All posts by Chuma Uwechia

Nnabuenyi Chuma Uwechia, an attorney, author, and public affairs commentator, is a columnist for Enugu Metro. He heads the law offices of Chukwuma K. Uwechia practicing in the Greater New York City Area. Chuma authored two books (Nigerian Arbitration and Conciliation Law and Practice, and The Law and Practice Relating to Clubs and Associations), has many publications in peer-review jounals, and logged hundreds of articles in the popular press.
Business

AMCON amendment law is unconstitutional

Attorney Chuma Uwechia takes on an aspect of AMCON amendment law dealing with property seizures that he argues as unconstitutional.

AMCON amendment law is unconstitutional

Chuma Uwechia

Chuma Uwechia, Esq, a New York-based Attorney, is admitted to both the United States Supreme Court and the Nigerian Supreme Court. He is the author of two Nigerian law books.

Before the National Assembly enacted the AMCON Amendment Act 2019 (“AMCON Act”), some legislators warned about the seeming constitutional challenges in the bill. And they are right because the Act abridged and deprived individuals of their civil liberties. It is also overly broad for ensnaring innocent directors who are not ordinarily debtors under company law, or any known commercial practice. In an attempt to solve the endemic issue of non-performing bank loans, the legislature trampled on the fundamental civil rights of citizens to enact the Act.

The 1999 Constitution of the Federal Republic of Nigeria (as amended) (the “Constitution”) rests on seven basic principles; popular sovereignty, limited government, separation of powers, federalism, checks and balances, republicanism, and individual rights. As it confers power on the three arms of government, it equally protects individual civil liberties guaranteed to the citizens against government actions. Admittedly, constitutional democracy is still a fledging experiment in Nigeria and the mindset of government officials is yet to be completely weaned from the autocratic tendencies cultivated and associated with the long era of military rule. This article will address in substance the constitutionality of sections 49 (1) & 50 (1) of the AMCON Act vis-à-vis the provision of Sections 34, 36, 37, 43 and 44 of the Constitution, as there is no known existing court decision or commentaries on these grounds.

Fundamental Rights

Chapter IV: Fundamental Rights in the Constitution exists to protect the liberties of individuals. It protects the right to dignity of person (S.34), privacy of citizens, their homes (S.37), right to own immovable property (S.43), protection from expropriation (S.44.1), free speech, the right to due process and fair hearing (S.36), the right to counsel, and the right to be free from inhuman or degrading treatment (S.34.1.a), just to name a few.

These inalienable rights are regarded as being granted by the Creator, not by government, and more specifically, government cannot take those from you, except when you commit a felony and are convicted by a just process. If the executive through any act or the legislature through any bill tries to deprive an individual of one of those constitutional rights, even if for a very short length of time, the courts have inherent jurisdiction under section 6 of the Constitution to intervene and safeguard those rights.

Fair Hearing

Fair hearing concerns the procedures that the government must follow before it deprives an individual of his life, liberty or property, which entail at minimum: (a) notice, (b) an opportunity to be heard and (c) an impartial tribunal. The key question is, what procedures satisfy fair hearing in the context of the AMCON Act? An analysis of the germane sections of the Act will provide an objective answer.

The new section 49 (1) (vide section 15) AMCON Act provides that – “Where the Corporation has reasonable cause to believe that a debtor or debtor company is the bona fide owner of any movable or immovable property, it may apply to the court, before, or at the time of filing of action for debt recovery or other like action or at any time after the filing of action, and before or after service of the originating process by which such action is commenced on the debtor or debtor company, by motion ex-parte for an interlocutory order granting possession of the property to the Corporation pending the hearing and determination of the debt recovery or other action to abide the decision in such action.”

While the new section 50 (1) (vide section 16) AMCON Act specifically provides that – “Where the Corporation has reasonable cause to believe that a debtor or debtor company has funds in any account with any eligible financial institution, it may apply to the court, before, or at the time of filing of action for debt recovery or other like action or at any time after the filing of action, and before or after service of the originating process by which such action is commenced on the debtor or debtor company, by motion ex-parte for an interlocutory order freezing the debtor or debtor company’s account.”

“Debtor or debtor company” is defined by the AMCON Act 2010 to mean any borrower, beneficiary of an eligible bank asset and includes a guarantor of a debtor, guarantor or director of a debtor company. But the 2019 amendment specifically restricted that definition to the liquidation and winding up under sections 51, 52 and 53. Consequently, the definition of debtor or debtor company for the rest of the Act is left undefined making the Act unconstitutionally vague and ambiguous.

