A former President of the Nigerian Bar Association and popular legal practitioner, Chief Wole Olanipekun (SAN), shares his thoughts on the clamours for a new constitution and how the country can overcome its challenges
As a foremost lawyer, what do you make of the clamour for the restructuring of the country?
I didn’t just start advocating for the restructuring of Nigeria yesterday; it’s been a long time that I have been calling for the overhauling, replacement and restructuring of the 1999 Constitution. When I was the President of the Nigerian Bar Association, I led a team of lawyers to the then President, Chief Olusegun Obasanjo, and among the things we suggested to him stoically and patriotically was the overhauling of the constitution. We also volunteered to assist him, but he didn’t like it. I told him in clear terms that this constitution would not take us anywhere.
One thing I have noticed is that at all levels, every person who comes to power and is enjoying the benefits of the present situation as brought about by the constitution want the status quo to remain. You also see a lot of people who have not been consistent. If you love your nation, you have to be consistent about your prognosis and views. When I talk about my nation, I talk as an elder who enjoyed Nigeria when it was good, when education was virtually free and there was liberty and security. At my age and as a lawyer, I should be able to say the truth to power. Honestly, I feel bad about this country. Nigeria has a lot of fiends and a few friends and it’s sad that everybody wants to take advantage of this country.
You said a few months ago that Nigeria needs a new constitution but some people feel we can make do with amendments because they feel it’s near impossible to convene a constituent assembly that would draft a new constitution, how do you think we can go about it?
Lord Denning said years ago in Macfoy vs UAC that you cannot put something on nothing, and Nigeria’s Supreme Court re-echoed it with approval through two beautiful jurists, Kayode Eso JSC and another jurist. May their souls continue to rest in peace. True to that statement, you cannot put something on nothing and expect it to stand. A constitution should be de facto and de jure, meaning in fact and in actuality; in practice and in theory; in honesty and in sincerity. I’m familiar with the social media to an extent and I listened to Chief John Nwodo, the Minister of Information during the regime of former Head of State, General Abdulsalami Abubakar (retd.), who foisted this constitution on us. He said the constitution was drafted by about 47 persons, out of which 40 were military personnel. Nwodo has been my friend since our Student Union days in the early 70s. He was at the University of Ibadan while I was at the University of Lagos. He’s not given to frivolities and I can beat my chest for him to a reasonable degree.
He said even when Obasanjo was to be sworn in, there was no clean copy of the constitution. Is that the way it is done, for 47 persons to prepare the constitution that governs a diverse nation like Nigeria? Elders of this country must stand up to be counted; do we just want to live by the convenience of today and not think of tomorrow; what happens to our children and grandchildren? It is not a question of who is in power, it started since the time of Obasanjo. It’s sad that some people are not even ready for intellectual discourse and that is why once they have a view different from yours, you become an enemy. Why are we treating Nigeria like a bastard? We are being unfair, unjust, careless and ungodly about this country.
Politicians have shifted the discourse to 2023 already, do you agree with those who feel that is misplaced?
Politicians can be very funny and arrogant about the future. It’s only God who owns 2023, but people are already talking about 2023, which is still two years away. By and large, if you want to be elected into any office in 2023, don’t you want to govern people that would be alive? Then, you need a working document. We still have two years three months to May 2023 and that is enough time to do something. Failure to do that, if an Igbo man or a Yoruba man win, we will witness the same thing we are experiencing under President (Muhammadu) Buhari. Then, where are we going? Is that a way to build a country? Many of us were busy trying to out-speak one another during the last election in the United States, whereas we don’t have a system or institutions here.
The reservations most people have with the constitution starts from the Preamble, what is your take on that?
I will take you through some constitutions of the world and we will compare. First, the preamble in our constitution says ‘We the people of Nigeria…’ Who are the ‘we’? That is fake and false and it’s not something we should be proud of. Let’s start with the constitution of Albania of 1998. The preamble reads, ‘We the people of Albania, proud and aware of our history, with responsibility for the future, and with faith in God and/or other universal values, with determination to build a social and democratic state based on the rule of law, and to guarantee the fundamental human rights and freedoms, with a spirit of religious coexistence and tolerance….’ My goodness! Why can’t we have something like this? Look at the religious coexistence part? They simply took cognisance of their past, why are we denying ours? That was 1998, a year before Abdulsalami imposed ours on us. God has been kind to give Nigeria good, intelligent and focused people who would think of the nation and not themselves, but what have we made of that?
