‘Presidency Underestimated “Anti-Anti-Corruption” Elements in the Senate’

Legal Education in Nigeria, has witnessed its fair share of challenges, including understaffing, accreditation, dearth of adequate publications and overstretched facilities. Despite these obvious challenges, many Law Faculties in the Nigerian Universities, have struggled to produce some of the brightest and best materials for the Law School, and the University of Lagos, is a shinning example of such. Onikepo Braithwaite and Jude Igbanoi, both former students of the Unilag Law Faculty, sought out one of the leading authorities on Administrative Law, Professor Oyelowo Oyewo, who took time out of his busy schedule to speak on a myriad of issues, including the faceoff between the National Assembly and the Presidency, over the 2017 Budget Appropriation and the Non-confirmation of Ibrahim Magu, as Chairman of the EFCC

Prof, the issue of the stalemate between the Presidency and the Senate, over the non-confirmation of Ibrahim Magu as the Chairman of the Economic and Financial Crimes Commission (EFCC) does not seem to have abated. What is your opinion on the matter? Is the EFCC an extra-ministerial department?

To start with your latter question, the EFCC is neither an extra-ministerial department under section 171 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) nor a Federal Executive Body under section 153 of the same Constitution. Rather it is a statutory body created pursuant to the Economic and Financial Crimes Commission (Establishment) 2004 as such, bound by the provisions of its enabling Act.

Coming to the issue of non-confirmation of Ibrahim Magu as the Chairman of the Commission, the relevant provisions to the issue from a legal perspective is section 2(3) that provides that: “The Chairman and members of the Commission other than ex-officio members shall be appointed by the President and the appointment shall be subject to confirmation of the Senate.” The stalemate can therefore, be seen as being rooted in politics and power struggle, that has characterised the clashes between the legislature and the executive under the President Buhari Administration. From the standpoint of the cardinal objective of this administration to fight corruption at all levels and arms of government, the non-confirmation of Magu by the Senate, is viewed as corruption fighting back, since the President of the Senate, Dr Olubukola Saraki, and some other leading members of the Senate, are also facing corruption charges filed by the EFCC headed by Magu. The twist to the whole saga, is the unfavourable intelligence Report on Magu twice presented by the DSS, relied upon by the Senate to twice exercise its statutory power of non- confirmation. Unless the DSS gives a favourable report, it is unlikely that the Senate will change its stance, and the continued occupancy of the Chairman’s Office by Magu, even in an acting capacity, will continue to raise this issue dressed in legal/constitutional role, but having its essence in political and power struggle. During the Administration of President Obasanjo, the non-confirmation saga played out in the ministerial appointment of Professor Aborisade, who was presented several times to the Senate before his eventual confirmation. Maybe a political solution may see out a similar outcome. However, ministerial appointments, may not be likened to the appointment of the anti-corruption Czar, who wields such enormous power on the prosecution of corrupt officials, the category into which, some members of the Senate fall into, having served as elected officials of their states bound by the Code of Conduct and other anti- corruption legislations.

It seems that any appointment by the President that falls within the purview of Section 171 of the 1999 Constitution of the Federal Republic of Nigeria, does not require the confirmation of the Senate. Is this the true position? Does that mean that the Presidency was wrong in seeking the confirmation of the Senate for the appointment of Ibrahim Magu in the first place?

Section 171 is only applicable to extra-ministerial departments and officials enumerated in Section 171(2) wand. The office of the Chairman of EFCC is not included therein, as such no argument can be sustained in that respect. As earlier stated, the EFCC is a statutory body, and the relevant section pertaining to the appointment of the Chairman of EFCC is section 2(3) of the EFCC Act. Hence, the Presidency was not wrong in seeking the confirmation of the Senate for the appointment of Ibrahim Magu in the first place, it was just that the Presidency underestimated the force of the “anti-anti-corruption” elements in the Senate, and their influence, if any, on the DSS. Indeed, the President as much acknowledged this in his observation to the effect that “corruption fights back”. Hence, the Presidency must “doubly fight back” to win over the “corruption fight back”.

