In an interview electronically-conducted, LANRE ADEWOLE engaged leading lawyer and senior advocate of Nigeria, Mr. Femi Falana, on the state of the nation, coronavirus epidemic controversies and the quality of leadership; handling the attendant socio-economic crises.
Sir, what do you make of this administration’s established propensity to always put the cart before the horse, in making major polices that should be backed by law. What is becoming the norm at the federal and state level is, pronounce the policy first, then scramble around for the enabling law?
The nation was under all manners of military dictators for close to three decades. Even though civil rule was restored 21 years ago, the leading characters in the democratic structures are either former military rulers or those who had served under them. In fact, there was a time the President, the mnister of defence, minister of police affairs, national security adviser, chief of staff and chairman of the ruling political party were all retired generals. So, the civilian government was a quasi military regime. Even though the number of former military rulers has been reduced the mindset of the political and security chiefs has not changed. Public officers are still sacked with immediate effect while people are detained for months or years without trial. The Buhari administration has never hidden its disdain for the rule of law. In some interviews President Buhari has expressed frustration with the slow speed or the accountability prerequisite of a democratic dispensation. The regime has openly justified disobedience of court orders under the pretext of defending national security. It does not seem to appreciate that the security of the State is maintained under the rule of law. Even when the regime was compelled to release Omoyele Sowore and retired Colonel Sambo Dasuki from illegal custody last December based on court orders. it came out to say that it was an act of compassion or generosity. With such praetorian mindset the regime does not consider the legal implications of its actions and policies. Since the dramatis personae in power believe in the rule of might, the government is bound to take decisions without the backing of the law. We are ruled by individuals who believe in the rule of rulers and not in the rule of law.
You no longer sue government for illegality and unconstitutionality of actions, with the same frequency of the past, unlike your mentor, late Gani Fawehinmi, who didn’t stop taking government to court until his death. You appear to have mellowed into advocacy and jurisprudential guidance. Why?
I am afraid your information is not correct. Recently, a bunch of paid lumpen elements staged a protest against me in Abuja for purportedly using the courts to blackmail the federal government. Can you believe that? The fact is that due to increasing wave of official impunity of the government, I have filed more cases in court than ever before. Unlike in those days when all our public interest litigation cases were dismissed for want of locus standi the situation has changed due to our persistence and doggedness. We have recorded some huge success in using the instrumentality of the law to challenge official impunity in the country. For instance, our law firm won the case over the right of every child to free and compulsory basic education at the expense of the State. We have won the case to have the People’s Bank restored. We have won the case that stopped a contractor from collecting cerpac fees from all expatriates in Nigeria. We have won the case against the regulation banning police women from marrying suitors of their choice without written permission of a commissioner of police. We won the case against obtaining police permit for rallies and demonstrations by aggrieved citizens and groups. At the same time we have lost many cases while others are pending in courts. One of the cases which we lost at the federal high court has to do with the right of Nigerians to basic health. The case was struck out due to lack of locus standi. We are pursuing the appeal in view of the threat posed to the health of all citizens by the coronavirus pandemic. In many instances, our public comments and those of others have forced governments to reverse certain illegal policies and unpopular programmes. In such circumstances, we have refrained from going to court. I am sure that is what you mean by saying that I have resorted to advocacy and jurisprudential guidance.
The presidency of Major General Muhammadu Buhari rarely yields to advocacy and plea, which possibly explains the refusal to withdraw soldiers from COVID-19 regulations enforcement duties despite the killing of innocent Nigerians with their guns. How does one tune the ears of a government like this to the voice of reason?
Whenever the people have persisted in their demand or agitation the regime has been forced to change its position. For instance, the regime had supported the State Security Service in the illegal incarceration of Mr. Omoyele Sowore. But when the demand for his release in and outside the court was intensified the regime caved in and released him. Colonel Sambo Dasuki, who had been held for four years was also released. Even with respect to the coronavirus pandemic the regime had said that President Buhari would not address the nation. But when the demand continued the President had to make a broadcast. The soldiers will be withdrawn from the streets if the pressure is mounted on the regime. While Covid 19 has claimed 6 lives the securify forces have killed 13 people. But for the lockdown I would have rushed to court. I am sure you would recall that I got the federal high court to restrain the armed forces from subjecting Nigerians to the so called positive identification parade last year.
