[allAfrica.com]  [celtel.com]


State of Emergency, the President Was Right - Olujimi

This Day (Lagos)
INTERVIEW
May 25, 2004
Posted to the web May 26, 2004
Lagos
President Olusegun Obasanjo is not one to shy away from controversies. Last
Tuesday he did it again. He declared a State of Emergency in Plateau State
following the prolonged crises in the state. The question on the lips of many
however is, all things considered, did the President act within the confines of
the 1999 Constitution? The Attorney General of the Federation and Minister of
Justice, Chief Akinlolu Olujimi, SAN, insists that President is right.
The President has a right to declare a state of emergency in any part of the
federation and in the federation. In the case of Plateau state could you tells
us if the constitutional provisions were followed?
Yes, I am saying practically that the provisions of the Constitution were
followed in declaring a state of emergency in Plateau state. Section 305 of the
Constitution is very clear on what we have to do and that was what we did.
The crisis in Plateau state had come under some control just before the
President declared a state of emergency in the state. Things were not as bad as
they were a few months back. Were the conditions really such that warranted his
declaring a state of emergency?
Well, you are making an admission here. Things were bad before this declaration
issue was made. The Constitution does not say that you can only declare a state
of emergency when the crisis is still continuing. We are talking about loss of
human lives, it is only those families who were affected that can tell you the
kind of grief they are into, the kind of deprivation they have suffered. A man
has lost his wife, a wife has lost her husband, a wife has lost her children,
and a father has been deprived of his children because the leadership at the
state level has failed. Now you are saying because we had respite of one day,
we ought not to have declared a state of emergency. I don't share your views.
If you look at the gravity of the situation there and if you are sincere to
yourself, you would agree that there was every good reason to declare a state
of emergency in Plateau state. Now, you would find that even the opposition,
the ANPP supported this declaration. You would of course have found the ANPP
condemning it if they didn't see that there was a lot of sense behind it. So I
think from that perspective, you can say yes, this was something that the
President ought to do, and which he has done.
Taking into consideration the provisions of section 1(1) and (2) of the 1999
Constitution, does the President have a right to appoint a sole administrator?
Of course he has that power.
Could you explain?
Well, the law is very clear, you are looking at the Constitution. There are
other laws that you have to read along with the Constitution. We have what you
call the Emergency Powers Act of 1961. That power was evoked in 1962 in the old
Western region, when we had a similar declaration made, and we had Dr.
Majokodumi appointed as administrator of the Western region at that time, so
that law is still in existence today. Under that law when you declare a state
of emergency, you can appoint an administrator to run the affairs of the state.
What about the Constitution?
I am a lawyer, you aren't one, so this thing is intelligible to me, but not to
you, if you were a lawyer, you can put these things together easily and explain
them.
The President in a letter to the National Assembly said that if the Sole
Administrator needs laws to administer the state, it will be as considered by
himself and the Federal Executive Council. Does he have such powers to make a
law by himself for another state?
You see, the Constitution of our land makes provision in respect of all these
things. I have referred to the Emergency Powers Act. Under that Act, the
President has powers to make regulations to guide the operations of the
administrator of the state and of course the National Assembly is also involved
in this, so you have laws backing up every action, every step of the President
in this matter.
Going by section 11 (5) of the Constitution, does he have a right to sack a
State House of Assembly, which could not be deemed unable to perform its
functions as they were still sitting in Jos, which is not affected by the
crisis? Jos was not affected by the crisis. Only three local governments were
affected and the State House of Assembly was still functioning, so one begins
to wonder if the constitutional provisions were actually followed here?
Section 305 gives power to declare a state of emergency in a state. It is not
something directed solely against the governor. You declare it in respect of
the state, so it affects the elected machinery for running the affairs of the
state, in which case you don't leave out the State Assembly and say it is only
the governor we are fighting with. That is not the position, go and read
section 305 of the Constitution. When you declare that kind of emergency, it
affects the state and of course the structure on ground for running the affairs
of the state. That is the position.
Section 188 appears to be the only provision in the 1999 Constitution on how a
governor can be removed from office. Was this section complied with and does
the state of emergency imply sacking of elected government officials and other
democratic institutions or should it not have been restricted to the President
taking over the security affairs of governance in the area as the Chief
Security Officer of the country and the Commander- in-Chief?
Sections 188 and 189 of the Constitution provide a scheme for the removal of a
governor from office and if you read those sections, you find that they are
providing for a situation totally different from a state of emergency. Now, if
you go back to what you heard on television or read in the papers about this
emergency, you find that governor suspended for six months, the house for six
months, I hope you get that distinction, that is what you have under section
305. So at the end of six months, the situation will be reviewed by the
president.
