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Our constitution needs surgical operation to make it workable – Nwoko

Uwemedimo Nwoko is a human right activist and has been in private legal practice for almost 2 decades. Had his LLB from the University of Calabar in 1991 and BL in 1992, Nwoko did his mandatory national youth service assignment in Lagos from where he continued his legal practice until he relocated to Akwa Ibom a couple of years ago. In an interview with Special Correspondent, Nsikak Ekanem in Uyo, Nwoko spoke on the ongoing constitution amendment processes, true federalism as well as on the recently concluded Annual General Conference of the Nigerian Bar Association. Excerpts:

Do you think the theme of the last NBA conference was apt considering the realities of things at the moment in the Nigerian nation?

There is no theme right now that you would not find relevant to Nigeria. As it were, the theme was appropriate. But I think Nigeria’s problem are more like going to inspect an elephant like it is told in the story of the proverbial blind men that went to see the elephant. It is the side that they touched that formed their impression of what an elephant is. Those who touched the horn, those who touched the leg and those who touched the body would describe it as such. That is the problem with the present Nigerian situation. The theme probably fits into certain aspects of the Nigerian problem right now.

The NBA is one segment of the Nigerian civil society that over time, and every now and then, keeps coming up with a position on how to go about things in the larger Nigerian society – either through press release, communiqué and whatever. As usual, a communiqué was released at the end of the last conference that dwell on a wide range of issues within the nation. Do you think this approach of NBA has been having impact in the direction of things in Nigeria?

I think it really has been having impact. The only thing is that given the rot and misdirection in Nigeria, given the fact that Nigeria is not looking to the side it should be going, it is always a very difficult task just issuing press release or communiqué to try to return Nigeria to the path it should be going. To my mind, we need a lot more than NBA, we need a lot more than mere statements, and we need a lot more than ordinary communiqué to be able to change the Nigerian situation. But then let us admit that it is not a loss effort. The communiqués issued are not lost. One way or the other it is still helping to shape the Nigerian nation.

As a lawyer and a concerned citizen, which areas in the constitution do you think needs to be touched?

The major aspect of the problem we face today is that we are running a unitary system with a supposedly federal constitution. Our constitution is more federal in name than in practice. I think we need to restructure the Nigerian federation right from the constitution to be able to create an ideal federation that would reduce the tension that we face. For example, there is too much concentration of power at the federal level. The Nigerian constitution is loaded with so many things that have no business in the constitution. I would very quickly make reference to some portions. For example, what business does the federal government has with areas like tax, police, marriage, registration of birth. Those are minor things that you don’t need to include in a federal constitution within a federal power. But these are issues that are embodied in the Exclusive Legislative List. Exclusive Legislative List in the sense that it is only the National Assembly that can make laws on it; it is only the federal government that can regulate those areas. For example, power. Why should distribution, generation of power and transmission be a federal issue when the States have been asked to build their own power plants? Why is it that when they finished building their own independent power plant they have to transmit it into the national grid? There is no need for that. Why the federal government should have exclusive powers over death and birth registrations? Why should the federal government has exclusive powers over prison matters? If you go to the Exclusive Legislative List in part one of the constitution, you would get to find out that there are so many things that are included in that list that ordinarily have no business being there at all for whatever reasons. Nigerians need to open up and run a federation that is federal in practice not a federation that is only on paper but it is unitary system in practice. We have listed out several issues that would need to be addressed. For example, we raise issues like Item Number 3, which is Aviation, Safety of Aircraft, and Carriage of passengers by air. That is clear transportation. Air transportation is transportation; it has no business being regulated by the federal government. Why should the federal government regulate Item Number 21, which is drug and poison, exclusively? Why should the federal government regulate Item Number 22, which is election into whole control, exclusively? You can regulate the election of the President, the Vice President and the National Assembly members, but it should not be election of members of the State House of Assemblies. I can call the items one by one. Tell me why the federal government should have exclusive control over public holidays, which makes it mandatory that when a State government wants to declare holiday, it calls it work-free day. Another area is the issue of fiscal federalism. We are not having a policy and principle of fiscal federalism in Nigeria. Right now, the federal government is claiming to own everything. In a normal federation, the federal government controls very few taxes of taxation, and that is where its resources come from. The component units who own these resources make their money and pay a percentage as taxation to the federation. If you go back to the 1963 constitution, which established Nigeria as a federation, every aspect of economic income, be it from natural resources, agriculture and all that was put at 50 percent – 50 percent to the component states (or region, as it then was) that produced these things and then they now pay 50 percent to the federal government. That was an ideal federation. Then all of a sudden, we plummeted to zero for the region and everything for the federal. And what do we have now? 13 percent! 13 percent is nothing. It does not suggest we are in a federation.

Then also, a situation where the federal government is controlling the judiciary from the federation is still wrong. The state government should be allowed to run their judiciaries. Till today, the Judges of the State are still beings appointed by the National Judiciary Commission, and salaries are paid from up there. That does not give the state governments their own power to run their states as sub-component units to the federation. There are so many things that are structurally wrong with the federal structure in Nigerians, and that is where the constitution should now look at as we are heading towards amendment. It should not just be a mere cosmetic amendment. We must work with the consciousness that the present constitution was imposed on Nigerians by the military. The military is used to a unified power structure; they are used to a command line. The command line come from the Commander-in-Chief, which is what the military has and when they wanted to make the constitution, they made it with that military psychology of a central command structure where there cannot be any disobedience. I am not calling for a new constitution but we need to do a very crucial, deep and surgical operation on the present constitution of Nigeria so as to be able to produce a constitution that can be used to run a federal country.

