Can The National Conference Provide A Legal Basis For A Brand New Constitution?


At last, the Sovereign authorities have accepted the need for a National Conference. Civil society in Nigeria has always insisted that only the People of Nigeria can authenticate, legitimize and endorse a Constitution to govern their affairs. Unfortunately, this simple wish was always denied by the colonial, military and even elected government. So President Goodluck Ebele Jonathan’s Independence Declaration is a major milestone.

The Late Aka-Bashorun, my most illustrious predecessor, as President of Nigerian Bar Association, the first to clearly articulate the need for a Sovereign National Conference, as long ago as the 1980’s, must be rejoicing in his grave. Civil society has always stated that a National Conference is a vital requirement for a People’s Constitution for Nigeria.

Civil society’s demands have always been straight forward and simple that Nigeria will benefit from a robust discussion on two vital questions posed by Late Bola Ige, when he said:

…there are two basic questions that must be answered by all of us Nigerians. One, do we want to remain as one country? Two, if the answer is yes, under what conditions?

I respectfully suggest that Bola Ige’s questions are well framed as the relevant National Questions we need to address, if we are to build a new Spirit of commitment to Nation and service to motherland.

President Jonathan has charged a committee to frame the issues and nature of participation, and most important the legal basis upon which the outcomes of a National Conference can be enacted into law by the National Assembly.

Civil Society on the other hand has expressed the view that the nature of the conference will necessarily have to be sovereign. I will return to the basis of this request by civil society.

What is important at this stage is the utilizing of the limited platform offered by President Jonathan to engage Nigerians in very robust discussions on the Constitution and without “No-Go” issues.

Even though there are challenges about participation, my suggestion is that participants may be drawn from ethnic nationalities and at least the six basic estates of the realm, namely the Executive, Legislature, Judiciary, Media, Civil society and Organized Business. I have defined civil society in a very broad sense to include NGO’s, religious and traditional institutions and of course labour, youth and women.

I agree with Dr. Tunji Abayomi when he said “Every Constitution is preceded by a debate of terms and consensus on principles”. This  simply means that we have to agree. I think the most important key to a successful National Conference is the structure of government and devolution of powers. It is obvious that Nigeria is a very diverse country. Scholars suggest that federalism is the political system best suited to diverse peoples. If this is agreed at the conference, the corresponding question should be about the structure of the federal system and the scope of powers of the autonomous governments, that is the federal government on the one hand and the state government and even the local government, on the other.

I would readily adopt Dr. Alex Ekueme’s recommendation that the new structure of Nigeria should be based on our six geo-political zones. I would further recommend massive devolution of powers from the Central government to the state governments. This is called the principle of subsidiarity. If we accept this basic conceptual framework, it will then be easy to constitutionalize the political arrangements into a Peoples constitution. 

Now to compensate for the non sovereign nature of the conference, I would like to identify four vital elements that we must keep in mind. They are inclusion, authority, validity and legitimacy.

By inclusion I mean every Nigerian must be allowed to freely speak his mind. By authority I mean that we have to accept that the President and National Assembly are the convening authority. By validity the government has to accept that we the People shall validate the Constitution by Referendum. By legitimacy I mean that our discussions shall not be altered by the government, but shall be final and binding and validated by Nigerians

I now turn to perhaps the most difficult subject of all in this matter of the National Conference. Here is the question – after we agree, how do we bring the discussions into legal force? I think Prof. Ben Nwabueze, SAN, has, as usual, provided a simple and lucid answer.

Prof. Nwabueze reminds us that the National Assembly has two types of legislative powers. First, the National Assembly has legislative power similar to that of any House of Assembly of a State. In this context the National Assembly is just one of three of the branches of the Federal Government. The National Assembly makes law in this field pursuant to its powers contained at Section 4(2) of the Constitution. These are the exclusive and concurrent lists. But the National Assembly has a second legislative power. This is covered by Section 4(1) of the 1999 Constitution. Prof. Nwabueze having noted that “Section 4(1) provides that legislative powers of the Federal Republic of Nigerian shall be vested in the National Assembly”, goes on to say that what is so vested in the National Assembly  therein, is the legislative power, not of the Federal Government, but that of the Federal Republic of Nigeria. The legislative power in this second field is a term wider than the legislative power of the National Assembly as a branch of the Federal Government. In short the National Assembly has dual power to make laws on the one hand as a branch of the Federal Government and on the other hand for the Federal Republic of Nigeria.

