•‘Law on judicial appointments, composition of appellate courts needed’

Dr. Olisa Agbakoba (SAN), a former Nigerian Bar Association (NBA) president, is a development law expert. An alumnus of the London School of Economics & Political Science, he founded foremost civil rights organisations such as the Civil Liberties Organisation (CLO), United Action for Democracy and the Human Rights Law Service (HURILAWS). He set legal reform and governance agenda for the President and the National Assembly at a media parley. Deputy News Editor JOSEPH JIBUEZE was there.

Constitutional governance

The problem of the constitution is not so much the content. It’s the lack of acceptance and legitimacy. If you allow people to speak and own something, you will be surprised they may arrive at the same answer. They may even adopt the same constitution. If there is a new constitution, it may not necessarily be different. It might be, but the main problem is that the constitution lacks legitimacy. It lacks validity; it is not autochthonous; it has been imposed. The owners of Nigeria want to be at the forefront of the discussion for a new constitution. Whatever they arrive at, they can say: ‘This is our document’. There might be variations. I know that one key variation might be to adopt the 1963 model. But if you look at the provisions of the 1963 Constitution and the 1999 Constitution on fiscal federalism, they’re exactly the same. The Federal Government controls most of the money. But why was that one accepted? Because it was their constitution. Why is the current one not accepted? Because it is not the people’s constitution. So, I want to emphasise that the problem is with the process and not the content. Allow those who own Nigeria to create their document, no matter how imperfect. But if I were to say what should be in the document, I’d say we need to devolve. We need to have a loose federation. The centre is too strong. Let the states be the economic drivers. All the constitutions we’ve had have been imposed.

Sovereign national conference no longer relevant

I personally accept that there can be no sovereign national conference (SNC). There is a moment for everything. There was a time when the SNC was relevant. Right now, by virtue of Section 4 (1) of the Constitution, the National Assembly is the sovereign parliament of Nigeria, however imperfect it is. So, it is best to start building from that process and to ask them why they cannot replace the constitution. Why can’t they bring in the owners of Nigeria to assist in the resolution of the crisis of insecurity? Military solution will not work, so why not hand the problem over to the owners of Nigeria? You have to agree to be married to someone. I don’t know why that point is not understood. We must agree.

Parties to the agreement

They are those who lost their independence in 1914. Call them and say: ‘We know your independence was taken from you. Now, we recognise the importance of your role. Please go and discuss. Tell us what you want to do.’ I can assume that the answer will be: ‘We want to be in Nigeria.’ But they want to be consulted. They want to own that process. Good leaders listen to the people and hear their complaints because that may be what they wish to resolve. Good leaders are not a hindrance. But successive governments have failed to understand the logic of listening. So, we need great leaders who are like great structural engineers. Leadership is what takes us backwards, and that is why I pray for Tinubu to reach cruising heights.

How to produce a new constitution

I found the late Prof. Ben Nwabueze’s theory on a new constitution very interesting. He says the National Assembly may not be aware of the nature of their powers. The National Assembly has three legislative powers: sitting as the House of Assembly of the Federal Government; sitting as the House of Assembly of the FCT, and as the House of Assembly of the Federal Republic of Nigeria. The last is the power they’ve never used. Nwabueze suggests that they could use that to just establish a new constitution. All they need to do is to consult people. The constitution is not as sacrosanct as it sounds. It’s an Act that attaches the schedule. Nwabueze suggests: deleting the schedule of the current constitution and adding a new one. Write up something agreeable. Send it around. Once it’s accepted, invoke the powers of Section 4(1) and exchange it. This happened when the Republican Constitution was exchanged. The parliament replaced the Independence Constitution by a deletion in one day. Our National Assembly has spent 23 years amending the constitution. Our constitutional and political foundation is weak.

Get ethnic giants involved

What we need is to identify the owners of Nigeria before 1914. In previous national conferences, professional associations, such as the NBA, were invited. We (lawyers) have no ethnic stake per se. Invite those who were owners of Nigeria – Benin Kingdom; the emirs, the Obi of Onitsha. Excluding them from the development process is a huge error. We need to bring in Ohanaeze, PANDEF, Arewa, and Afenifere. These are the people that will shape Nigeria and give us political peace for development. The government needs to resolve critical national questions. Are we a country, state, or nation? Do we intend to live together as one country and how? Once these questions are answered, it will set the stage for a new political arrangement that can be articulated in a new constitution. Sub-national ethnic leaders (Ohaneze, Arewa, and Afenifere) have national appeal and can provide alternatives. The current National Assembly has powers to facilitate this process under the constitution.

