2023 and Interim Government Bogey

Introduction

 I think it is apposite for me to comment on the recent suggestions of one of our ‘Fathers in the Law’, Chief Afe Babalola, CON, SAN (Chief), on the way forward for Nigeria. I decided to look into Chief’s position, as he was denounced by some for proposing inter alia that, at its expiration, this Government should be replaced by a six-month interim government which would craft a brand new Constitution that will restructure and serve Nigerians better, before going into the next general elections; a new and improved constitutional background, which he concludes will save Nigeria from financial ruin, and in his words, “drowning completely”.

Permit me to be extremely blunt. Chief’s view, may be because, like I stated last week, he also sees nothing but gloom and doom and ‘business as usual’ come May 29, 2023 if we continue with our flawed Constitution, system of governance and institutions – all we will achieve is a change of baton, with little or no hope of any meaningful positive change in our circumstances. Additionally, Chief’s opinion is also borne out of the frustrating and disheartening realisation and conclusion that, it is quite obvious that those who have been in power since 1999 through today, are not prepared to make these positive changes, constitutional or otherwise, that are required to improve Nigeria. From Chief’s submissions, it is clear that – ‘who then will do it, how and when were pertinent questions that agitated his mind, as it has done the minds of many right thinking Nigerians, considering the multiple challenges the country is presently facing.

Certainly, as some are quick to point out, we know that the 1999 Constitution of the Federal Republic of Nigeria (as amended)(the Constitution) does not provide for an interim government, and this is why Chief’s suggestion was quickly dismissed by antagonists as unrealistic. I find it quite hypocritical though, when people dismiss the things they do not want to hear as unconstitutional, but allow the ones which suit their purposes that are unconstitutional, to ride. Take for example the Sharia Courts exercising criminal jurisdiction – it is unconstitutional. Nowhere in the Constitution are Customary and Sharia Courts endowed with criminal jurisdiction, but as a matter of course the Sharia Courts exercise criminal jurisdiction, so much so that, quite regularly, the Sharia Court in Kano is sentencing people to death for blasphemy (a punishment that the Holy Quran doesn’t prescribe for blasphemy), and I don’t hear any loud objections of unconstitutionality in that regard!

Why would a legal luminary propose extra-constitutional means (outside the purview of the Constitution) to fix Nigeria’s problems? Because desperate situations require desperate measures? Because he has searched the Constitution high and low, and doesn’t see any way out of this conundrum, except for maybe Section 9 which provides for constitutional amendment, but which Legislators have refused to put to any meaningful use? Of course, the NASS/Houses of Assembly that over the years have refused to do the needful, would never amend the Constitution to allow for others to do it, whether by means of an interim government or otherwise. But, when I asked a few Lawyers who didn’t agree with Chief’s interim government suggestion to proffer their own alternative practical solutions, they didn’t have any. Instead, they said we should pray for divine intervention! One did suggest that since the Youths are in the majority, they need to organise themselves better to get their peers to run for office, get their PVCs and vote useless politicians out. That won’t happen before the next elections.

LKY

People love to quote as an example that Nigeria should follow, Lee Kuan Yew (LKY), Lawyer, graduate of Cambridge University, Prime Minister of Singapore from 1959 until 1990, who was able to transform his country from a third to first-world country; but, have they really studied his model and philosophy?

For one, while LKY selected some elements of democracy, he didn’t believe that the whole concept of democracy had been successful in developing countries, especially countries that have large populations (like ours) – too many different and competing interests, which do not necessarily align. We saw this play out recently in NASS, in the matter of Petroleum Industry Act. What the representatives from the real oil producing areas wanted, was quite different from what the representatives from non-oil producing areas wanted.

Even though Singapore had a parliamentary system, LKY was firmly in charge. He was brilliant and focused. Racism, tribalism and gender discrimination were not permitted or tolerated, and he encouraged foreign direct investment by creating the right atmosphere for it. Religion played no part. He placed a very high value on education and meritocracy, making quality education available no matter your income status (unlike the quota system we have practised for decades in Nigeria, which encourages and entrenches failure), giving generous scholarships for those who earned it.

Above all, LKY concentrated on eradicating corruption, and demanded that leaders displayed superior moral leadership, so that the people would follow their example. Can you imagine LKY granting pardon on any grounds to ex-Governors Nyame & Dariye? Or can you imagine LKY’s Party asking for N100 million and other exorbitant amounts, as the purchase price for application forms to run for elective positions? No, I can’t imagine such happening with LKY.

Chief Babalola seems to believe that, obviously, in our present circumstances, ‘too many cooks have spoilt the broth and will continue to spoil it’. That now that urgent reform is required, to take decisive decisions to chart a better course for Nigeria, only a few patriotic, intelligent, objective, progressive people are required to create the right constitutional blue print, before opening the door to democracy; because over the years, those who have had the opportunity to do so, have failed to seize it. After all, it was the military, a small group, that prepared the flawed Constitution that we have been using for the last 23 years.

Section 305: State of Emergency

Could the invocation of Section 305(1) of the Constitution which empowers the President to declare a state of emergency in the Federation or any part thereof, been a constitutional alternative to Chief Babalola’s suggestion? Yes, but such declaration also requires the buy-in of the same National Assembly (NASS) which has failed to do anything particularly constructive over the years, as far as constitutional reform is concerned, and such declaration must be approved by a resolution of both Houses of NASS (see Section 305(2) & (6)(b) of the Constitution). Such approval seems rather unlikely, especially because when a state of emergency is in place, parts of the Constitution or the whole of it, if required, including our constitutional rights, may be suspended for the period of the state of emergency which can last up to six months, and subsequently, can be extended by NASS for another six months ad infinitum (Section 305(6)(c) of the Constitution).

