Legal luminary, Chief Mike Ozekhome (SAN), speaks the ongoing discourse on constitution amendment as well as other challenges facing the country in this interview with Kassim Omomia, David Lawani and Keturah Elijah.
The senate is currently deliberating on the motion to jail anyone who pays ransom to kidnappers, what is your take on this?
The Senate trying to pass a law that kidnappers or people who pay ransom to kidnappers should be jailed for 15 years is very germane. To me, that is very terrible proposition. The proposition is not only immoral, it also smacks of self-contradiction.
The senate is one of the three arms of government, to have passed tons and tons of the resolutions, telling the President what to do about insecurity, that is ravaging us. Some states have cried out about insecurity and the activities of Boko Haram, especially how these insurgents have hoisted flags in their communities, meaning that they have declared all those areas as sovereign areas. For instance, the governor of Niger State recently cried out.
I remember some people condemned former President Goodluck Jonathan because one or two local governments in Borno State were taken over by Boko Haram. The administration then brought in experts from America to tackle the issue. But again, I remember that some people then cried out that killing Boko Haram members was equal to killing their Muslims brothers and sisters.
Be that as it may, one of the indices of a failed state is when non-state actors are fully armed and powerful enough to challenge the coercive power of an existing legitimate government. That is the greatest sign of a failed state. So to me, that kind of debate is horrific. It is insensitive, grossly immoral and very unfair to kidnap victims.
In Kaduna State, some students of a private university were kidnapped and slaughtered by bandits to make a point. Some others are still in the den of these kidnappers. I remember Governor Nasir el-Rufai told us a few years back that he had to pay ransom to stop foreign bandits from invading the state. So, when did paying ransom become a haram that you cannot pay to save children whose fathers and mothers are crying every day. It is unfair to tell families and friends of a person who is a victim of kidnap that he cannot be saved. By the way, in the first instance, the kidnap happened because of lack of security. It is unfair for you to tell people not to pay ransom to save their own. What you are saying is that once a person is kidnapped that means the person is sentenced to death. Senators can propose the law because their children are abroad.
So it is a law that should not see the light of day, it should die in its pregnancy, in its incubation. It should never be allowed to be delivered at all, else it will out to be a monster.
If the law is passed, will you challenge it?
I can challenge it and any Nigerian who feels uncomfortable with it has the right to challenge such a law. You are saying they should not pay ransom, that if they pay the ransom, that you have to jail them. But like I always tell people, you cannot challenge a law still in the making; still in the embryonic stage because it is like telling the legislators not to perform their duties. You cannot do that. The court will say you have to allow them to deliver the monster, then you challenge it. It is only then that the monster can be killed by the legislative gavel or hammer of the court of law.
Public hearing on constitution amendment is on, do you think it will offer solutions to the myriad of challenges in the country?
It is a wasteful exercise. Unnecessary dissipation of energy and resources because anomalous constitution can never be accorded legitimacy through amendment. So, amendment plus amendment times by amendments, multiplied by amendments and decreased by amendments will still come to nothing.
You cannot treat serious ailments like leprosy with a massaging balm meant for eczema. If the tree in your house develops big roots that crack the wall of your house, you do not solve the cracks by calling a masonry or bricklayer to seal off the crack gap with cement.
Otherwise, by the time you come back next month, you will notice that the gaps will be bigger. You do not solve that problem by cutting off branches because in a few months, more branches will sprout up. So, what do you do? You go to the tap roots and exhume that tree. It is only then that the roots will stop growing and your house will stop cracking.
A constitution cannot be given by the national assembly. It is the people that give birth to the constitution and the latter gives birth to the national assembly. So, it is an aberration for the national assembly to think that they can give a constitution to the people. So, for us to really get it right, there has to be a convocation of a national conference comprising all stakeholders.
Meanwhile, arising from the 2014 conference, we had over 600 recommendations. These recommendations can still be subjected to the decision of the people through a referendum. What is currently going on is an exercise in futility because you cannot confer legitimacy on an illegitimate product. So, this exercise of going round, in my humble opinion is still postponing the evil day.