One of the things that is ignored in development discussions is law. Little attention is paid to the law. My background is development law, and a sub-speciality of it is governance, which is like a foundation. A country that has been struggling with the foundation for 23 years cannot be considered a serious country. So, there is a need for speed. The 10th Assembly must address the issue. The late Bola Ige once said, in a political arrangement like Nigeria’s, the first question is, just like having a wife: do I want to be married? In Nigeria, do we want to be one? It’s an assumption that we want to be. It’s a terribly big and wrong assumption. Croatia was one of the six countries that formed Yugoslavia. But they’re doing very well. Macedonia is doing very well. Slovenia is doing very well. It’s not sacrosanct that we must be one country if in being one country, you have all the killings. In looking at President Tinubu’s governance programme, I will remind him of a structural engineer who says: ‘I can’t build Nigeria based on a weak governance structure.’ It is a fundamental process if you want a country to grow. Nigeria’s governance structure is very weak.

The peace fundamental

If a man is always fighting with his wife, he cannot have peace or think about how to develop. We can learn from history. When the Catholics lost out in Europe, and the protestants came on, there were 80 years of war. Maximilian sat down and created a conference that brought peace. So, the first thing we have to do in Nigeria is to organise peace. Without peace and security, we cannot have good governance. To continue to do the same thing with the same result is a mistake. We cannot resolve our problem with a military solution. It will not happen. If we continue on this path of deploying the military, we cannot win. You cannot use military solutions for irregular warfare. While I was a student at the University of London, I elected to do counter-insurgency. Why Mao Tse-tung won was because he fought an irregular warfare against mainland China. America got involved, but the most powerful country was beaten by a rag-tag Vietcong army, which fought an irregular war. Where do you find IPOB people or the bandits? Military options will not give Nigeria peace. So, the first thing we must do is to find a way to resolve our crises. In Abuja, people are afraid. In Jos, people are afraid. In Kaduna, people are afraid. In the Southeast, my brother was kidnapped. The whole place is terrorised. So, we need to have a process around which the government will create peace.

Strong judiciary needed

The Judiciary in my 45 years in the profession has never been as low as this. Even the Supreme Court – Justice John Okoro – castigated the Court of Appeal for the terrible judgment where they removed virtually everybody in the Plateau political system. We can’t grow if we have a weak judiciary. Therefore, the only way to grow is to break up this mafia in the Supreme Court. You have to break it up. It’s like saying no woman in Nigeria is entitled to political office. That’s what they’ve done to us in the judiciary. No lawyer is entitled to be appointed to the Supreme Court. It’s only them. They create a mafia, block us out, and appoint themselves – like an incestuous relationship. They cannot be at their best. So, the National Assembly should understand the difference between the administration of justice and judicial administration. In respect of judicial administration, the National Assembly can intervene. The Federal High Court, Court of Appeal Act and Supreme Act already have provisions relating to qualification for appointment and composition of courts. The only thing the constitution says is that you must have practised for 15 years, nothing else. We need a law, a Supreme Court Appointment Act, to regulate the appointment and composition of courts. The Court of Appeal Act for instance, provides that appeals from the Customary Court shall be heard by not less than three Justices of the Court of Appeal learned in customary law. Nothing stops the National Assembly from including in the Act that the Supreme Court shall be composed of Justices from the bench Bar and academia. To keep excluding the Bar and the academics will only result in a weak judicature. The National Judicial Council (NJC) is too strong an institution.

Tough decision necessary

I think all the tough decisions President Tinubu took were correct, painful as they are. What needs to happen is major legislation and major legislative action to cushion the hardship Nigerians face. The removal of the petrol subsidy was the right thing because it was a very corrupt policy. But where is the money? I don’t like these personal palliatives. I prefer institutional palliatives because they’re more transparent and the people will feel it more. For instance, if you say: that for all Nigerians under the age of 12, there will be no school fees. You will find the impact immediately. But where are the people being given N5,000 each? The President has got off to a good start on the runway, but the most difficult time for a pilot is when he’s climbing. An air return is a possibility.

