By Kenny Ashaka
Senior Advocate of Nigeria (SAN) and distinguished Bar Leader, Yunus Ustaz, has said that only the removal of the immunity clause for governors and stoppage of security votes to them can strengthen the war against corruption.
He advised that the 1999 Constitution be amended in such a way that state governors are made to account for offences they committed while they are still in office.
Ustaz, a former NEC member of the Nigerian Bar Association and an official Repportuer, nominated by the Federal Government to the National Conference for State Legislatures in 1992, also propounded the idea of making the third tier of government to run on part-time basis and for Chapter 2 of the 1999 Constitution (as amended) to be justiciable in order to make government accountable to the people.
He spoke to Sunday Sun in Kaduna. Excerpts:
Let us take a look at the 1999 Constitution and existing laws in Nigeria. Don’t you think they are long overdue for amendment?
There are too many things that ought to have been amended in the Constitution, but I think we are at low in filling the lacuna. One amendment I am happy about is this issue of Section 232 of the Constitution; that is the one that now removes this issue of appealing to the Supreme Court on facts because in advanced countries it is not every case that goes to the Supreme Court. It is the most important ones that go to the Supreme Court. But by the omission of Section 232, sub-section 2 now, that has made some improvements to see that only serious cases that border on law and the breach of the Constitution can go to the Supreme Court. I think that is what is done everywhere. For instance, and particularly, we need to remove this issue of immunity totally because it would prevent the fighting of corruption. It should not be there at all. I have delivered many lectures on this in many circles, but it seems that…that is one of the most painful one so far.
It would not affect the issue of governance neither would it distract the chief executives of states because this will only relate to issues of criminal cases like fraud and issues that would touch on Chapter 4 of the Constitution. It is not in respect of civil matters. As long as the immunity clauses are there, don’t tell me that after the governor might have gone you can sue him. After then the piece of evidence would have been hidden. Then there should not be this issue of security vote at all. What is security vote? Whatever money that comes to the government must be money that should be accounted for. Everybody should know and be able to ask questions. There are too many questions that need urgent attention, honestly. And then if we really want speedy administration of justice we just have to address, as a matter of urgency, the creation of states Court of Appeal as it is done in America. As it is, our judges are bombarded with too many cases. How can one judge alone have more than 300 cases in a year? How can he cope? It should be only the most serious cases that should go to the Supreme Court.
One shocking development in our polity that is above other agitations in the front burner of national discourse is the inability of some of you who are legal luminaries to advocate the justiciability of Chapter 2 of the 1999 Constitution (as amended) on Fundamental Objectives and Directive Principles of State Policy. That provision if resorted to would have erased the spectre of the present state of the Nigerian citizens because it would have ensured responsible government that would provide education and social welfare…
(Cuts in) I totally agree with you and I will supply you some of the lectures I delivered on Chapter 2. If Chapter 2 is not justiciable then the ordinary person like you and I will just keep our eyes open, sit in and not complain. But if Chapter 2 becomes justiciable and you don’t remove the immunity clause you are back to square one. Do you know how the word to tantalize came about? Let me give you an example and tell you how it fits perfectly into Chapter 2. Tantalus was a very bitter critic of the government of the day. He was always arrested, detained and criticized even for things he did not do. They kept him very hungry and thirsty. So, anytime he complained that they should give him food and water they will bring delicious food and water. There was this transparent glass window between him and these things and they will just keep these things for him to see. He will be on one side and the things on the other side. They will just keep these things for him to be looking, but he cannot touch them. That is how this word Tantalus came in. So, even if you make Chapter 2 justiciable and you don’t remove the immunity clause it would amount to this issue of tantalizing. Yes, it is justiciable, you can go to court, but then without the removal of this immunity clause how can you bring the people to book? So, the removal of Chapter 2 from the justiciable aspect of the Constitution should be done at the same time with the removal of the immunity clause. Chapter 2 should be made justiciable and the immunity clause should be removed. I am sorry; before I forget this important aspect, do you know why workers cannot be paid, we can’t do this and there is one agitation or the other? It is because by our own Constitution itself we have made governance too costly. For example, nowhere in the civilized world do you have the legislative arm being in full time employment. No. It should be part-time and they should receive only sitting allowances. If you make the legislature part-time and you remove the security vote because look at the issue of security vote; when there is crisis in the states it is still the Federal Government that supplies them the security to fight. So, what do they do with their security votes?
Some people will say the issue of Chapter 2 is even more critical than “restructuring,” “devolution of powers,” “separatist agitations,” “fiscal federalism,” and so on because emphasis on the people and the people should be the primary responsibility of government?
