‘Government cannot pick and choose which order of court to obey’
Mr. Ebun Olu Adegboruwa, Senior Advocate of Nigeria (SAN), is a vocal human rights activist. In this interview with with Assistant Editor, Law and Foreign Affairs, JOSEPH ONYEKWERE, the learned silk, who was recently admitted into the inner bar decried government’s alleged reluctance in obeying court decisions, among other topical matters in the country.
What is your view about the continuous detention of Omoyele Sowore by the Department of State Security Services (DSS)?
This Sowore matter is very unfortunate, given the events of the past. But I don’t think this is the time to go into all the past now, as the primary focus now is to secure his release. But I guess after all this experience, the press and the human rights community have a lot of lessons to learn.
Personally, I do not think that Mr Sowore deserves to be in custody for even one day. When I first learnt of his arrest, I thought it was a joke, but when it became a matter for court order for remand, then I knew it had become a serious business. Before now, I had advocated the judiciary to strike down the statutory provisions relating to remand proceedings as it would always be a subject of abuse by the authorities. We should only be talking of remand in very serious and rare cases of death penalty where the crime is of a serious nature and requires detailed investigation. But when activists were hailing this same government for deploying remand proceedings for corruption related cases, I knew within myself that it would soon get to the turn of opposition politicians and even the press and perhaps the activists. But having said that, the Directorate of State Security has no basis for holding on to Sowore a day longer than the 45 days granted by the court.
The government cannot pick and choose which order of court to obey; it is just not right at all. Since it was the court that granted the order for his remand and the same court has directed his release, the DSS should comply and release him. By virtue of section 287 (3) of the Constitution, the order of the Federal High Court for the release of Sowore must be enforced by the DSS. And it does not require further service of the order since its lawyer was present in court when the order was made. The crisis we are having on our hands currently is that when the government refuses to obey lawful orders of the court, against which it has not appealed, then it is indirectly promoting anarchy and lawlessness because what the government is telling the citizens is to resort to self-help in resolving disputes.
Though the contempt proceedings initiated against the DSS is very good, I don’t think the government should allow the matter to get to that level. Every citizen is entitled to the right to freedom of expression and what Sowore did with his RevolutionNow cannot equate to treasonable felony at all. Civil protests and campaigns should be part of any democratic society. The Constitution in section 39 grants freedom of expression and this particular government, while in the opposition in times past, utilized this freedom even to the extreme. So, I am surprised now that it seems the government wants everybody silent. That is not proper at all, but like I said earlier, every one of us has one or two lessons to learn from all these, including Sowore himself.
There are those who are arguing that our major problem borders on the kind of Constitution we operate, such that some believe a republican constitution would be better. What do you think?
It is correct that the major challenge facing us today is the constitution which is supposed to be the organic document of faith for the progress of our dear nation. Unfortunately, that same document has become an albatross for us all. If you recall the history of the constitution, it was midwifed by the military regime of General Abdulsalam Abubakar. So, it has retained the pattern of unitary system of government which the military imposed on Nigeria. That is why everything still revolves around Abuja and why the states and local government councils cannot survive on their own.
It is the constitution that has created a very lopsided Exclusive Legislative List in one of its schedules, whereby everything of value in Nigeria is in the hands of the Federal Government to the detriment of the states. Everything that can bring money is under the control of the Federal Government, including admiralty, commerce and industry, aviation, customs, port and even inland waterways, mines and minerals, oil and gas, electricity, even stamps. Thus, as things stand currently, the states cannot survive on their own. And the reason for this is that most items of value are located in the Southern part of Nigeria, talking of oil and gas, the tax system, waterways, admiralty, etc. The thinking of the military then was that should the states be allowed the control of these resources, many states in the Northern part would just probably fold up, for lack of resources. But looking back now, especially with the Kebbi rice project, I think every state of the federation must have one or two things that they can boast of to generate revenue for survival.
So, the solution goes beyond going back to the Republican Constitution. It is a holistic process that is required, leading to a brand new constitution that will bear the contributions of every segment of the nation, not just a document put together by a few people. From the foregoing, Nigeria’s many problems are both leadership-related and legal. Even if you elect an angel as the president of Nigeria, chances are that the constitution that we currently operate will hinder his efforts at good governance. So, we need a new constitution that will be operated by good leaders.
How do you see the controversy over the National Financial Intelligence Unit (NFIU) insistence that local council allocations must be credited to it directly?
This matter should not have generated any controversy, but for the way the governors have handled it. By the Constitution of Nigeria, we are supposed to run a federation, consisting mainly three tiers of government of the federal, the state and the local government council. Under the same constitution, the responsibilities given to local government councils make that organ the ones closest to the people in terms of governance. The local councils are to be responsible for roads, burial grounds, markets, refuse disposal and management, bus-stops, car parks and such other functions that make them the closest to the people. It is the councils that we are to interact with day by day. However, for a long time now, the governors have cleverly castrated the councils to the extent that they don’t even exist at all. In most of those councils, nothing is happening there, except that every month end, they collect whatever the governors have for them and share it accordingly and the people are left to suffer neglect.
