National development will remain a mirage until 1999 constitution is fundamentally reviewed, says Clarke

Robert Clarke


Chief Robert Clarke, a Senior Advocate of Nigeria (SAN), in this interview with ONYEDIKA AGBEDO, blames Nigeria’s governance woes on the 1999 Constitution, which he says vests so much power on one person adding that the country will not make progress until the constitution is jettisoned and a new one adopted. He also spoke on how Nigeria can overturn the $9billion judgment debt in favour of an Irish firm, Process and Industrial Development Limited (P&ID), among other issues.

How would you assess Nigeria 59 years after independence?
I am sorry to say that they are all wasted years for Nigeria. Wasted, because what we could not achieved what we ought to have achieved. Not because we don’t have the capacity to do so, but because we lacked the proper leadership.

Nigeria has not been able to produce a single leader that would have propped the country to be the leader in Africa. We had the wherewithal; the resources, indeed everything, but we didn’t have a leader. And on top of it we allowed corruption to eat deep into the fabric of the society and to destroy the hopes of some of us, who saw independence at the age of twenty or thereabout.

It is so disheartening to note that countries that became independent at the same time with us, especially from the eastern part of the world today are no longer developing countries, but are among the developed countries. I had the privilege of going through social media communication and discovered that Ghana attained independence on the same day with South Korea. Today, the difference is very clear. South Korea is one of the most industrialised countries in the eastern part of the world.

So, the problem is not in us that we are Nigerians; the problem is that we lack the right leadership and we have not set up infrastructures that would have allowed the leadership to grow. For instance, 1999 would have been an ideal time for this country to leap away from the slumber caused by ethnic, religious, tribal and other problems. But because of greed and corruption we missed that opportunity. I am bold to say that Nigeria’s problem started with the creation of 36 states. That is where the foundation of what we are suffering today started from, because of the desire of a dictator to become the president of Nigeria.

In order to ensure that he had a widespread of young boys whom he was ready to give money, he decided to create 36 states. That was the demise of Nigeria as a federation. Nigeria could have been better of with a reduced number of states, because if anybody says you can create states by geographical or ethnic considerations you will never get it in Nigeria, because every state has a minority.

When there was Benue Plateau State, Benue people were claiming that Plateau indigenes were dominating. Then they gave them their own state. Immediately, the minority, the Igalas; started crying marginalisation and they were also given their own state, Kogi. Today, the minority in Kogi State is accusing the Igalas of dominating them. So, you can see that it’s a circle; it goes round.So, we should have created about eight or nine states in 1999 that would be devoid of tribal, ethnic or religious boundaries. That way, we should have been able to create a federation that would be manageable with the resources we had.

Most people agree that ethnicity remains a cog in the wheel of Nigeria’s progress, but why is it difficult to embrace national cohesion and integration? 
For those of us who grew up in the pre-colonial cum colonial era, tribalism was not a factor. I attended the CMS (Church Missionary Society) Grammar School, where we had students from Yola, Enugu and other parts of the country in the boarding house. We never knew who was Igbo, Hausa, Yoruba or whatever. So, ethnicity had not played such a big role in Nigerian politics; ethnicity reared its head when we started creating these states and then came ‘to thy tents oh Israel’.

Every tribe, instead of seeing itself as Nigerian, preferred a state and state is related to tribal thinking. So, the reason ethnicity is so dominant in Nigerian politics today is the type of governance system we have, which is the 1999 Constitution.

If, as I said, in 1999, Nigeria had the opportunity of changing not only fundamental governance from military to civilian, but we could have also used that period to get a type of constitution that will reduce ethnicity. Today, the constitution has been the problem. It is like a rotten egg, and until it is jettisoned, whether you amend it 100 times, you can never get good governance from it.

The 1999 constitution gives all powers to Mr. President. Section 5 of the constitution says all executive powers in Nigeria are vested in Mr. President. Under the same constitution, governors in the states are not only the executives, they are also the accountant and so on. A constitution that allows a governor to hijack funds given by the federation to each state for different projects and only when he leaves government that the EFCC (Economic and Financial Crimes Commission) would find that he diverted state funds. The system should be reviewed so that such things are blocked. You don’t put all powers into one hand. That is the problem with the 1999 constitution.

In 2014, former president Goodluck Jonathan organised a national conference, where some of these abnormalities were addressed, but implementing the report is a problem. What alternatives are possible now?
The 2014 conference initiated by Jonathan was an ideal time for this country to have changed for the good. Jonathan had a good idea, but he did not make available the legal framework upon which that idea could have become a reality.

