Pray FG does not invoke section 135 to postpone 2023 elections

In this interview culled from THISDAY, Mr. Femi Falana, a Senior Advocate of Nigeria and former President, West African Bar Association, speaks on the state of the nation, including the need to engage separatist agitators, powers of the federal government to allocate oil blocks to individuals, why National Assembly should fast-track the passage of the electoral amendment bill and its powers to produce a new constitution. Excerpts:

Agitations to split the country along ethnic lines are getting louder. How should the federal government respond to these challenges?

The federal government has to appreciate that the crisis of global capitalism has forced millions of young people to embrace supremacist ideology with emphasis on balkanisation of many countries. In the United States, a faction of the Republican Party led by former President Donald Trump has become popular among the white community, because of the campaign to chase away immigrants from the country.

That is the basis of the campaign to make America great again. The United Kingdom has pulled out of the European Union while the people of Scotland are fighting for independence. In Spain, the people of Catalonia are fighting for independence. In Canada, the people of Quebec are fighting for independence. The story is the same in other parts of the world. The campaign for the balkanisation of Nigeria has been influenced by developments in the West. Hence, the campaign is fully supported by diaspora Nigerians. Based on arrogance of power, the federal government has continued to play into the hands of the campaigners for the balkanisation of the country.

In other words, the agitation has been fuelled by nepotism, lopsided appointments, corruption, impunity, ethnic politics as well as the zealous implementation of neoliberal economic policies, which is promoting poverty and unemployment. Out of sheer frustration, the campaign for the breakup of the country is gaining momentum. I have continued to insist that it is no longer acceptable to say that the unity of Nigeria is not negotiable because it is an indissoluble and indivisible entity.

To respond to the agitations, the federal government has to jettison its arrogance of power and enter into meaningful dialogue with all separatist groups and other aggrieved citizens. The federal government may realise rather too late that no amount of brute force can silence the separatist groups. If you defeat them militarily they may go underground and embark on guerilla warfare. The earlier the war mongering tactics of the government is reviewed the better for the corporate existence of Nigeria. I don’t need to be a war expert to know that the armed forces cannot win the war on insurgents, bandits and separatists at the same time.

Following secessionist agitations, there have been calls for restructuring nationwide. Some have also canvassed for a return to the 1963 Constitution. What do you think is required to operate a functional federal system?

The All Progressive Congress had entrenched restructuring in its manifesto and campaigned for power devolution from the centre to the other federating units. But upon winning the 2015 general elections, the APC turned its back on restructuring. At a stage the Presidency accused the agitators for restructuring of trying to break up the country. But as Nigerians were getting prepared for the 2019 general election, the APC instituted its Committee on True Federalism under the chairmanship of Kaduna State Governor, Mallam Nasir el-Rufai.

The committee recommended restructuring and set out the details for power devolution. The report has been gathering dust in the archives. It is on account of the inconsistent positions of the ruling party that many people became frustrated and joined the separatist movements. An influential section of the political class has been campaigning for a return to regionalism via the 1963 Constitution. The agitations appear to have forced the leaders of the APC to review their position. Hence, during a recent interview with Arise Television, President Buhari said he had embraced restructuring. But instead of embarking on restructuring through policy change and amendment of certain laws, the president has asked Nigerians to demand power devolution from the national assembly. But the president has since repudiated his position on restructuring despite that his administration has devolved more powers to the states than the previous regimes.

For instance, airline is in the exclusive legislative list but the Akwa Ibom State operates one of the best domestic airlines in the country while the federal government has not been able to revive the Nigerian Airways. The federal government has invited state governments to set up mining companies for the exploitation of solid minerals. The federal government has upheld fiscal autonomy for the federal judiciary and legislature while state governments have followed suit as a result of the just concluded industrial action by state judiciary and parliamentary staff unions. It has been reported that not less than 21 state governments are being assisted by the federal government to establish ranches and grazing reserves in order to address the perennial violent clashes between farmers and herders. I believe the economic crisis confronting the country provides a golden opportunity for states to become economically viable and stop the practice of rushing to Abuja to share the dwindling revenue in the Federation Account.