So, when the president came out with the directive to pay money directly into the accounts of the local government, many of us were relieved indeed. I read an online post credited to my friend and pioneer chairman of EFCC, Mallam Nuhu Ribadu, to the extent that for the very first time, his local government had millions of naira in its bank account in about 20. That is how it should be, and I see no sense in what the governors are trying to do to resist this laudable initiative. It was stated expressly in the manifesto of the All Progressives Congress (APC) as part of its agenda. So, the governors should actually partner with the president to ensure that the development is consolidated by monitoring the councils to ensure judicious use of the funds allocated to them. The opposition from the states is, therefore, baseless, with all due respect.
Closely tied to that controversy is the constitutional crisis over the abolition of Joint Allocation Account Committee (JAAC). What do you think about it?
I do not foresee any constitutional crisis over the abolition of JAAC because it has outlived its usefulness. In every society, we must get to the stage when we begin to interrogate the utility of the several organs of government that we have set up. The JAAC has only been used by the various states to suppress the development of the local government councils; nothing more. The governors simply just sit on the allocation meant for the councils and starve them of funds, thus hindering their development. So, it will be proper if we have discovered that this account is meant mainly to siphon fund meant for the councils, then to go ahead and scrap it totally.
When any organ has become a source of corruption, law can no longer be a useful aid to sustain such agency or platform. I don’t see the governors challenging this move in court, given all that we know about the JAAC. I believe, however, that since we run a federation, the president should carry the governors along and ensure proper consultation and dialogue before any decision is taken one way or the other.
Does the Federal Executive Council (FEC) have the power to unilaterally increase Value Added Tax (VAT)?
Value Added Tax is mostly based on consumption items, especially when you buy goods or receive services. The manner of that tax is that it is supposed to be graduated over a period of time. I think it has remained five per cent for a very long time. So, I don’t think the issue is whether FEC can increase the VAT rate, but whether the present economic realities of Nigeria support such move. The people are over-burdened already due mainly to absence of basic infrastructure, especially power supply. If the government is able to achieve stable power supply, Nigerians will warmly welcome any tax initiative meant to generate revenue for the state. Now, the cost of running generators, of servicing them and of buying diesel is a major source of concern for us all. We cannot add another burden to that if the government has not done anything to fix public supply of power. This is my own concern about VAT increase or any form of tax. Let us first feel the government’s presence in terms of durable infrastructure. Then, we begin to talk of additional taxes.
To treat yourself well in any good hospital costs so much. To send your children to good schools costs so much, many cannot afford the cost of renting good houses. Even when you rent the house, there is no water supply at all. So, you are your own government in Nigeria; you provide electricity, you take care of your own security, you dig your own borehole to get water, you buy your own transformer, send your children to expensive private schools, you fix your roads and then somebody is talking of an increase in VAT. I don’t think the time is right.
Nigeria is marking its 59th independence anniversary on October 1. What’s your assessment of our progress so far?
It is a great thing to mark the 59th Independence anniversary of Nigeria, but I think Nigeria has not achieved what a-59-year old man should achieve. I believe that the issue of electricity has so far stalled the development of this nation and for me, it is shameful that we are relying on generators and inverters and rechargeable lamps and candles in this new millennium. Every other thing depends on electricity; to run your office, the church, the schools, the banks, among others. So, I expect that this government will do its best to stabilise this critical area of our national existence.
Education is key to national rebirth and it is important that the government is committed to that project meaningfully. We must increase our budgetary allocation to education and be sincere with a programme of reforms urgently. The judiciary, which is the means of stabilising society, has suffered too much neglect, with no security of tenure, no funding and no independence or autonomy. Judges have become some kind of endangered specie now and many people are shying away from taking up appointments to the Bench for so many reasons.
I can go on and on, but the point is that those who are in government at this time must realise the enormity of the tasks entrusted to them through the elections which produced them. They must stand up and be counted for certain policies that will impact upon our people and transform their lives. We cannot just continue lamenting everyday when this assignment has been entrusted to certain persons to execute on behalf of the rest of us.
There is need for the government to reach out to all segments of Nigeria to carry them along and seek consultations on the way forward. We are too fragmented, too suspicious of one another for us to even agree on basic parameters for moving forward. It is either you belong to my tribe or religion or nothing else. This shouldn’t be at all. Then the insecurity situation has really damaged our economy. For instance, I will not in my life accept any brief outside Lagos that would require that I travel by road. It is that bad. And we cannot continue like this. Whereas, I truly identify with the government and its challenges, but I think there is a lot to be done in getting people to know the perspectives of those who are in charge, for moving forward. There must be an action plan with which the rest of us can run. Before now, my thinking was to work with the manifesto of the ruling APC, but even that has been denied severally by the president himself and other bigwigs in the party.
If you consider it from the above point of view, you cannot truly say that a better Nigeria will emerge by 2023, which is already here, given the struggles already going on about who should be favoured for that time amongst the politicians. But even at that, we can lay the good foundation for a better Nigeria now by addressing the critical issues that I have mentioned above and by deliberately carrying all segments of the Nigerian project along.