Should the death penalty be stopped in Nigeria? Has it served any useful purpose, especially in being a deterrent of crime?

Section 33(1) of the 1999 Constitution, as interpreted by the Supreme Court, constitutionally permits the imposition of death penalty sentence by a court of competent jurisdiction. The criminal and penal codes, have death sentences as punishment for the commission of capital or ”very serious” offences. It must be noted that, although the death penalty is not prohibited by article 6 of the International Covenant on Civil and Political Rights (ICCPR), however, the Second Optional Protocol to the ICCPR, has since abolished the death penalty. Moreover, full-fledged and complete respect for the right to life, something that necessarily involves the abolition of the death penalty, stands as the implied ‘common standard of achievement’ in article 3 of the Universal Declaration on Human Rights. Thus, the UN High Commissioner for Human Rights, Zeid Al Hussein, has reiterated the call for the abolition of death penalty, saying its subjecting of convicts to mental anguish, constitutes human rights violations. Zeid made the call on at the opening of the biennial high-level panel discussion on the death penalty, which was organised as part of the Human Rights Council’s session for 2017.

The Murder (Abolition of Death Penalty) Act 1965 is an Act of the Parliament of the United Kingdom, that abolished the death penalty for murder in Great Britain (the death penalty for murder survived in Northern Ireland until 1973). The Act replaced the penalty of death with a mandatory sentence of imprisonment for life. There is therefore, the need to seriously consider the arguments for the abolition of the death penalty in Nigeria, and for a comprehensive reform of our criminal laws, administration of criminal justice, penal and prison systems.

It seems that the Government has been unable to secure convictions in several cases involving high profile politicians. What do you think is happening? Before the matter gets to court, it seems that there’s a good case against the accused. By the time the matter is heard, the person is acquitted. Recently, Senator Ali Ndume was freed of terrorism charges. What is your opinion on this matter?

As stated above, there is the urgent need for the comprehensive overhaul and reform of our administration of criminal justice system. Often times, the investigative processes of the anti-corruption agencies, are hurried and not thorough before taking matters to court, which makes them vulnerable to “no case submission” and acquittals of offenders. Why is it that it was not possible to effectively prosecute Ibori in Nigeria, but the same Ibori pleaded guilty to charges filed against him before the U.K Court? We need to also look into the practices of our prosecutorial and adjudicatory bodies, to determine if there are elements therein that are corruptly compromising the criminal justice administration system in Nigeria. The National Assembly must also put aside selfish interest, to pass the laws that will effectively overhaul our justice system, including the recovery of stolen assets.

What were the main challenges that you faced as the Dean of the Law Faculty of University of Lagos? What would you say you were able to do, to raise the standard of education in the Faculty during your term?

Challenges are opportunities for manifestation of strength of character, experience and positive impact. The Faculty of Law, University of Lagos, is the foremost Faculty with institutional and human capital and reservoir of resources, in its Alumni. Hence, one was able to make a positive impact and contribute immensely to the standard of education, by addressing the infrastructural, human resource and capacity needs of the Faculty, during my tenure as Dean. The chronicles of my tenure and its accomplishments are well documented, in one of the 50th Anniversary publications titled Amongst Giants. Suffice it to say, that the legacies of my tenure such as the Refurbishment of the Faculty Building, Mooting Society, the Bilateral Exchange Programme between University of Lagos and University of Pretoria, The 50th Anniversary Events and Publications, The Proposed New Faculty Building, to mention a few, stand as beacons of the Era of the ‘Golden Dean’.

What steps do you think that Government should take, to eradicate the menace of cultism that has pervaded the Nigerian Universities?

The Government must continue to advocate, articulate and educate about anti-cultism and zero tolerance for cultism, in all our tertiary and secondary institutions. The Universities and other tertiary institutions, must have in place firm, clear and easily enforceable anti-cultism frameworks. More importantly, the root causes of cultism must be addressed, as prevention is better than cure.

