The Guardian (Lagos)

19 August 2014

Nigeria: 'No Legal Framework to Support Outcome of National Confab'

interview

At last, the controversy which dogged the confab draft Constitution has given way to a common resolution. But a Lagos-based legal practitioner and lecturer at Faculty of Law University of Lagos, Wahab Shittu does not believe in the whole jamboree. According to him the confab lacks legal framework from its inception. In this interview with Yetunde Ayobami Ojo he bares his mind over this and also looked into the spate of impeachment in the country. Excerpts

National conference has ended, do you think it achieved its set objectives?

SIMPLY put, what is the idea behind the National Conference? It ought to be a dialogue process aimed at achieving consensus. That in summary is what the National Conference ought to achieve given the diversity of Nigerian nation, in religion, diversity in ethnicity, political and language. There is no doubt that there are differences in a lot of ways. Then how do we then live together against the background of those differences in a manner to avoid rancor and promote peaceful coexistences? That is why National Conference is put in place so that people can meet with themselves and achieve some measure of consensus. Where that consensus is not achieved at the end of the conference, then the entire objective is defeated. People must appreciate this. And then you ask me again whether I am surprised at the outcome. I am not in any way surprised. I am one of those who believe that for us to be able to live together as a people we need a national conference. But I also believe that we just don't need the National Conference as dictated by political elite. We need a national conference that will reflect the wishes and aspirations of Nigerian people and that all areas must be discussed.

You see, why this final outcome did not come to me as a surprise is that there is no way you proceed on a journey without being sensitised about the length of journey and the final destination. You must be clear about that from the beginning so that you can make up your mind whether you want to embark on the journey and then you prepare yourself adequately for the journey in order to meet all emergencies.

Did we prepare ourselves adequately for this journey? The answer is no because there is no legal framework from the beginning to determine how the dialogue will proceed and the manner of dealing with the outcome.

There must be legal framework that will show the duration of the conference; that will show the terms that will be discussed; that will show the way and manner of dealing with the outcome. Whether at the end of the proceeding, there will be a draft constitution; whether that is part of the mandate and the destination of the draft constitution. Will it be taken before the National Assembly for ratification or will be taken to Nigerian people through a referendum?

All these have to be spelt out in a legal document that can be propounded by way of an Act of Parliament before the conference starts. It will also state the manner of generating funds to run the conference and then the method.

As it is now and because of the absence of that legal framework, suddenly a draft constitution emerged from somewhere without some members being prepared for it, expecting it in a legal document which they subscribed to in the beginning. Some agreed to the draft constitution as reflecting what was decided at the conference. But others say no that they didn't go there to draft constitution. That confusion was created because of the absence of a legal framework to guide the proceeding from the beginning.

Secondly, how do you deal with the outcome. For instance, because you do not have a legal framework, somebody somewhere who put in place the national conference may decide to jettison the outcome. What will be the consequences? There won't be any consequences because there is no legal framework to say if you jettison the proposal from National Conference this is what will happen to you. So they can throw it into the dustbin.

Recommendations of previous conferences were not implemented without any consequences. Obasanjo put up such a conference before, including the Oputa Panel Report, they were not implemented. What did we do? There is no legal framework. If there is a legal framework, it will be possible for you and I to sue whoever or to able to press charges against whoever flouts the outcome.

So you can see that a trap was set from the beginning. Again, you are talking of a conference that will determine the future of Nigerians, that will answer the national questions as well as address all the major grievances bedeviling the constituent units that make up the country and you believe such a conference can be finalized without reference to Nigerian people, without a plebiscite or without a referendum? Are you convinced that all those who came for that conference truly reflect all tendencies in the Nigerian nation? It is through a conference that all other tendencies that have not been represented can have a voice.

So, you can see that absence of legal framework, lack of plebiscite or referendum have made the lofty intent of the National Conference to be illusionary. And I want to say that those who set up the National Conference may perhaps have known this from the beginning because they know better.

Some delegates particularly from the North have accused the President of wanting to elongate his tenure using the instrumentality of the National Conference. How do you think this will be possible considering your take on the absence of legal framework?

We know it is not possible and this is a country that is susceptible to several interpretations, several suspicions and several conjectures. There are lots of suspicions in the land. The Yoruba is suspicious of the Ibo, the Ibo man is suspicious of the Yoruba man. The Ibo and Yoruba men are suspicious of Hausa man, the Fulani man is suspicious of the Hausa man. We've been living in mutual suspicion, and that is why to assuage the suspicions we need to put a document on the table of how we want to proceed such that all of us must agree on the document, which is that we are going to conduct a National Conference to address all the grievances bedeviling our country and at the end of the discussion, the resolution will go to a referendum or plebiscite by the Nigerian people. All that will have been incorporated into a legal document.

