked them do to do.
Don’t you envisage that asking the judges to step down and the endless investigation that may follow portends great danger for the polity because it is likely to be extended to other judges, who are perceived to be against the government?
The imagination is too wide. It is wrong that the government is going to go after all judges. Are they going to shut down the judiciary? It is bad luck if you are mentioned, and if I am a judge, I will step down.
A lot of things happen to us by luck; some will call it fate. You can be in your home and trump up charges would be leveled against you. Such happened to me when I was in the University of Lagos. I was one of the first lecturers to be appointed in the university.
The university was established in 1962, but three years after, there was crisis over the appointment of Prof. Eni Njoku as the pioneer vice chancellor. There was trouble between the Igbos and Yoruba over the issue. Some students and staff led by Prof. Saburi Biobaku would not accept it, but some of us supported Njoku on principle. We argued that the professor had done first class works, so why should he be dropped on tribal grounds, and I was charged on account of this.
Who charged you to court; the university authority or the state?
I was prosecuted by the state through the then Department of Public Prosecution (DPP) before the Chief Magistrate at Igbosere Magistrate Court, who the then Premier of the West Region, Sir Ladoke Akintola, had promised to make a judge.
My trial was one of the biggest events in Nigeria then. If you come to court at that time, you will see thousands of Igbos, but they were directed by the Premier of the then Eastern Region, Dr. Michael Okpara, not to make trouble. In the course of the trial, a lecturer came out to testify that he saw me with a stick and chair when the students were beating him.
After listening to him, the magistrate sentenced me to six months imprisonment for something that I never witnessed. I was saved because I appealed. Justice John Idowu Taylor, who heard my appeal, said that he did not understand how a trained magistrate would sentence me for an offence that I never committed.
It was the University of Lagos crisis that led to the first military coup of 1966 and the magistrate was sacked. So, an allegation can be made against you on completely false grounds like it happened to me, what would you do? And if it is your luck, you can get convicted like in my own case.
If such happens to you, the best thing is to accept it as bad luck and pray that you be vindicated. If you are innocent like I was, you would be vindicated. But to say that because you believe that you are innocent and therefore you should be allowed to carry on with your duties like in the case of the judges is wrong.
What if you are not vindicated despite being innocent?
I agree that some people have suffered for offences they never committed, but generally, the innocent would be vindicated whether alive or dead.
The incident of 1965, which you narrated tends to give credence to the belief in some quarters that some judges are really corrupt…
Nobody is saying that judges are immune from corruption. Who in this country is immune from corruption? I will never say that the Nigerian judiciary is free from corruption because that place is stinking in corruption, but I do not think that its credibility should be undermined because of that.
The government should find a way of investigating and prosecuting those who are involved. The institution should not be disgraced because of one or two rotten eggs. There is a way to do it, not the police state method. But here is a president, who is prejudiced against the judiciary and who is a dictator by nature.
He doesn’t believe in democratic methods, he believes in personal power and the National Security Agencies Act that has given him the personal power that he wants. Go and read the Act and you will find out that he is exploiting it. That Act must be expunged from the statutes book of this country.
Given the slow pace of the nation’s judicial system, don’t you think that there is the need for some extreme measures in the fight against corruption, a vice which President Buhari has persistently said will kill Nigeria if it is not killed?
It is not only the judicial system that is slow-paced, but the entire legal system including that of investigation, which is certainly not efficient. It is slow, cumbersome and compounded by corruption. But I will not because of that give it up because it is the law. What we need to do is to improve on it.
Has the National Judicial Commission lived up to responsibility on this matter?
The commission is trying to, but it depends on its powers. The NJC doesn’t have enough powers; it cannot sack a judge, it can only recommend such. I am not sure that the NJC is an appropriate body to execute the functions assigned to it. Look at its composition; a pool of judges and a few others from the NBA.
My position is that the commissioned need to be revamped to be effective in discharging the functions assigned to it. A body meant to discipline judges but parked with judges cannot work.
You once accused the president of plotting to Islamise Nigeria. Do you still hold that belief?
He has been doing that through appointments into strategic positions in his government.
What is your take on the recent crisis in the first family over the outburst by the president’s wife and his response?
I do not want to be drawn into their family issue but my reading is that the president probably meant his comments as a joke. I think he tried to make a joke, which shouldn’t have come from the president of Nigeria at a forum outside the country.
If he had made that joke within Nigeria, perhaps, it would not have been misunderstood. Making such in Germany before a woman – Angela Merkel – who is the German Chancellor, seems to be ill advised. I think that he intended it to be a joke, but it is one that should not have been made by the president of Nigeria before the international community. But I hope that he will learn from it and avoid making such joke in future.
The Southern Nigeria Peoples Assembly (SNPA) met recently in Umuahia, the Abia State capital to deliberate on the state of the nation, and one of the resolutions at the end of meeting was that the Federal Government should release the leader of Indigenous People of Biafra (IPOB), Mr. Nnamdi Kanu, who has been in detention for some time now. Where do you stand on this demand?
Igbo Leaders of Thought made a similar demand at its recent meeting in Enugu. We stated it clearly in our communiqué at the end of our meeting signed by me that Nnamdi Kanu should be released unconditionally and that the Federal Government should engage his group in dialogue. The IPOB should be engaged in dialogue.
I don’t believe in the idea of crushing. They have a reason for their agitation because the initial 31 or 34 appointments made by the president without one single from the South-East. The appointments indirectly told them that they do not belong to Nigeria and they are reacting to it.
So, the Federal Government should release the poor fellow and engage him and his group in dialogue. We also said that demand for self-determination does not necessarily mean secession. People tend to view self-determination as secession, but that is not true.
If you read the judgement of the South African Constitutional Court on the meaning of self-determination, it said that self-determination does not mean secession and there is a provision in the Constitution of South Africa where the term self-determination is raised.
You can have selfdetermination within a country, and that is why many people are demanding for the restructuring of the Nigerian federation. There is too much power at the centre; let the regions or zones manage their affairs.
What do you make of the Senator Ken Nnamani-led Constitution and Electoral Reform Committee that was recently inaugurated by the Federal Government?
I just heard that Senator Nnamani was appointed the chairman of the Constitution and Electoral Reform Committee but I haven’t seen the terms of reference. The committee was charged to consolidate on the recommendations of the Justice Mohammed Uwais Electoral Reform Committee by looking into possible amendments to the Constitution and Electoral Act and coming out with a more robust and generally acceptable electoral system. I had the opportunity of asking the immediate past government of Dr. Goodluck Jonathan to implement the Uwais report because I have read it and agree with most of the recommendations.
Jonathan neither published the report nor implemented it, and I criticized him for that. I do not see it necessary appointing another committee, when that report is yet to be implemented. What is the new committee going to do? So, I stand by what I said before that recommendations of the Uwais Committee report should be implemented.
Would you also call for the implementation of the report of the 2014 National Conference, which unfortunately President Buhari said is in the archives?
He is only courting for trouble by saying that the report has been confined to the archives. Nigeria must be restructured by reducing the number of constituent units from 36 to a maximum of six or seven; by drastically reducing the power at the centre and giving such to the zones or regions; by introducing fiscal federalism.
The present system is not based on the principle of fiscal federalism. You cannot have a successful federal system unless the constituent units are able to generate their own revenue and manage it. The idea of going to Abuja cap in hand every three months to share from the federation account is not acceptable.