Nigeria can be restructured through Constitution amendment

Mr. Sebastine Tar Hon (SAN) is the author of a leading reference work for lawyers: S.T. Hon’s Law of Evidence (Volumes I and II). He also wrote the book: Constitutional and Migration Law in Nigeria. A constitutional lawyer, Hon speaks on how the war against corruption can be won, restructuring and the whistle blower policy. He also speaks on why he thinks Chief Judges lack powers to grant prisoners pardon. Legal Editor JOHN AUSTIN UNACHUKWU met him.

What is your appraisal of the anti-corruption war?

So far, so good, President Buhari’s government has taken unprecedented steps and actions in the fight against this monster. The Economic and Financial Crimes Commission (EFCC) too is also recovering stolen moneys, using the whistle blowers’ policy. Even before then, the EFCC had recovered large amounts of money under the plea bargain regime of the Administration of Criminal Justice Act. Let me add here quickly that Nigeria is ahead of advanced democracies, including the United States (US), the United Kingdom (UK), Canada, Australia, etc, in this regard, by legislating on plea bargaining.

Plea bargaining is practiced in those countries without a national law backing it. Let me caution that Mr. President cannot afford to fail in his anti-corruption policy, because he rode on the promise of pursuing it to power. The anti-corruption ship seemed to have taken off well some months ago, but is now being buffeted by corrosive elements in the Nigerian imaginary waters.

What is your reaction to the seeming disagreement between the anti-corruption agencies?

Corruption is really fighting back, there is no love lost among officials of the regulatory agencies. Also, some of the arrowheads of the anti-corruption struggle seem to be angry with or to be condemning everybody except themselves. This is not the way to go and if this trend continues, we will soon have a shipwreck. For instance, it is too sweeping and counter-productive for certain government officials to run down or rain tirades on the entire Judiciary and all senior lawyers and paint these classes of people as being responsible for the plummeting fortunes of the anti-corruption war.

I wonder what these officials want to achieve by this posturing, other than creating unnecessary enemies. I strongly counsel that this attitude should change; otherwise, the anti-corruption drive will be another mirage. The issue of poor funding and inadequate professional training of investigators and prosecutors are some of the other contributing factors.

Are you bothered about the loss of high profile cases?

A house divided against itself cannot stand. “House” here means the relationship between or among officers of the anti-corruption and regulatory agencies on one hand and the relationship between this ‘house’ and the two other arms of government on the other hand. For instance, if you malign the entire Judiciary and splatter its entire components with foul content, what sympathy would you expect from a Judge if, for instance, a matter is 50-50?

The government should also fund the EFCC and the Independent Corrupt Practices and other related Offences Commission (ICPC) more, because profound prosecution of offences with intent to produce results is costly. Make no mistake about this, investigation must be well funded and the prosecution lawyers must also be well paid. I have for long now been rolling out statistics to prove that the anti-corruption war has been grossly under-funded in Nigeria. Let me rehash this comparison here.

Can you give practical examples?

The population of the US is about twice more than that of Nigeria. This means Nigeria is about half of the US population. But the FBI, which is the equivalent of the EFCC, enjoys annual budgets which, on the average, are 50 times more than the annual budgets of the EFCC and the ICPC combined. The FBI has slightly over 50,000 personnel, while the EFCC and the ICPC combined have less than 5,000 members of staff, yet Nigeria is more corrupt than the US. That is why you see shoddy investigations and at times poor prosecution, resulting in acquittals, even when facts pointing to culpability are very glaring.

Nigeria’s tottering journey in the technological subsector is also responsible for this; because forensic science is one sure aid to modern day investigation and crime detection. Government should establish forensic examination centres and should also train professional forensic experts in handwriting, fingerprints, blood sampling, detection of e-signatures, recovery of deliberately deleted computer documents, e-tracking of laundered cash, etc. The anti-corruption war cannot be won through the use of orthodox, call it crude, investigative techniques.

How can the whistle blower policy be strengthened?

So far, the policy has recorded moderate success in Nigeria. The EFCC has recovered large sums of money through this policy. I support the effort being made to pass a law to regulate whistle blowing in Nigeria.

Why do you support it?

With such law, every Nigerian or person resident in Nigeria interested in blowing a whistle on financial or other crimes will know his rights, obligations and liabilities. Regulatory agencies should also not just protect the identities of whistle blowers, they should also faithfully and fully reward them as initially promised. Nigerians should also jettison tribal, religious or filial relationships and blow enough whistles that would be capable of stupefying and eventually stamping out crime, especially financial crime, from our national firmament.

