This National Conference Is Waste Of Time – Prof. Nwabueze
Foremost constitutional lawyer, Prof Ben Nwabueze (SAN) in this interview with Vanguard speaks on how Jonathan got it wrong with the ongoing national conference, the new political order Nigeria needs, how we were misguided by the 1979 constitution and and Ohanaeze crisis.
Below are excerpts from the interview.
We are in the process of another constitution making. If you agree, what’s your take on the arrangement?
Let me correct the impression that we are in the process of another constitution making. The National Conference, as constituted by the President, lacks the capacity to draft a constitution to be submitted to the people for approval through a referendum. It doesn’t have the capacity, so it does not entail a constitution making at all. That is something we have to realise, arising from the nature and type of the conference as constituted or established by the President.
The reason for this is that the conference is not established by virtue of any law enacted by the National Assembly. The convocation, its composition, its functions, its modus operandi are not catered for by law. It is established entirely by virtue of the inherent powers of the President under Section 5 of the constitution. With its limited functions, its establishment is within the immediate powers of the President. The conference not established under a law enacted by the legislative authorities of the country cannot adopt a constitution. It lacks the capacity to draft a constitution that will be binding on everybody as law.
At best, what do you think would come out of this exercise?
Nothing, it’s just a talk-shop. We must realise that it’s a talk-shop. It’s functions are merely deliberative and advisory. So, there is no harm in talking. If they talk for three months, something good may come out of it but, certainly, not the adoption of a new constitution.
As it is, how can we make the best out of the present arrangement for the good of the country?
We have to decide first: what do you want as a country? What we want is a new, better and united Nigeria. That is what we want. There is no way you can get it from this conference. Even if you talk for one year, there is no way you can get it in this conference, we must all realise this. You can get something, but not a new and united Nigeria. You can’t because of the limitations of this conference. It has no powers, it has only functions.
There is a difference in law between powers and functions. This conference doesn’t have the powers to bind you and me, to affect the legal relations of you and me, or the legal rights of you and me. It doesn’t have the powers, that is what powers entail. It has only functions, deliberations, talking. You can talk for one year but what can come out of the talking is another matter.
You are one of those who convinced President Jonathan to go for National Conference. But the way you sound, it’s as if you are disappointed with the turn of things…
That is correct. I led the delegation of The Patriots to the President on August 29, 2013, and I think we were able to persuade him. The so-called u-turn made by the President is as a result of that meeting. But the conference we asked him to convene is totally different from what he has now established. There are totally two different things.
We were looking for a conference that will have the power to adopt a new constitution for Nigeria, that will be submitted to the people at a referendum for approval. That was what we were asking for, and we were asking for a conference of ethnic nationalities. I will come to that later.
On the first aspect, what we have now that the President has given us is a conference that lacks power to adopt a new constitution that will be submitted to the people at a referendum for approval. What the President said, in his speech at the inauguration about referendum is so confusing. I don’t know what the President means.
He said: “Let me, at this point, thank the National Assembly for introducing the provision for a referendum in the proposed amendment of the constitution. This should be relevant for the conference if, at the end of the deliberations, the need for a referendum arises. I therefore urge the National Assembly and state Houses of Assembly to speed up the constitutional amendment process especially with regard to the subject of referendum.”
What does this mean? How can the need for a referendum arise when the conference does not have as its purpose the adoption of a constitution? So, what are you subjecting to a referendum? When we talk about referendum, it’s in relation to a constitution. So, how can the need arise when the purpose of the conference is not the adoption of a constitution and when the conference lacks competence to adopt a constitution?
The President, at a time, was talking about subjecting the outcome of the conference to the consideration of the National Assembly…
You mean for the National Assembly to subject it to a referendum? No, that’s not what this conference states. When you critically examine that statement by the President, it is deliberately intended to confuse.
Some people have said that the President based the conference on modalities or template established by the Senator Femi Okuronmu Presidential Advisory Committee on National Conference. Do you agree?
Yes, to a large extent. If you read the report, it was the Okuronmu committee that recommended that there are two alternatives that the conference should be based on. One, is to establish a conference that will be authorized by an enabling law of the National Assembly and that the alternative is to establish a conference by virtue of the President’s inherent powers. But the President went for the alternative to constitute a conference based on his inherent powers. On this regard, The Patriots had written a letter to him to say ‘please, don’t go for this inherent powers because that will not meet the demands of the country.’