Even at that, did the Constitution make any provision for suspending an elected
governor?
When you declare a state of emergency anywhere, it puts on hold the elected
machinery for running the affairs of the state. It puts them aside. You now
make a temporary arrangement for running the affairs of this state. That is the
effect of that declaration, so the governor cannot go on functioning, the House
cannot go on functioning. That is the effect of it and we have six months
stipulated. The President could just as well have said three months, but he
said six months. At the end of six months, he will now review the situation and
see what next he should do. That is the position. Sections 188 and 189 of
course provide for something totally different, once you remove a governor,
from there he goes. It is not six months, it is not three months. He goes once
you are able to get him removed under those sections.
As the Attorney-General of the Federation and Minister of Justice, could you
tell us what input you made into this declaration?
You just said that as Attorney General and Minister of Justice.... You see,
I've played my constitutional role as Attorney General and Minister of Justice
in that declaration.
What constitutional role did you play the declaration?
I rendered advice in respect of the declaration, that is my duty.
Are saying that going by what you felt happened in Plateau, you advised the
president to declare a state of emergency?
That is my duty. When you assess facts before you, it is my duty to now say
yes, on the basis of these facts, it is possible to do this. That is what
lawyers do. They look at the facts and then render an opinion, and as Attorney-
General, it is my duty to advise His Excellency.
And that was what you did, you advised him on this and then he took the advice?
Do you expect His Excellency will function without necessary consultations and
advice? Do you expect he will function with that kind of support that the
Constitution allows him to have recourse to, it is not a one man show, he
doesn't believe in that, he makes contacts, consultations and then take
appropriate advise.
How has Government's obedience to Court orders improved?
Tremendously. I must tell you this. There have been several judgements of the
court, which I know and can say anywhere that I have advised government to obey
and which they have complied with without looking back. I mean there has been a
tremendous improvement in that area. That I can say, because there are records
to back me up, so if anybody says government doesn't obeys orders that is not
true. With regard to this administration, they respect the court and they
respect court orders and when they are made, we obey them. Of course we have a
right of appeal which we exercise when we believe that a judgement is wrong,
that is the right of every individual, including government and nobody of
course will deny us that right to appeal and complain when we find that a
judgement is wrong. So, I think you should give us credit for what we have been
doing, in obedience to the judgments of the courts.
I would like you to explain further to us, taking Anambra state into
consideration. The Court of Appeal in Enugu made an order that his orderlies
should be restored but till date that order has not been complied with.
You see, I am happy you are raising this question now. That is the error you
all make. You hold on to a set of facts without investigating whether there are
facts contrary to that which you hold. Now, if I ask you to produce today an
order, directing government to restore the aides of governor Ngige, you cannot
produce one. The only one you can get to produce today as I am talking to you
is the one that the very Appeal Court that made an order, you people are
misreading made, refusing to restore the aides of Governor Ngige. The Guardian
Newspapers reported that ruling when that same Court of Appeal gave it. The
Guardian Newspaper reported it and the same Guardian had been to me before that
decision was made by the same court to ask me the same question you are asking
me now.
They went to the court and the Court said until we hear you out, we cannot make
an order, directing the IG to restore your aides. Suppose we disagree with you
at the end of the day, what happens? If in the interim we have ordered that
your aides be restored, wait until we have taken your motion and we have given
a decision. That you can verify from the records of the Court of Appeal in
Enugu. You people have a way of giving or distorting facts and saying what you
like, but that is the truth. You can find out. It is there in the records in
Enugu. You may make some efforts to find out whether this happened. In fact, I
can get you a copy of that ruling where they made that decision, refusing to
restore the aides. I even called the journalist who had before said I had
advised they should not restore this and all that because I gave an opinion,
but the same court they went to after my opinion, interpreting the order of the
Enugu, that look, there is nothing here saying you should restore aides.
All they are saying is don't disturb the governor in the performance of his
duties and you should also not remove him. They have not said you should
restore his aides, they all went out at time to crucify me, but they went to
that same court just about two weeks, after my opinion and they now said the IG
has refused to restore the aides of the governor, 'may we now ask you sir, My
Lord to direct him to restore the aides', and the judge now said, restore which
aides? We have not heard your Motion, it is only after we have heard your
Motion and we agree with you to make that order that you can make it, but in
the interim, we cannot make that kind of order. So there has been no order by
any court, directing the IG to restore the aides of Governor Ngige. If the
court says that today, I can assure you by tomorrow, the government will obey
that order. It is 9.00 pm now. If that order comes now, before morning, it will
be obeyed.