The Albanian preamble continues, ‘…with a pledge to protect human dignity and personhood, as well as for the prosperity of the whole nation, for peace, well-being, culture and social solidarity, with the centuries-old aspiration of the Albanian people for national identity and unity, with a deep conviction that justice, peace, harmony and cooperation between nations are among the highest values of humanity, we establish this constitution…’ This is the way it is done. Even God invited people, as stated in Isaiah 1:18 that come and let us reason together’. Who are you to say I don’t have a right to contribute to the present and future of my country?
Which other country can we learn from?
Let’s talk about Algeria, another country that didn’t run away from its history. The preamble of the 1989 constitution reads, ‘The Algerian people are a free people and decided to remain so… having fought and still fighting for the freedom and democracy, the Algerian people by this constitution decided to build constitutional institutions, based on the persuasion of the Algerian people…’ They mentioned constitutional institutions; do we have institutions in Nigeria? No. I dare say the only enduring institution in Nigeria today is the Presidency, not as characterised by the incumbent, but as it has been since 1999. PUNCH reported how the Ooni of Ife and the governors of Ondo (Rotimi Akeredolu) and Oyo (Seyi Makinde) states met with the President over insecurity. My brother, Makinde, a man in whom I’m well pleased, needed to run to Abuja to demand for Mobile Police units, in a federal republic? I’m not blaming him; I’m blaming the warped, undulating, slippery, undetermined, mercurial system and organogram of the nation. There is nothing wrong with going to see your President, but where the constitution is fair and not selfish, why can’t Oyo State be able to have its own police system?
You also mentioned Argentina, how does theirs compare to ours?
Let’s look at the preamble of Argentina’s 1853 constitution, ‘We the representatives of the people of the people of the Argentine Nation, assembled in General Constituent Congress by the will and election of the provinces which compose it, in fulfilment of pre-existing pacts, with the object of constituting the national union, ensuring justice, preserving domestic peace, providing for the common defence, promoting the general welfare, and securing the blessings of liberty to ourselves, to our posterity, and to all men in the world who wish to dwell on Argentine soil: invoking the protection of God, source of all reason and justice, do ordain, decree and establish this Constitution for the Argentine Nation.’ Can you compare them?
The preamble should reflect your history and aspirations as a people, but what do we have here? Let’s look at the preamble of the Brazilian Constitution of 1988, which reads, ‘We the representatives of the Brazilian people, convened in the National Constituent Assembly to institute a democratic state for the purpose of ensuring the exercise of social and individual rights, liberty, security, well-being, development, equality and justice as supreme values of a fraternal, pluralist and unprejudiced society, founded on social harmony and committed, in the internal and international orders, to the peaceful settlement of disputes, promulgate, under the protection of God, this Constitution of The Federative Republic of Brazil’. Can you see the clear difference?
You also mentioned Egypt and Ethiopia, both of which are African countries.
Egypt is one of the oldest civilisation as stated in the Bible. The preamble of their 1980 constitution reads, ‘We, the people of Egypt, who have been toiling on this glorious land since the dawn of history and civilization; we, the people working in Egypt’s villages, fields, cities, factories, centres of education, industry and in any field of work; we, the people who believe in our spiritual and immortal heritage, and who are confident in our profound faith, and cherish the honour of man and of humanity at large…..; our people have passed through successive experiences, meantime offering rich experiences on both the national and international level and being guided by them, which ultimately took shape in the basic documentations of the July 23 revolution, led by the alliance of the working forces of our struggling people.’ You see how rich that is, but here we are behaving like the ostrich, trying to bury our past? Let’s look at Ethiopia, another great empire rooted in civilisation and history. The Ethiopian Constitution of 1995 has this preamble, ‘We the nations, nationalities and people of Ethiopia…’ Nigeria also has a lot of nations, nationalities and peoples, like the Yoruba, Igbo, Fulani, Hausa, Kanuri, Tivs, Ijaws, etc. Look at how their constitution recognises these but ours was silent on that.