Undoubtedly, some of the conditions to declare a state of emergency actually exist in Nigeria today or at least, in several parts of the country – particularly the breakdown of public order and public safety in the Federation which require extraordinary measures to restore peace and security (Section 305 (3)(c) of the Constitution). The idea of a state of emergency would be that it would not only be used to restore peace and security, it could also be an opportunity for other worthwhile activities like redrafting a new Constitution to replace the old one, done by others since NASS would be suspended. Alas, whether in the interest of Nigeria or not, it is clear that NASS would never subscribe to having the powers donated to them by Section 4 of the Constitution suspended, for others to create a new Constitution, let alone one that would be inimical to their interests generally. Unfortunately, the Legislators are the main actors in this constitutional reform matter.

Some Examples of Constitutional Amendments that Clash with Politicians’ Interests

We must however, not allow Chief Babalola’s submission on an interim government distract us from the main reasons for his submission – that presently, Nigeria is not in a good place; that the 1999 Constitution is extremely faulty; that we are in dire need of constitutional reform and restructuring; that those who have the power to bring about the necessary reforms have shown that they lack the capacity and will to do so. That even though these reforms will be beneficial to Nigeria as a whole, making them may be akin to politicians shooting themselves in the foot! As Mrs Funke Adekoya, SAN aptly put it, no chicken would ever vote for Christmas!

Apart from those who are not in favour of restructuring, whether geographical or otherwise, devolution of powers, resource control etc – those who prefer to continue this unitary system of government and maintain the status quo because of the benefits they derive from it, there are uncountable other issues that various groups are not in favour of correcting. Here are a few examples:-

1) Unicameral Legislature & Reduction of Remuneration

Chief suggested a part-time unicameral Legislature, whose members are only paid sitting allowances. A unicameral Legislature would mean a lesser number of members. Already, the scramble for the 469 seats of the two Chambers of NASS is like a do or die affair, and we really expect that NASS would be the ones to vote to then reduce the number of seats available for them to occupy? Not likely. With the exorbitant salaries, allowances and perquisites of office that Legislators presently enjoy, this suggestion of less seats, less pay, though reasonable, would sound like blasphemy or heresy to them, as we saw from the body language of the Senate President, Ahmed Lawan, one time when the idea of a reduction in their salaries and allowances was mooted.

But, truth be told, the present system that we run, is not only inequitable, it is senseless. And, though it certainly didn’t start with this administration, they had promised Nigerians a change for the better. A society where Judges, Medical Doctors and other professionals who are usually the highest paid in the world, earn a pittance, while some Legislators who may be only Primary School Certificate Holders are paid more than 10 times what these professional earn, is a society that is encouraging illiteracy or a minimum level of education, crime and failure. And, this is exactly what Nigeria is experiencing.

2) Educational Qualifications

We didn’t even hear this particular issue being considered, during NASS’s recent constitutional amendment exercise. I refer to Section 318 of the Constitution, which equates a Primary Six School Leaving Certificate to a Secondary School Certificate and a Grade II Teacher’s Training Certificate. While LKY believed that a voter on the street struggling to pass Primary Six exams did not know enough to make informed decisions to vote about state matters, we are busy using such a low benchmark as the qualification for not only Lawmakers, but those holding important positions in Nigeria – in short those driving our policy, and lying in our Constitution that this lowest educational qualification is higher than it is! It’s preposterous. 

Even an illiterate knows that the certificate from Primary School is definitely not equal to that of Secondary School, since a pupil has to take the Common Entrance examination, usually on completion of Primary School to gain admission into Secondary School. The student who then attends Secondary School for an additional five or six years post-Primary, has to sit for the WAEC/GCE/NECO examination in order to obtain the Secondary School Leaving Certificate. Teacher Training comes after Secondary School. How then, can they all be equated as being the same level of education/qualification when they are not, just because the Constitution says so?! This is a falsehood, a perjurious hyperbole that cannot be substantiated.

Even pre-1998, before the Nigerian Certificate of Education (NCE) was introduced, to enrol for the Grade II Teacher Training programme, a student had to have completed at least four years of secondary school first. Once the NCE was subsequently introduced, to enrol for Teacher’s Training, a student must have at least five credits from WAEC/GCE/NECO. I submit that a Secondary School Leaving Certificate can then be further distinguished from the Teacher’s Training course and certification, because while an aspirant could have all F9s in the Secondary School Leaving Certificate since there is no specification about scores, to enrol in the Teacher Training programme, the individual actually needs five WAEC etc credits, thereby making the qualifications for enrolling for Teacher’s Training higher than the School Leaving Certificate that may contain all F9s.

But, what happens if Primary School Leaving Certificate may be the only educational qualifications that some members of NASS and numerous politicians may have? Or if it becomes mandatory that political office holders must have a minimum of Secondary School Leaving Certificate with five credits, and many members do not have up to five credits? Will these same members who only have the Primary School Certificate or have one or two credits or F9s, be the ones to raise the bar for qualification for elective offices, thereby excluding themselves? I think not.

3) Accountability

Politicians are averse to any form of accountability; will they then be the ones to clamour for the deletion of Section 6(6)(c) of the Constitution which ousts the jurisdiction of the court when it comes to some form of accountability of Government to the people, so that they can be made accountable? Again, I think not.

Conclusion

I think we can safely conclude that, anybody who is expecting the reforms which Nigeria is in dire need of, to be effected by our crop of Fourth Republic politicians (majority of them anyway), is clearly delusional. It won’t happen. Chief Babalola and many of us see that. What then is the way forward? My dear colleagues, kindly, share your thoughts on how constitutional and other reforms can be brought about, and as quickly as possible too. Thank you.