You will agree with me that lots of the laws in our statute books are in dire
need of review. How far have you gone with it?
I have gone to a long extent. I have reviewed the Evidence Act. I have set up a
committee to look into legal aid. They are working on the Legal Aid Act. I have
set up one to look into the Human Rights Commission Law. I have set up one to
look into the Criminal Procedure Law. I have set up another committee to look
into the Maritime Law. I have set up another to look into the Petroleum Laws.
We are looking into all these various laws and of course again, I am going to
inaugurate another committee next week, to look into all laws affecting the
banking industry generally, so I have taken care of all these.
Do they have a time frame?
Of course they have a time frame, they don't have all the time in the world to
sit down there! I gave them a short time to do these things and come back with
their reports. These are the kinds of things we know we should do. Our laws are
old and we must bring them up to age.
What is your manifesto for the Judiciary and what has been your biggest
achievement? You've spent almost one year in office.
The plan I have for the Judiciary and which is already being implemented is in
the appointment of Judges. It will no longer be on the basis of whom you know.
It will be based absolutely on merit. Somebody might qualify from the Law
School and stay at home for 10 years without practising the law, at the end of
10 years, he might apply to be made a Judge. Of course, in the past, some
people like that had the opportunity of being appointed. Now we say that you
should not just qualify as a lawyer for 10 years, you must be seen to have been
in practice for a greater part of these 10 years, because we expect that when
you now apply to be appointed a Judge, you must be able to show evidence. That
is, copies of judgments you obtained in the cases in which you appeared. That
is the only evidence that you have been in practice, nobody is saying you must
have won all these cases, even if you lost all those cases that you were
involved in for 10 years, that shows you have been in practice. You are better
than somebody who never had any access to the court say for 10 good years after
he qualified and is now just coming up in the 11th or 12th year to say, I want
to become a Judge.
There is nothing in terms of experiential background to fall back upon and we
don't want to subject justice to any tinkering or handling with people whom you
cannot confidently assign to be able to deliver justice. We want only those who
know exactly what this thing means and who are ready to work for it. That is
one thing we have been able to do in area of the Judiciary.
The issue of training and retraining is also one thing we emphasise and I am
happy that we are having these trainings almost in torrents these days. The
National Judicial Institute is the body charged with organising courses and
training for judges and that Institute is functioning very effectively, very
efficiently. Every now and then, they bring Judges up from their various states
here (Abuja) to attend one workshop or the other. One training or the other, so
we are having a significant improvement in that area.
In the area of the review of the laws, the Evidence Act, that is the law we
refer to in the trial of cases in court. The Evidence Act is a tool, a very
important indispensable tool in the trial of cases. If you don't have the
Evidence Act, you cannot go on with any trial in court. Now the Evidence Act is
antiquated, so to say. At the time we enacted it years ago, the computer was
not here. There was nothing like the fax. Nothing like e-mail. So the law
didn't provide for all these IT innovations. As a result, we have revised that
law and in a few months time, it should get before the National Assembly to be
enacted into law.
We have looked at the prisons. That is part of my achievements. The congestion
there is appalling, it is irritating! In fact, scandalous, so I have set up a
committee to audit the prisons. We are told that the number of Awaiting Trials
far outstrips the number of those who have been tried and convicted and
sentenced.
The purpose of the audit is to see in what way we can reduce to the barest
minimum the congestion in the prisons. We also are looking at the system of
sentence that the court can impose after a trial in criminal cases. We are not
making use of what you call non-custodian sentence scheme in this country.
After a trial, the man is found guilty, he is not charged with a capital
offence, the aim of the law is not to revenge or retaliate on behalf of a
victim, but just to ensure that justice is done in the sense that the man, the
victim whose feelings have been assaulted, whose property has been taken from
him gets justice. He expects justice and justice to him is a trial and
conviction by the court. What we are trying to propose is that instead of
congesting the prisons by sending everybody to prison, you can try the non-
custodian sentence scheme, which permits a Judge to sentence an accused person
to community service. They just say, okay, we found you guilty, instead of
sending you to prison, you will go to a particular local government area, carry
out this service for a period of months. Or it might be a simple case of, we
are suspending this sentence for the next two years. That means you must be of
good behaviour during those two years. If during the two years you misbehave,
you commit another offence, then they can bring you back for you to come and
serve the sentence that has been suspended, because you have now shown that you
are incorrigible, you cannot change and the only thing for the law to do is to
now impose the due punishment on you. When we have the suspended sentence thing
operate in our law, it will have a way of reforming these prisoners, because
they know that once I misbehave, once I misconduct myself, once I commit
another offence during this two-year period, then I might be taken into
custody. If one behaves himself, comports himself, then it will just be simple
probation; attend the welfare office on daily basis, where they will counsel
you, talk to you, advise you how to live and interact with your fellow human
beings in the society. These are the kinds of things, which we are doing in
respect of the prisons.