Nigerians should sit down to discuss what we call the national questions as we did in 2014. Where are we now? Where are we going from here, so that if the marriage is not working, we will separate peacefully and without division. But, if we have to continue with the marriage, then we will agree on what terms for the marriage.
So, this idea of saying that Nigeria is indissoluble, is a lie. Nigeria is divisible. Nigeria is negotiable. Nigeria is destructible. If you say it is a lie, take a look at former empires, USSR and many other countries. Therefore, Nigeria is divisible, collapsible, negotiable unless we do something about it urgently by enthroning a regime of social justice, egalitarianism, ethnic and religious tolerance, transparency and accountability. These are things that can push Nigeria forward.
How will you rate the role of the Minister of Justice and Attorney General of the Federation, Abubakar Malami (SAN), in the fight against corruption and insecurity?
Let me start by saying that the entire President Muhammadu Buhari administration is directionless and clueless. It is a government that operates without a compass. Because it has no compass, it is taking Nigeria on a journey to no destination. That is why we have been directionless. That is why we have not been able to get it right.
The AGF is one of the key officers of the government. And not only being the chief law officer, his powers under section 174 subsection 1 of the constitution are also gargantuan, and very deep and widespread. For example, he can institute and undertake criminal proceedings against any person in any court of law in the country.
He can also take over and continue any such criminal proceedings that may be instituted. He can also discontinue any criminal proceeding in what you call entry a nolle prosequi in terms of ability and capacity to discontinue a case that is already ongoing against any person and his powers are not questionable.
Once he carries out these functions, either in person or through officers of his department and exercises them as regards the public interest or in the interest of justice and the need to prevent the legal process, then he cannot be questioned. But you can question the powers of the AGF if you can show that whether it is legal advice or an action that he has taken or has not taken with regard to public interest.
The problem we have had with the office in Nigeria is a problem of what I will call competitive duality. Or a relationship that is oxymoronic or one that suffers oxymoron. What do I mean? The chief law officer is both the attorney-general and he is also minister of the government of the federation appointed under section 171 of the constitution. So, he is wearing dual caps.
One as a chief law officer, who is supposed to be a technocrat given an unbiased opinion for the direction of a government. And, a minister, a politician whose views are normally blurred due to the nuances of politics, primordial consideration, and policies that may not be necessary.
It is from this angle that I viewed his recent argument as more political than legal. If he were speaking in his personal capacity as Abubakar Malami, exercising his right to freedom of thought, conscience, and right to freedom of expression under sections 38 and 39 of the constitution, I believe his views could not have caused so much brouhaha. But because he epitomizes the office of the AGF, once he speaks, it is believed he is speaking on behalf of the government headed by President Buhari.
The AGF has unfortunately compared Igbo spare parts dealers with that of Fulani herdsmen. I have just finished writing an article and I said there is no basis for comparing Igbo spare parts dealers and Fulani herdsmen. One, the freedom of movement guaranteed in section 41 of the constitution is for the freedom of movement of human beings not of animals.
That is why he says in section 41 subsection 1 that every citizen of Nigeria is entitled to move freely throughout Nigeria. And to reside in any part thereof. And no citizen of Nigeria shall be expelled from Nigeria or refused entry thereof. Or exit there-from except in accordance with certain sections thereof.
So, if you look at section 41, I am aware that only human beings are citizens of Nigeria. I am not aware that cow, sheep, goat are also citizens of Nigeria no matter how a particular ethnic group glorifies or deify or eulogies them. They are not citizens of Nigeria. So, when I hear people say freedom of speech and the right to freedom of movement, do not forget that your right stops where another person’s right begins. So section 45 made it clear that it is true you have your freedom of movement, but that freedom of movement can be restricted to protect others.
So, the Fulani herdsmen even though we agree that they are citizens of Nigeria, they have the right to free movement throughout Nigeria. That right is not accorded to cows, sheep, and goats. Even then, that right doesn’t include the right to invade helpless farmers’ farms. Destroying their crops and using their herds of cattle to eat up the crops.