How can we achieve judicial independence without financial autonomy?
Currently, the best way to describe the judiciary is to say that judges are weeping and they are weeping very profusely. You know that right from the NBA conference, the CJN has not ceased to tell all those who want to hear that the judiciary is underfunded and neglected. That the judiciary is not independent given that judges have to go cap in hand to the executive for fund and he who pays the piper must surely dictate the tune. This is at the core of the failure of our judicial system, especially at the level of the judiciary of the states, where things are worse.
Generally, we should declare a state of emergency in the judiciary. This did not start with the Buhari-led administration, but having regard to the clear words of covenant expressed in the manifesto of the APC, I had expected much more from that party to the judicial arm of government. You just look at the lives of most of the judges, they are old, thoroughly overused and worn out. You hardly can see a retired judge who is not battling with one health issue or the other, because of their workload and unfriendly working environment. Or how else would you explain that in 2019, judges, even up to the Supreme Court, still write proceedings in long hand and they deliver rulings and judgments in long hand.
Then you check the welfare of judicial officers; it is so very poor. For instance in Lagos State, the last time the government reviewed the salary of judges was in 2007; that is about 12 years ago. What it means is that judges in Lagos State have been on the same salary scale for the past 12 years. How can you expect such a person to function optimally?
The reason I am so passionate about the fate of the judiciary is that if there is a major problem in that sector of our national life or there are very serious issues of underfunding and interference plaguing the judiciary, these issues will eventually trickle down to the other sectors of Nigeria, our polity, economic development, our spiritual life, marriages and homes, schools, health care, etc. This is because the judiciary is the life wire of any nation; a cord that holds together society. We cannot afford to toy with the judiciary the way we are doing now. And the reasons why I expect so much for the judiciary from the APC government is because it is a beneficiary of judicial interventions, and secondly, it stated a policy for judicial reforms in its manifesto, which the party seems to have forgotten completely. Thus, as we celebrate the 59th Independence anniversary of Nigeria, it is an opportunity for our leaders to reflect and think up viable policies and programmes that can truly take us to the next level.
How do you feel being admitted into the inner bar after years of waiting?
In truth, I didn’t wait for that long. When I compare my experience with what others went through for the same rank. I have since got to know of those who applied 15 times, 16 times or even more. Some got discouraged and left the project. And that is exactly what it is; a project. You keep going on and hitting it until you get it. I applied three times.The first time I was disqualified, as I didn’t have the requisite qualifications in the number of cases to support my application. That was in 2013. I knew within myself that it would be difficult to scale through in 2013 but I wanted to kickstart the process.
So I had to wait to gather my cases and assemble all other materials to be properly qualified. By January 2017, I was ready to go and I told myself I will not stop one bit until I got it. I heard several stories that should ordinarily discourage me but I had so much faith in God that I would not go through the same experience as those who went ahead of me. I was told of the experience of Chief Gani Fawehinmi (SAN), Chief Mike Ozekhome (SAN), Mr. Femi Falana (SAN) and lately Mr. Festus Keyamo (SAN). So, the impression I got was that human rights activists or those considered to be critical of the government are not usually favoured with the rank and I wanted to break that jinx. My expectation was to be conferred in 2018 because I had labored so much and I thought it was time for the legal profession to honour me, having regard to the roles that I have played in the life of the Bar and the Bench in this nation but alas, it never came.
The lessons that I have learnt from this exercise are many but the main one is that if you want to do something for your life, don’t rely on the experience of others or be intimidated by negative things that you hear. Just go ahead and do what you have to do and leave the rest for God. Second lesson, is that until you actually start a thing, you can never know what you are up to. The tendency is for lawyers, especially those of us based in Lagos, to dismiss the SAN process as corrupt and expensive, without as much any effort to even find out what it entails and this has served to deny many of the opportunity. Then again, God makes all things beautiful in His own time. I believe that I got the rank at the time that God has ordained for it, especially from the groundswell of support and acceptance that I have received from all Nigerians after my name was announced. It has been very encouraging and overwhelming.
The other lesson is that it pays to do good. At the times when I did all that I did for the judiciary, for the legal profession and for Nigeria, I never thought of SAN, I just had the urge to make society better for all people. By the time I put in my application in 2017, I got favour from everywhere. It was like they had been waiting for me and every door that I knocked opened of their own accord. So, I felt very glad to experience first hand that people truly appreciate all my contributions these many years. Even before I got the rank, I got some kind of fulfilment in the way that people received my application.
Then part of the thing that really kept me going was the need to use myself as a model for others in my class, the activist lawyers. I didn’t want that negative impression of government denial to last at all, since I now know that it is not true. The SAN process is very transparent and even predictable, if you have the requisite qualifications. The only thing is that there is the policy of seniority in the legal profession. So, you may need to wait for others who have been applying before you. That does not mean one should give up as some others before you have had to wait too.
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