Your regular interventions in public matters suggest two things: it is either the government operators are naive in the matter of constitutional democracy or they just want to be deliberately unconstitutional in their ways. Are dangerous precedents not being set sir and is this not a pointer to the quality of men being elected into public offices?
I have found that many actions of governments are not borne out of mischief. They are based on sheer ignorance. You may call it political naivety. That is what is playing out in the United States where President Donald Trump exhibits such degree of ignorance mixed with arrogance. Contrary to the Linconian definition of democracy as a government of the people by the people and for the people, bourgeois democracy is generally a government of oligarchs or cabals. The crisis of governance is more problematic in a country like Nigeria where democratic structures are weak and the people are not conscious of their rights. With respect, we are largely ruled by ignorance and incompetence. And you know that power mongers who are ignorant are incompetent. Hence they resort to impunity. That is what leads to corrupt practices in the criminal diversion of public funds, rigging of elections and setting up of a government without regard, in utter breach of constitutional or statutory guidelines. No regime can change the status quo without involving the people in governance.
The West, particularly, America, returned a damning verdict on the 2019 poll, indicting the military heavily. Since this administration appears to always step out of line in the matter of military deployment, what are those concrete steps, in definite terms, that could be taken by stakeholders before a degeneration would lead to a catastrophe?
The West should not be the barometer for measuring credible elections in Nigeria. Many local organisations have meticulously exposed the monumental fraud that was perpetrated during the 2019 general election. The most disturbing aspect of the fraud was the use of armed soldiers by the ruling party to intimidate voters. Under the Jonathan administration, the APC filed three cases against the use of soldiers in elections. The APC won the three cases. Little did we know that the APC was looking for power to use armed soldiers to rig elections like the PDP for whom an election was a do or die affair. The dangerous trend is going to continue unless the Electoral Offences Tribunal is set up to deal with the riggers and manipulators of elections. More importantly, politics has to be redefined so that political parties can be positioned to serve the interests of the people. Right now, politics has become a cheap avenue for self enrichment and self aggrandisement. It has nothing to do with public service.
Have you seen enough transparency in the distribution of palliative at the federal and state levels, particularly the open money-sharing venture of agents of the central government?
The federal, state and local governments were not prepared for the kind of emergency that the nation is going through. The mechanism put in place for reaching out to the people under the Special Adviser on Social Investment, Mrs Maryann Uwais, has been abandoned by those who wanted to abolish the programme. The cash transfer policy of the federal government was ridiculed by the media, neoliberal ideologues in the government and the private sector people. Some of the business tycoons who are indebted to the Asset Management Corporation of Nigeria (AMCON) to the tune of over N5 trillion have questioned why a loan of N10,000 should be given out to a rural person. Those who ran commercial banks aground and plunged the country to toxic debts conspired to scrap the People’s Bank. Even though the federal high court has ordered the federal government to restore the bank the neoliberal handlers of the economy have continued to frustrate the revival of the bank. But the same people are now contributing to the fund being packaged by the federal government to cushion the negative impact of the coronavirus pandemic on the poor and vulnerable segment of the society. Having abandoned the people the governments cannot effectively manage the palliative. The process of distributing the process cannot be transparent because the government is administered on the platform of opacity and secrecy.
Considering the criticism trailing how the cash is being moved and shared and the sustained agitation by SERAP for better accountability, how do you think the palliative measures should be handled, both at federal and state levels?
The federal government should rely on the information and data of citizens that are genuinely poor, which has been compiled by various agencies. The criminal elements who have diverted money and materials meant for internally displaced people in camps will not hesitate to corner the funds earmarked for the purchase of food items for poor and vulnerable people. This is where the media and other civil society organisations should come in to monitor the disbursement of the incentives. I am aware that the ministry of humantarian affairs has invited SERAP to be involved in the identification of the beneficiaries and monitoring of the disbursement of the incentives. However, instead of buying food items, money should be transferred to the poor and vulnerable people. Otherwise, the system may end up enriching a few food contractors and suppliers.
Don’t you think that beyond attacking COVID 19, the governments should equip our hospitals that have been abandoned?