The National Assembly is authorized to make laws for the Federal Republic of Nigeria for its peace, order and good government. In this sense, according to Prof. Nwabueze, and I respectfully agree, the entire legislative sovereignty of the Federal Republic of Nigeria is vested in the National Assembly. It is important to state that the legislative power of the National Assembly to make law for the Federal Republic of Nigeria is not limited to matters specified in the exclusive and concurrent list. It includes, Prof Nwabueze says, and pursuant to Section 4(4)(b) “any other matter with respect to which it is empowered to make laws in accordance with the provisions of this Constitution”. It is in this context that the National Assembly can exercise powers pursuant to section 4(1) to repeal Decree 24 of 1999 which is the legal basis of the 1999 Constitution and replace it with a brand new Constitution. The legal position will be different if the National Assembly is merely altering the Constitution. This is covered by Sections 8 and 9.

Prof. Nwabueze cites the example of what Parliament did in 1963 when it replaced the whole of 1960 Independence Constitution with the Republican Constitution of 1963.  All Parliament did in 1963 was to repeal the Order-in-council, made by the Queen of England providing for the Independence Constitution and replaced it with a brand new Republican Constitution.

Decree 24 is an existing law under Section 315(4) of the 1999 Constitution. So Decree 24, being a law with respect to which the National Assembly has power under Section 4(1) to make law, is deemed to be an Act of the National Assembly and can therefore be repealed.

Prof. Nwabueze says it would be inconceivable and manifestly absurd that there should be an existing law as defined in Section 315(4) which is beyond the power of the legislative authority of the sovereign state of Nigeria to repeal.

So the way I see it is that, assuming we can agree on the content of the Constitution that can work for us, it should be very easy to constitutionalize the agreements reached at the National Conference by invoking the special legislative powers of the National Assembly and enacting those agreements reached into a supreme Constitutional document. If this process is followed, the Constitution as an outcome of the Sovereign will of the People will have the stamp and authority of Nigerians, validated by a referendum before enactment by the National Assembly. Then as Kingsley Moghalu says in his tremendously important book “Emerging Africa” we can all aspire to a Fundamental Transformational Agenda for Nigeria. 


Letter to the Senate President – A Call for a National Conference



Senator David Mark
President of the Senate
National Assembly
Three Arms Complex
Abuja, FCT.
September 24, 2013

Dear Distinguished President,

The Civil Society in Nigeria has always insisted that the People of Nigeria will have to authenticate, legitimize and endorse a Constitution to govern their affairs. Unfortunately this simple wish was always denied by the Colonial, Military and even “elected” Government. It was the Late Aka-Bashorun, my most illustrious predecessor as President of Nigerian Bar Association, who articulated the collective disappointment of Nigerians by the call for a Sovereign National Conference as long ago as the 1980’s. Civil Society in Nigeria has noted with mixed reaction your statement to Distinguished Senators, on the floor of the Chambers, that a National Conference is a vital requirement for a Peoples’ Constitution for this country. Although many within the civil society disagree or have expressed reservations about the so called “NO-GO” issues highlighted in your statement, it is commonly agreed that your Declaration forms an important new development in the quest for a legitimate Peoples Constitution.
Civil Society’s demands have always been straightforward and simple – That Nigeria will benefit from a robust full discussion on 2 vital questions asked by Late Bola Ige when he said “There are 2 basic questions that must be answered by all of us Nigerians. One, do we want to remain as one country? Two, if the answer is yes, under what conditions? I respectfully suggest that Bola Ige’s Questions are well framed as the National Questions we need to examine if we are to build a new spirit of commitment to Nation and service to Motherland.
You alluded to the very difficult task of Organization and logistics of a National Conference. I accept that there are challenges but they can be overcome. Every stakeholder must give and take.
A possible platform for a national Conference will be set by President Jonathan convoking it and declaring it’s resolutions binding and subject only to a Referendum. This will give the conference confidence and integrity and compensate for matters related to the non Sovereign status of the Conference.
In view of the very many conferences called and ending without result, but producing possibly relevant results, review of past conference resolutions should form part of the Terms of Reference. Further suggested terms of reference can be readily agreed.The Conference ought to consider structure of the Federation and massive devolution of powers not necessary at Federal level to state level.
It is of vital importance that the nature of our political arrangements are first discussed. The Conference’s task is not simply the drawing up of a Constitution. For example, couples first discuss personal arrangements and then solemnize by a marriage certificate. For Nigeria, we should discuss political arrangements first, then constitutionalize it by a legal document, that is the Constitution.
I will like to draw attention to 4 vital elements of a good Constitution;
Inclusivity – Everybody must talk
Authority – We have to accept that President and/or National Assembly will be the Convening Authority
Validity – We, the people, shall validate the Constitution, by referendum. No one else.
Legitimacy – Our democracy can only be secured and deepened by a legitimate constitution validated by Nigerians.
It will be tasking to suggest that all 160 million of us can participate. My suggestion will be to draw from ethnic nationalities and the 5 estates of the Realm, namely Executive, Legislative, Judicial, Media and Civil Society. Civil Society is used in the broadest sense, to include NGO’s, Religious and traditional movements and of course Labour, Youths and Women.
We can enact for ourselves a new legitimate Constitution. This is the vital framework that will best manage our diversity and generate unity in diversity.
Civil Society is ready if you are, sir.
Please accept the assurances of my best wishes and high considerations.
Dr. Olisa Agbakoba, SAN

African Lawyers’ Awards: OAL’s Ogwemoh emerges as 2016 Best Female Managing Partner


L-R; Mrs. Funke Adekoya SAN presenting female managing partner award of the year to the managing partner, Olisa Agbakoba Legal, Mrs. Priscilla Ogwemoh, at the law Digest award in Lagos.