There have been hate speeches, drums of secession and calls for the restructuring of the country. What is your view about these and how do you think we can resolve these challenges without recourse to violence?

It is rather unfortunate that we have reached this level once again in our stuttering national history. The catastrophic effects of the Nigerian civil war,  the near-nationwide conflagration that followed the unfortunate annulment of the June 12, 1993 Presidential elections, the various ethno-religious conflicts that have consumed thousands of lives, the ongoing herders-farmers’ conflicts, the Boko Haram onslaught and several other inter and intra-communal skirmishes have almost freaked everybody out in this our dear nation.

Let nobody, especially the Federal Government, play the ostrich or show crass insensitivity or injustice on this emerging scenario or likely total breakdown of law and order. Nigeria is dangerously hanging on the cliff. I call on the President, who is the father of the nation, to rise to the occasion and take the epicenter of championing national rebirth, national reconciliation, national understanding and national brotherliness.

How can this be done?

A Truth and Reconciliation Commission, manned by detribalised Nigerians, should be constituted by the Federal Government. Yes, I don’t mind if anyone says I am copying from South Africa. I am proud to do that, because every person knows the extent to which apartheid fractionalised the South African society. And everybody also knows what role the Bishop Desmond Tutu-led Commission did to bring about national reconciliation and national unity in that country.

The immediate step before such Commission should be for the various ethno-cultural groups to lay down their arms and embrace dialogue. But as I said before, Mr. President should take the lead  as done by former President Olusegun Obasanjo in 1999. I cannot forget the steps President Obasanjo took immediately he assumed office  at the height of the Niger Delta agitations then. I will also be the last to forget the immediate chilling effects those steps had on the said struggles. Mr. President, please rise to the occasion as the ex-soldier and elder statesman you have for long been known.

So, what is the way out in our present context?

In our present context, Nigeria can be restructured through a massive amendment of the 1999 Constitution. A few weeks ago, my article on restructuring was published by several national dailies. I stand by the content of that write up.

The Judiciary had been generally referred to as the last hope of the common man. Can you honestly say that about Nigerian judiciary today?

The Judiciary, not just that of Nigeria, has always been the last hope of the common man. The Nigerian Judiciary, contrary to widespread public opinion, has been doing well from time immemorial. I remember and relish the 1970 declaration by the Supreme Court of Nigeria that the military government of that time was a defacto government, which came into power by sheer necessity and not by law.

I also remember various ground shaking decisions of the Nigerian Judiciary on the rapaciously fierce political disputes that go to court. Remember the decision of the Supreme Court on the Rotimi Amaechi case? No matter what anybody feels, I stand with the Supreme Court on that decision. What of the 2002 “resource control” decision of the Supreme Court? I can go on and on.

While I admit that the Nigerian Judiciary has its own problems, I don’t like the wholesale lampooning of this crucial arm of government. The Nigerian Judiciary is the weeping boy of Nigeria. Everybody, who knows how to talk or write, takes it to the cleaners, forgetting that such bashing unwittingly drives away foreign investments. I prefer that if individual Judges have credibility problems, such should be specifically addressed rather than everybody embarking on class condemnation.

So, what is your advice?

Having said that, I will counsel that each member of the Judiciary should strive as much as they could to live above board since one solitary instance of inappropriate behaviour is ascribed by Nigerians to the entire Judiciary. The National Judicial Council (NJC)  too should not spare the rod on any judge, no matter how highly placed, if found wanting. But again, let me state here that as among the three arms of government, the Judiciary stands out distinctively, by doing the most in terms of in house cleansing. Countless number of Judges have been dismissed or levied other forms of punishment, as opposed to principal or subsidiary officials of the two other arms of government  when everybody knows that corruption exists on a massive scale in those other arms.

Your state, Benue, recently experienced flood with many towns and homesteads washed away. What is your feeling about this and how do you think it can be avoided in future?

I feel very sad. It is, indeed, a very sad and pitiable development that over 100,000 families have been affected by the flash floods. Some have lost everything, making life meaningless. A few precious lives were also lost. Makurdi, the Benue State capital is on  a very low land. The River Benue, which runs through it has remained un-dredged for years, even though successive Federal Governments had always claimed awarding its dredging contracts.