In the 1960s our hospitals were some of the best in the world. They were well equipped and manned by world class medical professionals. But like many other national institutions the hospitals collapsed under the military. By the end of the second republic they had become consulting clinics. That was the observation of the head of the military junta, General Muhammadu Buhari, in January 1984. The hospitals have since become mortuaries. Instead of fixing them top public officers have been travelling abroad for medical treatment at public expense. General Ibrahim Babangida was hospitalised in Paris in the 1980s. 40 years later President Buhari goes to London for regular medical attention at public expense. The demand for equipping local hospitals and arresting the mass exodus of our trained medical personnel to foreign countries has fallen on deaf ears. The masses of our people are killed by preventable diseases like cholera, polio, meningitis, tuberculosis, malaria fever and lassa fever. Just imagine the hypocrisy over the fight against the conoravirus pandemic. Isolation centres are springing up while some public hospitals are being fixed because members of the ruling class cannot travel abroad as there is a global ban on foreign travels. Unfortunately the pandemic has claimed six lives in Nigeria. But in the first quarter of this year, lassa fever has killed 188 people and the figure is rising. The labour unions and other progressive forces should ensure that public medical centres are fixed during this crisis. The medical professional bodies should compel the government to supply masks, ventilators and build molecular laboratories. Nigeria should contact Cuba which has produced interferon Alpha 2B drug which has so far proved to be the most effective vaccine against the pandemic. In fact, Italy and not less than 37 other countries are being assisted by Cuba to fight the pandemic. Can you imagine that a third world country has been invited to assist a member of the G20? Even the United Kingdom had to rely on Cuba when scores of her nationals who were on cruise were stranded in the Caribbean territorial waters. The pandemic has destroyed isolationism and glorified internationalism. It is a sombre lesson for countries that have been promoting ultra nationalism. Can you believe that the United States has received assistance from China and Russia..
Capitalism has never been challenged to this extent. Every serious country is now providing fund for the health of the people and making funds available to keep jobs. Loans are being made available without tough conditionalities while debts are being rescheduled or cancelled. The global economy can never be the same again. The health challenge has made a strong case for a new international economic order.
For stating his position, like you did, on the powers of the president to shut down a federating unit, AGF Malami went after a fellow Silk, Ebun-Olu Adegboruwa, while the presidency took on Nobel Laurette, Wole Soyinka and your friend, Vice President Yemi Osinbajo also faulting you. Would you say the administration has cleaned up its act after the anomaly was pointed out, and how intolerant do you think the Nigerian government is becoming sir?
You know that the federal government is totally intolerant of criticisms. The needless controversy ought to be put in proper perspectives. Both the executive and the legislative arms in Abuja failed the nation in terms of formulating a legal framework for the fight against COVID 19. When the crisis broke out, I called on the President to declare a state of emergency throughout the country in line with section 305 of the Constitution. But that would have required the approval of the National Assembly. The approval could not have been given because the legislators had gone on COVID 19 vacation. When the authorities in Abuja were not forthcoming, we called on state governments to make regulations under the Quarantine Act. Some did. Others issued regulations under the relevant Public Health Laws applicable in the states. When the President intervened rather belatedly, he issued some guidelines, without any legal backing. In my reaction to the guidelines I pointed out that they could not be enforced without regulations made pursuant to the Quarantine Act. It was at that stage that the regime stumbled on the law. That was the reason why the Presidency did not subject me to the usual scurillous attacks. But Mr. Salihu Lukman, the Director-General of the APC Governors Forum called me names for having the temerity to join issues with the Buhari regime over its illegal actions. It was reckless on the part of Mr. Garba Shehu to attack Professor Wole Soyinka for challenging the imposition of lockdown with immediate effect by President Buhari without any consultation with the governors of the affected states. Since Lagos State was already on lockdown, the Abuja intervention was a mere show of power. The Ogun State government rightly modified the Abuja directive on the lockdown to suit its local peculiarities.
President Trump wanted to impose quarantine on New York State but Governor Cuomo kicked against it on the ground that the Constitution does not allow It. Can President Buhari impose regulations on any state under a federal system of government?
The United States is a country of former independent states that came together to form a union. Hence, the motto of that country is e plurubus unum that is one union out of many. For that reason the states have continued to enjoy high degree of autonomy. The President of the United States has no power to impose quarantine on any state. Our own federalism is a unitary system of government. The Quarantine Ordinance of 1926 was a colonial law which metamorphosed into a federal enactment in 1960. Quarantine is item 54 in the Exclusive Legislative List in the second schedule to the 1999 Constitution. So the President can impose quarantine on any area in the country. However, under the Quarantine Act, state governors are empowered to make regulations outside the areas covered by the President. Therefore, the argument that Governor Wike acted unconstitutionally over the arrest of the Carvendon pilots because aviation is, in the exclusive legislative list is bunkum. When the Rivers State Government made the regulation, did the federal government challenge it?
