Law: The constitution we have at this time, as recognised by many constitutionalists, is not autochthonous

Law: The constitution we have at this time, as recognised by many constitutionalists, is not autochthonous

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Awa U. Kalu, Senior Advocate of Nigeria (SAN) was born in 1953 in Umuahia, Abia State. He graduated from the University of Ife, now Obafemi Awolowo University, with an LLB in 1977 and a Masters of Law of the University of Lagos in 1980. He has spent 40 years at the Nigerian Bar within which he taught Law at the University of Lagos and the former Imo State University, Okigwe, now Abia State University, Uturu. He served as Special Assistant to the Hon. Attorney-General of the Federation and Minister of Justice for several years. He also served as the Attorney-General and Commissioner for Justice, Abia State between 1999 and 2005. He was honoured with the prestigious rank of SAN in 2000.

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As the general election draws closer, the debate about the importance of having a modest system of government that would accommodate the majority of Nigerians interested in running for elective offices has been raised, with emphasis on the exorbitant fees charged by political parties just for the expression of interest forms. Chief Awa U. Kalu (SAN) in this interview with Assistant Editor, Law and Foreign Affairs, JOSEPH ONYEKWERE underscores the importance of developing a generally acceptable system of governance that would ensure peace, justice, equity and progress for the various ethnic nationalities that make up the country.

Election is around the corner and it is a known fact that Nigerian politics and elections are expensive. Some senior lawyers are suggesting that we should revert to the parliamentary system of government. What do you think of this?
I don’t know the relationship between parliamentary system of government and election expenses. When you want to contest for parliament, you will still belong to a political party. You will still need to contest elections and the election process remains the same. What I think is pertinent is for political parties to rethink the methods for making access to political offices amenable to cause less expenditure. If you ask a person, for instance, who is going to the House of Assembly to pay the kind of money that political parties are prescribing or you want to be a senator and you spend money estimated in millions just for the expression of interest, you are erecting obstacles on the way of people who want access to politics. That is what I quarrel with. If the consideration on the other hand is whether there is a choice between the parliamentary system and the presidential system, which we run, then other issues will arise.

In the United Kingdom, the presidential candidate doesn’t need to campaign in all the states in that country. That is what those suggesting parliamentary system are looking at. You campaign in your constituency and elected into the parliament, from where your colleagues elect you to be the prime minister or the president as the case maybe. How do you see that system?
There are different strokes for different folks. The parliamentary system in the United Kingdom to which reference has been made has been tasted for several centuries. They understand that system and it is easy for them to work on. If you recall at independence in 1960 and when we became a republic in 1963, we were running the parliamentary system. But because of the multi-ethnic and multi-cultural system in Nigeria, it was found that the parliamentary system was totally not workable. I am not saying that we cannot work on it if we decide, but we overthrew the parliamentary system and in its place, installed the presidential system. Let us not be mistaken from saying anything less than the fact that the presidential system is very expensive but expensive for different reasons. For instance, within our system, there are three senators representing each state based on the principle of equality of states.

Then the demographic part requires the House of Representatives to consist of 360 members. If you then check it in terms of cost, you would see that 109 senators plus 360 members of the House of Representatives is a little burdensome in a third-world economy. Then you look at the presidency, which on its own is a bureaucratic machine. You look at the government house of each state. You have the governor, deputy governor, state house of assembly and the bureaucratic machine of each state that probably on appropriate calculation is also expensive. And that is why you find very stringent calls from different quarters asking for restructuring. The difference of opinion as to the meaning of restructuring is the only problem we have, but I don’t think that anybody is in doubt that for this country to be more efficient, more equitable and to move forward smoothly, we need to come to an understanding as to what the constituent units require. Do we want 36 states plus a federal capital territory? Do we want more states as was recently proposed, 18 more states according to the constitutional conference? Do we shrink, as has been canvassed in other quarters, from 36 states into six geo-political zones by whatever name called? These are different considerations, but I would think that the time to put that arithmetic on the table has come. To make this country more efficient, we must do that arithmetic. 

Yes, what is your position about restructuring?
My position is in the example I want to give. If you build a house and you found that water is percolating somewhere, causing leakages here and there, you must reconstruct your roof. That is restructuring. If you build a house and you find out that the rooms are not enough for you and your wife and suddenly you have two sets of triplets, that is, six more children than you ever bargained for and you want to live in the same house, then you must knock down some walls. That is restructuring. If your kitchen is suddenly too small and you find out that your wife cannot stay there comfortably to prepare the food that will service you and your household, you must restructure. We have come to that decision.

What are you suggesting?
What I am suggesting is that we must have a roof that will send down the rain and it is for those of us who live in this house called Nigeria to decide what kind of roof we want. Is it a roof that is pointing like a pyramid or is it a roof that is fixed in such a way that the rain drops gently to the ground? That is a decision that can be made by the right-thinking members of this country. We have many eminent people, educated people, people who are large-hearted who understand the principle of ‘live and let live’. Let them sit down and decide what can be done. It can be done. It is not a political matter. It is a matter of reality.