Our demand is for a conference that has the capacity to adopt a constitution. But the President went for the alternative put to him by the Presidential Advisory Committee (PAC). So, to some extent, PAC is responsible for this because they put the alternative to him and he grabbed it and landed us in this situation that we are now.
Your critics say that you are responsible for all these problems we have.
They said the President acknowledged your immense capacity to turn things around and nominated you into the Okuronmu committee but you didn’t take up the appointment. They said that if you had taken up the appointment, your input would have helped to make the modalities better. How do you react to this?
That position is misconceived as I said in my press statement on this issue of my appointment. At the time we met with the President, he promised he was going to do something. I never anticipated that I will be made a member of the committee, not to talk of being the Chairman.
And the reason I gave was that, one, I am 83, and in very bad health and cannot go across the country. I have prostrate cancer, which I have been fighting for the past couple of years. Every year, I go to Britain twice to consult with my oncologist. As you are aware, cancer is stubborn. So, I am surviving on injections. I said I couldn’t, given my age and my state of health.
I explained that I couldn’t afford to go round the country with the committee. From Bayelsa to Sokoto, Sokoto to Maiduguri, Maiduguri to Enugu, Enugu to Benin, Benin to Lagos… I said I couldn’t. I gave that as a reason, that in any case, I think there is an option for a younger person. These are the reasons I gave and I then nominated Chief Solomon Asemota (SAN). They initially rejected him but eventually appointed him.
They have a reason for choosing Okuronmu. They wanted the type of conference that they have now established. They were looking for somebody who will go along with them. Then Okuronmu was good choice for them. Asemota refused to go along with their plan. That is what I would have done if I were there. He submitted a minority report which was suppressed. Asemota was denied the right to present the minority report.
The fact that Asemota submitted a minority report was acknowledged by the appropriate authorities. And the Asemota minority report contains exactly what I wanted, what The Patriots wanted. And attached to it is a bill- The National Conference and Referendum Bill – prepared by The Patriots and submitted to the presidency, two years ago, but they refused to look at it. Instead, they have continued to deny that there was a minority report, when the fact is, there was. So, you can see, it’s not my fault.
I couldn’t serve, and I nominated somebody to be there, who presented the views that I would have presented if I was there but they suppressed it. They denied Asemota the right to present it, which is a terrible thing. That is a sign that would have destroyed the whole thing if we had wanted to press on with it. A minority report submitted, you acknowledged receipt of it and you came out publicly that it never existed, that it was not submitted.
Everyone denied it; from Okuronmu to Reuben Abati presidential spokesman. They castigated the Chairman of the Nigerian Bar Association (NBA) for saying that there was a minority report. They said there was none. So, anybody who is blaming me for that is being unfair.
Nigerians were aware you travelled to London for medication but after you came back you appeared very strong, holding meetings with Igbo Leaders of Thought. So the impression was that you are strong, that, at least, you could have managed to serve, that if you presented the issue instead of Asemota, it would have carried more weight.
When government had already made up its mind on what it wanted? It would amount to fighting in vain. You see, government had already made up its mind on what it wanted. It was just looking for somebody who would go along with it. They found that man in Okuronmu. Why didn’t they make me Chairman? Although, I would also have refused, why didn’t they make me Chairman?
They knew that I wouldn’t have gone along with the plan. I would have said, no, that’s not the kind of national conference that will thrust this country forward. It’s even obvious from the terms of reference what they wanted.
You seem to be calling for conference of ethnic nationalities. Don’t you think it is cumbersome? How do you think what you are advocating for would go without causing problem in the country?
Without causing problem? That’s where we run away from our problems. We are always running away from our problems. When we talk about unity, why is unity a predominating and hunting problem in Nigeria? Why is it, when it is not? In a place like England, Scotland, Wales, Ireland and even in the United States, why is it not a problem there? Would it have been a problem, if Nigeria is a country composed of one people like say the Yoruba, Igbo, Hausa, Ijaw, instead of a country composed of over 380 ethnic nations? Is that not the crux of the problem? Why do you want to run away from that fact?