The Managing partner of Olisa Agbakoba Legal, OAL, Mrs. Priscilla Ogwemoh has won the best Female Managing Partner of the year award in Nigeria.

The award was presented to Ogwemoh by Mrs. Funke Adekoya SAN at Oriental Hotel in Lagos.

Ogwemoh was among the shortlist for this year’s Law Digest Africa Awards out of over 200 entries for the awards; an increase of over 50 per cent from last year’s entries, making this award the most recognized award for African lawyers. There were also entries from countries such as Egypt, Mozambique, Rwanda and Morocco for the first time.
Meanwhile, the category of the winners are: Managing Partner of the year, Female Managing Partner of the year, Young Managing Partner of the year (under 40), Law Firm of the year, Emerging Firm of the year, Litigation and Dispute Resolution Team of the year, M&A Team of the year, Banking & Finance Team of the year, Capital Market of the year, Property Infrastructure and Construction Team of the year, Power, Energy & Natural Resources Team of the year, IP & Technology Team of the year and Africa’s Strategic Partner of the year.
Ogwemoh of Olisa Agbakoba Legal (Nigeria) beat Eliane Bergenthuin of De Beer Attorneys (South Africa), to clinch the award.


I have followed with interest the debate on the propriety or otherwise of Federal Governments proposed sale of national

assets to deal with the recession. I will not make any comment on the propriety of the proposed sale.  However, I am of the view that the Federal Government needs to do two things:

First, an INVENTORY OF FINANCIAL REQUIREMENTS – How much money do we need?  Second, an INVENTORY OF NEED- Where do we put the money? Findings from these inventories will provide a guide for government.

I will also recommend President Obama’s approach to the American Recession. President Buhari should propose to the National Assembly a REINVESTMENT AND RECOVERY BILL and an EMERGENCY ECONOMIC STABILIZATION BILL to stimulate the economy and bailout the ailing financial system.

  1. Olisa Agbakoba SAN

23rd September 2016  


I just read a story on today’s Nation Newspaper titled “The fight against anti – corruption agencies by NBA (1)” credited to my learned brother Femi Falana SAN stating that in 2007 I led a delegation of bar leaders to pay a courtesy call on the then Minister of Justice and Attorney General of the Federation, Michael Aondoakaa SAN with a view to divesting the Economic and Financial Crimes Commission (EFCC) of its prosecutorial powers. Nothing can be further from the truth. I never led any such delegation at any time to the then Minister of Justice and Attorney General, Michael Aondoakaa SAN.  I continue to hold the view that a debate on the propriety of the EFCC investigating and prosecuting financial crimes at the same time is appropriate. If the idea behind my learned brother’s insinuation is to stifle debate on the EFCC, this will not work.

Olisa Agbakoba SAN

20TH September 2016


September 15, 2016


President MuhammaduBuhari GCFR

Aso Villa


Dear Mr. President,


I feel called upon to make my own contribution to the dialogue on a solution to the economic recession that Nigeria is undergoing.

It is evident now that the oil price shock was the main contributing factor causing the downward spiral in the economy resulting in the present recession.  In any ailing economy the first step that must be taken is a diagnosis of the problem and in Nigeria’s case I would diagnose that it is suffering from malignant metabolic economic syndrome, complicated by inflation, high interest rates, unemployment, weak infrastructure and the results of the global fall in the price of oil. It is indeed a gloomy state of affairs which if not treated with urgency by introducing strong fiscal, trade and monetary policy could well lead to depression.

We know that Nigeria has experienced mismanagement for several decades but now is not the time to lament but to chart a clear economic policy direction that will give value to the economy. This will entail developing macroeconomic models tailored to stimulate all sectors of the economy and catapulting us out of recession.

On the issue of monetary policy there is a lot of confusion. There is the need for harmonization between CBN policy which is leaning towards tight liquidity in a bid to harness inflation and the Minister of Finance’s call for increased public spending on capital projects. Note that CBN increased the MPR by 200 basis points from 12% to 14% to combat inflation and stimulate growth. The MPR is the anchor rate at which the CBN, in performing its role as lender of last resort, lends to Deposit Money Banks to boost the level of liquidity in the banking system.If the apex bank intends to increase the level of liquidity in the economy, it reduces the MPR but increases it when it intends to tighten money supply. By increasing MPR, CBN has unfortunately tightened lending. The banking sector requires strengthening and must be empowered to lend. I recommend that money from the Treasury Single Account should go back to the banks at single digit rates and that banks’ recommended lending rate should not exceed 5%.