The President has set a very ambitious goal to grow Nigeria’s GDP to $1 trillion in seven years. This is a huge task. Achieving these goals requires massive legislation and executive action. Two countries that achieved major turnaround by the enactment of major legislation and executive are the U.S. (Franklin D. Roosevelt’s New Deal) and the UK (Margret Thatcher’s Big Bang). The primary tool Tinubu needs is governance. Governance is a critical tool in development planning. It is the equivalent of a building plan. Nigeria’s Governance structures are weak and so what is required is to strengthen them through critical laws and policies.

Regulatory, administrative governance

Former ministers Babatunde Fashola and Rotimi were running around. There is no way both could have resolved our infrastructure needs. Governance entails understanding the structures of government. A minister is not an implementer but creates policy. So all that running around was unnecessary. There is an institution set by the Constitution to deliver what the executive decides, and that is the fourth branch of government, known as the administrative state, which is critical for development. The fourth branch is responsible for regulatory oversight in Nigeria. However, currently, it seems to be weak in delivering good governance due to its ineffective mechanisms. Regulatory agencies are often viewed as financing conduits for ministers instead of independent bodies. Reviewing legislation and strengthening the oversight functions are crucial to making the fourth branch perform optimally. The role of the fourth branch as an inspector and enforcer of government policies should be redefined by new legislation and oversight. Presently, there is an overlap of functions as ministers perform regulatory and inspection functions, such as overseeing airports, bridges, roads, etc. These are properly the functions of the administrative state, which is the fourth branch of government. The minister of Health cannot be the Chief Medical Officer of the federation and handle policy work simultaneously. This creates a situation where ministers set policies and then inspect their policies, which is not desirable. The UK model demonstrates the appropriate separation of policymaking and administration.

Electoral governance

Implement Justice Uwais’s report on electoral reform e.g. Unbundle INEC into three bodies for pre/post-election roles. Make INEC neutral in election disputes. There needs to be a transparent process for appointing the INEC chairman.

Economic Governance

Revise Section 16 of the Constitution to clarify Nigeria’s economic ideology.

Leverage non-tax public revenue sources more effectively as provided under section 162 (10) of the Constitution. Develop a legal framework to activate private capital for development. Most of Nigeria’s private capital is “dead” or inactive due to a lack of infrastructure supporting capital flows in a developing economy. Strengthen the implementation of local content policies by passing the Fly Nigeria Bill. Overhaul the Coastal and Inland Shipping Act, NIMASA Act, and Local Content Act to reduce revenue losses. Reform property titling frameworks to unlock trillions in capital from land assets. Establish a National Credit Guarantee Corporation. This is absent in Nigeria. The function of a National Credit Corporation is to support MSMEs with credit. When viable business proposals are guaranteed, the economy gets stimulated, expanded, and converted to goods and services sold to consumers.

Unbundle CBN

Unbundle the Central Bank of Nigeria (CBN) as done in the UK by creating two new institutions styled Prudential Regulatory Authority and Financial Conduct Authority to enhance bank performance. Introduce legislation to establish a one-stop revenue collection agency styled National Revenue Authority (NRA) and move all revenue collection functions of MDAs to the NRA. This could vastly increase tax and non-tax revenue.

Trade governance

Legislate national trade policy and office of trade negotiation. Establish Customs and Border Protection Service. Review bilateral investment treaties.

Maritime governance

Pass Maritime Zones Bill to extend exclusive economic zone. Reform Cabotage laws to build domestic shipping capacity. Enact critical bills like the Ports and Harbor Bill, Maritime Spatial Planning Bill, and Maritime Zones Bill to increase private sector participation. Introduce legislation to establish a Nigerian Border Protection Agency that would merge immigration and customs functions into a single entity. This would maintain and enforce border security, which is crucial for executing impactful trade policies.

Aviation governance

Enact the “Fly Nigeria” Bill to support Nigerian Airlines. Introduce a corporate governance framework to reduce airline failures

Space governance

Update current Legislation and policy on Space e.g. The 2006 Space policy and 2010 NASRDA Act. Domesticate major international treaties, the most recent being the Artemis Accord.

Way forward

Nigeria’s challenges may seem daunting, but they are not insurmountable.

If all these governance issues are implemented in the short term, we are likely to continue to feel the pain but in the long term, results will begin to show. The Tinubu Government has a unique opportunity to articulate and drive an uncommon agenda for development. There needs to be a specific, measurable, achievable, relevant, and time-bound implementation plan otherwise it will be all talk and no progress. (The Nation)

Update news