Constitutional lawyer, Prof Mike Ozekhome (SAN), says Nigeria is a captured state in this interview with Channel TV Politics Today monitored by Linus Aleke. The human rights activist also speaks on the naira swap policy that created a scarcity of naira notes, among other sundry issues
Can you help us make sense of the Supreme Court order on the new naira notes as well as the Federal High Court’s pronouncement on the same issue?
The issue is like the relationship between the agama lizard and the crocodile. They all belong to the same family of animals, and they look alike, but we know who is superior among them. In the hierarchy of the Nigerian courts, Supreme Court is the apex court which is why it is called ‘Supreme’, beyond which there is no other court. What that means is that all other courts in the hierarchy of courts must blow muted trumpets when matters are been heard. Even though the Federal High Court has granted an order, telling the Central Bank of Nigeria (CBN), to end the swap of the new naira notes on February 10, 2023, as scheduled. The Supreme Court said, don’t do that, allow both currencies to co-exist. In law, it is called status quo ante bellum. The state of affairs before the crisis broke out, should be allowed to continue. Then, come back on the 15th of February 2023, and let us hear you people. Let me say this, the Supreme Court has not decided the matter, all it has done is fall back to a decision like …vs the CBN, that in a matter of extreme urgency, you can grant an interim order, even if it be ex-parte order to prevent the subject matter from been truncated. Take for instance, if the Supreme Court did not make that order and the only order existing was that of the high court, it means that the CBN, by the 10th of this month will stop the use of all old notes. But what the Supreme Court has said is, just wait, let us listen to you, people. Not that it has been decided that Zamfara, Kogi, and Kaduna States have any valid case that is actionable because the action is already been challenged with a preliminary objection. It is another way of saying, let us first drive away the fox before we blame the fowl for wandering too far into the forest. So, it has not been decided, it has just left the matter in a state, what we call status quo ante bellum, let it just remain now but we would hear you people. But one piece of advice I think I want to proffer here is that if you notice, the ruling by Supreme Court was by a full constitutional panel of seven justices. This is the type of case I think the Supreme Court should invite amici curiae, i.e. friends of the court. It should invite much respected senior lawyers to come and give their opinions in writing to the Supreme Court. I also believe, if you ask me, three attorneys general of three states, Kogi, Kaduna, and Zamfara have gone to court. But the question now is, any decision arrived at by the Supreme Court, will not affect, the other 33 attorneys general? The answer is in the affirmative, it will. I also think that this is the type of matter, in which the Supreme Court should also, suo-motu, even if they didn’t apply to be joined, join both, with the attorney general of the federation, so that the matter could be decided once and for all.
For non-legal minds, the question would be why should the case just go straight to the Supreme Court?
Yes, that is going to be a very contentious matter. I am not here to proffer a solution or to side one party against the other, but I think, it will be in the interest of Nigeria to throw up this issue so that non-lawyers particularly, will be able to understand the issues arising. There is what we call the powers of the Supreme Court, it has appellate jurisdiction, and it also has original jurisdiction. Appellate jurisdiction is that matters travel all the way, moving from an area court to magistrate to high court to federal high court, to the court of appeal, and up to the Supreme Court. Then the Supreme Court can hear it that is appellate jurisdiction. There is also, what we call its original jurisdiction, which is in section 232 sub-section 1 of the 1999 constitution, and the original jurisdiction has to be for cases that concern facts or law, in which the existence of legal rights is involved. Between a state and the federation or between states and the federation, or between a state and a state, the Supreme Court has original jurisdiction.
What then happens to the case at the high court, where some political parties have gone to obtain an order mandating the CBN not to suspend the policy?
We had already answered it. I said that the ruling of the high court must blow the muted trumpet. This is a big masquerade, the Supreme Court of the land has come out to speak, and the little masquerade will have to keep shut. Look at it this way, there will be chaos and anarchy and confusion if two courts that are dissimilar in terms of potency and power begin to wrestle with each other, throwing mud on each other. The Supreme Court is called the Apex Court and in the case of Adegoke Motors Nig Ltd vs Adesanya, the Supreme Court said, the Supreme Court is final in the sense of all finality. It is final not because it is infallible, it is infallible because it is final. So, we cannot be talking of a ruling of a high court here, when the big master has come out to roar, the lion has roared, and the antelopes for now must keep quiet.