I feel that the CBN should focus on productive value of the economy and not the numerical value of the naira. The recent devaluation of the naira by the introduction of a floating naira exchange rate has not yielded positive results as we see the naira spiraling downwards. In fact the new forex regime caused a drop in the GDP from $500billion to some $350billion by reducing per capita income to below $600.

In proffering a solution to this, I feel that Government’s monetary policy will be required to move from strict monetarism of the Milton Friedman School of thought to the Keynesian Model. Milton Friedman promoted an alternative macroeconomic viewpoint known as “monetarism“, and argued that a steady, small expansion of the money supply was the preferred policy. His ideas concerning monetary policy, taxation, privatization and deregulation influenced government policies, especially during the 1980s. His monetary theory influenced the Federal Reserve’s response to the global financial crisis of 2007–08. On the other hand Keynesian economics advocates a mixed economy – predominantly private sector, but with a role for government intervention during recessions. Keynesian economics served as the standard economic model in the developed nations during the latter part of the Great Depression, World War II, and the post-war economic expansion (1945–1973).

I believe strongly that Nigeria can recover from recession and I recommend as a start the need for a Presidential Proclamation at the National Assembly, switching from Austerity Policy to Growth Policy, this will instill hope and form the basis for the way forward. I am not sure if the Economic Emergency Powers requested by Mr. President would work. I recall that President Shagari had them and failed; the Venezuelan model has also not worked.  To boost the economy will require massive spending on infrastructure and public works which will also require manpower resources. This is the Keynesian economic model. This way we will spend our way out of recession with the objective of reducing inflation. The CBN should reduce the MPR to single digit of say 5%  and create a framework for quantitative easing.

Further, we need to consider a National Treatment Policy that will create the environment for real sector growth. We would need to establish a Development and Guarantee Bank to provide financing for national development which can be supported by asset securitization. Considering all solutions, I will add the need for the government to prepare a Public Sector Borrowing Requirement (PSBR) and borrow according to needs. It may be possible to borrow against future oil receivables as was proposed with China by the last administration. It would also be necessary for the federal and state governments to pay off domestic debts to inject liquidity into the system, whilst retaining a clear debt ratio policy.

I have always advocated the need for massive legal and institutional reform in the financial services sector which will allow money to flow through the veins of the economy. For banking regulations I suggest we can adopt the UK model by creating a Financial Conduct Authority (FCA) and a Prudential Regulatory Authority (PRA). The Financial Conduct Authority (FCA) is a financial regulatory body in the United Kingdom, but operates independently of the UK government, and is financed by charging fees to members of the financial services industry. The FCA regulates financial firms providing services to consumers and maintains the integrity of UK’s financial markets. It focuses on the regulation of conduct by both retail and wholesale financial services firms whereas the Prudential Regulation Authority was created as a part of the Bank of England by the Financial Services Act (2012) and is responsible for the prudential regulation and supervision of around 1,700 banks, building societies, credit unions, insurers and major investment firms. This model would limit CBN like the Bank of England to monetary policy and domicile supervisory functions in the PRA. The proposed new regulatory agencies will provide more effective supervision of the banks than is the case.

On the need for huge stimuli for business growth there will be the need to create a debt factor market to soak up non-performing loans presently on the banks’ balance sheets now standing at about 20trillion naira. Also medium and small businesses must be encouraged and enabled to access funds to grow their businesses as these businesses represent the engine of economic growth. Access to funds should be supported by a robust private sector led mortgage market by waking up dead capital trapped in the nation’s housing stock valued at over 7 trillion naira. We will also need to urgently explore alternative income sources from Agriculture, Maritime, Aviation, Infrastructure, Mining etc. If Government’s efficiency is enhanced and the States are required to contribute as economic enablers, then there will be less strain on the national purse and States will be forced to generate income.

It will be encouraging for the government to give hope with a clear vision of how to tackle recession. For example Franklin D. Roosevelt’s ‘New Deal’ got the United States out of the Great Depression in the 1930’s. In the case of FDR’s New deal, massive public works programmes like the momentous Tennessee Valley construction were undertaken to generate employment and hope for the American people. Several important laws were enacted to support the New deal among which two in particular impacted on the economy. The Glass-Steagall Banking Act was enacted to restore confidence in the banking system after thousands of bank failures in the first years of the Depression in the U.S. This Act prohibited banks that held government deposits from speculation and trading but compelled lending to the real sector. Also the National Industrial Recovery Act (NIRA) was a law passed by the United States Congress in 1933 to authorize the President to regulate industry to stimulate economic recovery. It also established a Public Works Administration to put millions back in employment by massive public infrastructure development.