Do you surmise that a beautiful preamble and constitution would put an end to the problems Nigerians are dealing with today?
A constitution brings about harmony. If tomorrow we say we want to restructure this country, have a new constitution and we want the leadership of all the ethnic nationalities to assemble five or 10 persons to gather and do it, all these wars would stop. Pending when we would do it, let us give ourselves one year for everyone to bury the hatchet. Let each ethnic group come and say its position. Let me tell you briefly about Germany, ‘Conscious of their responsibility before God and men, animated by the purpose to serve world peace as an equal partner in a united Europe, the German people have adopted, by virtue of their constituent power, this constitution…’ We can also look at the 1950 constitution of India. India has the most voluminous constitution in the world and is also a federal constitution.
The preamble reads, ‘We the people of India, having solemnly resolved to constitute India into a sovereign socialist secular democratic republic…’ You would see that it was the people who constituted India into a state. It is the people of Nigeria that should constitute the country into a state, not the other way round. The Indian preamble reads further, ‘In our constituent Assembly, this 26th day of November, 1949, do hereby adopt, enact and give to ourselves this constitution.’ So, when people say we should amend, do you want to take something out of nothing or you want to put something on nothing? You want to amend a void as it were? We can also learn from the 1997 Constitution of South Africa. The preamble reads, ‘We the people of South Africa recognise the injustices of our past, honour those who suffer for justice and freedom in our land, respect those who have worked to build and develop our country and believe that South Africa belongs to all who live in it…so as to heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights…’ Again, our own preamble says, ‘We the people of the Federal Republic of Nigeria, having firmly resolved and to provide this constitution for… do make…’ Where did we agree and when did we resolve on all these?
Rwanda is a fast-growing African country, did their constitution play any role in making that happen?
If you look at the Constitution of Rwanda made on May 26, 2003, the preamble reads, ‘In the wake of the genocide that was organised and supervised by unworthy leaders…’ why don’t we mention this in ours too? It continues, ‘…and other perpetrators and that decimated more than a million sons and daughters of Rwanda resolve to fight the ideology of genocide and all its manifestations…’ That is a good foundation for a country that wants to develop. In Nigeria, what ideology are we fighting, yet we have them; religion, tribalism, mediocrity, cheating, corruption, election rigging, discrimination, ungodliness, etc.? It adds, ‘…and to eradicate ethnic, regional and any other form of divisions, determined to fight dictatorship by putting in place democratic institutions and leaders, freely elected by ourselves, emphasising the necessity to strengthen and promote national unity and reconciliation which were seriously shaken by the genocide and its consequences, conscious that peace and unity of Rwandans constitute the essential bases for national, economic development and social progress.’
This is how to prepare a constitution, but you can only put this kind of preamble there if you actually met. In our case, instead of eradicating those ideologies, we are promoting them by our actions and inactions. That is why I feel so pained that instead of listening and talking about the way forward, people are talking of 2023. Why are we not doing the right thing?
The ruling All Progressives Congress promised Nigerians restructuring but six years after, it has remained a lofty promise. How do you feel about that?
It is being drummed everywhere that there is an El-Rufai committee report on restructuring, why don’t they bring it out? Sometime ago, I think I heard a respected leader from the North, Prof Ango Abdullahi, say the North was prepared for restructuring and they want a parliamentary system. Then, let us debate it. Personally, I will key into that because it is less expensive. To me, the constitution as we have it and operate it now constitutes an encumbrance, taking away our resources.
Some people feel Nigeria is too big and diverse to have a consensus on pertinent issues like restructuring, what do you make of that?
Switzerland is a relatively small country but diverse. They simply took cognisance of the diversity among the different nationalities. The Federal Government and the cantons took cognisance of that in preparing their constitution, and they came about what Nigerians would call rotational presidency among the ethnic groups. Look at their preamble; ‘In the name of God almighty, we the Swiss people and the cantons (the member states of the Swiss Confederation) being mindful of our responsibilities towards creation renew our alliance to strengthen liberty, democracy, independence and peace in solidarity and openness towards the world, determined with mutual consideration and respect to live our diversity in unity,’. So, it’s not about your size but your resolve. You then wonder why Nigerians want to continue living in our diversity in disunity, disharmony, anger, hatred, killing and maiming.