I am telling you anybody who says we do not need restructuring is telling lies. What do you mean by restructuring? For example, most of the states cannot even fend for themselves. They depend on federal allocation and so on. So, why don’t you make Nigeria a six-state nation; that is based on the six geographical zones because most of the states cannot even feed themselves. And then you restructure in such a way that…for example, no state has the powers to exploit solid mineral and other resources under our ground. This should not be left to the federal government alone. Restructuring means we sit down to agree on how to live together. There is nothing bad about it at all.
In that case would you say the National Assembly has failed Nigerians because by the provisions of item 60 (a) of the exclusive legislative list in the Second Schedule of the 1999 Constitution (as amended) which says the National Assembly is enjoined through the instrumentality of law to make provision for the establishment and regulation of authorities for the federation or any part thereof to promote and enforce the observance of the fundamental objectives and directive principles of state policy contained in the Constitution?
Not only have they failed, but if they have the intention that intention will be deplored by the provision which says that Chapter 2 is not justiciable even if they have the genuine desire unless they remove the justiciable aspect of Chapter 2. They cannot move anywhere. It is just like pitching you on your own word. Look at it very well, Chapter 2 you cannot make the government really accountable to the people. And then particularly, perhaps when I am dead people will think about it; if you do not remove immunity clause, honestly we cannot move anywhere. Many people have been saying that even if you go to court you will wait until the governor or the person who is there leaves. Is he a fool? Will he leave the trail of his criminality? No. These are practical things.
As a legal luminary and someone with knowledge of Nigeria’s political economy and jurisprudence, why in your estimation, are people threatening thunder and brimstone from time to time about some aspects of our national life and asking for judicial reforms and restructuring?
You see I have this view too. Some of those asking for restructuring do not really mean well for this country. Like I have said it is not all the aspects of our national life that needs restructuring. Restructuring as they mean is not what I want it to be. Restructuring should just mean look, can we come together to discuss on how we can manage these resources to the benefit of all Nigerians? It should not be a situation where some people will say we need to be on our own, we need to control our resources and so on. Even in Saudi Arabia which main source of income is oil, do you know that oil is situated just on the way to Medina? And it is just in one small local government area. Will you say because the oil is in your place what you mean by restructuring is you should be given your country and the rest of them? Tomorrow, if oil is found in my father’s compound I will now say I want restructuring because I should be the one controlling the resources. Did you plant it there? Is it not an act of God? And that God that has brought us together doesn’t make mistakes. He has a reason for that.
But are they not entitled to some forms of compensation as a result of the degradation of some of the land spaces in their areas?
They are being compensated; but I need more compensation. I believe they need more attention, more development. But when it comes to this development I am not happy with most of their governors because the resources that are given to them are not being used for the benefit of the people and the area. My brother, I do not have the statistics of releases to them. But no matter the amount that are given to them are not being used to develop the area and its people. I think we are our own enemies and it is unfortunate.
Do you think these agitations are far removed from the whole notion of fiscal federalism and devolution of powers?
Whatever I produce I should be able to consume it. If that is so, let us be frank, the mere fact that oil is found in your area did you produce it or put it there? So, let us look at the thing holistically. The Almighty God has blessed this nation more than any other country I can think of, resource-wise, in the world. Whatever you have is not planted in every compound. It must be planted in a particular area. The issue of fiscal federalism and devolution of powers may have some meeting points, what we call tangent and cotangent; but it is not at all times. The issue of devolution of powers may not necessarily be related to the issue of resource control like, for instance, there are many issues that should not be in the exclusive legislative list; the issue of exploration and management of mineral resources. In that area there is a meeting point between devolution of powers and fiscal federalism. Truly speaking, when some people say they want their own country, they want to exploit their resources; I do not think that such agitations are genuine. The Almighty God who brought us together has a reason of bringing us together. And the moment God has brought us together it is just like your head and the neck. The neck cannot complain that the head is too heavy to be carried. We should try to live as brothers and sisters.
Last October, the Nigerian judiciary was branded as corrupt and was painted with black tar all over when some judges were picked up in the night and some cash and guns allegedly recovered from their homes in a move never heard of in the history of Nigeria. Was this approach necessary in tackling corruption in the judicial tier of government?
Let me say something. I don’t have any brother or sister on the bench as a judge, but as an old man, let me tell you that among the three arms of government so far the judiciary is the best anywhere, between me and my God who made me. It is not only my assessment. Let me tell you without the judiciary today, even you…I tell you that the Nigerian judiciary has been the life wire of the sustenance and continuous existence of Nigeria as at today. Let me just give you two examples. When the politicians during the time of Amaechi and the rest were trying to usurp the power of the people when primary elections were won by some people and then some other people will just submit the names of some other people this thing continued unabated and people were crying until the judiciary came to the rescue to say look if you are the person who has won the election you cannot be substituted. Don’t you think that if that had continued there would have been an unmanageable crisis in Nigeria that would have destroyed our democracy?
