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S/Court should revisit its interpretation of S.285 of the constitution
The call for the convocation of Sovereign National Conference (SNC) in the country recently dominated the news media . A Senior Advocate of Nigeria Mr. Tayo Oyetibo, expressed his opinion on this and other issues in a chat with Yejide Gbenga-ogundare. Excerpts:
There are calls in some quarters for the amendment of the 1999 constitution as well as the convocation of a Sovereign National Conference (SNC) that would lead to the production of a new constitution for the country? Do you support this?
In this country we are fond of laying emphasis on issues that have been overbeaten. People have been talking about sovereign national conference over the years, from the time of Babangida’s regime. If anybody wants to get attention they will talk about national conference. What is national conference in the face of the the constitution? If you look at the constitution, Section 1, in particular states that this Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria. Section 2 says The Federal Republic of Nigeria shall not be governed, nor shall any person or group of persons take control of the government of Nigeria or any part thereof, except in accordance with the provision of this constitution and Section 3 goes on to say If any other law is inconsistent with the provisions of this constitution, this constitution shall prevail, that the other law shall to the extent of the inconsistency be void, so where do you see national conference there. Let not deceive ourselves, it is not possible. We cannot have a sovereign national conference under statutory legal regime, we should not deceive ourselves. Are you going to set aside the constitution? The constitution is the grundnorm the organic law upon which all other laws are founded. All other super structure are based on foundation, the foundation which is the constitution. You cannot erect a structure and remove the foundation, it collapses so even if we are going to have a conference it must be held within the purview of the constitution. I don’t deceive myself even in anything I do I always like to be realistic. If we want to have a conference, we have to look at what constitution provides for, So for everything you want. You can alter the constitution if allowed, you can amend, the alteration include substitution. There is nothing you have to do that did not fall within the purview of constitution. An amendment of the constitution amounts to changing certain provisions of the constitution, sovereign natural conference is not attainable under the present legal regime.
Considering the widespread corruption in the society,
do you support the view that there is need for capital punishment for offenders?
Recently, I was discussing with somebody that each time I open the pages of newspapers and I read the rate at which billions, no longer millions, have been stolen, one wonders, where the money is, in Nigeria, it is no longer millions anymore. The most painful aspect is the recent revelation about pension fraud, money belonging to the people who had worked for the nation and retired. Aged men and women who should be enjoying the fruits of their past labour and somebody sitting somewhere receiving his normal salary but is not satisfied, he is not contended with what he gets. They now deprive the aged of the benefit of the fruit of past labour while serving. As a lawyer, one should not pass judgment even before hearing the other side but I think by any standard if the law is to punish those who embezzled pensioners money, some of them deserve to die because life has been snuffed out by the act of those who committed this atrocity.
What implication does the sentencing of former governor James Ibori of Delta State in a London court has on the judicial system in Nigeria?
Well you see it is not always good to use the judiciary as scapegoat. When things like this happen, we have instances also in developed countries where sensational cases, criminal cases are taken to court. If there is no sufficient evidence, the accused are set free. The judges do not decide cases on sentiments and that is the unfortunate situation that people don’t appreciate. Judges do not look at the sentiment of the thing, judges do not look at the public opinion, some people believe that once you can raise or develop a particular line of thought in the media, then it is likely to influence the judgment of the court, so far from the truth. The judge will look at the facts presented to him; he will look at the evidence presented to him and the charges brought before him, this is where you need experienced prosecutors for criminal cases. I have come across charges in court and I just laugh, and I said prosecution should not file this type of charge. So if the accused gets away, it is the judiciary that will then be the whipping boy. You are not going to talk about the prosecutor; you are not going to talk about the fact that the investigation is washy. The areas that they should have been pursued to establish their case, they will not pursue them, fact that should be looked into, they will not look into them and if you present incomplete set of facts before the judge, the judge has no option but to let the accused go. That is what the law says. You can not convict, according to the public opinion. If you look at the extensive work that the prosecution in England did, you will know how much they spend on that case alone. It is not the money of the United Kingdom that was taken away, it the money of Nigeria, yet a lot of money was spent on investigation, building up the case, gathering materials, but here you just call somebody who have no experience, you give them major cases to go and prosecute and what do you get ? That is the problem. So, while am not absolving some judges from some of the allegations that have been levelled against them, but more often than not, what you present to a judge, he does not go beyond that issue. A judge that bases his decision upon public opinion is not worthy of being on the bench.