You know as a fact that Nigeria is not one nation. It hasn’t become a nation even though that is the hope of all of us. When it will become a nation we don’t know. We are pretending that Nigeria is a nation. You read the President’s speech at the inauguration, he was running right through that Nigeria is a nation. Nigeria is not a nation yet. Chief Obafemi Awolowo described Nigeria in 1947, in his book, ‘The Path to Nigeria’s Freedom that “Nigeria is a mere geographical expression.” Yes, that was what it was, and that is what it is up till today.
So, the President saying that Nigeria is a nation from the time of its birth in1914, by the amalgamation of two colonial entities into one big colonial entity called the colony and protectorate of Nigeria, means he has no idea at all of what a nation means. This is not a nation. But the reason the quest of making it a nation is a problem is because it is not composed of one people.
If it had been only made up of the Yoruba, Igbo, Hausa, Efik, Ijaw, we won’t have these problems. Because these are already nations. They are made up of one people. So, you see, we have in Nigeria over 350 nations, and the problem is to coalesce them into one; and you don’t want to agree to that, you think you can get over it by calling Nigeria a nation, when it is not.
The fact remains that Nigeria’s problem has been to coalesce the over 380 nations into one. It’s not an easy problem. It has a number of problems, difficulties. One is the uncertainty about the character, number and identity of the people in the country. Two is the difficulty of devising a way to demand the equality of representations. How can you say that an ethnic nation comprising of 10,000 people should have equal representation with an ethnic nation comprising of 40 million people? It’s not equitable.
Then you have the problem of rancour. The fact is that if you conceive the conference on the basis of ethnic nationalities, that will throw up the number of delegates to maybe 1,000 or more. There is also the problem of the rancorous conflict among the ethnic nations, between the small and big ones. And there is another problem harped on by the President, an issue-based representation at the conference by the ethnic nationalities.
You run the risk, that the country might break up, that it might splinter into all the various ethnic nations. I don’t think that fear is founded because the problem of unity in Nigeria is not insoluble. If not attended to, it’s insoluble because the problem will be there. And the fear that this problem if attended to will make the country disintegrate is not enough. Then what we are saying is that the problem is insoluble.
So, these are the main problems. And I don’t think that these problems are not amenable to rational solutions. Come to terms with it, you will find out that there is no problem in this world that is insoluble. There is none. So, there is no reason running away from the problems. Come to terms with it, apply your mind to it, this has always been my philosophy. There must be an answer to every problem.
The more problems you have, the more it challenges you, your mind, your intellect. Apply your mind, apply your intellect and you will find the answer. Therefore, Nigeria must come to terms with how to coalesce the over 380 ethnic nations into one. We must have to, not by running away.
So, how do we coalesce the ethnic nations into one nation?
By recognising the existence of these ethnic nations and bringing them together, and trying to foster mutual understanding and mutual cooperation among them. That is something that is beyond the resources of private individuals. The Ethnic Nationalities Movement and The Patriots have tried to organize the ethnic nationalities conference, which was held February on 11 and 12, 2014 in Abuja.
We tried bringing all the ethnic nationalities together but the cost involved was beyond our resources. We needed a lot of money to bring together 387 ethnic nationalities. That is a job for government, if it believes there lies the key to the problems of this country. So, there is no need pretending. Why are we running away?
You played an active role in the drafting of the 1979 Constitution that entrenched the present unitary system of government which destroyed the 1960 and 1963 Constitutions. So, why did your team supplant true federalism with the unitary system of government, which many Nigerians now see as the problem of the country?
I have explained this several times at public fora that we went for the unitary system of government at that time, largely because the federal system presupposes separate constitutions for the federal and the constituent governments. That’s the idea of federalism which was observed in the 1960 and 1963 constitutions. We abandoned it in 1979 and went for a unitary constitution, one constitution for the Federal Government and none for the state governments. That was a fundamental departure from the principles of federalism.
It is a unitary constitution more or less in the devolution of powers. The Federal Government is all powerful. Its powers are all-encompassing. We took 50 per cent from the concurrent list of matters and merged them to the exclusive list. We also went to residual matters, took almost 50 per cent and put it in the exclusive list. We took so many other things.