What is your view on the new Naira policy, especially as it concerns the timing and mode of implementation?
I had only seen and touched the N500 new notes once and I said, this note that look faded even before it had been used. I compared it with the old note, bearing the portrait of Zik of Africa, Dr. Nnamdi Benjamin Azikiwe, and discovered that the quality is simply not comparable. One looks like a very fake version of the other. So, yours sincerely has only seen one note, the N500, note, I have not seen any other. Let me tell you what is going on, Nigerians over-dramatise this and that is why I said that we don’t even practice democracy. The kind of democracy was defined on November 19, 1863, by Abraham Lincoln. I said elsewhere that what we practice is ‘electionocracy’, this is a system of government by which every four years, we go into the ritual of electing our leaders. But after electing them, they use one year to thank the electors, they use the second year to work. And by the third year, they had started electioneering campaigns, such that there are no democracy dividends. We also practice ‘judocracy’, which is a system of government, in which voters vote, votes are counted, and then the quarrelling politicians move to the court of law and start fighting each other. The matter gets to court, the governor is midwifed and delivered in the bowels of either the high court, the court of appeal, or the Supreme Court. Which may be against the will of the people as expressed in the ballot box. We also practice ‘executioncracy’, which is a system where the executive arm of government superimposes himself and terrorizes the other arms of government, using its hooded security agents to terrorize them. We equally practice a ‘legislatocracy’, this is a system where a legislator is a Mr. yes sir, President or Mr take a bow and go when a public officer is to be screened by the parliament. This legislature makes the law, not for the good governance of Nigeria but where budgets are padded and where under sections 88 and 89 of the constitution, which is supposed to be their overnight functions. They have to ask for the padding of their budget before they can approve the budget.
So we have not grown at all in our democratic practice?
No, we have not, look, what we have had is stunted growth. I will call it the fate of the barber’s chair, always in perpetual motion without progress that is what we have been experiencing, oscillating and even retrogressing. How many Nigerians know that after the death of Queen Elizabeth in 2022, his son, Prince Charles the third who is now King Charles the third has since become the King of England? Let me surprise you, and many other uninformed Nigerians, the Bank of England, since December 2022, rolled out a policy that by mid-2024, i.e two years’ notice, the present £5, £10, and £15 notes will cease to be legal tenders. But between now and then the head and face of the Queen of England will still be on the currency. How many Nigerians know that the title Queens Counsel (QC) which is equivalent to our SAN has since been changed to Kings Counsel (KC)? There was no brouhaha, there was no ruckus, there was no wahala, how come, a mere change of currency by the Central Bank of Nigeria should lead to a country bleeding and fixating, politicians screaming, common people dying on the streets, fighting? Did you not see some viral videos, I cried, I was with my wife, I shed hot tears, and the young man strips himself naked to the shame of a country. What was he saying, he had over N500, 000, in the bank, and all he wanted was N3, 000 to make his family survive. They told him he cannot withdraw, that they neither have new nor old naira notes, but he has money in the bank. The young man went berserk, the kind of thing that lead people into committing suicide, he strips himself completely naked. I burst out crying, I told my wife, that I wish I know where this young man is based or where he is from, or how to reach him, I will send some money to him, and I wept. I am not saying weeping metaphorically, I meant literally. Why do we use simple policies to self-immolate, and self-destruct? CBN had been there, the framework had been there in the last years, and they would have started it earlier. I am not saying that the fiscal policy is not good, I must not be misquoted, it has its advantages, mopping up money from the satanic hands of politicians, which they use to buy votes. It has great merits but in talking about the merits, we also have to look at the demerits. They started by saying that we can only withdraw N100, 000 in one week, for an individual and N500, 000 for corporate. When we cried out, they expanded it and say that individuals can now withdraw N500, 000 a week and the company, N5m. So, what they are saying is that a company like Julius Berger, Dantata and Sawoe, Setraco Nig Ltd, that do big businesses, like road construction, the only money they can withdraw in a week is N5m when my running cost in my chambers alone for one week is more than that amount they are talking for a company. They are saying that what I can withdraw is N500, 000, that was the joke of a century.
Will this policy have any consequence on the conduct of elections?