Furthermore, the military legacy of referring to certain public officers as serving the Federation should stop. In the first republic, the federal government had a Minister of Justice and Attorney-General while the regional governments had Ministers of Justice and Attorneys-General. It was when the country was under military rule that the Minister of Justice became the Attorney-General of the Federation. The era also produced the Secretary to the Government of the Federation, Accountant-General of the Federation, and Auditor-General of the Federation etc. This was due to the fact that the state governments were extensions of the Federal Military Government. Since there is no government of the Federation under the current democratic dispensation, the officers mentioned above should be addressed as the Attorney-General of the Federal Government. The same thing is applicable to the Secretary of the Federal Government, Accountant-General of the Federal Government and Auditor-General of the Federal Government. After all, every state has an Attorney-General and Commissioner for Justice, Accountant-General and Auditor-General and Secretary to the Government.

During the just concluded public hearing on the ongoing review of the 1999 Constitution, prominent Nigerians called for a replacement of the constitution and not its amendment. Does the National Assembly have the power to give Nigeria a new constitution?

The prominent Nigerians are perfectly right in questioning the origin of the 1999 Constitution. But the 1999 Constitution is a replica of the 1979 Constitution. The 1999 Constitution or Decree No 24 of 1999 signed by General Abdulsalami Abubakar is in pari materia with the 1979 Constitution or Decree No 102 of 1979 signed by General Olusegun Obasanjo. But the National assembly will not replace the 1999 Constitution because they are satisfied with the status quo. Since Section 9 of the Constitution provides for the alteration or amendment of the Constitution the alteration may be carried out in a manner that a new document is produced. Frankly speaking, it cannot be a brand new constitution in that chapter 4 on the bill of rights or fundamental rights will not be expunged. The chapter has been entrenched in every Constitution since 1960. With respect to chapter 2 of the Constitution, the demand is that the provision be made justiciable or enforceable so that any breach can be challenged in a court of law.

So, it is not going to be a wholesale review as being demanded in some circles. However, the main disputed area among the political class pertains to whether it should be a presidential or parliamentary system of government or whether we should have regional governments or retain the current structure, the local government system. However, the masses of our people in the North and South, East and West are demanding for the actualisation of the provisions of the fundamental objectives and directive principles of State Policy embodied in Chapter two of the Constitution. The chapter provides for participatory democracy, adequate security and welfare for the people, adequate housing, employment and payment of unemployment benefits for unemployed people, payment of living minimum wage and pension, right to education at all levels and right to health.

The government shall control the economy for the promotion of the happiness of the people. The government shall control the natural resources of the nation. The commonwealth shall not be concentrated in the hands of a few people or a group. The government shall abolish corruption and abuse of office. A couple of months ago, I attended a meeting of 21 radical political parties and mass organisations, which reviewed the state of the nation. Apart from demanding for the actualisation of the fundamental objectives, we came to the conclusion that only a socialist government can guarantee and implement them. So, let no one deceive the Nigerian people by talking of restructuring in abstracto. The demand for restructuring cannot be limited to power devolution alone. It must include the economic restructuring. For too long, the ruling class has exercised power without responsibility. This time around, the power to be devolved must be democratised. In other words, the people must be empowered to control the affairs of the nation.

Under the 1999 Constitution, the power to enforce Land Use Act lies with the governors. At the same time, the 2007 Minerals and Mining Act, which defines the control and ownership of minerals, is within the power of the federal government to enforce. Is it constitutional to separate the control and ownership of land from that of minerals?

Even though the Land Use Act is incorporated in the 1999 Constitution, it lacks constitutional flavour. It was included in the 1999 Constitution by the military wing of the political class to prevent the civilian wing from repealing it. But then it remains an Act of the National Assembly. To that extent, there is no conflict between the Land Use Act and the 2007 Minerals and Mining Act.

Since all mineral oils, solid minerals and natural gas have been taken over and vested in the federal government by virtue of Section 44(3) of the 1999 Constitution, the state governors lack the power to exercise control over any parcel of land in which there are mineral resources. The Minerals And Mining Act and the Petroleum Act are completely outside the purview of the Land Use Act.