Generally, an ex parte interlocutory order is used to preserve the status quo before a hearing on notice in matters of urgency. See the case of Nathaniel Adedamola Kotoye V Central Bank of Nigeria & Ors (SC. 118/1988) [1989] NGSC 44 (3 February 1989). Nnaemeka-Agu, J.S.C., explained that the paramount objective is to do justice to the parties, otherwise, it will run counter to the letters and spirit of section 33 of the Constitution of 1979 (now section 36 of the Constitution 1999 italics mine) and ought not be entertained. He also opined that the right to apply to set aside an order after it has been made can never be an equal right with hearing him before the order is made. There is a duty to preserve and protect the right of the parties before the court.

But sections 49 (1) and 50 (1) seeks to grant possession of moveable and immovable properties of a debtor or debtor company to AMCON without hearing the other side. The order of possession prescribed by the Act will do the opposite and upend the status quo. It gives the right to assert ownership and control over the properties to AMCON, after taking it away from the rightful owners in violation of the fundamental rights protection in sections 34, 36, 37, 43 and 44 of the Constitution. Since a debtor has been rightly or wrongly defined to encompass directors of the debtor company without more, this means that the personal dwelling residences of directors and other properties fall under such ex parte order for possession. Consequently, directors can be and are unceremoniously ejected from their homes and properties, and rendered homeless; while all their bank accounts in all financial institutions in Nigeria are frozen. Thus, their means of livelihood are impromptu removed, leaving them in an incredible disadvantage/limbo regarding funds to procure alternative temporary living arrangement and right to employ counsel, and subjects them to inhuman and degrading treatment contrary to their constitutional rights; all without being heard.

The way out

Meanwhile, the Constitution which is the superior law of the land protects directors personal right to property, dignity, privacy, fair hearing, and freedom from inhuman and degrading treatment. Since the goal of the ex parte interlocutory order is to preserve the properties and maintain the status quo, an interlocutory restraining order rather than a possessory order, will suffice, pending the hearing and determination of interlocutory motion on notice. The grant of ex parte possessory order undermines the independence and impartiality of the tribunal required in section 36 of the Constitution.

The issue really is not whether the constitution allows for pre-action steps in judicial proceedings, as has been wrongly framed by some appellate judges. It is rightly whether the procedures satisfy chapter IV – Fundamental Rights clause in the Constitution. The wrong issues were formulated in the case of American Specifications Autos Ltd. & Anor. V. AMCON Appeal, NO CA/L/66/2013 2017) LCN/10198(CA) quoting 7-Up Bottling Company Ltd. & Ors V. Abiola and Sons Nigeria Ltd. SC.191/1989. The cases did not analyze Sections 49 and 50 of the AMCON Act together with sections 34, 36, 37, 43 and 44 of the Constitution to determine the constitutional validity.

Further, the dictum that “if the supreme court can dispose of an application under S. 213 (4) of the 1979 Constitution, without oral hearing of the application, then I see nothing wrong or unconstitutional for a trial court to deal with an ex-parte motion under its rule,” is flawed. A Supreme Court judgement based only on review of the record and briefs from the lower court proceedings, adequately considers the facts and legal arguments to satisfy fair hearing.

In the persuasive case of United States v. James Daniel Good Real Property, 510 U.S. 43 (1993), the United States Supreme court ruled that the practice of ex parte seizure creates an unacceptable risk of error, since the proceeding affords little or no protection to an innocent owner, who may not be deprived of his property. That there is no pressing governmental legitimate interest at stake requiring prompt action, because real property cannot abscond. That a court can secure and prevent the property from being sold through measures less intrusive than seizure, such as restraining order and lis pendens notice to prevent the property’s sale. Since a claimant is already entitled to a hearing before final judgment, postponing seizure until after an adversary hearing creates no significant administrative burden compared to the injury occasioned by erroneous seizure.

Courts in the United State are guided by “the ancient view that ‘a man’s home is his castle’ into which ‘not even a king may enter’,” because it is protected by the constitution. Southern Bell Tel. and Tel. Co. v. Hamm, 306 S.C. 70, 409 S.E.2d 775, 780 (1991), citing Rowan v. United States Post Office Department, 397 U.S. 728, 90 S.Ct. 1484, 25 L.Ed.2d 736 (1969). People have strong attachments to their home, in part, because it is the one space where they reign sovereign. There is something offensive about being ordered out of one’s home without an opportunity to be heard.

