By Lukman Olabiyi
In the view of a Senior Advocate of Nigeria (SAN) and rights activist, Mr. Kunle Adegoke, the issue of constitution review is a necessity not an option if the country must remain as one. He avers that the current constitution of the country cannot sustain its unity because it gave the Northern region upper hand above other regions. In this interview, Adegoke, who is also a former All Progressives Congress (APC), governorship aspirant under in the last gubernatorial election, Osun State, speaks on his assessment of the judiciary in the past year, amendment of Electoral Act, the ongoing review of the constitution by the National Assembly and other sundry issues.
How would you say the judiciary fared in 2020?
It’s been a very challenging year with its peculiarities. In any case, all institutions have their own challenges and of course, the challenges confronting the judiciary are still there. They have not left and I don’t think they are ready to leave soon, except with concerted efforts from all stakeholders.
Fundamentally, there are areas that I believe the judiciary should look into, particularly the issue of equipment. The judiciary should be equipped to be able to face challenges, for instance COVID-19, which posed challenges to the judiciary. Nobody anticipated it and now it has become very apparent that we must be ready to deploy technology much more than before.
The issue at some point was whether it was even proper for a court to deliver judgement virtually unlike the physical approach that we are all used to. It came to a point that it was practically impossible for any court of the land to even sit and everything was suspended. There are infrastructures that must be provided which the government must be ready to deploy immediately. Tied to that is the need to assist the judiciary to achieve its independence. This independence requires that the judiciary should not go cap in hand to the executive for funds. The judiciary can only be independent when it is not begging for survival from other arms of government.
There are some areas where the judiciary has not fared better when it comes to dispensation of justice. You discover that it takes so long for some cases to be decided. Those on the Bench and other stakeholders like lawyers and litigants could be responsible for this. Some judges are not regularly sitting as they should do. It is important that lawyers should help the judiciary. There are lawyers who deliberately waste the court’s time by filing frivolous applications.
Why do governments at all levels always find it difficult to obey court orders?
It is simply executive lawlessness that has pervaded our system for so long. The Supreme Court had even in the past condemned such practices by the Executive branch. Where court orders are not obeyed by an executive, such executive is not setting good precedent for the nation’s progress, but tyranny and destruction of the system. If there’s a government that should not disobey court orders, it is supposed to be the current government led by Muhammadu Buhari.
This was a president that had suffered a lot from the judiciary in the process of determination of issues. At least, on about three or four occasions, he was in court to contest his losses at the presidential polls. He could see how long it took for those cases to be decided and how much he felt sad anytime he lost. To that extent, I expect that someone who has passed through such process would place much premium on respecting orders of court. The president ought to be the one that should champion the obedience of court orders. When court orders are obeyed by either the president or a governor, a good example is being set for the citizens.
The citizens will behave the same way the Executive behaves and that is why we have so many people around who believe they are more powerful than the court. The implication of all these actions is that the rule of law is being destroyed and replaced with the rule of man. The consequence of all these is chaos and anarchy.
The Nigerian military has said that the plan by the International Criminal Court (ICC) to look into allegations of human rights abuses against it will cause distractions in the fight against insurgency. Do you share this view?
There have been so many allegations of infractions against the Nigerian military. The question to be asked is: are these infractions alleged against the military true or not? Did they really happen or not? If they actually happened, somebody must answer questions on those infractions. The military hierarchy cannot just say because they are fighting a battle in Nigeria, they cannot be called to question. That is not right. It’s another sense of impunity and lack of respect for the law. If they are to abide by the law, they cannot say the plan by the ICC to probe them for human rights abuses is a distraction to their fight against insurgency. How far has the Nigerian military won the so-called fight against the insurgents? Substantial part of the country is currently being controlled by bandits, kidnappers and insurgents.
The implication is that the military is failing even in that regard. But, when it comes to brutalization of citizens, the soldiers are very active. If the local authorities cannot call the military to order on their excesses, there are international organs that would do so. People have lost confidence in local authorities and that is what is responsible for resort to ICC for its intervention. So, it is very wrong for the Nigerian military to say that any intervention from the ICC is a distraction.
What areas of the Constitution and the Electoral Act would you recommend for amendment to the National Assembly?
Sincerely, the areas are numerous and one issue which I want the National Assembly to address is that of federal character and quota system. These are things that we ought not to retain in the Constitution and I will tell you why. The idea of the federal character, quota system and what have you can be traced back to the 60s when there were concerns that a particular section of the country is educationally disadvantaged.
This policy confers certain advantages on northerners and puts other regions at a disadvantage. Such a provision ought to be regarded as affirmative action to bridge the gap. It should not be a permanent thing that would continue forever. We are already turning it into a permanent feature within the Nigerian Constitution and this is very wrong.
Besides, when you look at the legislative competencies of the various levels of government, you will discover that what we have as legislative list in Nigeria is centralized structure; a unitary structure that is masquerading as a federal structure. What the Nigerian Constitution described as federalism is not a federalism, where about 68 legislative items are in the Exclusive List. Some of these 68 items are even broken into three or four; we have so much power concentrated at the centre. We now have 28 items in the concurrent legislative list.
These 28 items are now also shared between the Federal and State governments. The implication of this is that where the Federal Government has made a law that has covered the field, any law made by the states would be said to be inconsistent with the laws of the Federal Government. That means the states have no power to make any law in that regard again. How then would the states be developed? These are part of the things that the legislators need to look at.
When you look at the Electoral Act, we need to make proving electoral allegations simpler. The current electoral system is designed in favour of the winner. Nobody can file an electoral petition based on the present arrangement and succeed. That is why smart lawyers don’t represent petitioners anymore. They represent the respondent, who is the winner in the election because he has nothing to prove. Yes, there is timeline for the hearing of election petition but this is not enough. It’s a question of how far have we helped the victim of election fraud to prove his case