That is still going on in some of the parties today?
It is still going on, but look, whether anybody likes the judiciary or not, fortunately the judiciary has never agreed with that at all. If you do not win the primary election of your party and somebody who did not win the election is brought the judiciary will never allow it. Without the judiciary our politicians cannot even manage themselves. And another thing, during the time of Obasanjo when he was no longer a military ruler, he was using some people to remove some governors, making state of emergency when state of emergency does not mean that you should remove the governors. The judiciary, particularly in the case of Dariye and so on, said look you cannot just get just two or three members of the legislative house to remove people. So, we should be grateful for the type of judiciary we have if we are really sincere. And you don’t just go to judges’ houses and start searching them. No, it is not done that way anywhere. The more matured way of doing that is that if you have allegation against a judge…and let me tell you that in this country if you are straight forward, the moment they don’t like you and they see you as a clog in the wheel of what they want to do, there is no allegation they will not level against you. If you have any allegation against a judge, refer such a case to the National Judicial Council, which will investigate. Give your facts and if your facts can be sustained the judge will be dealt with. It was terribly wrong of the SSS because even in my grave I will condemn that.
I want you to produce a scorecard on the fight against corruption in Nigeria, is the war succeeding or failing?
The issue is this; corruption cannot be fought by the government alone. All of us should fight corruption. You don’t leave the fight against corruption to one person alone. Unless all Nigerians are ready to fight corruption, and we are not yet ready…for instance, Ukraine; do you know what they did? When they discovered that the members of their legislative houses were corrupt the ordinary people went and started picking every member and rubbing them in the dustbin on the streets. You don’t leave the fight against corruption to government alone.
If today I use corrupt money to train my children, those children would be destroyed. Bear that in mind and that is true whether anybody likes it or not. The moment you spend a kobo of corruption money to train your children they will be destroyed. Let me tell you one example and I don’t care what anybody says. Have you ever seen the child of any corrupt president or corrupt governor who is not a shame to the parent? It is because inadvertently or so they have used one kobo out of this money to train their children. That is why God destroys them. Do you know why the Israelites keep fighting over land up till today? It is because of the corruption and God called Canaan. So, if we should realize all these things you don’t leave the fight of corruption for government alone. You know the effect on you yourself. Sincerely, anybody who tells you that Buhari is not fighting corruption is not sincere to himself. But one thing I want you to know is that there is need to do more and make it holistic, whether the person is in your party or in the opposition. Buhari is attempting to fight corruption, but he needs to do more.
What do you think is wrong with Nigeria?
Let me tell you this last word, whether you believe it or not. Right from my childhood my dreams are always terrible. And if I dream before 12 noon it will happen by the grace of God, up to the extent that my grandmother who brought me up will hide me so that I won’t tell people what dream I had because she said people will start thinking something else. Do you know that before this Boko Haram and this crisis came I had a dream and it was the voice of a man? Between me and God, as I am talking to you now, sincerely God is annoyed with Nigeria as a country and three bad things will happen. But God did not give me the power to ask what these three bad things will be.
But as far as I am concerned one is Boko Haram. And all these intractable problems, one here today, another tomorrow, are the anger of God, whether anybody believes it or not. I think at this stage, at my old age one needs to say these things. It is the anger of God. And why would God not be angry with us. Now, God has blessed us with all these resources and over 70 per cent of Nigerians are sleeping with hunger; why will God not be angry. The moment you allow even your neighbour to suffer you have questions to answer on the day of judgment; your neighbour, if you allow him to sleep in hunger. Now, people kill people for no reason, homosexuality and the rest of them have become the order of the day. Now, one person will take the money that belongs to the country, go and put it abroad to help develop the foreign country while not using it to build factory and the rest in this country and people are suffering. How can God not be totally angry with us? Wallahi, all these things that are happening are the act of God. We have done too many bad things against ourselves that God is totally angry with us, take it or not.
As you may have heard the two main contenders for the presidency of this nation have come up with their blueprint to revive the country. One says he is taking us to the next level and the other would undertake a restructuring of the country to make her work again. What are your thoughts?
As far as I am concerned, if it is a goat that can perform, let the goat be the president of this country. Look in my own religion, Islam, you can live with any person. What you cannot live with is injustice. Our prayers should be may God Almighty give us who can perform, save the situation and who God will not be angry with. But definitely, God is angry with most of us. My advice is that the campaigns should be based on issues, not on personalities. Don’t attack anybody because nobody is perfect on this earth. Only God is perfect.