Overboard, overinclusive

Further, the AMCON Act is overbroad and overinclusive in bringing all directors of a debtor company within its definition of debtors, as it negatively ensnared directors who are not ordinarily debtors under the Companies and Allied Matters Act 2020 as amended (“CAMA”) or any known civilized commercial practice. It is the settled law that directors of limited liability company cannot be held personally liable for corporate business debts, except in certain circumstances where they provide personal guarantee, stand surety or for fraud under section 290 (c) of CAMA where it is acceptable to lift the veil of incorporation. And even in those limited instances, ejecting them from their immovable properties, no matter how temporary, must be pursuant to a final judgement. The right to one’s home is subject to significant constitutional protection. Being ordered out of one’s home on an ex parte basis deprives one of the privacy and security of his home without being heard. Only an ex parte restraining order prohibiting the transfer of assets can meet the constitutional justice of the case, especially where the immovable asset is not the subject matter of the lawsuit. The effect of entrenching the Fundamental Rights chapter in the Constitution is that it overrides all contrary provisions in any law of the land, be they substantive or adjectival.

It is vital to distinguish the Supreme Court cases of Nathaniel Adedamola Kotoye V Central Bank of Nigeria & Ors (SC. 118/1988) [1989] NGSC 44 (3 February 1989) and 7-Up Bottling Company Ltd. & Ors v. Abiola and Sons Nigeria Ltd. SC.191/1989, since the interlocutory orders of possession were against the company’s assets in receivership and not against the personal immovable properties of directors.

The appeal court confirmed in Jumbo V AMCON & Others (2020) LCN/14278 (CA) that the Constitution is the highest law and that Section 36 (1) of the Constitution of Nigeria is superior to the AMCON Amendment Act 2019, accordingly, all rules of court and substantive law which run counter to or are inconsistent with this enabling provision of the Constitution are, ipso facto, null and void to the extent of the inconsistency. See also Josco Ag. Global Resources Ltd & Anor v. AMCON (2018) LPELR-45637(CA) confirming the supremacy of the Constitution over AMCON Act. Note that the appeal courts did not analyze Sections 49 and 50 of the AMCON Act together with sections 34, 36, 37, 43 and 44 of the Constitution to determine the constitutional validity.

The role of courts

Lastly, courts have an inherent power under section 6 of the Constitution to ensure proper and effective administration of justice, and safeguard civil rights so that the streams of justice will remain pure and unpolluted. Accordingly, where a motion is made ex parte under the Act, the court may make, or refuse to make the order sought, or may grant an order to show cause why the order sought should not be made, or may direct the motion to be made on notice to the parties to be affected thereby.

Clearly, parts of the AMCON ACT are repugnant to the Nigerian Constitution.

Viewpoints

Our Nigerian experiment and choices we make as a nation


Attorney Chuma Uwechia reflects on our Nigerian experiment and the choices we must make now as a nation to become truly great.


When Cicero, an orator and politician in ancient Rome noted that “thieves are never rogues amongst themselves,” he probably never contemplated there would be a nation like Nigeria where the unimaginable happens with impunity.

Nigeria is afloat with capable hands that can provide effective and efficient solutions to the border security issue and governance generally, if merit devoid of tribalism were to take its proper place in the scheme of things.

Chuma Uwechia

Nigeria has become a country where public funds stashed in America and Europe, are repatriated and swiftly re-looted and moved to Dubai and other parts of the world. It has become a country where stolen goods recovered by the nation’s anti-corruption agencies are allegedly re-stolen by the officials; a country where resources meant for the Niger Delta people are hijacked by their own kin; a country where funds meant for fighting terrorism, Boko Haram insurgency and the like, are pilfered by military top brass.

Nigeria has become a country where police and military officers retire stupendously rich; a nation where the peoples’ representatives swipe their constituency funds and allocate all manner of unearned allowances to themselves.

Nigeria now borders on a huge criminal enterprise with little vestige of responsible government. There is no longer honour even among thieves.

Nigeria currently ranks as the fourth most corrupt country in West Africa and 146 out of 180 countries in the world corruption index. Researchers found that a corruption perception ranking such as Nigeria’s hinders foreign investment, long-term economic growth and the country’s GDP.
Nigeria is also the third most impacted by terrorism in the world; and ranks the third poorest with the unsavory tag as the poverty capital of the world. All these negatives feed the invidious ethnic rivalry that is tearing the country apart and deprive the nation of a transformational and inclusive leadership.

