AFE BABALOLA: National Assembly Has the Powers to Give Nigeria a New Constitution

Chief Afe Babalola, a Senior Advocate of Nigeria (SAN) and founder, Afe Babalola University, Ado Ekiti (ABUAD), is undoubtedly one of the oldest distinguished legal icons in Nigeria. In this interview with Gboyega Akinsanmi and Victor Olakitan, Babalola discusses diverse national concerns,including the ongoing review of the 1999 Constitution by the National Assembly, the legality of the decision of the federal government to suspend Twitter operation in Nigeria and the challenges of running a world-class university in Nigeria, among others. Excerpts:

At different times, you described the review of the 1999 Constitution by the National Assembly as a waste of time and an exercise in futility. You, also, canvassed a replacement and not an amendment to the constitution. Why did you canvass these positions?
I called the exercise a waste of time because the National Assembly said the people should attend a public hearing to discuss areas to be amended in the 1999 Constitution even when there is nothing to amend. There is nothing to amend, because we are running a presidential system of government – a system I can liken to a bungalow. You cannot amend a bungalow to a four-storey building. It will definitely fall one day.

The presidential system is very cumbersome to the effect that every state has to go to the federal government for allocations. Can the National Assembly amend the constitution to stop allocations to states? Two, the National Assembly was clear in what it wanted to do. The Constitution Review Committee, which the National Assembly set up to amend the constitution, cannot go beyond its mandate. You cannot go to court to seek separation and at the same time divorce. You cannot get the two together, because the way you file the suit for separation is different from that of divorce. They said they are only interested in an amendment and not a substitution. A member of the House of Representatives even condemned the ongoing amendment of the 1999 Constitution.

But the 1999 Constitution only gives the National Assembly the power to amend and not produce a new constitution. How can the National Assembly achieve this?
That is not true. Let me say it was totally wrong for the National Assembly to say they cannot produce or write a new constitution. Under the 1999 Constitution, the National Assembly can produce a new constitution. One, the 1999 Constitution gave the National Assembly the power to amend. In its broad interpretation, an amendment includes substitution. They can exercise their powers and say the 1999 Constitution needs a substitution. They gave a narrow interpretation to the amendment clause. This same process was undertaken in Sudan and many other countries. All the National Assembly needs to do is to call for a conference, where people will advise on where and how the 1999 constitution can be substituted. That is all.

Judicial and parliamentary unions just called off national strike, which arose from the failure of the state governments to implement full autonomy for the judiciary and legislature at the state level? Do the workers have the right to go on strike over this issue?

I have been in the legal practice for 60 years or thereabouts. I knew how our courts were when I came back to the country from England in the early 60s. Then, we had lawyers from Ghana, West Indies and many other countries competing with us in the Nigerian courts. So, it was very competitive. In my 60 years of practice, however, Nigerian courts have never been shut for a day. Even in those days, lawyers and judges were respected.

Democracy thrives on three fundamentals pillars – the executive, legislature and judiciary. If a man with two legs has one of its legs cut off, will he be able to move freely? But out of the three arms we have, two have been paralysed. I mean the legislature and judiciary. Do we now say we have a democracy? Where can people ventilate their anger? Do they want them to resort to self-help? There can be no fairness and justice, where the executive continues to pay those in the judiciary.

Don’t forget the aphorism that says he who pays the piper dictates the tune. Commonsense dictates that there should be independence for legislature and judiciary. If the car of a judge breaks down and he only relies on a president or governor to get it fixed, then, it will be difficult for him to pass a judgment that will be against the state.

Are you satisfied with the process of recruiting members of the Bench in Nigeria?
That is critical. But we have not got it right. A practice, whereby people are asked to apply to become a judge, is affecting the system. The process cannot guarantee fairness and justice. After filing the application, the governor will now decide who to pick among them. In those days, people did not need to apply to become judges. It is the system itself that looks for qualified men of integrity to become judges. That is part of the rot in our system. I believe that the judiciary must not only be autonomous, but also the courts must be accessible and open to all. The president and governors, as high as they are, are equal before the courts. That is the beauty of it.