And why did we do that? We must take into consideration the circumstances in the country at that time. In 1976, ’77, ’78, everybody was talking about unity. So, we thought the best way to achieve that unity was to create a powerful centre, and we thought that once you have a powerful centre with so much power, you will achieve unity. That was the situation at the time. You don’t blame us because you must take into account the circumstances at that time.
The feeling that people had was that unity was overriding and that you could achieve it by putting so much power in the centre. We were misguided and that’s the truth. At a number of public statements, I have frankly admitted that we were misguided, that we were guided by the feelings at the time in the country. It turned out that putting too much power at the centre was an invitation for disunity. Yes, that was what happened, disunity. Struggle for control at the centre with all that power led to disunity, and that is what landed us to where we are today.
Over time now, there seem to be a disagreement between the Igbo Leaders of Thought which you lead and the Ohanaeze over this National Conference. What is the meat of the issue?
You must take into account how the Igbo Leaders of Thought originated. There was division within Ohanaeze following the Ohanaeze election of January 12, 2012. And the matter is still in court. When the Okuronmu committee was set-up, the Ohanaeze distributed a memo to the committee at Enugu and Umuahia, and demanded that the two people claiming to be President-General and Secretary-General on the basis of the election, that their mandate was protected.
We are saying, ‘you are not the President, we don’t accept you because we believe that the election was invalid’. And it was in that circumstance that various appeals were made to me that I should step in, that what the so-called Ohanaeze submitted to the Okuronmu committee does not represent the views of the people.
So, to step in, I wasn’t calling a meeting of the entire Igbo, I was calling a meeting of leaders of thought, the think-tanks. So, the meeting was of people who could sit together and put together the ideas of Ndigbo on a new constitution for Nigeria. And I made it very clear from the beginning, that I would like us to operate this as The Igbo Leaders of Thought under the auspices of Ohanaeze and the President-General was invited to the initial meetings of the Igbo Leaders of Thought.
Specifically, the meeting decided to write a letter to President Jonathan protesting the Okuronmu committee’s report, which had not been released at the time, but we had a copy. Asemota was not even given a copy because of his disagreement with the others over the minority report. But he managed to get a copy from one of their members. And that was how we got a copy. Immediately, The Patriots wrote a letter of protest to the President and The Igbo Leaders of Thought also decided that the letter be written to the President, in protest of the recommendations of PAC.
So, the letter was prepared in the name of Ohanaeze Ndigbo with the Park Avenue address, Enugu and the President-General was there. I invited him to my house in Enugu, we discussed, and he was also present at the meeting of The Igbo Leaders of Thought. And he suddenly said that he would not sign, because the letter was to be signed by himself and myself.
He said he won’t sign the letter written in the name of Ohanaeze Ndigbo. He said he would need two days to consult with his executives. We said, ‘why do you have to consult? This thing is so clear.’ But he insisted on consulting, which provoked a lot of criticisms, opposition from the meeting. After that, I said, `look, the man is asking for just two days, just give him two days. `So, he was given two days to consult.
Several days later, he came back to say he won’t sign. So, we had to change the letter from Ohanaeze Ndigbo to Ndigbo. We didn’t use the Igbo Leaders of Thought. So, that’s point number one that it was the President-General that refused to sign. I have said that what we are doing is under the auspices of the Ohanaeze and that our meeting will be transferred from Zodiac Hotel venue to Ohanaeze secretariat.
At the meeting I had with him in my house in Enugu, I said to him that it’s my intention to ask, you the President-General to convene a peace and reconciliation meeting of Ohanaeze. I want you to bring unity to Ohanaeze, instead of all these divisions and factions’. When I put this to the notice of the Igbo Leaders of Thought, the leaders of the other factions said they will not accept such peace and reconciliation meeting, if the notice for the meeting was signed by Chief Gary Igariwey, the President-General.
Emeka Onyeso, the leader of the other faction, said the same thing, Prof. Elo Amucheazi said the same thing and the consensus was that the letter be signed by leaders of all the various factions- Igariwey, Onyeso, Amucheazi and myself. That was what was agreed. Then, when I met Igariwey in my house, initially, he objected, but later he agreed that the notice calling for the meeting should be signed by all.