Our Nigerian experiment and choices we make as a nation. According to a Financial Times, December 22, 2020, Editorial, “Nigeria is at risk of becoming a failed state.” The Editorial noted that a failed state is one where the government is no longer in control and concluded that by this yardstick, Africa’s most populous country is teetering on the brink. Long before now, however, there was little sign of government in the nation as public service utilities like pipe borne water, steady electricity supply, road network, public schools, good healthcare infrastructure and security were skeletal. Majority of Nigerians rely on private bore holes and unhygienic sources like streams and rivers for water supply because the public waterworks no longer exist.

Due to epileptic supply of electricity from the national grid, Nigerians make do with personal diesel generators or solar batteries and panels for power. Since, the public educational system is near comatose, children of the wealthy now attend private schools or travel abroad for their education. The less privileged have their children consigned to ill-equipped public schools that are perennially on teachers’ strike due to funding and salary payment issues. As a result of poor quality healthcare system, medical tourism to America, Europe and Asia is now the norm for the wealthy. The few fully functional hospitals are for the elite, while the largely poor populace suffer their health afflictions in silence leading to high incidents of preventable deaths.

Our Nigerian experiment and choices we make as a nation. In the area of security, ineffective policing has led most communities to cobble ragtag vigilante outfits to provide a semblance of sanity and peace of mind from criminals. This is the lamentable state of the nation. It was therefore not surprising as much as it was embarrassing that on December 23, 2020, the President’s Special Adviser on Media and Publicity, Femi Adesina, released a statement declaring that only God could effectively supervise Nigeria’s border with Niger Republic. That was an astonishing admission of not just helplessness but hopelessness. The ill-advised statement symbolizes the decrepit approach to governance in the country that needs to be urgently fixed. It reinforces the perception that government is a rudderless ship.

Unfortunately, that statement does not reflect the reality as Nigeria is afloat with capable hands that can provide effective and efficient solutions to the border security issue and governance generally, if merit devoid of tribalism were to take its proper place in the scheme of things and the most qualified technocrats appointed to positions of leadership. Besides, we have learned from the controversy surrounding the construction of the USA border wall with Mexico that technology is the smarter and less costly way to secure national borders. A barrier made up of a patchwork of tools like drones and sensors to help surveil and identify unauthorized crossings, specifically in remote stretches of land, will be the most effective solution for Nigeria at this time. It will only require a well-equipped triumvirate of the Customs, Immigration and Military forces to effectively supervise and secure our northern border.
Nigeria have structural as well as numerous fundamental leadership issues such as the periodic census that was last conducted in 2006. In 2012, Mr. Festus Odimegwu, former Managing Director/CEO Nigerian Breweries and former Chairman, National Population Commission planned to conduct a credible and proper census for Nigeria using technology. The plan called for a digital imaging of 200,000 localities in Nigeria with clear frames. This was to be followed by physical verification of every building inside the 200,000 localities. All the houses would be numbered and the households inside the residential buildings identified. A household register will be established together with a zip code for the country. Two million trained enumerators with biometric machines were to be engaged to conduct the biometric census of Nigerians, all at a cost of N600 billion which Mr. Odimegwu planned to raise through donors. This would have effectively resolved the recurring controversy surrounding the constant manipulation of census figures in Nigeria.
There is no doubt that authentic demographic data is the bedrock of democracy because representation is based on population. It is the primary tool used for equitable distribution of public resources as federal and state funding for things like educational programs, healthcare, law enforcement and highways is allocated in part based on population. Government cannot effectively coordinate the economy and ensure productivity and economic allocation of resources without reliable demographic data. Evidently, national planning and solving security problems have become nightmares. We require the census to interrogate how best to achieve the ideal police-to-population ratio of 1:500, which is needed for effective policing and to check the infiltration of criminal elements from neighboring countries. Odimegwu’s plan was, of course, a pipe dream that was never allowed to materialize.

As a result of these leadership failures, the obvious solution to Nigeria’s problem is to adopt true States-based federalism that allows a level of autonomy, protected by the constitution. It will enthrone good governance, manage inter-ethnic tensions generated by our territorially segregated multiple ethnicities and engender peaceful coexistence. It will move the country away from the never-ending ethnic conflicts that is likely to lead eventually to disintegration if left unchecked. It will obviate demands for regional autonomy, lead to a nation of equal citizens and stimulate economic growth that would alleviate poverty for the majority of rural and tribal communities. It is the ultimate political compromise and sacrifice worth making.