Since the Land Use Act is part of the 1999 Constitution, is the Minerals and Mining Act not an usurpation of the constitutional powers and rights of the state governments?

The Minerals and Mining Act has not usurped the powers of governors to control land under the Land Use Act. However, I have maintained that the president lacks the power to give oil blocks or license to individuals to mine solid minerals. The mineral resources are owned by the federation and not by the federal government. Therefore, the oil blocks should be allocated to the federal, state and local governments.

A few months ago, I urged President Buhari to allocate oil blocks to the three tiers of government. It is unjust and inequitable to allocate oil blocks to individuals, who become instant billionaires while the federal, state and local governments are unable to pay salaries, because of poverty. These are serious issues that ought to have attracted the attention of agitators for restructuring.

Just before the 2019 elections, the National Assembly amended the 2010 Electoral Act and transmitted it to the president for assent. But the president withheld his assent. About one and half years to the 2023 elections, diverse questions around the electoral law are yet to be resolved? Is there any hope for credible elections in 2023?

Before the 2015 elections, the APC had campaigned to reform the electoral process by implementing the recommendations of the Justice Muhammed Umar’s electoral reform panel. But upon assumption of power, the APC reneged on the pact with the Nigerian people on electoral reform. In 2014, some APC leaders obtained court orders, which restrained the Jonathan administration from deploying the armed forces in the management of elections.

But the APC-led regime deploys armed military and police personnel in the manipulations of elections including local government elections. As if that is not enough, voters are induced with money, rice, beans and salt in utter contravention of the Electoral Act. Unlike the PDP, which boasted that it would rule Nigeria for 60 years, the APC has perfected plans to rule Nigeria indefinitely. Hence, the new Electoral Amendment Bill is not likely to be signed into law. Very soon, Nigerians will be told that the Bill cannot be signed by the President since the 2023 elections are around the corner.

What are the areas of concerns in the 2010 Electoral Act and what should the National Assembly do about it before it is too late?

Legalising the use of card readers and electronic voting, collation of results and transmission to INEC central server. Since the Electoral Amendment Bill was not signed into law by the President in 2018 on the ground that it was too close to the last general election, the National assembly ought to have prioritised the matter. But for reasons best known to both houses of the National Assembly, the new Electoral Amendment Bill has not been passed and forwarded to the President for his assent.

The delay is affecting the preparations of INEC for the 2023 general election. It is high time sufficient pressure was mounted on the federal legislators to pass the Electoral Amendment Bill as a further delay will adversely affect the conduct and management of future elections in the country. But it is doubtful if the nation can hold a peaceful general election in 2023. In 2015, the Jonathan administration postponed the general election for 6 weeks, because some local governments in Borno State were under the control of terrorists.

Today, a number of state governments and hundreds of local governments are under either total or partial control of insurgents, bandits and other gunmen. It is hoped that the federal government will not invoke and apply Section 135 of the Constitution, which empowers the President to postpone elections if he considers that it is not practicable to hold elections on the ground that the country is involved in a war in which its territory is physically involved. This is why all hands should be on deck to enact a new electoral law, which should provide for electronic voting. That is the only way to ensure that elections are conducted in many parts of the country at any given time.

The federal government recently suspended Twitter operations in Nigeria and threatened to prosecute violators. Under the 1999 Constitution, can the federal government ban Twitter and prosecute its violators since the relationship between Twitter and President Buhari is strictly personal?

The threat to prosecute and jail anyone, who defies the Twitter ban was issued when it was discovered that millions of subscribers had decided to download VPNs to escape the ban. The threat was borne out of frustration as it was discovered that the federal government lacks the technical capacity to actualise the ban. But the threat is empty and embarrassing as section 36 (12) of the Constitution has proscribed the prosecution of any person in Nigeria for a criminal offence that has not been prescribed by a written law. I want to believe that the federal government has quietly withdrawn the threat hence nobody has been arrested for defying the ban on Twitter.

But despite calls to lift the ban, the federal government has refused. What are the consequences of the refusal to lift the suspension?