The federal government banned Twitter operations in Nigeria last week and threatened to prosecute violators of the ban. Under the 1999 Constitution, can the federal government exercise the power to ban Twitter and prosecute its violators?
I do not believe the president was right to have given the directive just because Twitter removed his post about the security in the Southeast. Don’t forget that the English law we are operating presumes that you are innocent until the court proves otherwise. Twitter, like human beings, has the right to suspend Buhari’s personal account in this context. The president cannot be a judge in his own case. If he felt wronged by what Twitter did, what he ought to have done is to approach the court of law, which has power of adjudication. He cannot jail Twitter for removing his comment. Only the court has such powers and not the president.

Under the 1999 Constitution, the power to enforce Land Use Act lies with the governors. At the same time, the 2007 Minerals and Mining Act, which defines the control and ownership of minerals, is within the power of the federal government to enforce. Is it constitutional to separate the control and ownership of land from that of minerals?
All the land resources in all the 36 states of the federation were being held by governors in trust for the people. The governors are in charge. Incontrovertibly, that is the law of this land as far as Nigeria is concerned. Any other law taking away the powers of the governors in this regard is null and void and of no effect. Let me just leave it at that.

You established a university that has revolutionised Nigeria’s tertiary education. As a legal icon, what inspired you to establish the university?
The establishment of Afe Babalola University, Ado Ekiti (ABUAD) came like a child of circumstance. I never dreamt of founding a university of my own. My vision was to retire as a judge after my exploits in litigation. Don’t forget that I was offered ministerial appointments twice. But I turned them down. After turning down the appointment, I was approached again to serve as the Pro Chancellor and Chairman, Governing Council, University of Lagos (UNILAG), Akoka.

Then, former President Olusegun Obasanjo requested me to accept the offer because of the high level of corruption in the university. That made me the Pro Chancellor and Chairman, UNILAG Governing Council between 2001 and 2008. I was serving in this capacity when I saw the problems that afflicted the university system, especially, the publicly owned ones. I served in this capacity pro bono for seven years. I did not take a dime as salary or allowance. When I assumed duty, I brought my clients – Mobil Producing Nigeria Unlimited, Shell Nigeria, Pfizer, Julius Berger, among others, to donate to an Endowment Fund we instituted.

In the end, this really paid off. Julius Berger put up a new engineering laboratory for the university. My team and I succeeded in restoring peace, security and stability to the system. Corruption was dealt with in the university. As a result, the National Universities Commission (NUC) voted me twice as the best Pro- Chancellor and Chairman of the Governing Council in Nigeria. When I left UNILAG, I thought of what I could do to demonstrate how an ideal university of global reckoning should be. I realised then that a university should be a place where you enter and feel the goddess of education.

It should be a place that is well laid out. It should be an institution that has good teachers, laboratories, aesthetic structures, equipment and infrastructure. These were what we put in place and got right in ABUAD. Within two years, the NUC described ABUAD as “the pride of the university system in Nigeria” while the Association of Vice Chancellors of Nigerian Universities described our university “as the most successful private university in Nigeria. Also, the United Nations Educational, Scientific and Cultural Organization (UNESCO) described ABUAD as “a world-class institution of Higher Education”.

After 11 years of operation, have you been able to demonstrate what an ideal university system should be?
In entirety, my vision is to ensure that we have quality and functional education in Nigeria. We started by establishing a Talents Development Centre (TDC), which consists of 28 rooms for students to engage in extracurricular activities like singing, welding, painting and barbing among other skills. We also created recreational facilities for students inside that centre. This centre was to help the students to realise their potentials apart from the class works, which are also very important.

You can see that this university is truly a child of circumstance and has become a leader within 11 years. Apart from scoring 100% pass, our graduates had the best results in Law School in 2018. The Overall Best Student was a graduate of ABUAD. We had 12 First Class while our students won 24 out of the available 36 prizes. Even the NUC described our College of Law as the “Best in Africa”. The Nigerian Society of Engineers (NSE) recommended our template for Engineering Education in Nigeria. Our first set of graduates in the College of Medicine and Health Sciences recorded 100 per cent pass, which was regarded as the best feat ever recorded. So, ABUAD is truly setting the pace and we are gradually getting there.

You set up a multisystem hospital to check medical tourism, but some leaders are still going abroad for medicare. How do you react to this?
As much as it was my vision to develop education, I considered quality healthcare delivery as very imperative to national growth and development. In Afe Babalola University Teaching Hospital (ABUTH), there are beautiful structures, ultramodern medical equipment and highly skilled medical personnel that can attend to the healthcare needs of all Nigerians, regardless of class. Many past Presidents, Nigeria’s current Vice President, Prof. Yemi Osinbajo, Governors, Ministers and Captains of Industries have visited the ABUTH facility. They valued what we have there.