A more recent example in the U.S was the introduction of the Emergency Economic Stabilization Act, 2008 commonly referred to as an Act to bailout the U.S financial system. This law was enacted in response to the subprime mortgage crisis. The United States Secretary of the Treasury was thereby authorized to spend $700 billion to purchase failing bank assets under the Troubled Asset Relief Program (TARP). Under TARP, funds for the purchase of distressed assets were mostly re-directed to inject capital into banks and other financial institutions while the Treasury continued to examine the usefulness of targeted asset purchases.

Another innovative piece of legislation was the American Recovery and reinvestment Act signed into law by President Obama in 2009. This historic legislation stimulated massive job creation during challenging economic times by cutting taxes and investing billions of dollars in critical sectors such as energy, health care, infrastructure and education.

I have highlighted all of these illustrations to project how other jurisdictions have dealt with economic crises. I emphasize the need for immediate economic and macroeconomic policy measures to be put in place. This will require setting up a council of economic advisers to advise Mr. President on economic policy by providing objective economic analysis and advice on the development and implementation of a wide range of domestic and international economic policy issues. This will provide a New Economic Model that when implemented and pursued vigorously can pull us from this recession by second quarter of 2017. However, if nothing is done the recession cycle may well extend up to Q4 2020.

Thank you for this opportunity to address you directly on this very crucial topic.


Yours sincerely,

Olisa Agbakoba SAN, OON


Cc:    Dr. Abubakar Bukola Saraki

Senate President

Cc:    Hon. Yakubu Dogara

Speaker of the House of Representatives




Dr. Olisa Agbakoba SAN





  • Move from strict Monetarism of the MILTON FRI EDMAN SCHOOL to KEYNESIAN MODEL
  • UNCLEAR ECONOMIC POLICY DIRECTION so need to develop coherent Fiscal, trade and monetary policy
  • TIGHT LIQUIDITY – CBN MPR at 14% basis point, ridiculous
  • HIGH INTEREST on Debt Instruments – Treasury Bill, money deposits, etc disincentive to real production, as paper profit is lucrative. High yield Treasury Bills has made banks unproductive.
  • CBN focus on Forex management is encouraging round tripping and creating asymmetry
  • CBN should focus on productive value of the economy and not numerical value of the naira.
  • Full deregulation of forex market to allow level playing field and remove distortions such as round tripping. At least 20 billion dollars inflow will instantly occur



  • A Presidential Proclamation at NASS – switching from austerity to growth policy. Spend more to boost economy.


  • Implement Presidential Proclamation (like FDR). Adoption of supply side and not demand side policy. NOT SURE ABOUT ECONOMIC EMERGENCY POWERS. SHAGARI HAD IT AND FAILED. VENEZUALA ALSO NOT WORKING.
  • Reverse Anti austerity and tight money, as G-20 nations all now agree,
  • Use all policy tools and embrace Fiscal stimulus
  • Adopt Keynesian economic model of massive government spending on public works,
  • Reducing raging inflation at 17% in medium term.
  • Reduce MPR to single digit – 5% – Quantitative Easing
  • Implement 2016 Budget and reflate the economy
  • Spend our way out of recession
  • National Treatment Policy – Fiscal and trade Protection Policy
  • Establish urgently a Development and Guarantee Bank
  • Prepare Public Sector borrowing requirement, PSBR and borrow as our debt Ratio can sustain this. Develop Assets securitization
  • Pay off domestic debt to inject liquidity in the system
  • Give Treasury Single Account money back to the Banks at single digit rates and supervise Banks; recommended lending base rate 5%
  • Massive legal regulatory and institutional reform in Financial Services Sector – money is oxygen to economy but not flowing as a result of bottlenecks.
  • Create a Prudential Regulatory Authority – to supervise banks to lend
  • Create a Financial conduct Authority – to get banks to behave
  • Consequently limit CBN to Monetary Policy and take away banking supervision to new Prudential Regulatory Authority and banking ethics to new Financial Conduct Authority – if Banks focus on lending and not trading, money will flood the system for productive value
  • Create a debt factor market to soak up non performing loans of Banks now at 12% and in excess of 20 trillion naira.
  • Create a robust mortgage private sector led market, by waking up dead capital trapped in the national housing stock valued at 7 trillion dollars
  • Government must get out of business and enable Private Sector led growth
  • Massively fund small businesses by Development and Guarantee Banks as this is the engine of economic growth.


  • Provide massive social benefits.



Government to give hope with a clear vision, like FDR during the American great Depression

Urgently explore alternative income sources – Agriculture, Maritime, Infrastructure Power and support

Create efficiency in Government and consider rebalancing Federal power to bring in the States as economic enablers.