The opinion of vast majority of people is that Nigeria and the judiciary rather than Ibori are on trial. Do you subscribe to this?
I would tell you to some extent that Nigerians should sit back and do a self-reappraisal. Ibori and the money in question is not British money, it is Nigeria’s money, here was a man who had been convicted abroad, he was able to manipulate his way and found himself in position of power, executive power, having been convicted not once but twice. And the constitution says that if you have been convicted, you will not be qualified to contest elections unless you are pardoned. Yet the man contested first time, second time and nobody could detect it but I will also now lay blame on the door step of the British government, they are fond of releasing information to the public that there is going be attack here, there is going to be attack there, why did they not release that information that Ibori was convicted in their country. Why did they not share that information with the Nigeria government just as they share information about security now, if they have information that he is an ex convict, why did they not share that intelligence information with Nigeria intelligence, why did they wait until now. It cost lots of money of the British tax payers’ money, if they had shared the information, they would have saved themselves from all the resources they spent on his case. It is clear that the world is a global village. What is happening in Nigeria now has an impact negatively one way or the other on the United Kingdom whereas if they had released that information, all the money they spent in the United Kingdom would have been saved, so that is one aspect of the British community but for Nigeria community, we look at it from how did we find ourselves in this mess that somebody who is an ex-convict not once but twice held office. He was charged to court and the court discharged him of the charge. Why didn’t EFCC appeal the judgment, this is the case that ought to have been fought to the Supreme Court level. These are food for thought for all; it is not only the judiciary. The High court is just one tier, we still have a Court of Appeal and Supreme Court, so if anyone raises questions about the judiciary, that does not represent the entire judiciary. I lost a case in the High Court, Court of Appeal and I got to the Supreme Court and I won many years ago. I wouldn’t know why that judgment was not appealed if EFCC knows they have a case because they have the right of appeal. It is not the judiciary that should be used as a whipping boy at all. I am sure that if that the 117-count charge was appealed, the Supreme Court would have been able to see what was wrong with the judgment. The law is clear, the judgment of the court whether rightly or wrongly made until it is set aside, it remains valid forever, that is the order. If a judgment is made against you and you did not appeal, you are seen to have been satisfied with the judgment, the EFCC has its own fault.
How will you react to the judgment of the Supreme Court on the 180 days time limit for the determination of election petitions?
One area of interpretation that may need to be looked at is the issue of 180 days, over which an election petition must be heard. The supreme court by the judgment presumed that if there is an order for a re-trial by the appellate court, the petition, must be heard within 180 days. The position of the Supreme Court on section 285 was not the intention of the law makers who couched the law. There was a time line calculated by the lawmakers on how many days you need to file your petition, how many days you need to file your reply, how many days for petitioner to reply, to start for pre trial, days you need to file your written address before 180 days was arrived at.
I was a consultant to the committee that worked on the law. That was not the intention of the committee, that was not the intention of the amendment. The 180 days was arrived at by the committee was based on how many days it will take the petitioner at the fist trial. That is the tribunal, how many days the petitioner to file, the respondent to reply to the petition, the petitioner to takeout pre trial application, then the pre trial period, the numbers of the day each party will use to bring the evidence, then written addresses, then judgment. The 180 days did not include going on appeal and coming back for re-trial. Unfortunately Supreme Court in its interpretation held that the whole proceedings be concluded within 180 days. When you look at 180 days in determining cases, that is not feasible in any way. The danger there is that a tribunal has been turned into a final court. Whatever it says is final. Even if a tribunal decides to dismiss your petition, without hearing you, there is nothing you can do. And they can say to your face that if you go and come back there can never be retrial. That particular interpretation had to be looked at again and again.Share