The propensity of this River overflowing its banks is very high, especially during rainy seasons. I must say that management of waterways passing through more than one state is on the Exclusive Legislative List hence,  it is the sole responsibility of the Federal Government to undertake this dredging exercise.

Many people have blamed the state for the flood and for not doing enough to ameliorate its effects on the affected citizens, what is your reaction to this?

Well, I am also not mindful of the allegation by the present government that billions of naira allocated as ecological funds were siphoned by the previous government. As much as I would want to remain apolitical, this is devilish and most wicked, if true. The culpable persons, who allegedly perpetrated this heinous crime against the state, must be brought to book. How can anyone start blaming the present government of that state, which inherited a default treasury and backlog of unpaid salaries?

Let me stop here before politicians start throwing jabs at me. I call on all persons of good will and corporate organisations, especially those operating in Benue State, to come to the rescue of the hapless Benue people affected by the floods. I also appreciate the role the Federal Government has played so far to alleviate the suffering of the victims and I do hope it will make good its promises to take more permanent steps to forestall a recurrence of this.

The Supreme Court in a recent judgment described you in sterling terms. How do you savour that?

My attention was drawn to that judgment by a Justice of the Court of Appeal; and I obtained copies thereof from the Supreme Court and confirmed that. To me, there is nothing extraordinary about those comments, as many lawyers in Nigeria have received such plaudits from the apex Court before. But, I must admit that the Word of God, which says a diligent person will stand before kings was confirmed in that judgment. To God be the glory.

Recently, you and a senior lawyer, Femi Falana,  have engaged in a seemingly unending arguments on the powers of the Chief Justice of Nigeria (CJN) and the various states  Chief Judges to release detained persons from custody. Why and how did you reached this stage?

After deep research and introspection, I came to realise that this practice, which has been going on, offends the powers vested in courts to order such release as contained in Section 35(4) of the Constitution or the only administrative window in Sections 175 and 212, respectively of the 1999 Constitution, which sections have vested in the President and the respective state governors the power to administratively order release of either convicted or detained persons.

I argued that in so far as the itinerant prison amnesties embarked by the Heads of Courts is not constitutionally guaranteed, it is unconstitutional for either contradicting directly the above provisions of the Constitution or for competing with them, contrary to the doctrine of covering the field. It was at this point that my learned friend reacted and maintained an opposite position.

Since then, we both have refused to let go. He later relied on Iloegbunam vs. Iloegbunam, a decision of the Court of Appeal delivered in 2001 and gloriously submitted that the Court of Appeal upheld his arguments, validating the administrative release from custody by the CJs, under Section 1(1) of the Criminal Justice (Release from Custody) (Special Provisions) Act. However, no such finding was made by the Court of Appeal in that case. Rather, that Court declined to rule on that issue because it was not properly brought before it. In any case, that Act, promulgated during the military era, cannot be superior to the Constitution. So, I tenaciously stick to my guns on this issue.

You have received multiple honours and awards. First, Gboko Local Government Traditional Council  conferred on you a chieftaincy title, then followed by the Faculty of Law students , Ekiti State University Ado-Ekiti,  and finally the National Association of Nigerian Students (NANS) also honoured you. How do you see these honour and awards?

I rate the chieftaincy title awarded to me by the Gboko Local Government Traditional Council very highly for two reasons: First, the fact that I did not lobby in any way to be so honoured  gladdens my heart and secondly, the meaning of the title is most encouraging to the modest effort I have, by God’s grace, put up in my life struggles.

What does the title mean?

I was honoured by my people with the title: “AfaAtindi U Gboko”, meaning “Mr. Know the Law of Gboko.” To me, this is most encouraging. For one to be recognised by his home Local Government and Traditional Council and to be honoured with a title that depicts excellence in his professional calling, is just as chilling as iced water.  A few weeks after receiving that title, I received a mail from the President and Secretary of the Law Students Union of the Ekiti State University, Ado Ekiti, requesting that I should agree with them on a date they would travel all the way to Abuja to come and honour me with an award, predicating it on, according to them, my stupendous contributions to the development of the law in Nigeria. They came after we had exchanged a few mails. Then few weeks after, the National Association of Nigerian Students, (NANS), one day dropped a letter in my Abuja office, requesting that I accede to their proposal to honour me with an award. Upon my acceptance, they came with what they termed the highest award any individual can receive from NANS. For all these and several other awards, I will say all glory and honour should go to my Lord and Saviour, Jesus Christ, who has sustained  and imbued me with knowledge. I also feel challenged to do more.



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