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| Femi Falana |
Human rights activist and Senior Advocate of Nigeria, Mr. Femi Falana, in this interview with LEKE BAIYEWU, speaks on the legality of the ongoing national conference, remuneration of delegates and other issues
The legitimacy of the conference has been questioned, especially by Prof. Ben Nwabueze and northern elders. Is this exercise not a mere talk shop?
With profound respect to Professor Ben Nwabueze (SAN), it does appear that legality is being confused with legitimacy. The legality of the national conference is the legal aspect of it or its constitutional validity, but its legitimacy has to do with the popular demand for it and the acceptability of its outcome by the Nigerian people. The successive military regimes, which ruled Nigeria for almost three decades, promulgated decrees to legalise themselves but they were illegitimate political entities.
The Constitution of Nigeria (Promulgation) Decree No. 24 of 1999 signed into law on May 29, 1999 by (former Head of State), General Abdulsalami Abubakar, is a legal document. To the extent that it paved the way for the current civilian rule in the country, its legality is unassailable. But because it was not made and given to Nigeria by the people, its legitimacy remains questionable. The outcome of the national conference will become legalised through the National Assembly, which is expected to incorporate the resolutions in the review of the Constitution. From there, it goes to a referendum for the imprimatur of Nigerians.
Is there any part of the constitution that says that the outcome of such conference can be subjected to a referendum?
In fairness to the memory of the late (former President, Nigeria Bar Association) Alao Aka-Bashorun, who led the campaign for the Sovereign National Conference, it was not going to be an assemblage of ethnic nationalities. We had invited the accredited representatives of organised groups drawn from the broad spectrum of Nigerians. It was not about power rotation among the various factions of the ruling class. It was not about power devolution without democratisation. It was not about resource control for rapacious ruling elite. We had gathered to debate and resolve the national question in its ideological dimension.
In other words, we wanted to ask such questions like who gets what, when and how? The (former dictator, Ibrahim Badamasi Babangida) IBB junta felt sufficiently threatened that it disbanded the national conference, since the SNC led to the removal of dictatorial regimes in Benin, Togo and Congo. Babangida thought we wanted to remove him from power. In 1992, the late Chief Gani Fawehinmi and I, and three of our other comrades, were charged with treasonable felony. But under a democratic dispensation, Nigerians have the fundamental rights to associate, assemble and exchange views on the state of the nation.
Since 1957, a number of political or constitutional conferences have taken place in Nigeria. They were not convened by law. Professor Nwabueze was a member of the Constitution Drafting Committee set up by the Murtala Mohammed regime in 1975. The Constitution drafted by the 47, out of the 49 wise men, was endorsed by a Constituent Assembly before it was enacted into law and branded the 1979 Constitution. The minority report co-authored by Dr. Bala Usman and Dr. Segun Osoba was suppressed by the (former Head of State, Olusegun) Obasanjo military regime because it advocated a socialist economic system for the country. The National Political Reform Conference by President Olusegun Obasanjo (in 2005) was not convened by law. The outcome would have been enacted into law but for the (alleged) dubious third term agenda of the convener. Notwithstanding that the confab, which Professor Biodun Jeyifo has tagged the Jonathan National Conference (JNC), was not convened by law its outcome may be enacted into law through the National Assembly and presented to the people via a referendum.
Can much be achieved, where the outcome of the exercise is subjected to legislation by the National Assembly?
Politically, Nigeria has no legitimate constitution. Legally, there is Decree No. 24 of 1999. In that document, there is no national conference talk less of a referendum. But President Jonathan has rightly undertaken to mobilise the National Assembly to enact a law, with a view to subjecting the ongoing constitutional review to a referendum. That is the only way to have a constitution with the endorsement of the people. All the constitutions that evolved in Africa in the last two decades — I mean the constitutions of Ghana, Uganda, South Africa, Zimbabwe, Ethiopia, Eritrea, etc — emerged through such people-driven, transparent and participatory approach to constitution making. The endorsement of the people through a referendum has become a sine qua non condition for political stability.
Under the current democratic dispensation, the National Assembly cannot be bypassed in the resolution of the constitutional crisis in the country. For that reason, the outcome of the national conference ought to be captured in the ongoing review of the constitution by the National Assembly. Not unexpectedly, the National Assembly was totally opposed to the agitation for a national conference. But with militancy, kidnapping, terrorism, unemployment, etc, threatening to tear the country apart, the National Assembly was compelled to embrace the national conference.
At the inauguration of the national conference last week, the National Assembly was fully represented by its leadership. The leadership of the judiciary was equally represented. So, all the three organs of government have endorsed the national conference. In addition, the 36 state governments, without any exception, nominated delegates to the confab. In fact, most of the states sent their first eleven to Abuja. It is my humble view that the National Assembly cannot afford to toy with the outcome of the national conference, if it represents the aggregate interests of the generality of Nigerians.