Study carefully FDR’s new deal that got the US out of the Great Recession (Depression) in the 1930’s;

  1. Communicated hope
  1. Created massive public works programmes, especially the momentus Tennesse Valley Authority, a depressed 640,000 square mile area in the Tennesse Valley
  1. Enacted the Glass – Stegall Banking Act, directing banks not to speculate or trade but lend
  1. Enacted the National Industrial Recovery Act, to deal with massive employment
  1. Created the Works Progress Administration, putting back millions to work on public infrastructure


Recovery path possible by Q2 2017 with vigorous implementation of a new economic model, otherwise recession cycle may/will extend up to Q4 2020.


Tuesday, September 6th 2016


The Human Rights Law Service (HURILAWS) applauds the call by the President of the Nigerian Bar Association, A.B. Mahmoud SAN for a debate on the efficacy of the war against corruption in Nigeria. Where corruption is endemic like in Nigeria strong institutions are critical to achieve success. It is in this context that the debate on the propriety of the EFCC investigating and prosecuting financial crimes at the same time is appropriate.

We support the position of the President of the Nigerian Bar Association. HURILAWS position is supported by international best practice and the need to build the capacity of the EFCC to deliver on its core mandate which is investigation of financial crimes. The international best practice is that one agency investigates, another prosecutes and the court adjudicates. The EFCC as currently composed is overworked and will not efficiently deliver on investigation and prosecution.

Whilst we have no objection with the EFCC investigating or the courts adjudicating, we believe the powers to prosecute should be vested in an independent highly resourced prosecuting agency. We appreciate the enormous work done by the EFCC since its establishment in 2003. 13 years on the Federal Government needs to rejig the EFCC and other crime fighting institutions to perform optimally. We support plan by the Attorney General

‘Nigeria’s Problem is Simply the Failure of Political Leaders to Rebalance the Federation’

The Buhari administration has since inception been faced with several challenges. From insurgency, militancy, corruption, economic downturn to recent agitations for restructuring the federation. In an interview with May Agbamuche-Mbu, Jude Igbanoi and Tobi Soniyi, former NBA President Olisa Agbakoba SAN proffered possible solutions to the present political challenges and expounded his views on other matters of national importance.


Dr. Olisa Agbakoba SAN

After nearly four decades at the Bar, an illustrious career that has earned you a reputation as one of the foremost Human Rights lawyers in Nigeria, and an expanding legal practice covering the length and breadth of a full service law firm from Arbitration to Maritime law. What is it that motivates you today and how has that changed over the various periods of your career?

I am motivated by the quest to see Nigeria attain democracy in the real sense. Nigeria at best can be said to be illiberal or a semi autocratic country with institutions heavily subverted. As you know, law plays a crucial role in deepening democracy. I have a strong interest in helping our constitutional process. Generally there is a legal failure in Nigeria and a sense of civil disorder. I think I have a role to play in the resolution of these challenges. I also get motivated to use the tools of development law for economic development.

You have made it one of your goals to speak up strongly against what you perceive to be injustices and anomalies in national politics and in the application of the law in Nigeria. What injustices and anomalies do you see as the challenges of today’s democracy?

The big challenge confronting democracy in Nigeria is the unwillingness of political leaders to grapple with the many problems confronting Nigeria. With Nigeria, in low grade civil war, from Boko Haram to Niger Delta Avengers, to pro Biafra agitation and now the Bakassi Militancy, it ought to be clear that nothing short of an honest solution by our political leaders, will resolve our problems. Nigeria’s problem is quite simply the failure of our political leaders to rebalance the Federation. The Federal Government exercises 98 items of power. 68 of these items are on the exclusive list in the Constitution, while 33 are on the concurrent list. Only the Federal Government can exercise powers on the exclusive list. The states can only exercise powers on the concurrent list if the Federal Government is not interested. This means that Nigeria is not a Federation but a unitary state. The contradictions thrown up by this process is the result of the chaos and contagion you see in Nigeria.

How should these injustices and anomalies be resolved in the interest of advancing our democracy?

There has been no lack of effort to resolve the contradictions I have highlighted. We have had series of constitutional conferences going back to General Babangida and ending with President Jonathan. Many proposals to resolve these challenges were agreed at constitutional conferences but the problem has been the lack of political will to implement. My proposal, having served as a member of the Jonathan Conference is for President Buhari to implement those cornerstone agreements reached at that conference. I suggest President Buhari sends an Executive Bill for an enactment to devolve certain powers from the federal to state governments. I have produced a bill and sent to the National Assembly which recognises sub national diversities across the six-geo-political zones. Our democracy will be strongly enhanced if, to use the political cliché common in Nigeria, the federation is ‘restructured’.

Access to Justice is one of the hallmarks of democracy and delays in the administration of justice hamper this. In your opinion what short term solutions can be introduced to improve access to Justice in Nigeria?