Has the decentralisation of the Nigerian Law School (NLS) had any negative effects on the quality of lawyers being churned out from there?

The decentralisation of the NLS, was informed by the explosion in the number of law students’ population, arising from the exponential increase in the number of the Law Faculties in the country. Having served as a Member of the Council of the NLS, I can authoritatively say that, the NLS is constantly revising its curriculum and teaching methodology to address the falling standard of legal education. However, it must be stated that, the physical structures and human resources, are presently inadequate to deal with current student population of the NLS. Moreover, the human capital/capacity and infrastructure deficiencies, are carried over from a lot of the Faculties of Law unto the NLS. Most of us in academics, acknowledge the need to declare an emergency in our legal education system, just like the general educational system in the nation, so as to address its inadequacies if we are to attain world-class standards.

Do you believe that the recall of some of the Judges to resume their duties was premature? Some lawyers are saying that not all the recalled Judges have been fully cleared, and as such, they should not have been recalled.

The discipline of Judges is the responsibility of the National Judicial Council (NJC) pursuant to section 153 and Third Schedule Part I, I of the 1999 Constitution, hence, if some Judges were hastily recalled to their duty post after being charged to court on corruption charges, then the NJC must investigate and take appropriate steps to deal with such lapses, as the independence of the judiciary, particularly in the eyes of the public, must not be tainted by such perceived lapses.

The agitation for the Restructuring of Nigeria seems to be reaching a climax. Do you think a restructuring of the country is necessary? If so, how do you think Nigeria should go about the task of restructuring?

Nigeria has practiced the federal system since 1954 till date, except for a short period in 1966-1967; hence, federalism has become a fundamental principle of constitutional political governance in Nigeria.

Over the years, we have devolved from three regions into the present 36 States structure. There are several federal principles that have been evolved, to address the National Questions arising from the plural and diverse nature of the Nigerian federation, such as: Federal Character and Catchment Areas Principle; Six Geo- political Zones formula and zoning, and constitutionalisation of the Local Government system of Administration. Irrespective of these principles and political solutions, the federation continues to be plagued constantly by questions of inclusion of the various ethnic nationalities in governance and management of its resources (resource control or resource management debate), leading calls for a sovereign national conference of the various nationalities; practice of “true federalism, decentralisation; devolution; secession; and now restructuring.

We must remember the fact that the nation convened a National Confab under the Obasanjo Administration, and most recently the Political Confab of 2014 under President Jonathan, apart from the constitutional amendment programme of the 7th National Assembly, that was vetoed by President Jonathan. The Speaker of the House, Hon. Dogara, has reiterated the significance of the constitutional amendment process, as a sine qua non that is the only route for restructuring under the 1999 constitution. Hence, there are raw materials for preparing the solution to the problem of the Nigerian Federation.

However, there is a the real question of what will be the ground rules for embarking on restructuring, the possible outcomes of restructuring, and the fall outs from it, including the possibility of the disintegration of balkanisation of Nigeria, with the attendant consequences. There are other questions being raised, as to whether or not there should not be economic, social and values restructuring, that will precede the political restructuring. But one thing that is certain, is that the restructuring agitation is not going away soon. The 1966-67 Biafra Civil War is a Bloody stain on the fabric of the Nigerian State, that must not be allowed to be repeated ever again, so if restructuring is the way out of the perceived inequities and imbalances in the Nigerian Federation, then the political will and the constitutional means must be available, to achieve this end peacefully.

How would you rate the Government’s Human Rights record so far, especially in relation to the blatant disregard of court orders by some of its agencies and the appalling state of the prisons?