Examine the preambles and the state of those nations today. Our diversity should be our strength and that is what works for the US. They took cognisance of all these in their constitution. If you look at the Section 2 of the Swiss constitution, it talks about Cooperation between the federation and the cantons and the Section 4 talks about the constitution of each canton. That means Oyo, Ekiti and all the states should have their constitution on how they should be governed. The only areas outside the jurisdiction of cantons or states are external affairs, defence, immigration, customs, etc. Here, the Federal Government appropriates every power and authority.
You have friends in the National Assembly, have you challenged them on this quest?
I have told my friends in the National Assembly that this constitution cannot be amended. Are we going to amend the preamble that says ‘We the people of Nigeria..’ whereas we never came together to say that. Are the representatives in the National Assembly connected with their people? Do they know what they want? Assuming they know, do they have the latitude to challenge powers within their political parties to say this is what the people want? How do you then decide what the people want? We are now in a state where the ethnic nationalities need to come together. Have you forgotten that when Awolowo, Sardauna and Azikiwe were agitating for independence, the minority said no, they wanted protection from oppression, aggression, cheating, leading to the setting up of the Willink Commission and committee by the British people so as to allay their fears, and that was what brought about the sections relating to fundamental human rights in the independence constitution of 1963 and the subsequent ones. Some people would not even appreciate that it was as a result of protests from a minority. So, if the minorities of those days could protest to Britain, why is it that we who call ourselves free born cannot use our knowledge, wisdom and intelligence to assist our country? Why can’t my country tap from the little brain I have and the little others have?
The Federal Government has repeatedly referred the people clamouring for restructuring to the National Assembly and there has been some buck-passing, which is why some people feel it is a near impossible task, how do we kick-start this process?
When we say it is impossible, we must not directly or indirectly be saying the future of Nigeria is impossible. What would make it possible is what we are advocating. Let me take you down the memory lane. The first constitution Nigeria had was in 1922, and it was called the Clifford Constitution. Nigerians made input. They travelled to the United Kingdom and they made their suggestions, even under the British overlord. That was followed by the Richards Constitution of 1946. Nigerians made input. In the Macpherson Constitution of 1951, Nigerians made input and that was the first constitution that described Nigeria as federal. You also have the Constitution of 1954, otherwise known as the Lyttleton Constitution and Nigerians participated. Then, you had the Independence Constitution of 1963 and here we are.
Many people, including some lawyers, might not be aware that Section 126 of the 1963 Constitution provided that any state that wanted to establish a Court of Appeal should do so. The Western region established a Court of Appeal. It was that court the Federal Government axed, rather than appreciating, recognising and applauding it. They abolished it through military fiat and set up the Court of Appeal. Many people today might not know that the West started it. So, I don’t believe this is impossible; we nearly made it during Jonathan. I have taken you through the labyrinth of constitutions of the world, did any of those countries find it impossible? No. Egypt has been in existence for thousands of years, even before Abraham, but they have a people’s constitution, did they find it impossible? Why are we giving excuses? That is why I am giving my own little contributions through this platform.
What if those who should make it happen refuse to do it?
Take note that if we don’t do it, our children will do it, but my worry is that they might not do it in a friendly, convenient and comfortable atmosphere as we have now. Look at BREXIT. Years back, a good number of British would say it wasn’t possible, but the referendum eventually held. Two Prime Ministers had to go because of that. They insisted they wanted to leave the European Union. We are not saying we must leave Nigeria but that we must sit together and determine how we want to be governed. Before APC constitution came into being and before they got into office, we have been saying it. They might not do it but we have to let our positions be on record. We should all bear in mind that we are creating a centre, which I would liken to a whale and the biblical Jonah. All the states in Nigeria might end up in the belly of that whale. It might not be 2023 but later on. We are creating a lion in form of a central government that, God forbid, would devour all the states. When a governor has no say and is helpless, you have conquered him and invariably conquered the people. We are creating a centre that will reincarnate the slave trade of old.
