Issues in constitution review, says Senate spokesman, Basiru

Spokesperson for the Senate, Dr. Ajibola Basiru, speaks on the constitution review, attacks on police formations and the Independent National Electoral Commission offices, among other sundry issues in this interview with David Lawani and Ben Ogbemudia

Some Nigerians are canvassing a return to the 1963 Republican Constitution, saying it is more people-oriented than the 1999 Constitution. What is your take on this, considering the ongoing constitution review dialogue?

How is it possible for somebody to just sit down in his room and say that we should just start using 1963 constitution? It can be suggested that the ongoing exercise should consider the 1963 constitution. But you cannot say we should abandon the present constitutional arrangement; it will mean we want to embrace revolution. The ground norm is the source of authority and legitimacy in many societies.

As of today, whether we like it or not or whether it is well accepted or not, the 1999 constitution as amended is the ground norm in Nigeria. So, for you to go forward, the existing legal regime will guide what will come out of another legal regime. So, by section 9 of the constitution, there is a provision for the amendments of the constitution. Amendment can be done in a peaceful way; it can be holistic and can be by substitution of existing provision of the constitution with another one.

I think any senior lawyer will know that you still have to amend or substitute if that is what is required using the instrumentality of the existing constitution. Outside that, you are talking of unconstitutionality. Section 1 of the constitution is clear. Nigeria must be ruled according to the constitution. The legitimacy for amending a constitution either by way of peaceful or total overhaul is by section 9 of the constitution. And that involves the elected representatives at the national assembly, the two chambers, and two-third of the elected representatives of the people in the state houses of assembly. It is not just enough for an individual no matter how knowledgeable he is to say that this is the way the constitutional process should go. Constitution making is not the job of lawyers alone. It is not the job of any particular profession. It is everybody in society. And, no matter the profound nature of your thinking, you must carry along the people. Ultimately, from what I have said, you need the concurrence of the national assembly. You need two-third of the national assembly, the majority of two-thirds from the states’ assembly.

So, everybody that has issues, areas of reform or substitution should indicate, conscientise, and mobilise the people so that he can get the majority around whatever amendments he has. It is not just a question of elitist or what I will call taking an arrogant posture and say no, this is the way it should be run. Constitution making is a political process and it must be based on the consensus of the majority of the people within the framework of an existing legal system.

Some argue that instead of the constitution review, the committee should just adopt the over 600 recommendations from the 2014 conference. Do you agree with this?
From 2014 till date, is how many years? Six years. For six years now, has the country been stagnated? Have there not be other efforts at aimed at reviewing constitution? The Nasir el-Rufai committee set up by the All Progressives Congress, which has the majority, was after 2014. People come with different ideas. The National Assembly under Senator Omo Agege has set up four committees. One of such is to review the 2014 and distilled their recommendations. I am a member of that committee. Senator Kashim Shettima is a member. We also set up a committee headed by Senator Ike Ekweremadu to look at all efforts that have gone into the constitution making process and look at why they have succeeded. And, where they have failed. The fourth is to look at the various bills with different senators and members and to distil them out with a view to having a holistic picture and general overview. It is restrictive and it will look like not taking other subsequent development into considerations. The constitution making process is a broad process. It is a political process and it is all-embracing.

As a member of the constitution review committee, can you share some of the divergent views from across the geo-political zones? How can they be harmonized?
There is no area that a memorandum is not expected. There is talk about devolution of powers, structure of government, citizenship, fundamental human rights, state police, allocation of resources, local government autonomy, national assembly, among others. This review offers an opportunity for Nigerians not to lose hope.

As I told you, we are not going to that zonal conference on an empty note. We are going with the benefit of the review that we have done with the distillation of the previous recommendations that we have done as well as some other projections made by different Senators in their areas of constitutional leaning. You cannot predict, beforehand what will happen at the zonal level but then, the invitation offers the public an opportunity to present a memorandum and opportunity to speak to this memorandum. Then after ward, the committee will come back and look at the work of the various committees. Leading scholars in the areas of constitution and political scientists have been engaged by the committee to give professional advice. I believe at the end of the day; we will be able to come up with something. The constitution making process is a continuous process. It could be incremental. In fact, the beauty in constitution making is that what is incremental, takes the benefits of experience and moves society forward.

What is your take on the agitations by some Nigerians who believe in ethnic nationalities, secession, and restructuring?
We have a country, according to estimates, with a population of between 180 and 200 million. When you look at it from a sociological perspective, there are conformists in the society, rebels, non-conformist. There is a different spectrum. What I know is that the reasonable Nigerians have all spoken in one voice that we must work as a unified Nigeria. We have also identified that there are challenges in terms of our government, challenges in terms of being able to forge together, and challenges in every heterogeneous zone and society.