You are one of the eminent Nigerians. What is your own suggestion about the kind of roof that we should have to send down the rain?
That roof must be flat enough to send down the rain. If it is too pointed, it can be disturbed by the wind. So that is the problem we have. It is not a matter of individual opinion. If I give you my individual opinion now, it will blow in the wind.

If you say it will blow in the wind, you are sounding pessimistic.
I am not sounding pessimistic. I know that this is a discussion that has been held from time to time. From Willink Report of 1958 up to 2018, we are still talking about finding an accommodation for the different ethnic nationalities in Nigeria. It is a very sensitive matter. It is one that requires urgent attention. The only question is whether each of us is willing to abide by that philosophy of ‘live and let live’ not ‘live and let die’. That is a sensitive matter and I don’t think that my individual opinion will matter. We have people who are ‘ogas at the top’. You remember that phraseology? We have people whose voices are more authoritative than mine. I am only a humble lawyer.

So, what I am giving you is a humble opinion and I think that those in the very long corridor of power should sit down. If you want to pursue this debate, there are people who will point out to a fact that there are 360 members in the House of Representatives, who are the representatives of society. You have 36 houses of assembly with elected members and they are the representatives of the people and that is why voices like mine don’t seem to be too important at the moment. And so, I am talking about the ‘ogas at the top’. If you are in the House of Representatives, the Senate, the House of Assembly of a state, you are an ‘oga at the top’. Let them fashion something out. We have a committee of speakers on a national level who influence matters. We have caucuses in either the House of Representatives or the Senate who have loud voices. All they may do is tap from a body of specialists in political science, law, sociology, in fact, the generality of the social sciences to generate a momentum. It is that momentum that will propel whatever happens here and there. So, it is a simple thing. It is not about my individual opinion. It is about agreeing for the common good.

But there must be something on the table to agree on.
The something on the table, I have told you where it has to arise.

Speaking hypothetically, let say the ‘ogas at the top’ have consulted you for an opinion.
They have not consulted me and I won’t talk about hypothesis. We have a constitutional structure. That constitution makes provision for equity. It talks about good governance. Those are principles that have crystallised in our jurisprudence over the years. There is nobody who is in doubt that Nigerians need good governance but we don’t have good governance on the basis of what we have on ground now. We are simply saying look at the constitution. People tell you the constitution tells a lie on its face because it was given to us, not by ourselves but by the military. They say it is we. And the late Rotimi Williams, for instance, an eminent and prominent lawyer and Nigerian statesman, said that the constitution had told a lie on its face simply by the military designing a constitution and saying ‘we the people.’ That on its own sounds a little marginalising for the military to call themselves, ‘we the people.’ You get the point? So, even innocent bystanders have bought that point. Therefore, the time has come to give a voice to the claim, ‘we the people’. You cannot appropriate our voice and lend it to us. So, let us speak.

Now, you made reference to the constitution pointing to issues that people are raising eyebrows about. You also talked about having bi-cameral legislature. But these things are contained in that constitution?
It is contained. I didn’t say we must have bi-cameral legislature.

I am not saying you said so. What I am saying is that in order to address that issue, we have to touch on the constitution.
That is very certain that the constitution ought to reflect the wishes of the people concerning a better kind of life under one roof.

Are you saying we should have autochthonous constitution or to amend what we have?
Having autochthonous constitution is simply giving vent to general wishes of the people. The constitution we have at this time, as recognised by many constitutionalists, is not autochthonous. It is simply autochthonous in the sense that it was made in Nigeria. But whether it reflects our wishes is a different matter.

There are different views and opinions about how this country will make progress. What type of restructuring do we need because a lot of people are asking for more states, others say let us shrink them and go to regions?
We started this conversation on the premise that our kind of democracy is expensive. First question then would be whether we all agree. My opinion is that yes, our democracy is expensive. Two, our economy is developing. We have not reached that stage where we can maintain that level of bureaucracy that arises from the kind of structure that we have. That structure arises from having 36 bureaucracies. That is the number one issue. How do we shrink the expenses arising from governors? You have differences in the size of state legislatures. So you find that at national level, we have a bi-cameral legislature. At state level, we are uni-cameral. Then the question is whether we should have a regional legislature, for instance, or instead should continue 36 houses of assembly where the minimum number of a state house of assembly is 24 members.

So if you check 24 members and the demands they make on our economy, each house of assembly member, for instance, must have a personal assistant, an official car and an official residence. Where are the funds derived from to maintain this size of bureaucracy? So, you leave the legislature. You also have the judiciary in each state. You have a high court with several judges, a customary court of appeal or a Sharia court of appeal, each one of them with its own demography. Those are undeniable facts for anybody who wants the prosperity of our people, not prosperity of those in government. From market women to artisans and so on, we must agree that the economy must develop to accommodate everyone. We are not talking about each person aspiring to be an ‘oga at the top.’ Somebody can be middle-class. You don’t need to be in the upper class to enjoy life.