Many a time, walking on Abuja streets, human beings have to wait for cattle to pass before they can pass. Go to the United States of America, I have never since 1983 that I have been visiting the country seen a single cow on the street. All cows are ranched. In some very big farms for your information, they are as big as some villages in Nigeria. Some farms extend to kilometres. Compare that with Nigeria, where a man wielding dangerous AK 47 riffle starts trekking from Maiduguri or Birnin Kebbi or Zamfara, Yobe or Bauchi across the Middle Belt going to the South-West through Kogi, Edo, Delta then to the South-East and start killing people and destroying crops. That is the major snag the AGF has to contend with.
A second major snag is that the Igbo who operate spare parts shops operate within designated areas. The are not people at large. These people pay taxes. They pay tenement rates. They pay a water bill, electricity, and they occupy designated government areas either given by the federal government or MDAs or other supervisory bodies. I am not aware of any Igbo man that just goes into a town and sets up a spare parts shop without going through appropriate quarters. More importantly, you cannot compare a legitimate shop owner that keeps books, for example receipts, logbooks, accounts, with AK wielding open cattle grazing youth who do not even pay tax to anybody. And, who are not answerable to anybody. I am not aware that an Igbo shop owner fused his shops with motor tires to break the heads of Fulani and other Northerners. I am not aware that the Igbo have used the chassis, bonnet, windscreen, and woods of their vehicles to break the heads of the people of their host communities. So, it is therefore a cruel irony for the minister to have made that comparison.
There is another problem with that comparison. Southerners and Northerners who are not Muslims, like pork meat. Pork is produced from pigs. How will the northerners feel if the Igbo go to their enclaves and begin to rear pigs that rampage their farms? Go into their houses drive them away from their homes even when they forbid these pigs? It is for all these reasons that the appellate court in Nigeria has said in section 31 that the right to free movement is not absolute. It can be restricted.
Now, I have heard the northern governors and elite criticize the southern governors’ meeting, saying that they should have been consulted. I said no, they were wrong to make that point. To start with, the northern governors when they were making their laws governing Sharia and introducing Hisbah, I cannot remember them consulting southern governors or southern people. Then, they were acting within their jurisdiction as the chief security officers of their states. When northerners were passing those laws, they passed the Sharia law without any input from anywhere. I remember they amputated the hand of one man called Uba Jangebe in 2000, an action that attracted international condemnation. They didn’t consult anybody. Many northerners were executed or stoned to death or had their arms amputated for various offences ranging from either stealing a cow, N2,000 or just stealing a bull or committing adultery. I didn’t hear that northerners consulted southerners.
What is your assessment of the southern governors’ resolution on the ban on open grazing?
It is also a lie from the pit of hell to give the impression that southern governors were actually the ones to first ban the open grazing act of the Fulani herders. It is not correct to suggest that. As far back as April 26, 2018, over three years ago, the federal government of Buhari had set up a committee approved by the National Executive Council. That committee was constituted by the Buhari’s government in February 2018 and they submitted their reports which were approved by the NEC on April 26, 2018. What did that committee say at the meeting presided over by Vice President Prof. Yemi Osinbajo. They told Nigerians that the Federal Executive Council had issued a proclamation to ban open grazing opting instead for the establishment of ranches in states affected by herdsmen onslaught. That was as far back as April 2018.
As far back as September 2019, the vice president had also inaugurated the National Livestock Transformation Plan at the Gongoshi Mayo Reserves in Bewa Local Government Area of Adamawa State. He inaugurated the plan to run from 2019 to 2028 as part of a Federal government initiative to collaborate with states under the auspices of NEC to ensure that the livestock sector was developed using seven pilot states of Adamawa, Benue, Kaduna, Plateau, Nasarawa, Taraba and Zamfara. The Vice President said that any participating state will provide land which will be its own contribution to the federal government so that they will be able to have ranches where cattle are bred. And then meet our dairy product. And that this will solve the problem of cattle grazing and destruction of farmlands. In fact, he assured the nation that this was not about the RUGA settlement.