Did you know that the Medical Director/Chief Executive Officer, First Cardiology Consultants, Dr Adeyemi Johnson visited Ekiti for the first time because of the multi-system hospital? He is a seasoned interventional cardiologist. He is reputed to be the best cardiologist around. After visiting ABUTH, Dr. Johnson said the university has more modern equipment that outmatched all the hospitals in Lagos put together. He said we had the best equipment in the country. Let me say this for the record. There is no magic in medical science.

A Doctor can only be good if he has access to good equipment. If you check our records, we have succeeded tremendously. We have recorded breakthroughs in brain surgery, eye surgery, laparoscopy, and many others. A girl, who could not see for 14 years of her life, regained her sight here. Many doctors, who were trained in the United States, England and other advanced nations, have come here to perform operations and treat patients. Some were even surprised at the low fees we are charging here. They even said the fees we charge are not even enough to catch a flight to some of these countries where our leaders and rich men traveled to for medical treatment.

Some patients have been brought from abroad to get treatments here in ABUTH. The records are there. Nigerians do not value what they have because of the fear that we have no equipment in Nigeria and that they have to be treated by a white man before they can get well. Time, they say, is a healer of all diseases. I know that with time, some of those who are still traveling abroad will appreciate what we have here and patronise our multi-system hospital

Oxford University recently offered one of ABUAD’s graduates, Mary Adeyemo, direct admission to pursue a doctoral programme in Law without LL. M. How did it happen?
I felt excited when I heard about it. I truly felt fulfilled when I heard that she was asked to undertake a doctoral programme in Law without LLM. I said it was a big feat. In Nigeria, having a LLM with PhD grade is required for you to be a doctoral candidate. But when you have a good degree, nothing stops you from being given direct admission to pursue any doctoral programme. In those days, Nigeria’s premier university, the University of Ibadan used to do the same thing. But the standard of education has fallen to the extent that you have to possess a Master’s Degree before you can be offered admission to pursue your PhD. With this feat, the young lady does not need to pass through the rigour of masters. That will make her academic journey very smooth and rewarding. But the feat is a product of hard work that we encourage here in ABUAD.

You have been running ABUAD for 11 good years or more. Can you explain some of the challenges associated with running a university in Nigeria?
Running a world-class university that can earn respect locally and globally is difficult given some challenges I have been facing in particular. One, there is an environmental challenge. What do I mean by environmental challenge? A university is sited in a community. You need the cooperation of the community and the state, where you are operating. If you were in England, you would not need an Independent Power Plant (IPP). You have it already. All you need to do is to pay your rate based on agreement.

You do not need to sink boreholes or dam a river because the water is there. All you need is to just pay. But all these are not there in Nigeria. You would have to provide these facilities on your own. Two, security is a big challenge. It is becoming more worrisome in Nigeria. In recent times, kidnappers see students as a way of making easy money. This is because no parents will want their children to die in captivity. That accounts for why a university must be well-secured. Three, no matter how novel, progressive, pragmatic and workable your idea and vision are, how to get the right personnel to key into the vision through diligent and effective teaching becomes a critical challenge.

Don’t forget that many of these teachers were trained in public universities, which are already used to a layback attitude. Attitude to work in private universities is different from that of the public ones. When we wanted to start the College of Medicine and Health Sciences, we approached the state teaching hospital for partnership. But they said that was not possible. I then went to the Federal Medical Centre, Ido Ekiti, owned by the federal government, where I encountered a lot of problems.

As willing as they were, the medical facility was a mere medical centre that could not secure accreditation for running the College of Medicine and Health Sciences. We had to provide infrastructure to upgrade the FMC to the status of a teaching hospital. Immediately, we started investing in the place. In truth, we spent billions to turn it to a teaching hospital. But about a month after we started the programme, the doctors there began a strike. I pleaded over and over again before they decided to resume. Within a year that we started, they went on strike three times. That was why I started this multi-system hospital here.

