By Abdulwahab Abdulah
A Senior Advocate of Nigeria, Chief Robert Clarke, is well known when it comes to the issue of law and justice delivery. In this interview, he shares his thoughts on the controversial issue of restructuring and the running of the nation’s judiciary. Excerpts:
The agitation to restructure Nigeria has reached a feverish level. What kind of restructuring would you advocate for the country?
It is foolhardiness for anybody to, in spite of all the things that we have seen in the past 18 years, say we should continue with administration of 36 states within the federation. Nigeria cannot afford to maintain 36 states. Twenty-eight out of the 36 states cannot even pay salaries; not for six or eight months but more than two years. Why should we continue with a constitution that creates 36 states but cannot maintain them? Nigeria spends 80 per cent of its revenue in maintaining public servants and members of the various Houses of Assembly and the National Assembly. Only 20 per cent goes to capital project and out of this 20 per cent, only one-third of it is actually involved in the capital project, the most portion end up in many hands as bribes and various forms of corruption. So, if we see that this system we are running has not proved effective, this is the 17th or 18th year that we have been going with this 1999 Constitution, which, I believe, is a rotten egg; and you cannot build anything on it; you cannot amend it; you cannot do anything that will make you and I happy in a country where there is honey and milk and we are still in want of many things – shouldn’t we jettison it? Restructuring is a must for Nigeria to survive.
What form of restructuring?
My own view is that we should reduce the number of states. This is a country where we have 36 attorneys general, 36 state governors, 36 this and 36 that; we should reduce to a situation where we can effectively govern and effectively utilise the money we have. If we reduce the number of states to say six or 10, the next question is: what sort of government should we now have? The presidential system of government, which is an American-based system of government, was inherited by us in 1999, through the military dictatorship that we had. Obasanjo, in 1978, created the presidential system of governance and made Nigeria to start the presidential system of governance in 1979. That system, which is the American system, has many checks and balances; it is an ideal system of government but in Nigeria, the checks and balances have been thrown overboard. The state governor takes over the control of the House of Assembly; a governor is an all-in-all in the state, you can’t criticise him. So, the checks and balances that are in a presidential system of government, which we also have but have jettisoned by corruption and by our way of life. Now, a governor is free to spend as he likes and nobody looks into it; he will have a security vote that is unknown to the members of the House of Assembly. So, I will suggest that we jettison the presidential system of government because, although it is good, we have not grown the literacy aspect of Nigeria.
A parliamentary system of government is what I will advise us to look into and try. With the parliamentary system, there will be no more presidential election where a candidate will have to canvass for votes in the 36 states. Canvassing for votes under the present constitution by a person or a party will cost nothing less than between N12bn and N20bn – just only to campaign. In the parliamentary system, canvassing for votes is restricted to your local government area. After spending N12bn to campaign under our current system, the first thing is to look for how to recoup that money or if you have godfathers who have spent money on you, who, immediately you get to that office, will start asking you for favours, the first thing will be to settle them.
Therefore, the parliamentary system, as is being done in South Africa today, where the President is elected from his local government but he’s answerable to the parliament, is what we need.
Don’t you think the parliamentary system will further polarise the people and threaten the nation’s unity in the face of battles for ethnicity and religious differences?
The best constitution Nigeria ever had was the 1963 Constitution, which was a parliamentary system of government, where the regions had self government, the regions had their own constitution outside the main constitution of Nigeria, revenue allocation is almost 45 or 50 per cent, revenue is by derivation. If you contribute to the budget, you are entitled to have, by derivation, a percentage more than the other states. There is nowhere in the world where you don’t have ethnic problems. You go to China today, there are ethnic considerations. China is the only country in the world, and they are very lucky for it, that despite the ethnicity in China, they have only one language. In England today, there are ethnic divisions; the Scottish man doesn’t like the English man, the Irish man doesn’t like the English man, but they have tried to stay together. America today is a mini world. The population of America is made up of Latino, blacks, and they have been surviving together. Patriotism is high in America even though there are diverse ethnic groups. And we have done it. During the colonial period, we had 26 provinces and those provinces, with one residence, the colonialists were able to govern Nigeria properly. So, ethnicity does not mean we cannot be unified in many areas. No matter how you create more states in Nigeria, you will still have domination of one tribe over the other. Ethnicity is not a problem when there is good governance, when there is plenty of jobs for everybody; when there’s food on the table for everybody, ethnic considerations will vanish.
What do you think of the nation’s judiciary?
Let me be honest with you, I’m not happy with the judiciary today. There are some of us who know that there is corruption in the judiciary. How deep the corruption is, for those of us who work within the court and within the judiciary, we know it ourselves. As I said, corruption has permeated every facet of our society, the judiciary is not exempted. It is a bad day in Nigeria when a lawyer who has a good case and is a good lawyer goes to court and on the day of the judgment, the judgment is given to the other party. It’s happening but that does not mean that overall, the judiciary has failed. The judiciary has not failed. It’s only individuals; the system is still strong, you can get justice. But certain individual judges have spoilt it by undermining the rule of law.
My dream judiciary is one where, as a lawyer, I am given a brief, I go to court, I argue it and I know I have done well to come out and be sure that no intervening force will disrupt that judgment by somebody coming to bribe the judge. It happens, we cannot deny it. As I tell you, the country is rotten; you cannot start from the judiciary alone to fight corruption. But it must be done and I am happy the government of Buhari is doing it.
The judiciary must be independent. I am not sure today and I cannot say it with boldness that the judiciary is independent in Nigeria today. It is regrettable that most of our Chief Judges in all the states are under the strong hand of the governors; appointment of judges are made on political considerations; there are many states where in the appointment of judges, political interests will be nominating judges. My vision is to see a judiciary where appointment of judges will not be done by outside forces, politicians. They should allow the National Judicial Council to solely handle the appointment of judges.
Do you think that the NJC is up and doing in its task of disciplining erring judicial officers in spite of your position that EFCC cannot prosecute serving judges unless they are first sanctioned by the NJC?
In the Justice Nganjiwa’s case that I handled, the issue was due process; many of my friends who are senior advocates don’t see eye to eye with me until they challenge me that I am representing corrupt judges. I said, ‘No, I am doing it because the rule of law is so important to the growth of the legal system in Nigeria.’ The rule of law is a cornerstone of democracy and when operating the rule of law, you must follow due process. When the executive wants to prosecute a judge, who is still a sitting judge in the court and decides to go and carry him from the bedroom and take him to court, that is not the rule of law; that is not due process because the constitution is very clear.
Can the EFCC go to the Army barracks and arrest a Major- General when the constitution provides that under the Army law, this is the duty of a court martial? Any officer that walks into the Army barracks to arrest a military man will find himself thrown into custody there, because there is a rule of law that if a military officer does anything wrong, the first body to discipline him is the military tribunal. It’s the same thing with judges. The constitution says all judges are under the control of the National Judicial Council.I decided to read Law at the age of 32 and went back to the university. Today I am glad that I am a senior advocate but that urge to fight for people’s right and to defend the law made me to defend these judges and I’m happy I did it.
And I’m sure it was because I did it that the EFCC is now writing petitions straight to the NJC, which is the first thing they ought to have done.
So, it’s not because of money; I am fighting for those who cannot fight for themselves; these judges cannot fight for themselves, it is unfortunate. That was why I did the case, to defend the rule of law and due process.