Of course there is this complaint that the trial of cases in our courts is
always unduly delayed. You put a case in court, 10 years you are still fighting
this case in court, by the time you will finish, even when you are declared
victorious, you probably have nothing to show for it. That was what prompted a
critic of the legal system where delay is too long to say that litigation is a
machine you go into as a pig and you come out as a sausage! There is one
satirical painting in my private office at Ibadan where this man thought that
when you go into litigation, at the end of the day, even when you win, you have
nothing to gain. It the painting of a painted cow. You put the lawyer sitting
down under the cow milking it. One litigant holds the tail, the other litigant
holds the head but the lawyer is under the cow milking it. While the trial
lasts, even if it is for 20 years, the lawyer according to his practice is
milking the client, taking his money on daily basis, at the end of the day, the
litigant comes out of this encounter poorer. He has been wasted in estate, in
mind and in body. He has nothing to show for it, so we are trying to correct
this image of the law so that you can now get to court, get your case disposed
off expeditiously.
We also have established and I am happy I can point to the Abuja High Court
premises. There, you have the Multi-door Court House. I have encouraged my
colleagues, Attorneys-General in all the states of the federation to establish
similar Multi-Door Court Houses and I am happy that many of them have done
that. I challenged them. I said I am going to visit every state and I want to
be shown what you have done when I come. Now, they don't want me to come and
they have nothing to show me, so they are working on it and I am happy that
this is happening. During the meeting of the Attorneys-General, which we've
been able to hold regularly, we discuss very important issues affecting the
country. The reforms I am pursuing here extends to the state level. It won't be
a kind of situation where you have the federal level properly reformed and the
states are not. There must be uniform level of reform and that is what I am
pursuing with my colleagues, Attorneys-General.
In all these, which would you consider your greatest achievement?
Quite honestly, there is none that is not very big to me, there is none because
I formulated an agenda when I came in and I give equal attention and priority
to every item on the agenda so if I am able to achieve any, I do not consider
it bigger than the others, but I am happy that I am making steady progress on
all these fronts.
Constitutionally and in a federation, does the President have a right or the
powers to withhold funds to local governments and did you advise the President
in that direction?
Let me explain this to you. You see the question you are asking me is not
properly predicated. You are asking me a question whether the president has
powers to withhold funds. If I am to ask that question directly, of course I
will simply say he has no such power, but what really informed that decision is
what you have not stated. The President has power under the Constitution. In
fact, let me say, a duty, under the Constitution to pay the allocations due to
these various local governments that the Constitution created. If you look at
the Constitution, the Constitution created 774 local governments areas in the
country and names them individually.
If you open the Constitution, you will find them there and you find these local
governments named, if you want to change any item of the Constitution, you have
to go to the National Assembly, no state in the country has power to amend the
Constitution, so if a governor creates local governments, that is not the end
of it, he now has to file returns of these new local governments areas to the
National Assembly. The National Assembly will now proceed under the same
Constitution, you see to amend the Constitution, bring in all these new
councils, so it will no longer be 774, it will be 774 plus those new local
governments that they have now brought in.
Now, those states that went to create local governments did not complete this
exercise, in fact, some went to abolish what the Constitution created. In other
words, you have the Constitution saying the particular state, you have Ojo,
Aino, Alaba, Idowu as local governments, spelt out like that by the
Constitution. Now, the state wiped out those Ojo, Aino, Alaba and Idowu and
created new ones, giving them the names of blue local government, red local
government, green local government, white local government, which the
Constitution never created and which the National Assembly has not accepted by
way of amendment of the Constitution and inserting these new local governments
into the Constitution. So if under the law, the president has a duty to pay
allocations to those local governments created by the Constitution and
recognised, if they are no more, tell me, to whom do I pay this money. These
local governments that the Constitution created are now in law dead, to whom do
I now pay. If you say I should give to the governor of the state, for which
local government, the ones he has wiped out or for the ones he brought in,
which the National Assembly has never accepted, has never recognised, has never
brought into the Constitution.