The federal government has found it absolutely difficult to justify the suspension of Twitter. This explains why the Ministry of Information and Culture has been jumping from pillar to post to justify the ban. In the first place, it was said the ban was occasioned by the decision of Twitter to delete the tweet of President Buhari, which was considered rather genocidal. In the second place, it was said Twitter had refused to delete the tweets of Mr. Nnamdi Kanu, the leader of the Indigenous People of Biafra, which were said to have incited violence in the Southeast.

Thirdly, the promoter of Twitter, Mr. Jack Dorsey has been held vicarious liable for the killing and destruction of property that took place during the #EndSARS protest last year. I thought the federal government had claimed that it was the hoodlums and miscreants, who hijacked the protests that were responsible for the criminal offences of culpable homicide and arson that occurred during the protests. Whatever may be the case, the federal government should lift the ban on Twitter without any further delay in order to stop the illegal infringement of the fundamental right of 40 million Nigerians to access information.

You recently advised the federal government to dialogue with IPOB and other groups seeking to break away from Nigeria? What informed your position?

Nigeria has ratified and domesticated the African Charter on Human and Peoples Rights. Article 20 of the Charter guarantees the right of the Nigerian people to self-determination. On that basis, the demand for the breakup of Nigeria is not a criminal offence. However, if the demand is anchored on violence, the Nigerian State will not hesitate to frame charges.

No doubt, the federal government has blamed the killing of security personnel and destruction of government properties by gunmen on the IPOB.

While I do not support the serious breakdown of law and order in some states in the Southeast, I am interested in addressing the root cause of the crisis. That can only be achieved if the separatist groups are given the opportunity to dialogue and negotiate with the federal government and the state governments over their grievances. This demand is informed by the fact that the federal government had negotiated with terrorists and bandits and granted amnesty to many of them in spite of their involvement in crimes against humanity such as gang rape of women, abduction and killing of innocent people, displacement of millions of others whose houses were set ablaze.

During his interview with Arise TV, President Buhari disclosed that he had directed the AGF to recover all grazing reserves nationwide. In the light of the Land Use Act, can the president exercise such powers? Is the president getting proper legal advice from the AGF?

The Grazing Reserves Law of 1964 was applicable in the defunct Northern Region. It was not a law of general application in the country at any given time. With profound respect to the President, the Gazette for grazing reserves for the Federation does not exist. Therefore, grazing routes cannot be found or traced in many parts of the country.

In any case, the federal government has formulated the National Livestock Transformation Plan including the establishment of ranches to end the incessant violent attacks on farmers by AK 47 bearing bandits operating as herders. Pursuant to the provisions of the Land Use Act a number of governors had acquired land for ranching.

From the information at my disposal, not less than 20 states have applied for grant to establish ranches while some states have commenced massive construction of ranches. Officials of the federal government ought to have familiarised themselves with the details of the National Livestock Transformation Plan. If that had been done, the question of looking for grazing routes would not have arisen.

After the Asaba Declaration on the Prohibition of Open razing, what should all the state governments do to further put an end to open grazing within their territories?

Frankly speaking, before the ban on open grazing by the Southern Governors Forum, the Nigerian Governors Forum (NGF) had done so and adopted the National Livestock Transformation Plan of the federal government. The NGF had equality banned open grazing. According to the Forum, open grazing has become obsolete. The country had ranches in the south and grazing reserves in the North in the 1950s. The ranches and the grazing reserves were abandoned under the defunct military junta.

For the past 22 years, the members of the political class have failed woefully to revive the ranches and grazing reserves. You can imagine the orgy of violence that the nation has continued to witness due to the utter negligence of the political class. Instead of looking for grazing routes so that animals can roam all over the place in this age and time, we should speedily embrace modern animal husbandry. It is grossly misleading to give the dangerous impression that animals are entitled to enjoy the right to freedom of movement enshrined in section 41 of the Constitution.

But having realised that the right to freedom of movement is exclusively reserved for the Nigerian people, the 36 governors have unanimously banned open grazing and opted for the establishment of ranches, RUGA or grazing reserves, where cattle will be quartered and provided with grass and water while houses will be built for herders together with hospitals and schools for their children and wards. Those who are genuinely interested in protecting the interests of herders should support ranching in line with the National Livestock Transformation Plan of the federal government.