In my view, access to justice is a small issue in the broader policy context of Administration of Justice. Administration of Justice in Nigeria is in a very parlous state. There are a number of structural challenges. First, is an over centralised judicature. This is similar to the point made earlier about an over centralised Federal Government. At the National Conference we, in the legal and justice committee, agreed to ‘restructure’ the Judicature as the third branch of government. Restructuring will mean devolving judicial authority from the centre to the states. This in turn will impact on the speed and access to justice. A related concern is how the courts work. As a former member of the National Judicial Council, I say that the operating models of the courts in Nigeria are outmoded. We need to comprehensively review our rules of court, practice, protocols and guidelines to achieve effective management of cases. The Judge should no longer be a spectator allowing legal disputes to go in court completely unmanaged. I look forward to the automation of court infrastructure, capacity building for judges and wellbeing of judges. Let me add that our courtroom infrastructure is so dilapidated that I expect the Chief Justice of Nigeria to make a strong representation on this point. You will obviously recall I went to court to seek a declaration concerning the constitutional framework of funding the Judiciary. I am happy to say that I won the case. The case freed the Judiciary from the shackles of the Executive. But to my shock the Judiciary has done nothing to enforce the judgment. I will like to make a slightly different point about the Judiciary. We need to see a very good mix of appointments coming from the Bar to the Bench as I feel it will improve its quality. Actually, I was the first to apply to be appointed to the Supreme Court under Chief Justice Uwais. Back then, it was seen as heresy. But today the National Judicial Council has agreed in principle that SANs can be appointed. But I sense that they would like us to start from the Court of Appeal. My learned brother Tony Idigbe SAN, applied to the Supreme Court but missed out on a role there. I hope one day to see one of us on the Supreme Court bench. And many others at other levels of courts.

You are the founder of the Human Rights Law Society (HURILAWS) the NGO with particular focus on influencing and advancing Human Rights Law in Nigeria. Could you briefly evaluate the state of human rights in Nigeria?

The state of human rights in Nigeria is far from satisfactory. That’s all I need to say on this.

What is your assessment of the Government’s fight against corruption? Do you think the Rule of Law is being strictly adhered to?

The Government has shown some muscle to deal with endemic corruption in Nigeria. The rule of law has not been adhered to in this process. But it seems Nigerians are not interested in this. While I do not support bending the rule of law, I can understand why Nigerians take this view. Corrupt practices in Nigeria beggar belief, so no wonder the perception that popular justice is alright if it gets at the thieves. But I think the Government can design a more institutional process to combat corruption. This will mean major institutional changes to the work of the EFCC, for example in developing capacity. I have always felt the strong need to unbundle the EFCC into two agencies; one dealing with investigation and the other with criminal prosecution. This is the standard international best practice.

Recently, the Federal Government set up a committee led by the Attorney General of the Federation to prosecute high profile cases. Is there a legal basis for the committee? And does it not amount to duplicity since we have the EFCC and ICPC?

This question has been partly answered by the preceding question. I recommend that the Attorney General of the Federation redesigns the legal and institutional framework for dealing with corruption cases. As I said earlier, separate investigation and prosecution. Agencies can and should be introduced. There is no reason why the EFCC and ICPC cannot be merged so that there is a stronger platform to prosecute crimes falling under their respective mandates.

The report of the Sovereign National Conference, of which you were a prominent member, still has not been published nor have any of its major findings been adopted by the Federal Government. What parts of that Conference’s findings do you believe to be of paramount importance and necessary for implementation?

I have touched on the conference report in an earlier question and I would like to deal with what I think is the best way to proceed. As you recall President Buhari has said that the Jonathan Conference report will go to the archives. I think in Nigeria, there is lot of emotion about the phrase “restructure”. “Restructure” is a more commonly accepted term, in the south than in the North. I think we can all agree, and this would ordinarily, include both President Jonathan and President Buhari, that our country faces severe political and economic problems. Proceeding from this, what President Buhari can do is leave out the emotively charged term, ‘restructure” and simply proceed to rebalance the Federation. Rebalancing the Federation involves matters as simple as transferring power to issue a driver’s license from the Federal to State governments. In my draft bill on devolution of powers, I identified 36 items that can be transferred from the Federal to the State and Local Governments. The President can initiate this process without too much fanfare and without reference to divisive issues.

The Nigerian Bar Association will in a few days’ time elect its national officers. What is your advice to Nigerian Lawyers on choosing the next NBA President, having held that office before?

Merit must be the most crucial attribute to guide Nigerian lawyers in deciding the next NBA president.

Stakeholders in the Electoral Process have raised concerns over the legal regime governing elections in Nigeria. What are your comments on the adequacy of the legal regime governing Elections in Nigeria?