You can even be at the lower rungs of the society to enjoy good roads, see the same thing on television irrespective of the size of the television you are watching. You can have a 60-inch television if you are wealthy. No problem about that! But somebody who has 14-inch can also see the same thing you are seeing. If our Head of State is talking for instance, it is not the size of the TV that makes you appreciate a broadcast from him. If your governor is working and you can see the dividends of democracy, you can watch on your laptop, iPad or phone and these are instruments for communication at this time. That is the point we are making! Democratise means of livelihood and you will see it. That is to say, wherever you are, be able to put food on your table. That is the kind of restructuring we are talking about. We have to agree whether it is political or economic restructuring. There are people who talk about fiscal federalism. Use what is available in your place. We are not able to listen to voices.

Do you agree with fiscal federalism proponents?
We have done it before. There was a time when if you were producing cocoa, you relied on your cocoa. If you were producing groundnuts, you relied on your groundnuts. If you were producing palm kernel, you relied on your palm kernel or palm oil, until oil came and everything scattered. We are not proposing ideas from the moon or sun. People are talking about things that have happened before and are asking from hindsight; why can’t you use what you have and pay tax at the centre? These are not determinations that will be made by me as an individual. I can only talk as I am talking for purposes of starting or continuing a discussion. Nigeria is a country of discussion. We have never failed to discuss. The problem is allowing that discussion to crystallise into something that will lead to forward movement. That is the point!

Why do you think this conversation is seemingly endless?
It is endless because it has not led to a result. If we keep postponing the conclusion of the discussion, it will continue.

When you say ‘we’, who are you referring to?
Nigerian people! Who else? Am I referring to Ghanaians or people from outer space? We are talking about Nigerians and Nigerian problems. We are talking about problems that are known.

Are all Nigerians expected to jointly come to change the country?
They won’t jointly come to change the country. But we have leadership and that is why I have talked about our ‘ogas at the top.’ Not one ‘oga’! Nigeria is the most vibrant ‘oga-led’ and ‘oga-propelled’ country. Think about it! 36 state legislatures, 36 executive branches of government and 36 judiciaries. Do you know what it means in the light of standing on the economic ladder of the world?

Alternatively, what would have been better?
What would have been better is what we are talking about, shrinking our bureaucracies.

How will that happen legally and constitutionally?
It will happen if we agree to restructure. Why won’t it happen? If you remember at independence, there were three regions. Then when we adopted the republican constitution in 1963, the three turned to four. And then because of reasons of history that are well known, we moved from the four regions to a number of states and the states kept increasing for reasons that you will not find in the history books until we turned to 36. The problem now is who is willing to give up what has been given. Who will say, okay, take my state and merge it with another even though we know that maintaining 36 states is inconvenient in terms of economic momentum to sustain them? So it’s like the rats holding a meeting and saying ‘look, this cat is troubling us, we must bell it.’ And everybody agreed in unison, bell the cat, and then when they say which rat will volunteer to go and hang the bell on the cat? Everybody ran away.

Okay, the election is a few months away and the electoral act has also become a subject of ding-dong between the executive and the parliament.
That is the same talk we are talking now. We agree that our democratic process for the purpose of enthroning people in office is imperfect. We all agree! There is nobody who is in doubt. The problem is, who is ready to give up what he has? Who is ready? How can we have a problem about the order of election if all things were equal? If you do two plus two and it gives you four, how does it matter whether we elect house of assembly members first or elect president last or if you reverse it? It is because of the inequity in the system and what happens because of the way you have ordered the election that people are reluctant to agree that something has to give. The question is what should give?

Give us the answer.
It is a matter of ‘give and take’. The law of the high way is this ‘give and take’. If you see a trailer coming and you are driving a small Volkswagen beetle, you decide whether to collide with the trailer or let the trailer pass and you go your way. If you are driving one trailer and the other vehicle on the other side of the road is also a trailer, you must also decide. Do you collide or do you pass peacefully? If you look at the fight between the National Assembly and the Presidency, it is simply a matter of two trailers on opposite directions and none is willing to give way. Do we need to say these things? There is no Nigerian who does not know that we can reach what we call an accommodation, political equilibrium. Balance your side and I balance my side! It is a simple experiment in physics if the beam is balanced. You put a beam on a fulcrum and you balance it! If you put something on the scale and on the other, it is balanced and there will be no distortion. The distortions we are seeing is because ‘I no gree.’ That’s what the old FM in Rivers used to say, ‘I no gree na im dey tear cloth’.

So does it worry you that the two trailers may have a collision?
They may not have a collision, but as long as they are trying to brush themselves, which is what we see on the highway, they are not concentrating on their driving. That is the point. I don’t see a head-on collision but I see imbalanced driving. 

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