It will affect politicians and vote buyers more than ordinary citizens. Because, usually the voters register near their houses, in some isolated cases, they may have registered in a far place. But the people that will be most hit by this policy are the politicians and that is why they are the ones crying more. They are using ordinary men as surrogates to protest and barricade roads to show how bad the policy is because they no longer have access to cheap money. Recently, a friend told me, that some of the politicians will not be affected and I ask him how? And his answer surprised me, it was a matter of fact, he said many of these politicians we are talking about actually owned the banks. So, if a bank is to dispense money, they first give the money to their owners before thinking of others. Nigeria is a captured state. Nigeria has been captured by non-state actors, elites, and rich individuals. Some individuals are now richer than in Nigeria. The over N21trn current budget is not only about N8trn that we can fund from our revenue, the rest is to be borrowed. So, Nigeria is borrowing her future and future generations to the 10th generation. We are in trouble, make no mistake about that.
Let me take you away from the CBN policy to another legal matter, what is your view on the Yobe State senatorial ticket of the APC which went in favour of the incumbent Senate President, Ahmad Lawan, at the Supreme Court?
That judgement came to me as a surprise. What I am trying to do as a constitutional lawyer is to discuss the issues dispassionately. Because if you discuss issues based on your likeness for one individual or one political party or the other, by the time those political parties or individuals are no longer there, you may find yourself in the future, beclouded about your past opinion that you left out of the bottle. So, that is why I can comment on that case, because it is a judgement that has been decided. I am a teacher, I am a professor of law, I critique and I criticise. The Electoral Act is clear, look at sections 33 and 34, and look at the constitution itself. If the candidate dies, for example, the political party can bring forward another candidate for a fresh primary election. In the same way, the candidate may decide to resign, by saying that he wants to discontinue the contest. All that the political party will do is hold another fresh primary. We don’t call it rerun, it is not a rerun, it is a fresh primary under the Electoral Act. But in the Yobe case that you asked about, Nigerians were aware when Senator Lawan contested for the position of President on the platform of APC, he did not win. If an opponent had withdrawn voluntarily as provided for in section 33 of the Electoral Act, then a fresh primary would be held within 14 days. But the facts that I had, which is in the public domain is that barely a day after the presidential primaries of the APC, in Abuja, Machina who had already won, was said not to be the candidate again. But that it was now the Senate President. The question then came, when did APC give notice to INEC that they were going to have a fresh primary? Did Machina himself, who was already elected, withdraw from the race? Such as even allowing a fresh primary to be conducted. We cannot have two Oba in one palace.
The premise upon which the Supreme Court gave this judgement was on procedural law that the filing of the case at the trial court was wrong and upon that technicalities, the Supreme Court arrived at its current verdict…?
The Supreme Court has warned us again and again, that the era of technicalities over justice, the era of form over substance, is gone and buried forever. If you look at the case of Bello vs Attorney General of Oyo State, decided in 1986 by the Supreme Court, you will see the beautiful dictum of great jurists, like Oputa, and Kayode Eso. And when the spirit, the apparition of technicalities comes out of their graves cranking their legs, we should put them back in their graves where they belong and do substantial justice. We are talking about a serious matter like the representative of the people. And the people have chosen their representative, then you are elevating the issue of form or procedure over the facts to say a person who did not participate in the primaries, who was never voted for by the people will now go and represent the people against the person who was popularly voted for. Let me tell you what is going to happen, I can see what is called a protest vote in that Senatorial district. With due respect, the Supreme Court is not just a court of law, it is also a court of policy and that is why I am always defending the judiciary, especially the Supreme Court because when we violate it, there will be trouble.
What are your expectations from the elections?
My expectation for the elections is that Nigeria will not break up as some emergency pastors have predicted. Nigeria is not going to break, because God is a Nigerian. We would still wake up after the 25th of February to see Nigeria still united and strong. Though there may be pockets of violence in some places, the BVAS has come to stay. Even though there may still be some kind of manipulation, not on the kind of large scale that we use to see before now. But let me say this, the incoming President, whosoever, you may be, listen to me, loud and clear, your first function, even if that is the only thing you will do throughout your tenure, convene a national conference, whether you call it sovereign or whatever, allow the people to make a people driven indigenous constitution, by the people for the people and subject it to a referendum so that we can have the people’s constitution, not the present decree No 24 of 1999 that we call the 1999 constitution.