The strike that forced me to do this has now become a blessing in disguise. Four, the attitude of students is another challenge. Students in public schools generally lack discipline. Students come to school anytime they like. In most cases, it was as a result of the poor transportation system we are running. They do not take other serious rules like taking attendance, dressing code, or being restricted within the campus. That is why our students are complaining that their colleagues in public schools are not subjected to such treatment. Even social media once described ABUAD as having regimented students.

However, our alumni have started giving us feedback about the values inherent in such a system. Five is the serious misconception about the fees being charged by private universities. If you compare what we charge here with what some private nursery/primary schools in Abuja, Ibadan, Ilorin, Lagos and other towns are charging, we are actually charging lower than what they paid there. Despite that, they complain that the fees are higher. That is why I continue to fund ABUAD personally.

During the period of COVID-19, we were paying our staff members so that they continue to provide the right services that are in tandem with our vision. As of today, we pay five per cent higher than any other university. We have even increased our salaries so that no university can match ABUAD nationwide. I appreciate all the success we have recorded so far.

With this feat, I am fulfilled. One of our students won the Unilever Global Award. When the university honoured him, he said ABUAD might not know that it was building a new world, a new people and a new country for a brighter tomorrow. The only change that is worthwhile is the change that changes people’s lives for the better. That is exactly what we are offering in ABUAD.

This is a church and you don’t have a theological school and you don’t have branches what happens to the church after you? How will the church grow from just this humble beginning to become a church of the world and after you who takes over?
You don’t watch Emmanuel TV, this is a year now or six months since I preached last and the church still continues. There are five prophets and prophetesses, they are working. They have taken over from me already. There is an American, a British, a French, and a Nigerian.

One thing we have come to identify churches with in Nigeria, is that you have the man of God, his wife, and the his first son in the line of succession but you are not toeing that line, it shows that you are looking at something that is beyond you. Are you not worried that some of them could appropriate the church as theirs?
This is where God comes in, it is not a business venture. If it is God, then it is God and then it is true. The issue of family should not come into the issue of the church, that is it, it is undeserved grace.

You mentioned that you are going to have a university of science, is it in the pipeline?
It is the plan of God to have a university of medicine and you know you can’t talk of medicine without talking of science. So it is going to be university of medicine and theology.

Where is the location of the University?
You can see the people that are working in the ministry, American, United Kingdom, Nigerian, France, so it can be anywhere. It will be a special grace to be in Nigeria.

If God can use you to do this huge projects and your country is falling apart, what do you have to say to that?
A prophet has no honour in his own country. The president of Sudan gave me a letter.

Many pastors want to be Professor, Doctor, Archbishop and all that, why have you remained just a prophet?
Let me tell you that at a university in Columbia has given me Phd, but I don’t want to use it. I have OFR in Nigeria and that is number three in Nigeria, which was given to me by the late President Yar Adua. I didn’t go but I sent my wife. So, if I now begin to use all that, then, what I am saying is that I am not pleased with what God has given me. God has given me so much so why should I continue to flaunt it around. I should be happy and content. It is not what you are doing but how long it lasts. Many of our rich pastors – millionaires – their legacy is gone. So, it is not what you are doing now but how it is going to last. Lasting promotion comes from God and that is why we call Him everlasting Father.

You restored peace in some countries, and you have gone to help restore hope in some countries. But hope in this country is fading away, why have you not waded in?
God’s time is the best, but I want to assure you that, there is so much issue of disunity, people want to go, this section wants to leave but nothing will happen. We will continue to be Nigeria. God just wants us to learn certain experiences. Experience is the best teacher. Do you know what we have done so far, we are more of enemy of God than friend of God in the past. So, I think what we are going through is a lesson and it will soon be over. And I pray that we will live to see it when it is over. So, there is nothing to be afraid of.

How about the project?
The project is 80% completed and we are looking at bringing many more animals here, like Giraffe.

You have all of these and you don’t want to intervene in the situation of the larger society, which is Nigeria?
Let me say this, if you have headache and you are not asking me to pray for you, will I now force myself to pray for you? I gave a prophecy on Nigeria that we will drink our oil. I said this oil you are seeing now we will drink it.

Sir you gave a prophecy about coronavirus on 28th December, 2019 but you still refuse to say anything about Nigeria? From what I read, it was released on January 5th , 2020 but we still want you to talk about Nigeria?
I hope you saw the video of the building that collapsed, you know they took me to the court and the case is still in court?