True federalism will transfer to the States most of the powers currently residing with the Federal Government save for the armed forces, customs and immigration, regulation of interstate and foreign commerce, foreign affairs, post office, banking and currency, shipping and aviation. The powers not reserved to the Federal Government by the Constitution, not prohibited to the States, will be given to the States. Concurrent powers of the federal and states will remain in areas like police, power generation, taxation, etc.

A careful separation and blending of powers between the federal and state governments will effectively resolve the failure of the 1999 constitution to reflect the yearnings of the various ethnic nationalities in the country. It will ensure resource control. It will guard against federal tyranny and make for more participation of citizens in government. It will reduce the ethnic schism that is threatening the country’s corporate unity and enable the country to cope with ethnicity in ways compatible with democracy.
Thus, the federal government will concentrate on the few reserved areas and become more efficient with a trimmed federal workforce. Likewise, the States will be better positioned to do those things that best falls within their jurisdiction at their own pace. A restructured Nigeria is the smart way to repair Nigeria but we have to move fast. The choices we make as a nation now will determine the fate of the Nigerian experiment.

Attorney Chuma Uwechia reflects on our Nigerian experiment and the choices we must make now as a nation to become a truly great nation

News

Youths make Case for Restructuring

Chuma Uwechia
Chuma Uwechia

Chuma Uwechia reflects on what the Nigerian youth needs and asks leaders to show food faith by negotiating a fair and equitable restructued nation.

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The contradictory posture of the Northern and Southern states of Nigeria on the SARS issue has clearly become one of the strongest opening arguments in support of constitutional restructuring – that the various constituting zones of the country have different political and economic cum social needs and should be allowed to develop according to their levels of want, pace and comfort.

If the world was riveted by the #EndSARS protest that successfully fought for the disbandment of the Special Anti-Robbery Squad (SARS) of the Nigerian Police for its high handedness, extra-judicial killings and corruption, it was more about the audacity of the Nigerian youths who took leadership in a fight for their lives and future. In contrast, however, was the Pro-SARS rally in Borno State by citizens expressing displeasure over the disbanding of the police squad. The Pro-SARS agitation was swiftly supported by Governors of states in the Northern part of Nigeria and other leaders. 

This support for what started as apolitical protest thrusted the issue into the realm of the old political divide between the Northern and Southern Nigeria. It reminded the nation of the distinctions between the internal governments of the two former British protectorates. One had indirect rule and the other direct rule.  So while SARS was terrorizing people in the Southern part of Nigeria, it seemed to be contributing immensely to the fight against terrorism in the North. Different strokes, one country.

Unwittingly, this contradictory posture of the Northern and Southern states of Nigeria on the SARS issue has clearly become one of the strongest opening arguments in support of constitutional restructuring – that the various constituting zones of the country have different political and economic cum social needs and should be allowed to develop according to their levels of want, pace and comfort. Forcing Usain Bolt’s siblings to run at the world’s fastest man’s speed will amount to cruelty, while requiring Usain to crawl at his siblings pace will stunt his development and natural talent. The Bolt family probably allowed their children to develop according to their natural endowment and talent, while complementing each other. That should be the perfect family arrangement borne out of love. That should be the Nigerian arrangement. The agitation for restructuring is not an indication of animosity, intolerance and hatred among ethnic groups.

With a restructured federal constitution, policing like other similar items will return to the concurrent legislative list. There will be a federal police force with exclusive jurisdiction on federal roads and federal territories. A state police force with state jurisdiction will exist side by side the federal police as currently practiced in the USA.  Of course, there will always be collaboration between the federal and state police in matters of mutual interest. That structure will permit the Northern states to have and keep their own equivalent of the SARS or invite the federal police to deploy SARS only in the Northern part of Nigeria.

A restructured Nigeria will eliminate the unnecessary friction, rancor, bitterness, contempt and enmity between the Northern and Southern parts of Nigeria. It is not an incongruity. While it will not be a cure for Nigeria’s multifaceted problems, it will douse the flame of tribal polarization currently tugging at the nation’s body fabric. By eliminating or minimizing one of our most serious national problems, we will be able to focus attention on resolving the remaining issues, one piece at a time.