By February 9, 2021, the northern governors met virtually at a meeting presided over by Governor Simon Lalong of Plateau State who is the chairman of the Northern Governors Forum. And, they came up with the conclusion that the modern system of open grazing is no longer sustainable in view of growing urbanization and the population of the country. Then the Northern governors called upon the entire Nigerian governors to have a meeting so as to agree and conceptualize this issue of banning open grazing. That was why two days later, the entire governors met virtually at a meeting presided over by Governor Kayode Fayemi of Ekiti State and agreed that open grazing should be banned. That was on February 11, 2012.
Even then, the governor of Kano State, Abdullahi Ganduje when he met with President Buhari and other APC governors stated that open grazing was no longer the norm of modern civilization. That the north needed to do something about it. So what the southern governors did on May 14 when they met at Asaba was a decision taken in line with federal government position, northern governors position, and all the governors position. So where have they gone wrong? I cannot say it. Why the hoopla? That decision was one of the best things to have come out of this government. It saved Nigeria from the precipice and disintegration.
What can we do to get things working again in the country?
To bring normalcy, there must be serious restructuring where every geo-political zone or ethnic group must have a sense of belonging, not treating others like they are slaves or vassals. We must enthrone good leadership, leadership built on accountability, a sense of belonging, transparency and responsibility. Again, we must have a strong justice society. We must hold government accountable to the people. I must stress that we must be ready to fight corruption and insecurity as well as grow the economy.
Nigeria has failed habitually on the three areas since the Buhari government came on May 29, 2015. Nigeria, which became the biggest economy on the continent and one of the seven leading economies in the world, has today overtaken India as a poverty capital of the lowest per capital income country in the world. Former President Olusegun Obasanjo not only ensured that Nigeria finished paying her debts, but actually got other countries to forgive the remaining ones. Today, she is one of the biggest debtors in the world, borrowing money in the last six years that all government put together since January 1 1914, when Lord Lugard, amalgamated northern and southern protectorates did not borrow. Even in terms of checking corruption, the vice has become privatized because less than one per cent of Nigerians now sit on the money, so corruption now thrust around proudly like a peacock untouched. This is so because the government that is supposed to fight it and the people in the government are mostly corrupt. This also explains why for the third year running, Nigeria has won the international trophy, the diadem for being 148 out of 180 most corrupt country in the world, coming second or third for the most corrupt country in West Africa.
The Buhari administration is fighting corruption and critics of government with insecticide, herbicide, pesticide on one hand and fighting corruption within government, family and friends’ cycles with sweet-smelling perfume and cologne. The administration cannot succeed because it has not gone deep down to the root causes of corruption. Have you looked at the fact that thieves, robbers are celebrated, decorated with national honours, medals, doctoral degrees in the universities. In the churches, they are given the front pews and in the mosques, they are given the front mat.
Have you looked at the fact there was once, in this country, when a young man called Yakubu Gowon was the head of state and he was only 32 years and a bachelor. There was also Matthew Mbu, who was a minister of foreign affairs in this county and he was only 27 years old. There were many others. Today, youths have been denied their present; their yesterday was stolen, and there is an attempt to even steal their tomorrow. That is why you are driving them to the Internet, cyberspace, driving them to Europe to seek greener pastures. Nowadays, money is literally worshipped as against moral, where professors earn the money that will not be enough for senators or members of the house of representative to fuel their cars in a month. Have you looked at your budget, the current expenditure is about 80 to 85 per cent for a current expenditure while capital expenditure is from 15 to 25 per cent. How do you think the country can grow.
How do you hope to grow, where senators and some House of Representatives members sit six times a year and they receive fat salaries. They take not less than N10 million in a month. Remember we have 109 senators and hundreds house of representatives members, what are you doing with them? Why not have a unicameral legislature?
If you must have all of these members, why don’t you make their sitting part-time and pay them sitting allowance? It is only then that you will have the genuine people, who are ready to serve this country come out. All these and more, were put in the over 600 recommendations of the 2014 national conference.
