By Chukwudi Nweje
Ikechukwu Ikeji is a Lagos-based legal practitioner. He speaks on the absence of President Muhammadu Buhari and other issues of interest.
President Buhari has been out of the country since May 4. How has his absence affected governance?
His absence has created a lot of vacuum in the governance infrastructure and architecture of Nigeria. When Late President Umaru Yar’Adua was in this kind of situation, Buhari was the first to call for his resignation. But, I’m not saying Buhari should resign, I’m instead saying that those in charge of his health should tell us what he is suffering from.
Buhari has not done anything that is against the law, there is no constitutional breach, but morally speaking in terms of governance can we say it is the best thing? There ought to be transparency. Unfortunately the body that has the power to tell us his health status, the Federal Executive Council (FEC), are his appointees. It will be difficult for them to say that their principal is no longer healthy to rule. Saying he is not healthy to rule is saying that they, the appointees want to leave their jobs. That is the irony of our constitution and I suggest that the section of the constitution that allows the FEC to be the ones to say the President is permanently incapacitated to trigger the need for the Senate President to appoint a 7-man medical panel be amended. The constitution amendment should have removed the power from the FEC and transferred it to an independent body.
Another part of the constitution that needs to be amended in terms of what we are experiencing with President Buhari’s health is the time frame within which the letter transmitted to the National Assembly that the president will be away will elapse. There should be a cut-off time; as it is today, there is no law the President has broken because the law permits him to even stay away till May 28, 2019.
There is a vacuum in the presidency. Vice President Yemi Osinbajo is the acting President, but he cannot do certain things. That is why he travelled to London recently to see Buhari, perhaps on some issues, to find out what Buhari wants to do. If there is no vacuum, the acting President need not travel to London.
The Senate and the Presidency are at loggerheads over the confirmation of Ibrahim Magu as EFCC Chairman. What does the law say?
Unfortunately a lot of lawyers have become more political than politicians. They are the ones giving wrong advice to politicians. The Nigerian constitution provides for checks and balances. Some lawyers cited Section 171 of the constitution to say that the Senate does not have power to confirm appointments made by the president on extra ministerial departments. But in defining extra ministerial department, they failed to define what department means. The word used is extra ministerial department, not agency and not commission. Extra ministerial department means a department outside the ministry. In other words, that department exists under the ministry; it does not have a life of its own. But when government creates an agency or commission, it breathes life into it and the agency or commission becomes a legal personality and acquires perpetual succession and can sue or be sued in its own name. While you can appoint the head of an extra ministerial department without confirmation of the Senate, you cannot appoint the head of a commission without Senate confirmation if the law that established that commission provides for it.
The National Assembly just concluded work on the 1999 constitution amendment. What is your impression of the exercise?
My impression is simply that it is repackaging rotten food in a clean wrap and then presenting it to the people. There is no amount of panel-beating, no repackaging, no amount of repainting and no amount of clean up that can make the 1999 constitution a proper constitution so called. The constitution is the voice of the people. The constitution does not get its strength from a decree. It does not even get its strength from the National Assembly. It gets its strength from the people. The 1999 constitution still remains a military decree. As a matter of fact it is Decree No. 29 0f 1999. So if it is Decree No. 29 0f 1999, it means that Nigeria is still living under the decree of the military regime. It is what they asked us to do, like a horse ridden by the owner, which is exactly what we are doing. That does not in any way represent what a constitution should be. So no matter how they amend the 1999 constitution it will continue to be defective. But even at that, let us get into the substance of the amendments.
You will agree with me that they barely scratch the surface. Look at the issue of devolution of power, look at the Land Use Act that they also rejected. The implication is that if you want to amend any provision in the Land Use Act, you must go by way of constitution amendment that is getting two-thirds of the members of the National Assembly and two-thirds of the 36 states Houses of Assembly. They ought to have succeeded in removing the Land Use Act from the constitution, so that it will be easy, for example, to say, fiscal federalism, true federalism, whatever resources that are on the land belong to the owners of the land and the processes of acquiring or transferring land should not be cumbersome.