When the people are in servitude and all powers are vested in someone, then dictatorship, totalitarian and tyranny come in. So, we are creating a giant that would drown all of us. Let us again remind ourselves that before the military coup in 1966, each of the regions had their representatives; diplomats in other countries. We had the Western Region House in London. Have you forgotten that because of the kind of constitution we had in those days, the Western Region was able to establish one of the best universities at the time, the University of Ife (now Obafemi Awolowo University). Yet again by military fiat, it was appropriated by the Federal Government. Ahmadu Bello University and University of Nigeria, Nsukka were also appropriated by the Federal Government. By the grace of God, I’m the head of my office, yet we call meetings, we discuss our cases and chart the way forward. Does anybody have the monopoly of knowledge? No.
What are your projections if we don’t act fast?
There is no power vested in the National Assembly to constitute a constitutional conference to ask for a referendum, but how did Jonathan get to power in 2010? Doctrine of Necessity, because the people complained and demanded a solution. Now, we are more at a danger zone and juncture, demanding the application of the doctrine of necessity. If sovereignty belongs to the people, come to the people and listen to their yearnings. Look at division among religious lines, was it like this before? No. Then we have to find a solution to it. We are in an emergency now, the sort we have never had before. I don’t want people to be pretending.
People are being killed every day across the country. I lost a brilliant cousin of mine. He studied an agricultural course and his father was the first professor of Agronomy in Africa. He’s from my town in Ikere-Ekiti. The father is an uncle of mine. The boy decided to be self-employed and he was doing well. They (criminals) took him from his farm in Ibadan about two to three weeks ago. The kidnappers started asking for ransom. We found a way to raise the N2m they asked for. What did we see days after? His decomposed body. Let us not look away because it’s not our turn. Everybody says this evil will not be their portion, we pray. But let us have feelings for others. Let us show some semblance of love for our nation.
Governor Akeredolu of Ondo State is your friend, likewise some others, do you rub minds with them as to what they could do as governors to help their states in this situation?
Yes, I speak to them. At times, I say they are emperors without an empire and a commander without troops. Are people talking about impossibility saying we have to continue like this? There is even confusion at the Assemblies; the Speaker would want to be called Rt. Honourable, but it’s only in a parliamentary system that the Speaker is addressed like that. So, you love the title but you don’t want us to go there (parliamentary system of government). Can the National Assembly change the structure of government from presidential to something else that is peculiar to Nigeria? No, they cannot, it’s only through the referendum and constituent assembly. Should it irritate anybody that we want to have a better constitution? Have the people who are against it heard from people like Nwodo that there was no ‘we the people’. A good constitution should be brought about by the people; the farmers, the herdsmen, trade unionists, student unions, cross sections of the people across all the ethnic groups. Let each voice out their positions. That would resolve most of Nigeria’s problems. Like I said, at the end of it all, we would still have that new constitution, why don’t we do it now when it’s still redeemable and the damage is not that massive, because it’s already massive? Why do we keep dragging our foot? I go back to what I said earlier; Nigeria has more fiends than friends and people who are benefitting from this disequilibrium don’t want a change.
Who should the people call upon at this time?
It’s a collective action, in the sense that when we look at examples from other countries, including Ghana – how it is getting stabilised, I want all of us to be sober and reflect on our nation. This interview is for the consumption of all, including those in the National Assembly, so they can appreciate the reality of where we are. I don’t talk every day and my intervention on national issues is not every day, so nobody would accuse me of talking all the time. Let them, either by themselves or through their aides, look at the examples of constitutions around the world. I’m talking to the conscience of all of us; do we want a better Nigerian for our children? If we do, let us do the right thing. I understand that the President doesn’t want to look at the 2014 conference recommendations, but with the times we are in, let us call on, shout and drum it to all that there should be a reappraisal of our structure and the way we do our things.
That was why I gave the example of the Willink Commission; that if the colonial masters could listen to the complaints and agitations of the minorities, why can’t we now in a free society convince ourselves that this is what we want. For me, I’m not begging but it is a submission and a plea, based on the fear of God. People must stand up to be counted. I want a developed, flourishing and cohesive Nigeria where everybody would live with one another in harmony, a country driven by and anchored on institutions, where the sovereignty of the people would be respected. Again, Martin Luther King (Jnr) said to you, me and every Nigerian that ‘our lives begin to end the day we become silent about things that matter.’ What matters most in Nigeria today is the structure of the country. It is very important. – Punch.