Still talking about a constitution that will address the needs of the component units of Nigeria, it would be recalled that State Police system has become a burning agenda, and it also came up at the NBA conference. The argument against it has been that it would be abused by the respective State governors. Where do you align yours position?

I don’t buy the argument based on the fear of the unknown. Right now the only argument against the establishment of State Police is not that it is not an ideal thing within a federation, it is only that it is prone to abuse. These abuses may occur but through a natural process of events it would check itself. We cannot stop it. Now the state governors are already abusing the process of conducting local government elections; should we because of that terminate that process and say that they should not conduct local government election again? We cannot because the federal structure makes it mandatory, compelling that the state governments will conduct local government elections. It is also necessary that the State government should own their police. The fear of abuse should not be a reason why we don’t try it.

Like Rev. Father Matthew Hassan Kukah said the other day at the NBA Conference, it is not that we try to tinker with what we have. What I know is that a federation has its own clearly outlined principle. A federal structure is not a Nigerian making; it is a creation that is known worldwide. It has its own rules that are known from the beginning. It is not something that one would say “let’s gradually follow federalism”. What are the basic principles of a federation? Are we operating them? If we are not operating them, then why shouldn’t we? I believe that the State governments are entitled to state police – abuse or no abuse. If a state governor is abusing state police today, his maximum tenure as at today is eight years, and so he would also come out to become an ordinary citizen and there would be another governor there and he would stay outside and feel the impact of abuse. It happens every time and we are seeing them. There is nothing wrong with starting a State Police Force. Again, I want to ask: The Constitution makes the state governor a Chief Security Officer of a state but when you go through the security apparatus in the country, state governors in Nigeria is practically a castrated Chief Security Officers. He has no power. He is not in control of any security agency or outfit in the country – or in his state. He does not control the police, he does not control army ands he does not control anything that is there. So what kind of Chief Executive Officer is he if he cannot give command to take care of exigencies in the state? Even if he is given some powers to order the Commissioner of Police to do something, I want to tell you that if the instruction of the State Governor to the Commissioner of Police conflicts with that of the Inspector General of Police, the Commissioner will obey the Inspector General of Police.

Amidst the clamour for instituting “true federalism” it appears the northern and southern Nigeria is antagonizing each other. Though crude oil is not found in every State in the south, it is apparent they are towing the same path as against their northern counterpart on matters pertaining federalism. What is your reaction to the age-long rivalry between the south and the north on virtually every subject matter?

It is because an average northerner from the least person to the governors have abandoned their naturals sources of livelihood. They are no more putting efforts to explore or exploit their natural resources – they are no more farming; the groundnut pyramid has disappeared; the cotton industry is dead; the hide and skin industry is dead; and they are not doing anything at all to find a way of sustaining themselves. The only way they believe they can survive is to come to the south and take oil money. So, when they hear of fiscal federalism, they jitter. That is why somebody could open his mouth and talk about offshore-s onshore oil dichotomy. I think that person is absolutely irredeemably crazy. What they are suggesting is ending of the Nigerian federation. I can tell you as a southerner and somebody from Akwa Ibom State that we will not only resist any discussion on that issue, but to pull out of Nigeria. We are instructing our members in the National Assembly not even to allow it to be discussed because it is not worth discussing. They have strategized to see how to do it. But we would not allow it to be part of the discussion in amending the constitution. If it gets to that level, then the south-south will pull out of the Nigerian federation because we are not benefitting anything from it. The Nigerian federation is of no use to the average southerner and to the average south-south person. We are ready to sit down – either we go by force or we negotiate to exit.

The clamour for the betterment of the condition of the South-South seems ebbing obviously because of the emergence of Goodluck Jonathan who is from the region as the President of Nigeria. Do you think President Jonathan is in direction of putting paid to the grievances of the South-South?

Naturally, there is always a tendency to protect their own. The South-South having their turn in the office of the President, we would not want to do anything at this time to overheat the polity. We would try as much as possible to avoid generating too much dissent because it is our own that is there so that it would not look as if we are attacking our own. But that does not mean that we are bluff on our demands. We are of the believe that since our son is there and he also feels what we feel, we believe that the federal government is in a position to right the wrongs of the many years gone by without necessarily going hostile or being militant to the government. Let me also make it very clear that whether it is our turn as President or another person elsewhere as President, the demands of the South-South is 50 percent derivation – that is going back to the original structure of the federation in terms of fiscal federalism. We are not ready to take anything less than that. Why we accepted 13 percent in 1999 was because they said not less than 13 percent. And it was argued that within a short time, it would be increased. It was not that it would remain stagnant at 13 percent. Unfortunately, more than twelve years now, nothing has been added to the 13 percent. We have now discovered that it was a fraud against the South-South. We are not sitting down for it again. We are now going to 50 percent and that is the minimum we are ready to take. Any other region or state that has its natural resources would also be entitled to the same 50 percent. 50 percent was the original agreement that we made as a federation in 1963. However, the agreed 13 percent derivation was further defrauded by the 2002 judgment of the Supreme Court, which now came to excise the total territory of the littoral states by taking about 200 meters isobaths and all that. If we do not own the sea and the boundary water of the sea, where would you come and own the high sea? There is no Nigeria without component States. It is the littoral states that own the ocean. There is no Nigeria that own any territory – there is nothing like Nigeria – what is Nigeria is what all the States bring. There is no Nigeria without states that axis the boundaries. How can a Nigeria that has not owned even 1cm of any portion of the air now comes and owns water? There is no such thing. It was a fraud and it has to be revisited for the purpose of making Nigeria an ideal federation.

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