Today, because the lands belong to the governor, in Lagos for example, an application for consent takes up to five or six months and in some cases years. How do you remedy such situation if you cannot amend the Land Use Act and hand peoples land to them, and let land ownership be free hold or lease hold? Simply put, you own a land, whatever you find on it, you and government will take note of it; you exploit it, explore it and pay tax to the government.
On devolution of powers, we all know that one of the greatest impediments in Nigeria today is the Exclusive Legislative List. Another impediment is Chapter 2 of the 1999 Constitution that is made non- justiciable.
Let me start with the Exclusive Legislative List. As we speak today, 68 items are on the Exclusive List and these items are laid before the National Assembly and the federal government. In other words, they control 68 aspects of the lives of Nigerians and they leave 35 items to the Concurrent List and it doesn’t end at that. Even in the Concurrent Legislative List, where the federal government makes a law and the state government makes another law, and there is a conflict, the law of the federal government supersedes that of the state government. So you find that under the Doctrine of Covering the Field, that is what we call it in Constitutional Law, when the federal government has covered a particular area in terms of development on a matter in the Concurrent List, the state government cannot cover it again. So effectively, the federal government controls the 68 items on the Exclusive List plus the 35 items on the Concurrent List. That makes it 103 items controlled by the federal government. That should not be so. Everything that relates to human life in Nigeria is controlled by the federal government from Abuja, health, education, infrastructure, roads.
The ‘Not Too Young to Rule’ legislation is a good one, but it doesn’t stop at that because there will be competition. How can a 25 year-old fresh graduate who has the mental capacity to contribute to the development of the country compete with a 65 year-old who has amassed billions of naira, knowing that Nigeria’s politics is all about cash and carry? The way out would have been for the National Assembly to be pro-active, by going ahead to enact a law on 30 percent affirmative action for youths participation because law is an instrument of social engineering and social re-engineering. Where a society is not working the way it should work, you use law to re-jig it, to make it work.
In European countries, you may not need laws to make youths participate as examples have shown. Their Prime ministers are less than 40 years. There is no legislation that made them to aspire to what they are today. But in Nigeria without legislation it will be difficult for youths to take advantage of this reduction in age requirement. That is why they need to go beyond the law on age requirement and enact another law on affirmative action of 30 to 35 percent youth participation.
The implication is that where a political party does not have up to 30 or 35 percent position for youths as the case may be, they will be forced to go out and source for youths. Where the youths do not have enough money to canvass for votes, the political party to which they belong will be forced to sponsor them. Where there not enough youths for appointive positions, the government of the day will be forced to go out and source for youths. That is the benefit of affirmative action by legislation.
Is Nigeria ready for devolution of powers?
Yes, we are ready, this is the right time. If there had been proper devolution of powers, there would not have been all these agitations. Devolution will pull the rug from under the feet of the agitators. When you devolve powers and accept the fact that any part of the country can go and work out their destiny, you will see that pressure would be removed from groups like IPOB, Arewa Youths, Niger Delta or Oduduwa.
There was a national conference in 2014, what do you make of it?
The 2014 conference was deceptive ab initio. I appreciate the idea of the conference, but it wasn’t democratic; the delegates were hand-picked, they didn’t represent the people. So, the outcome of that conference is just as good as a suggestion. My view as a constitutional lawyer is that the report of that conference should be subjected to a sovereign national conference.
I divide the process into two, correcting a defective constitution. If you want to go the way of correcting the defective constitution, no matter how good your super structure is, if the foundation is weak, it will collapse. So if we want to go back to our foundation and solve it, the outcome of the 2014 conference should be given to a sovereign national conference to review. But if we want to keep going the way we are going, then the outcome of the 2014 conference should be given to National Assembly to incorporate into the constitution amendment.
IPOB has said no referendum; no election in Anambra, come November what is your take?
What they are saying is that they will not participate. So anybody that identifies with them will sit down at home. They don’t have the power to stop the election. So we need to correct the narrative. To say that they threatened to disrupt the election is to call them a bad name. I will however advise them to participate in the election. Let them use 2019 as a starting point. Before then, they would have sensitized the people and declared several sit at homes to see how many people will respond. If they fail in the Anambra election, it will be disruptive of their plans and aims and if they succeed it will tell a lot on their people in Anambra State because people who ought not to be in governance may end up in governance.