Clearly, the Buhari Administration came in at a time of extreme terrorism insurgency by Boko Haram, militancy in the Niger Delta, Fulani Herdmen plundering, kidnapping, armed robbery, wanton and unbridled corruption, and other criminal activities that threaten the Nigerian State. Thus, legislation such as the Anti-Terrorism Act, Administration of Criminal Justice Act, among others, were enacted for the purposes of dealing with some of these security threats and menace. However, Amesty International has alleged that the Nigerian Army engaged in systemic violations of human rights, through summary executions which the Buhari Administration has allegedly investigated and declared to be unfounded. But the judgements of our Courts and the ECOWAS Court of Justice, particularly in the Sambo Dasuki case, will suggest that the Government is in flagrant disobedience of the afore-mentioned judgements, and not a respecter of human rights. But the appalling state of our prisons cannot be blamed on this administration alone, as the rot and decay of the prisons has been on-going for years.

Many Nigerian law faculties are still struggling with accreditation by Nigerian Universities Commission, while many have mere provisional accreditation. In your assessment, what potential impact would this have on the nation’s legal education?

It must be stated that periodic accreditation of our Faculties of Law by the NUC and the Council of Legal Education, is to ensure compliance with the Basic Minimum Accreditation Standards (BMAS). Consequently, the accreditation processes and stages can only impact positively on the standard of legal education. It is the non-compliance with the BMAS, that will impact negatively on legal education.

You are Chairman of the Lagos State Prerogative of Mercy Committee. What categories of prisoners or offences are entitled to clemency by your Committee?

The Prerogative of Mercy Committee of Lagos State, of which I am the current Chairman, was created pursuant to the constitutional provisions on prerogative of mercy and the power, granted to the Governor of a State thereunder. The Committee deals mainly with capital offences and serious offences that carry the death and life sentences. The Committee established Guidelines, to guide it in the discharge of its duties in making recommendations to the Governor.

In the past few years, the debate over whether law lecturers should be legally allowed to engage in active legal practice has assumed a new dimension, with many law teachers arguing that there is nothing legally or constitutionally barring them from practice. Examining the pros and cons of this issue, on which side of the divide would you stand?

Clearly, being a Law Lecturer I will definitely be on the same wavelength on this issue, as the merits of allowing those Law Lecturers who engage in legal practice to do so, for the simple reason that, being part of the academic Bar, must not be a hindrance to being in active practice. The caveat here, is to be responsible and exercise a high sense of duty and accountability, to discharge ones primary obligation to the academia creditably well, not forgetting that the Universities have disciplinary rules and procedures, for erring Lecturers for dereliction of duty.

There has been so much controversy over the nation’s 2017 budget, with many prominent Nigerians condemning the National Assembly for tampering with some vital clauses in the budget. Do the Legislators have any powers or locus to tamper with the budget?

The issues relating to budget are both constitutional and political. Constitutionally, the Appropriation Bill is prepared by the Executive and passed by the Legislature. However, the President has a veto power to reject any unacceptable tampering or “padding” by the legislature. Indeed, the legislative process involves a ‘political process’ of negotiations between the executive and the legislature, as the legislature is not supposed to be a ‘rubber stamp’ for all appropriation proposals of the executive. What we need, is a Public Finance Control and Administration Act at the Federal level, to deal with these issues, as is being presently done in Lagos State. Moreover, the Legislature needs to build professional capacity for the budgeting process, so that the present arbitrariness and opportunistic approach, will be eliminated.

You became Professor of Law at a very young age, in your early 40s, would you subscribe to the suggestion that the retirement age of university teachers be extended beyond the mandatory age 65, especially for Law Faculties where there is dearth of quality teachers in most universities?

Contrary to your assertion, I did not become a Professor at a very young age, as I was in my mid-forties when I was so elevated, it may be the genetic endowment of a youthful look, that is giving the impression that I was very young then. As to the retirement age, it has since been extended to age 70, and even beyond that, Professors still go to pasture after retirement in Private Universities. What needs to be done, is to improve upon the remuneration of Professors, in comparison to that of political office holders. A situation where, even a Local Government Chairman, earns more than a Professor, does not augur well for the future of Legal education in Nigeria. Investment in human capital and capacity building, and infrastructure, must be the priority of government, in order for us to have world-class Faculties of Law in Nigeria.