But, you cannot talk for people who don’t even understand what it is to take an extreme position when talking about secession. Secession in modern history, let me admit that I have not seen a society that has gone through it that has been able to do well. Former Yugoslavia is still in the throes of the agony. In Southern Sudan, the other day, the Janjaweed commander was put on trial at the tribunal. Many of these ethnic agitators will end up at the world tribunal. But we don’t even want that to happen. You have also seen what has happened in Somalia, in terms of becoming a stateless society. You will also see what is playing out in Mali whereby individuals will just say they have arrested the president and all that.

So, not no matter what is our feelings about challenges in terms of welfare, cohesion should not be allowed to degenerate to the extent of trying to disintegrate the most populous black country in the world.

The ninth National Assembly has been tagged a toothless bulldog, a stooge of the executive, how true is this?

The analogy itself is funny. Whether toothless or full of teeth, a national assembly is not expected to be a bulldog. A national assembly is saddled by the constitution with three basic functions. One, to make laws for the good governance and for the welfare of the Nigerian people. To make law for the purpose of appropriation, expenditure, and revenue of the government. That is still part of the legislative making. Secondly, the function of the national assembly is to carry out oversight function. It is also constitutionally guaranteed. The third is to serve as a gatekeeper in terms of crucial appointment of the government into national offices as may be stated by the constitution or relevant law. In this regard, a national assembly is not set up to be an antagonistic entity to the executive. It is not set out to be an opposition to the executive.

So, some of those who talk about bulldog, toothless, full teeth, I believe don’t understand the function of the national assembly. And they expect that because of the acrimonious relationships in the past, that the national assembly should just be a body of opposition. I want you to look at the composition of the national assembly. We have a President in the ninth Assembly, with a president elected from a political party, All Progressives Congress. At least, 63 of the 109 Senators of the national assembly were elected from the same party.

What we should talk about is, how to establish a harmonious relationship and put in place a programme of the party that Nigerians in their wisdom have decided to give the national assembly and the executive to do for them. But, when it comes to whether we do proper scrutinizing of our work and whether we accept hook, line, and sinker everything that has been brought to the national assembly, I will tell you that it is not true. There have been instances that nominations by the president have been rejected by the national assembly on the ground that relevant constitutional provisions were not complied with. Or on the ground that the provision of the federal character has not been complied with.

There are so many instances. But we don’t have to go public to embarrass the same political government that all of us are part of. There have been requests for loans that have been rejected. There have been propositions brought that have been modified. For instance, the benchmark price for crude oil under the medium-term expenditure framework for 2021 -2023 was different from what the executive proposed. The threshold of the loan was also different from what the executive had proposed. But working on the finance bill, we also put our own idea about how we can insulate the poor from the effect of the increment tax of 77.5 per cent.

Our committee has been collaborating with the executive to do so. What matters is to get results. What the ninth assembly has been able to do is to ensure our activities help to stabilise our economy. How have we been able to do so? Unlike before when you cannot predict what will even be the policy trust of the budget. You cannot predict when will it be implemented? We have been able to destabilize that. In order to ensure the proper implementation of the budget, the national assembly has been able to do something revolutionary that has not been done before by extending the implementation of capital and project aspect of the 2020 budget to match the end of May 2021, to ensure that money that has been released for capital projects are properly utilized and the ones to return to the treasury are properly accounted for.

We have also been able to amend the deep offshore contract law, which has brought more revenue in the oil and gas sector. And, we are actively addressing the issues in the petroleum industry bill. So, if it is by assisting to get necessary approval for projects and programmes that will advance the good and well-being of Nigerians, then we are sorry, we have disappointed those people.

You took on the Attorney-General of the Federation and Minister of Justice, Abubakar Malami, the other day, do you think your action was in order?
First, I am a Nigerian. And, by the constitution, I am entitled to my freedom of expression. And what I have done which I have made clear coming up with my written statement that I speak as a patriot and as an individual senator who was elected by the people. So, I did not speak as spokesperson for the Senate. So that nobody will say it is the Senate position.

But as a Nigerian, I have the right to express my opinion and I have expressed it. You cannot talk of constitutionality in a vacuum. Let him cite a law that says somebody is entitled to enter into somebody’s farm for whatsoever grazing. Let him cite the law that legitimizes what they call open grazing. Rearing an animal is a form of agriculture. In fact, my strong position is that beyond research and planning, the national assembly and ipso facto, the Executive at the federal level do not even have power in agriculture. As far as I am concerned even the ministry of agriculture, as it is today is illegal and unconstitutional. Because when you look at the constitution, the only area in the concurrent list where agriculture is mention is limited. And that is the only way that the national assembly and by virtue of that, the federal government can act.

So, one expected that when you want to make a legal proposition, you will not look at it from the prism of ethnicity and sectional interest. And that is why I said and I used that word, he is left to define. The comparison he made between open grazing and spare parts dealers shows a mindset of sectionalism. It goes beyond the language he used which is not good. All of us swore to uphold the constitution. And, that is that we should apply the constitution without fear, favour or affection, or ill will. I felt very strongly about it. And, that is why I came up with my position. I don’t have any apology for anybody for coming up with my position.