I on my own eventually decided to add two people – Archbishop Obinna and Archbishop Elekwanwa. So, I prepared the notice calling for the meeting with all these signatories. When I gave it to Igariwey, he objected again. But these other people due to their magnanimity, said they didn’t mind, they didn’t want to sign anymore, but that it will be alright if the notice was signed by me and Igariwey.
So that was what was agreed and Igariwey was there. So, I passed on the notice and said ‘go and amend it’, but till today, Igariwey has not returned the letter, the meeting we have never had.
When people talk about the Igbo Leaders of Thought and the Ohanaeze, this is exactly what happened. At the meeting, the peace and reconciliation meeting was discussed, I said I didn’t want to go into the reasons for the demand for the election to be invalid, let us put it aside.
The five Eastern governors said they have set up a committee under Senator Ben Obi to look into this, and Ben Obi’s committee recommended that these two individuals, that’s the President-General and the Secretary-General should stay in office for six months and after that election should be held. We said no, let them stay on for the two-year term prescribed by the constitution, after that, election should be held.
And at that meeting Dr. Uma Eliazu said, no, that everything should not be swept under the carpet. That a committee should probe it to find out whether the election is valid or invalid. But I said, let’s not go into all that again but they insisted that it be put to the vote. An overwhelming majority supported their view. So, that was what was decided. But like I said, the peace and reconciliation meeting was never held.
So, are you saying that the peace and reconciliation meeting should be convened as a matter of urgency?
No, that has been overtaken by events. It’s overtaken. Igariwey and his executive rejected it.
How do we make the 2015 elections free and fair?
I hope it will be. The problem about free and fair election is that in Nigeria, we attach too much importance to the stakes. National elections have become a matter of life and death, a do-or-die affair because the stakes are so much. May be if we have a new constitution that will reduce the powers of the President, it will be less a do-or-die affair.
At the moment, the stakes are too high, which makes free and fair elections almost impossible. As long as the present constitution stays, I am not optimistic that any election in this country will be free and fair. The 2011 election was said to be free and fair to some extent but the fact remains that to do away with rigging in this country is very difficult.
What do you make of the Boko Haram insurgency and the rising wave of insecurity in the country?
It’s a tragedy. I believe that Boko Haram is a subject of politics. Some northern political and religious leaders are definitely behind it. I have tried to explain in various newspaper articles the difference between militancy and insurgency. Boko Haram is a clear case of insurgency, it’s not just a militancy like the Niger Delta thing. In Niger Delta, it was a case of militancy for good reasons.
They had good reasons for their uprising because of what was done to them by the regime of President Obasanjo. They were not taking arms against their country, which is insurgency. Boko Haram is a clear case of insurgency. They said they want the Nigerian constitution based on Islamic laws. They don’t want democracy, they want theocracy, that’s what they are fighting for.
How do you think government can win the war?
My attitude is fight them and try to subdue them. I supported the emergency declared in the three North-east states as a way of subduing them. Unfortunately, it hasn’t proved successful because of the support they have. It’s an international ring or network of terrorism. That is what is happening in Nigeria today. You think you are fighting only local Boko Haram? No! There is an international network organization behind them, and, of course, with the support of local politicians and religious leaders.
The government has solicited the support of the European Union, which agreed to support with a tune of $10 billion. How far do you think that will go?
I don’t know. I am not sure, I don’t think it’s a question of money.
What about intelligence?
Yes, intelligence is very important. You need to improve your intelligence to be able to effectively counter the sources behind them. I don’t think the intelligence we have presently in the country is enough to counter the Boko Haram insurgency. So, if the money from the EU is to boost our intelligence in the fight, then, that is good. I think the United States has also promised something.
What’s the way forward for Nigeria?
The way forward is that the new, better and united Nigeria presupposes a new constitution anchored on the people. That’s is why I don’t think the National Conference, as presently constituted, will lead us there. I say it very clearly that the way forward is to make a new beginning under a new constitution anchored on the people. That’s the way forward. We need to establish a new political order in place of the existing order.
That is the way forward. There is no other way. Not this conference, you stay there for three months talking, talking about what? About every subject under the sun? Again, the complication is unity. Why did you exclude unity?. The conference is supposed to renegotiate the terms of our unity, that is what it is, so why did you exclude unity? Again, unity has so many ramifications. Let them talk, if you want to talk, and that is what they are doing.
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