So, the first step is a legal document. That legal document must have been passed into law. So the National Conference will now be a product of law, a machinery that is in motion because it was created by law. And you ought to ask yourself what law created the instant National Conference. So, what will be the consequences if the proposals are jettisoned? No consequences! All you have are policy pronouncements of the good intentions of Mr. President, and good intentions are no substitute for law. Good policies are no substitutes for law. Law is a legal instrument that has duties and obligations with consequences and penalties. We don't have that.

So, some people believe the National Conference is a talk-show. A lot of far-reaching recommendations were made at the conference, and the question is of what utility value if you don't have the machinery for dealing with the outcome.

Mr. President, by the way this conference has turned out to contend with such allegations. But such allegations will just remain allegations because there is election in place in 2015 and it is for Nigerians to decide whether they want to continue with the President or not. You and I cannot decide that here, it is for Nigerian people.

What is your take on the spate of impeachments currently rocking the polity?

You see, my own perception on impeachment is a bi-partisan perspective that recognizes the fact that impeachment is a desirable option for checking excesses of the executive as well as bad governance. But you must recognize the fact that impeachment is both a constitutional process as well as a political process. Political process in the sense that it is within the purview of the state House of Assembly. But constitutional process in the sense that though it is within the purview state Houses of Assembly, it cannot be finalized without following constitutional provisions. So it is a legal as well as political process. If the processes stipulated in the constitution are followed to the latter, no institution including the judiciary can interfere because Section 188(10) says that no question as to the procedure and the determination of the panel will be entertained by any court of law. But that is so long as the processes as stipulated by the constitution are followed. But where the processes stipulated in the constitution are not followed, then by virtue of the supremacy clause, Section 11(3) the court will intervene in favour of constitutionalism, in favour of the rule of law, in favour of due process because the court or the judiciary is the custodian of the constitution and the impeachment clause is embedded in the constitution and so subjected to the overall spirit and letter of the constitution.

So, those who want to impeach any governor, those who want to impeach any deputy governor are free to go ahead as long as they comply with the constitution. But if they refuse to comply with the constitution, I am sorry. The constitution does not envisage carrying out an impeachment in a "Mama Put" joint or in the bedroom of a godfather or in any place outside the legislative premises.

Now you must also know that the constitution envisages that after the notice of allegation is served on the office holder, the House must resolve by way of motion agreed to by two-third majority to investigate, after investigation you then forward a request to the Chief Judge to enpanel a seven man panel and then is for the CJ to constitute that panel and not the House to constitute the panel and so the House cannot be calling on the CJ to dismantle a panel that has already been constituted. The CJ is assigned a role in the constitution at Section 188(5) to constitute a panel. So, only him has the discretion to constitute a panel, but in carrying out that discretion he is guided by certain parameters. He must ensure that the membership of the panel does not contain anybody who is a member of a political party;, does not contain anybody who is a member of a legislative house; does not contain anybody who is a member of public service.

If you have doubt of the members then you cannot say disband, what you can do is to sue the CJ for improper exercise of power or petition the NJC that the CJ in the manner he has constituted the panel is also guilty of gross misconduct. And we have precedence. It has happened before in Anambra, it has happened before in Plateau, it has happened before in Ekiti where the Chief Judges of those states were sanctioned by NJC for playing a partial role in impeachment process.

If I were to examine all of these in relation to the Nasarawa State debacle, we know that where the state House of Assembly is entitled to impeach the governor, it must follow due process. If the CJ has constituted members of the panel, he has performed his constitutional duty. If they have grouse they should go and challenge the matter in court. If they don't want to do that, then could send a petition to NJC.

The problem we have with the impeachment proceedings in Nigeria generally is the eagerness of vested interest to exploit the tools without following the spirit and the letters and that will endanger our democratic process.

Another issue which appears to be generating controversy is what is known as "gross misconduct". What is your take on this?

That is a fault of constitution. You see, the constitution stipulates that the office holder can be impeached for gross misconduct without defining it with certainty what constitutes gross misconduct. By virtue of Section 188(11) it said gross misconduct is a grave violation of constitution and the question you want to ask is what is "grave", and is it to be determined by the Assembly. If they don't like the face of the governor they can label it as gross misconduct. What the constitution ought to have done is to detail specifically those actions or omissions that will constitute gross misconduct, so that it will make room for certainty. But there is a lacuna there, you can see it makes impeachment process subject to abuse. That is the lacuna created by the constitution not by the lawmakers and so we need an amendment in that area of the constitution.

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