Some people are of the opinion that delegates to the conference should be sponsored by the groups or organisations they represent and not the government to ensure objectivity. Do you agree with them?
Frankly speaking, a number of the groups cannot sponsor their members. Mind you, there are youths, including students, people with physical disability, pensioners, workers and other economically-disadvantaged people at the confab. Those are the delegates who should have been sponsored by the Federal Government. It does not make any economic sense to pay N12m to ex-governors, captains of industry, retired generals and other members of the national bourgeoisie. Why pay allowances to those who live in their own houses in Abuja or those who are accommodated in posh hotels by their state governments?
Two delegates have expressed their wish to reject allowances from the government, is that commendable?
I am aware that Pastor Tunde Bakare and (former President, NBA) Olisa Agbakoba (SAN) have announced that they will not take the allowances; that is commendable. I know both of them. They are very comfortable. In my case, I shall collect the allowances and give them to the needy.
Some people believe the problem with the country is not with the law, government and policies but the implementation and efficiency of the existing ones.
That is not totally correct. There is a fundamental problem with the organic law of the country. The constitution, which is the fons et origo, was imposed on the country by the last set of military dictators. So, the crisis goes beyond the whims and caprices of the members of the ruling class. Let me give you one example; 25 Justices of the Court of Appeal have just been appointed by President Goodluck Jonathan on the recommendation of the National Judicial Council. They were elevated from the various high courts. All the cases being handled by them have to be abandoned and commenced de novo by other judges of the High Court. But in Ghana, such judges are required by law to conclude all pending matters. In other words, a Justice of the Court of Appeal will return to the High Court to conclude all his partly heard cases.
I agree with you that the level of impunity has reached a disturbing degree. Can you imagine that the Interior Minister, Mr. Abba Moro, could publicly blame the 19 people (applicants) who lost their lives in the (Nigerian Immigration Service) recruitment tragedy, which occurred on March 13, 2014? That is the height of insensitivity. Do you know that a similar act of criminal negligence by the same ministry led to the cold murder of 43 job seekers in 2008? As no one was punished then, the minister has continued to offend the sensibility of Nigerians. Mr. Moro has even announced his plan to investigate the incident. Can you believe that? The House of Representatives has begun investigation into the incident but that is the exclusive responsibility of the National Human Rights Commission.
I complained to the Senate last year that the Joint Admission and Matriculation Board made N24bn from 2010 to 2013. The Senate informed me that the money had been spent by JAMB, as its allocation was not released by the Federal Ministry of Finance. Did the police not make N2bn from job seekers five years ago? Did the National Drug Law Enforcement Agency not extort N600m from job seekers two years ago? The other day, the Nigerian Communication Commission penalised four GSM operators for disrupting telephone services. They were fined N1.2bn. As a consumer, I asked the NCC to explain why it converted the fine. In its reply, I was informed that the N1.2bn had been spent on rural telephone extension.
In the atmosphere of impunity in the land, the Ministry of Interior cannot be isolated for duping hapless Nigerians. In spite of several probes by the National Assembly, the culture of impunity is waxing stronger in the land. The national conference is expected to make a far-reaching recommendation that will arrest impunity and executive lawlessness.
How far do you think this conference can go in addressing the country’s challenges?
Having been part of the campaign for an SNC since the late 1980s, I have watched with amazement the arrogance of those who hijacked the concept of the conference and attempted to turn it into an ethnic agenda. Incidentally, some of them were ministers in the previous governments, which regarded the demand for a national conference as treasonable. We had gathered to hold the national conference at the National Theatre in Lagos in September 1990, but we were brutally dispersed by a combined team of soldiers and mobile police personnel. Those who advised IBB to disband us have since become advocates of the national conference.
Having regard to the commitment of many delegates to challenge the status quo, the national conference is not going to be a mere talk show. No doubt, some of those who contributed to the country’s backwardness are at the confab. In the anticipated encounter, we expect the members of the ruling class to be sober and remorseful. The working documents already distributed to delegates include the 1987 Political Bureau Report, the 1989 Constitution, the 1995 Constitution and the Report of the Political Reform Conference (2005). In addition, we have to pay a special attention to the 1963 Constitution to find out where we were before the military intervention of January 1966.
The Nigerian Constitution has ever enjoyed widespread acceptability because they were all imposed by anti democratic forces. It is hoped that the ongoing effort will succeed, if the delegates are prepared to address the crisis of underdevelopment in the country. In this respect, there can be no-go areas. While the position of the government on the indissolubility of the country is understood, the basis of the unity has to be discussed. As far as I am concerned, the national conference should design a mechanism for making socio-economic rights justice-able, so that poverty can become history for the majority of our people. But if the delegates simply want to preserve the status quo that has devalued the quality of the life of an average Nigerian, the confab can never succeed. One does not need to be a prophet of doom to know that the national conference is bound to fail, if it becomes an elite affair.
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