If for instance as I said to you, we have Idowu, Alaba, Aina and whatever, you
left those ones the Constitution created and now added blue, green, white, then
if I am satisfied that these Alaba, Ojo, Aina, which Constitution created are
still there, of course I will make the allocation for those ones available, but
not this blue, green and white.
Let these governors come out and tell us: 'This is that we have not altered,
this is what the Constitution created', let them come out and say that, it is a
very simple matter.
Assuming the Governors have not done the proper thing by creating new local
governments, they have not followed all the constitutional provisions, has the
President followed constitutional provision by withholding funds from local
governments since the ones specifically mentioned in the Constitution, the ones
that were not abolished by their government are still there? The governors are
saying they would know how to disburse the funds.
We need to know the fact in respect of any case before we can properly
criticise. The governors are saying if you give us this money we know how to
distribute. The President has a duty to uphold, in fact he swore an oath to
uphold and defend the Constitution, so if the Constitution says pay allocations
to these local governments in the Constitution, and he has evidence that they
are no longer there by the act of the governor of the state, you are saying he
should now still give money to them, he will be committing an illegality
himself. If he is aware that these structures are no longer there, but what you
have there are the contraptions of the governor, should he now say, okay take
money. He will be committing a breach of the Constitution himself and that is
why he cannot and should not do it.
If there is clear evidence anytime and the governors come up with clear
explanations that, look at my local government law, this is what we created, we
had 17 before, I have not touched them, look at my local government law, I have
set out all these local governments there, I have only added 1, 2, 3,4, okay I
will give you money for those ones that are still there that the Constitution
created, but not for those four that you brought in. So if you are merely
saying it without coming up with evidence, you are merely saying it, alleging,
why don't you say okay, this is my local government law? Very simple matter, I
don't see any complication there.
What will you say about the general state of insecurity?
Well, there is insecurity and government is tackling it very vigorously, that I
know. The security agencies have mobilised to see themselves tackle this
insecurity. Let us pray for their success, let us cooperate with them, let us
make information available to them, these criminals who commit offences live
among us, if you have information, tell the police, that is what is required of
you and me. The policemen are not angels, they cannot be soothsayers, able to
see into hidden things, they are not seers, they cannot see into hidden things,
but when you assist them with facts, then they are ready to act. So don't
withhold information when you are aware that anybody anywhere is committing a
crime, tell the police.
Don't you think that the high rate of unemployment contributes to the rise in
crime? Is government really doing enough?
There is a connection and all the reforms that government is embarking upon are
directed at reducing drastically unemployment. Government is talking now about
getting the banks to reduce the interest rate so that will stimulate the growth
of the economy. People will now be able to set up small-scale industries that
would take on many of those unemployed in the society now. These things are
happening, but because we don't see immediate results, you say ah! Government
is not doing anything. That is not so. Government feels concerned. Very
seriously too and steps are being taken, that I know.
With the happening in Delta, Kano and other hot spots of the country, one
wonders about the highly sought after foreign investors?
You see, you are right on these points you are making that when there is
violence, there is insecurity in a nation. Of course that will scare away
investors and that is why government is investing every effort to bring this
insecurity issue to the barest minimum because even you sitting here, if there
is insecurity you would also run for cover! If I know that going along a
particular route now will expose me to the possibility of danger, won't I go
through another route? That is the way it happens and that's why government has
committed itself to a serious effort to tackle this issue of insecurity and
with your help, your cooperation, your assistance, I know that we will be able
to get this insecurity thing reduced drastically.
In concrete terms, don't you think there is a need to convene some kind of
National Conference, where Nigerians will sit together and really talk about
these matters?
Well, this thing keeps going about, but quite honestly, I have never believed
in this question of national conference. You have people elected into the
National Assembly, are you saying they don't understand what to say when you
bring up issues for debate? You only have to go there and see the level of
debate, the maturity they bring into, the intellect they display for you to
know that the crop of legislators we have there today, are men you can be proud
of anytime, any day, anywhere. They will compare very favourably with their
counterparts in other parts of the world. So whatever issues you want to debate
affecting you, take it before them, they will debate it. Are you now saying,
set up a national conference, set aside these set of people and those you are
now bringing in to debate, let them go and contest election and get into the
House and raise these issues when they get there? I don't see that as a
solution at all, it doesn't help in anyway, those people in the National
Assembly will debate any issue you take to them very effectively, very
intelligently, very efficiently.

   

  =============================================================================
   Copyright © 2004 This Day. All rights reserved. Distributed by AllAfrica
                         Global Media (allAfrica.com).
  =============================================================================