You can only exercise executive powers at the federal level where the national assembly has the power to make laws. So, if the national assembly doesn’t have powers to make laws, the executive power in that regard will be ultra vires. The national assembly power to make law is threefold. One, matters listed in the exclusive legislative list. Two, matters listed in the concurrent legislative list to the extent that it is specified in those lists, third, express grant of power under the constitution to the national assembly to make law. Under the constitution, there is nothing like agriculture there.

The only place in paragraph 17 where agriculture is mention only talks about the establishment of institutions; research centres for agricultural studies; the establishment of institutions and bodies for the financing of industrial, commercial, or agricultural projects. Those are the only two aspects the national assembly has the power to make laws. So, all this dabbling into agriculture wholesale is part of the anomaly of our operation of the federal system and it is contrary to the system.

Is the National Assembly trying to control that now?
I have raised it on an occasion at the national assembly but unfortunately, my colleagues did not agree with me. But as somebody who has read the constitution, and who believes this must be highlighted before the public because one day a majority here will agree. One day, a judicial decision will support what I am saying. We cannot continue to expand an already expanded sphere of operations of the federal government.

The news to slam 15-year jail term on anybody who pays ransom to kidnappers is gaining ground. What will you say to it?
The bill is a private member bill. It was brought by a senator from Imo State. Whether the bill will be accepted or not will depend on if it has gone through the process of legislation. There are two ways in which bills come before the national assembly. Executive bill, which is introduced by the President. The private member bill which every member of the national assembly has the right to introduce. The national assembly as a body doesn’t have the power to introduce a bill. So, there is nothing like a national assembly introducing a bill. A bill is either a private member bill to which the name or names of the sponsors will be attached or an executive bill which the president will formally notify the national assembly about. Most of the time while some people get somewhat angry is as if it is the national assembly that is sponsoring a bill. It is a private member that is sponsoring it.

It is only after it has gone through the first, second, committee, and third reading that it becomes a bill by the national assembly. It will have to be assented to by the president. But for me on principle, the bill if you ask for my opinion, I think is not realistic. It will be a dead letter that can never be implemented because there is no machinery to be able to do so.

In fact, it is not in line with the sociological and practical reality of modern society.
What we need to do is to decentralize our security structure and ensure efficient security arrangements in the country. That is why I have come up with a bill on state police and a bill to decentralise the Nigerian police force. It still remains a central force but let it be decentralized along with zonal force. The question of kidnapping is about security.

I have served as attorney general before. We have had instances of kidnapping cases that you even have problem with prosecuting. Because you don’t have the relevant evidence to do so. Then, it will be anachronistic for a family already in the throes of the agony of possibly losing their loved ones to put the additional legal burden to say that they should not pay the ransom. It is because our law enforcement is not performing that is why have to pay the ransom. So, it is part of the challenge of insecurity that we are confronting holistically.

Government institutions like police and INEC are under attack in the South, particularly in the South-East. Are you comfortable with this ugly development?

Nobody should be comfortable when government institutions are being attacked. For me, it is a law-and-order issue. And, issue of law enforcement. All of us as political elite must come together. We need to re-engineer and restructure our security architecture. We need to restructure and decentralize. We need to go operational at the various state levels and zonal levels of our security structure. And ensure that our security personnel improved. We need additional 5,000 security personnel in each state of the federation to support the security structure. As of today, all police formations in Nigeria, about 5,560 including national, area, and zonal command are supposed to be close to the police station. Some areas are unpoliced in Nigeria. You go hectares of land without policing. The existing unitary police have to be decentralized. I have introduced a bill on state police. I have also introduced a bill that the existing structure should be brought to the zonal level with operational and budgetary control. Unless we do this, we will continue to dance around. Training of the security personnel, morale, remuneration and of course insurance for their personnel. Intelligence gathering is very key. We should go by way of using technology to fight crime. I get marvel, ransom negotiations, are they not be done using telephone lines? Why have we not been able to use modern technology to track these lines and nip their operation in the bud? There is so much for us to do and we must do it.

The Peoples Democratic Party, the main opposition, says your party, APC, will collapse before the 2023 general elections, do you think so?

I laugh at the insinuation. You see, it is like the case of Solomon and the two mothers fighting over a child. The main owner of the child said, give it to her. But the one that is not the owner said to share the child. You see because PDP has largely lost relevance in Nigeria, they can only be making propositions that cannot work. What I will tell you is this. Which party has had its governors coming to the APC? It is the PDP. You will also remember that even at the formation of APC, they said it won’t last for two months. The merger will not succeed.

But it has succeeded and we have pushed them out of power. The merger succeeded in winning re-election for president Buhari. The merger will also succeed in replacing President Buhari in 2023 with an APC President. You can take that to the bank. The PDP has lost relevance. They are not even competent as opposition. One will expect them to be more robust and engaging in coming with suggestions and alternatives. I expect them to come up with position papers. And say that if we are a government, this what we would have done differently.

Maybe I will say on a lighter note that they should go and complete their secretariat first so that it will show they are serious about project management. We are going to win more states. More senators are coming to us. My fear is that Nigeria might become a one-party state.