With respect, this is not the first time that Nigeria has fought an infectious disease under the law. The Spanish Flu of 1918 was fought under the colonial ordinance of 1917. Not only was there a lockdown in Lagos, the homes of people were even inspected. The flu which claimed 500,000 lives out of a population of 18 million Nigerians led to the enactment of the Quarantine Act of 1926. When I was writing my book on “Nigerian Law on Socioeconomic Rights” I found that the Quarantine Act needed to be amended. We pressurised the National Assembly to review the colonial law. To that effect, a bill was actually passed by the Senate under the presidency of Senator David Mark but the bill never saw the light of day. Once this particular lockdown is over we are going to mount fresh pressure on the National Assembly to amend the Quarantine Act to reflect current reality in the country.
Video clips in the social media suggest underhand dealings in making Lagos residents comfortable during the lockdown. Now residents are getting more agitated and emboldened to flout it, despite the Funke Akindele episode. How do we bridge this gap of trust in public leadership, considering the huge goodwill that trailed this government into office?
Having failed to address any of the problems confronting the people, the government has carelessly lost the popular goodwill. Because of official alienation from the people, the federal and state governments imposed the lockdown without any arrangement for the poor and the vulnerable people as well as daily income earners. At the time it dawned on governments that inncentives had to be provided, there were no reliable data to work with. The fact that governments did not provide adequate information, the erroneous impression was given that everybody was entitled to the incentives. For instance, the federal government has just stated that anyone who has up to N200,000 in their bank account will not be entitled to the cash transfer of N20,000. I am aware that based on the abuse of the distrubution of the incentives the Lagos State government has been compelled to review the entire policy. It is hoped that the crisis will compel the federal and state governments to learn to take governance much more seriously.
Sir, do you agree with some of your colleagues who have said that the law under which Funke Akindele and her husband were convicted is inchoate, because the regulation can’t be effective until passed and gazetted?
In rushing the case to the criminal court the prosecutor did not take cognizance of the case of Okafor v Lagos State Government where the Court of Appeal had held that a citizen cannot be prosecuted or punished for disobeying the directive of the governor of Lagos State. Hence the law has provided that the directive or regulation in question has to be approved by the House of Assembly. Since the directive or regulation was not approved by the house of assembly the prosecution, conviction and sentence are illegal and unconstitutional. In the instant case our law firm has been briefed by the Akindeles to take up the matter on appeal. The appeal will be in order. More so that others who committed the same offence who were said to have been remorseful like the Akindeles have been let off the hook without the stigma of criminal conviction.
Sir, with the deluge of constitutional issues you have had to take up with this government, will you describe the current administration as lawless?
No doubt, we have routine manifestations of executive lawlessness at the federal and state levels. Apart from operating outside the ambit of the law the governments treat court judgments and orders with disdain. Former President Olusegun Obasanjo even disregarded the judgments of the Supreme Court. We are currently working on the compilation of judgments which the federal government has not complied with. So far, we have confirmed not less than 180 judgments that have been ignored since 1999. If you add the judgments being disregarded by the 36 state governments to the 180 judgments, the figure will hit the roof. I am often embarrassed when I compare the attitude of the federal government to the rule of law with that of neighbouring countries. I will mention just two countries: Ghana and The Gambia. The Yahya Jameh regime had disobeyed two of the judgments that we obtained for two detained journalists at the Ecowas Court. As soon as the dictator was forced to relinquish power, we drew the attention of the Adama Barrow administration to both cases. The judgment debts have since been paid. I was recently in Accra Ghana to attend a human rights conference. I took advantage of the conference to meet President Nana Akuffo. He was embarrased when I complained to him that the John Mahama administration did not pay the damages awarded by the Ecowas Court to a Nigerian whose 13-year old son was killed in Ghana. As soon as I gave him a copy of the judgment, President Akufo directed the Attorney-General to ensure immediate payment. I have just been informed by the Ministry of Finance that the payment would have been ready but for the lockdown in Accra. Sadly, Nigeria which hosts the Ecowas Court has failed to comply with several judgments of the court. I can say without any fear of contradiction that it was because of the penchant of the federal government to disregard court judgments that led to the award of $9.6 billion against Nigeria by a British commercial court last year. If such impunty is not discarded the federal government will continue to expose the country to unwanted international opprobrium.