I remember that I said it loud and clear on television then, that the conference will not produce anything positive for this country, because he did not set up a legal basis upon which any decision of the conference would have become a realistic. For instance, I advised then that Jonathan should have sent a bill to the National Assembly that, ‘I as president, relying on Section 5 of the constitution, want to set up a panel.

However, I want you, the National Assembly, to confirm by a bill, which I will assent to, that whatever decision and recommendations this assembly adopts must first be sent to the whole Nigerians for a referendum to choose and that whatever the result of the referendum is, it will be forwarded back to the National Assembly to be made into law.’ Jonathan failed to do this.So, when he finished, we discovered that there was no law upon which one could place the conference and till today and tomorrow Nigerians are still talking about that conference, which has never materialised.

I believe that with the good intentions on Buhari’s side, we can still do something before 2023. It will not take Buhari six months, since all parties now seem to want what they call restructuring, to use that excuse to set up a constituency panel comprising one member from each local council.

Let them gather in Abuja to brainstorm upon a new constitution for Nigeria. As I earlier said, the former President before even constituting the panel should have sent a bill to the National Assembly to give it a legal basis. Without that, the President of the Senate, the Speaker of the House of Representatives, who have been enjoying emoluments that you and I have never seen in our lives, will not want to change this constitution.

Senators do not want to change the constitution; they still want to be distinguished senators. Do we really need a bicameral legislature or one House of Representatives? What does the Senate do? Look at South Africa today. South Africa has a presidency just like Nigeria, but the system of electing their president, the system of conducting elections are based on the parliamentary system. Every four years when we hold elections, Nigeria is held to ransom; the courts are held to ransom. All election matters must be heard and so you find that the Supreme Court is now claiming that it is being over worked. Eighty per cent of cases in the Supreme Court within the past two years in Nigeria have been political cases. Ditto the Court of Appeal and High Courts. We are wasting so much money to maintain this constitution, wherein every four years we hold elections, we will vote money for INEC (Independent National Electoral Commission) to conduct elections and we pay lawyers, because litigation is at the highest peak!

So, you can imagine how much Nigeria is wasting on the system of governance alone. And I believe we will save a lot of money if we jettison the presidential system and get into the parliamentary system.

Do you know that if you want to get the party’s nomination as a gubernatorial candidate, if you don’t have up to N40billion, you won’t get it? Do you know that if you want to contest for the governorship, if you don’t have up to N50billion, you will not get it, whereas if it is a parliamentary system, if you want to be an executive governor, you will go and contest election and canvass for votes only within your local council.

Then when you get to parliament, your peers, the caucus of the party knows who is their leader. And if you are a president like in South Africa, if you do something bad, they will impeach you. We don’t have all those checks and balances and money is the game changer in Nigeria. With money, anything can happen in Nigerian politics. So, I am of the view that the 1999 constitution has been the albatross and that if we don’t jettison it, we will not make progress.

But it is believed in some quarters that the elite conspired with the military to foist the very 1999 constitution on the polity to advance their personal interests…?
Those who are canvassing that opinion are not far from the truth. But in any civilised country, when such situations arise, it is the elite that take over. If there is an insurrection, mob action or whatever, at the end of the day, it is the elite that take the benefits of the insurrection or whatever.

Now, the military fortunately didn’t want to go, because the Head of State then was looking forward to metamorphosing from the military into a civilian garb, and he had laid the foundation to be the president of Nigeria. But death called and he was taken away. And all the young politicians, who would have gone round to form a very solid foundation for Nigeria were already engulfed under this same military head, who had distributed money to them. So, they just came in and formed the so-called political parties with plenty of money on hand. That’s when they called it Abacha loot or whatever.

But he was clever in the sense that he had given young boys aged 35 to 40 years enough money to canvass for governorship. I even know that because of one of the boys, who was his crony they reduced the age qualification for governorship to 35 years. So, the problem is that the elite always come in and Nigeria is not different. So, the question that the elite colluded with the military is the truth; but it’s a natural reaction. It’s a natural consequence, but what we did with it is giving too much power to an individual and the result is what we are seeing today.

Based on failure of the elite, Omoleye Sowore tried to mobilise people from the grassroots by organizing the #RevolutionNow protest to make for effective governance. How do you see that approach?
Let me say it bluntly. If you want to change a system of governance, why do you go to participate in it? If he had good intentions as a ‘revolutionary’, which he claimed he was, why did he form a political party of his own? Why did he pick nomination to become president? Why did he contest? So, you can’t play it double way. He can use it to blindfold many people, but not people like us, who see through him.