The legal regime relating to the electoral process is far from satisfactory. As you probably recall I was a member of the Justice Uwais Electoral Committee and we made far reaching recommendations. Some of the recommendations have been implemented but others remain unimplemented. INEC needs to be unbundled of the responsibilities for registration, regulation and supervision of political parties. It is inconsistent with INEC’s work as a referee and umpire. INEC may be accused, of partisanship if it disqualifies a political party, even though all INEC is doing is exercising its regulatory duty. When I was being strongly considered for INEC chair, I took time to review how many parties complied with electoral regulations and to my shock, very few did. This point remains true as most parties always fail to comply with electoral laws and ought to have had their registrations withdrawn. This is why the Uwais committee recommended the Political Regulatory Agency and also the Electoral Offences Commission. I look forward to the National Assembly enacting these commissions.

You have also observed in different fora that the Nigerian Maritime Industry holds huge potential for the Federal Government in its bid to diversify the source of Public Revenue if properly harnessed. In your opinion, what should be the important components of government’s maritime policy?

Nigeria is a coastal maritime nation. The international practice is to have a Minister responsible for maritime affairs in order to bring high level policy making to the industry. The maritime industry is a huge cash cow and I do not believe that the Director of Maritime Services, in the Ministry of Transport, is senior enough to drive maritime policy. Government’s maritime policy should aim to improve Nigeria’s status as a maritime hub. Nigeria accounts for at least 80% of cargo throughput in the Central West Africa sub region. Cargo throughput is the technical name for cargo coming to a destination such as Nigeria. This should give you a sense of how big we are in the maritime sector. I will also like to see Nigeria attain the status of a Maritime International Centre, like Singapore and Dubai. We have absolutely no Nigerian vessels trading in our coastal waters neither do we have ocean going vessels. Revenue receipts in the maritime sector is estimated at 7 trillion in a year. But we need a coherent maritime policy to bring this all in.

In more recent times it has become a criticism of the Nigerian Justice System that ‘Capital Punishment’ is still being used. What are your views on Nigeria’s application of the Death Penalty?

Recall, I was the first to take 2 cases to the Supreme Court on the constitutionality of the death penalty but unfortunately lost both. I have very strong views on the constitutionality of the death penalty because quantitative and anecdotal evidence suggests the death penalty does not deter crime. If it does not deter crime, I do not see the point keeping it on our statute books. Most scholars agree that not only is the death penalty cruel and unusual punishment, it is also degrading and inhuman treatment. The global trend now is to abolish it. Nigeria has in place an unofficial moratorium. I look forward to its official abolition.

What is your view about the recent change of corporate leadership at one of Nigeria’s leading banks by the CBN and what legal implications do you see in the context of a challenging economic environment?

This is a good question. The answer has policy and also legal implications. As a matter of policy I have always thought the CBN does far too much work. The international best practice is that the CBN deal with financial stabilisation of the economy and monetary policy. Monetary policy includes exchange rates, interest rates and lending rates. In addition to monetary policy, the CBN is saddled with the legal framework of supervising banking risk and ethical behaviour of Banks. This is far too much for the CBN. I was appointed chair of the legal implementation committee of the CBN in respect of reforms of the financial services sector. I strongly recommended the unbundling of the CBN into three institutions; the first, to deal with financial stabilisation of the economy and monetary policy. This is the main function of the CBN. I also recommended removing risk supervision and management from the CBN and passing it to a new Prudential Regulatory Authority. The sole function of this authority is risk management. Risk is at present managed by the Directorate of Banking Supervision. I feel there is not enough capacity in the CBN to manage banking risk. This point is important in the context of the last banking crisis and the looming risk crisis in banks. Banks are carrying a very heavy debt portfolio, technically referred to as non- performing loans. The reason I suggest a third institution out of the unbundled CBN is the extremely unethical behavior in the banking industry. I am not aware that the CBN has a strong mechanism for dealing with ethical issues. The solution is to create a Financial Conduct Authority. The legal framework to create these institutions needs to be put in place immediately, so banks will be compelled to focus on their primary business of lending. Nigeria will be the better for it.

As a pioneer of Development law in Nigeria how can this concept promote political and economic development?

Development law deals with the application of rules regulations, guidelines and laws to the social and political life of a nation. It is obvious that Nigeria is going through a difficult period. Concepts of development law help to create national order in the shape of legal pillars of a viable people’s constitution. Again Development law, been about rules and precepts, creates the necessary framework for the rule of law to thrive. Development law allows for the growth of strong national institutions that cannot be subverted by strong political personalities. Development law generates wealth. For example, the concept of a viable legal framework for the mortgage market. Our mortgage market does not work. The result is that Nigeria’s Seven Trillion Naira housing stock is dead capital. Property has two values, the physical value as represented by the physic building, and more important, the conceptual legal value, represented by legal title to the building. The mortgage market has not worked in Nigeria because the law relating to mortgages is weak. But development law can point in the direction of the proper answers to “wake” dead capital in our housing market. Many examples exist about legal failure in many sectors of our economy and how development law can resolve the problem. I am always amazed at how government’s Economic Management team excludes lawyers. Lawyers can offer a great deal using the device of Development Law. I feel this is something that should be corrected. I hope someone is listening