Look at the late Gani Fawehinmi. Let’s be honest, with all his years of struggle, which he did more than any of these young ones coming up, he never said, ‘oh I am going to be president’ until he formed his own party and he never called for revolution after that, because when you form a party and you become part of the system, you cannot turn round to say the system is bad again. So, Sowore can never be a revolutionary. Once he had agreed to form a political party within the same system that he now describes as corrupt, once he had agreed to contest for an election in the system, which he now condemns, it was too short a time for him to say he wants to change the system. Nobody will believe him. His grade of rabble-rousers can believe him, but people like us cannot; we see through him. So, I don’t believe in his grassroots revolution. Even Nigeria today, money plays such a big role such that it’s difficult for you to see anybody doing a grassroots change. It’s difficult.

So, should citizens resign to fate?
We are not resigning to fate. We should sit down and use our common sense to change this system. It is the system that is wrong, how we change the system is what you and I should be talking about.

Do you see calls for creation of state police as part of the process of restructuring the polity and tackling insecurity?
State police is a necessary evil. It is nothing new in Nigeria. When you look at the pre-colonial times, the colonial masters were dealing with what we called Native Authority police. And Native Authority police was very prominent in the northern provinces then and in the western provinces. Then you had what was called local government police in the southern provinces. So, it’s nothing new.

The problem is just that we bring politics into everything in Nigeria; we bring tribalism into it. So, when you have state police, under whose control and command, will the state police be? Is it going to be under the governor? That is where palaver will start.
So, I agree that we must have state police; it’s a question of must. It is a necessity we have to pursue. But, under whose control would it be? Is it going to be a local police in a unified manner again that will create one unitary command and come back to the same problem? We don’t know. So, these are the areas you and I have to sit down and work out. The idea is fantastic but the operation of it is what we have to look into.

What will you then recommend?
Look, it’s a very dicey thing. As Nigerians, we are used to one type of system now — control from the top. We inherited it from the military; when they took over power in 1966 they brought in their unitarian form of giving order into our system. Today that is what we are suffering from. So, if you have a state police, there must be an independent commission with all the powers to appoint, promote and discipline the personnel. The commission must be exclusively out of the jurisdiction of the chief executive. If that is provided for, it will be a good idea.

There is this issue of $9billion judgment-debt in favour of Process and Industrial Development Limited (P&ID). Based on the steps taken so far by the Federal Government, do you think overturning the judgment is feasible?
You see, when we say the 1999 constitution is very corrupt, this arbitration palaver started during period of the (late Umaru) Yar’Adua administration and then snowballed into Jonathan’s early acting president. The scam is always there.

I did arbitration for NNPC in 1997, 1998 and 1999, wherein an American company called Petrec brought a scam of this nature to NNPC. They formed another Petrec Nigeria Limited and got a contract to clean oil slut for NNPC. After they signed the contract, NNPC could not perform and they went to arbitration just like this one. They were in the position of getting a judgment against us for $2.1billion until God gave me a sharp idea. That case is one of the standard cases in arbitration law. So, I know what it takes and the period it takes to get a judgment on arbitration. So, the question arises, when Nigeria entered into this contract, did they make the necessary infrastructural arrangement for the gas supply? They never! And you entered into such a colossal contract knowing from the beginning that Nigeria will fail to perform.

The Nigerians who brought these people knew very well because it’s a scam. They were too sure; they signed the contract and kept quiet. Now they went on arbitration. Arbitration does not take six months; it takes one year.So, during the process these people were on arbitration, who were the Nigerian lawyers? Or who were the foreign lawyers representing the Nigerian government? We didn’t know anything about them. Did they connive to subject themselves to the judgment? We don’t know about it. What we hear now is the enforcement of the judgment. When the judgment was delivered, who was in government? Was it the Jonathan government or is it the Buhari government? Surely it must have been the Jonathan government.

What were they looking at by not challenging the judgment? Now, they want to enforce it, and the enforcement has arisen because we never took any steps. So, everything has been a scam; but fortunately for Nigeria, if you build something on corruption, the law allows you to destroy it.

So, the country is looking into it to see if they can show that the original agreement was a scam. But it is going to take a big, big hurdle.

Really?
Yes, because the government has not told us the truth about other things they said we should pay. Outside the $200million, there were other monies they said Nigeria should pay. They are what we call conditions precedent to allowing them not to enforce the judgment. Let’s see how it plays.

Can Nigeria wriggle out of the case?
Well, they may. It depends if you have a sharp lawyer. So, may be by the grace of God, if the government now looks into the matter very well, we will find a point.My mentor, the late Chief Fani Kayode, always told me, ‘Bob, when you carry a judgment and you read it, you will find one mistake made by the judge as a human being. That shows you as a sharp lawyer’. So, if our lawyers look at the judgment, there is a mistake they will pounce upon. I still believe that we can find a solution to it.

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