Admittedly, the need to restructure may not have been very obvious if the federal government was proactively attacking our national problems of security of life and property, economic inequality, youth unemployment, lack of social and health infrastructure, the huge cost of government, while ensuring diversity, equity and inclusiveness, with the same speed it responded to the #EndSARS protest. The seeming lack of sensitivity in appointments to federal offices and siting of national projects to reflect federal character have dangerously polarized the nation.

All these flow from the obvious vacuum in transformational leadership in the nation which could not have been made more glaring than with the bold decision of youths to assume the mantle of leadership and fight for their lives with #EndSARS protest. And the youths fought positively to the world’s admiration. We should remember that without government support, the youths stormed the world’s musical scene and are riding on top of the charts due to their hard work, ingenuity and resilience. They make waves in international sports and the professions based on personal development of their talents and discipline. They are now poised to take back their country from the morass into which it has fallen. Definitely, this won’t be their last incursion to force the government out of slumber to resolve our societal problems. 

Although, there has been a steady flow of political and religious leaders pandering to the spotlight to release statements about the need to restructure the country, none has done the needful. As of date, no group, political party or individual has sponsored any bill to restructure the country, which raises the question of whether our federal representatives/senators are under performing despite their jumbo emoluments. It does appear that people are more content with just calling on the president to restructure the country, rather than appropriately pressurizing the National Assembly to do their necessary legislative work. We understand the persuasive power of the presidency, but it is not President Buhari’s job to legislate. It is our job to lean on our federal representatives and senators to do their job. If a bill is eventually passed to restructure and presented to the president for assent, then we can move on President Buhari but not before.

The need to restructure may not have been very obvious if the federal government was proactively attacking our national problems of security of life and property, economic inequality, youth unemployment, lack of social and health infrastructure, the huge cost of government, while ensuring diversity, equity and inclusiveness, with the same speed it responded to the #EndSARS protest

In this era of failed governance, the nation appears to be begging for the emergence of statesmen in the mold of late Chief Dr. Nnamdi Azikiwe to show what real leadership looks like by cobbling a bipartisan constitutional amendment and restructuring agreement. It is disappointing that the two main political parties with over 90 percent domination of the National Assembly seats have not felt the pressure and crunching weight of the yearnings of millions of Nigerians and businesses depending on them to pragmatically resolve the fundamental constitutional problems destabilizing the country in a bipartisan manner. Political party affiliation should not always dictate our positions on policy matters that require nuanced judgement. There should be no room for binary politics in matters of national health.

The question remains if Nigeria is becoming a mission impossible.  In 1978, when the late Owelle of Onitsha, Chief Dr. Nnamdi Azikiwe was being wooed into partisan politics by the various registered political parties, he famously responded that he would first of all play the role of the father of the nation, reconciling the children where conflict existed before dipping into partisan politics. He was at the forefront of the fight for a united Nigeria at independence and did everything within his means to keep the dream alive. The unrepentant nationalist and pan-Africanist was always for reconciliation and building alliances, whether with the military, Northern Peoples Congress or National Party of Nigeria. For him, politics was the art of compromise and he struck when the iron was hot to get a deal for the greater good of the country. He believed that there was no higher calling in terms of a career than public service, a chance to make a difference in people’s lives and improve the nation.

According to Troy Gautier, “negotiated solutions are almost always preferred to unilateral ones.” Today, we need pragmatic politicians and a change in strategy to deal with the fast changing realities in Nigeria before the curtain falls. We need a detribalized, secular and responsive leadership at all levels of government that will be mindful of our ethnic diversity and inject the much needed equity and inclusiveness in governance to calm a highly polarized nation. We need a summit of the two dominant parties, APC and PDP to work together to find a fair and equitable resolution to the most pressing constitutional issue of restructuring and move the nation to true federalism. We need a constitutional amendment that will reduce the size of the National Assembly and State Houses of Assembly.  We don’t need a bicameral government. We need to slash the jumbo remunerations of political office holders; state governors’ emoluments and retirement packages should be drastically reduced. We don’t need a return to former regions with the consequential instability that will ensue with the dismantling of states. The states should stay while the unviable ones should be allowed to work out merger arrangements with the nearest viable state.

The Nigerian dream remains a strong and viable possibility over all other options. We just need to take back our country from the brink.  We need a clear and equitable path forward.  Our youths need a functional economy to grow and realize their talent and full potential and a springboard to the global arena. They want a detribalized and expansive economy with adequate employment opportunities. They need peace and security of life and property. They want a reason to be hopeful about the future, their future.  It is about time we went over and beyond to negotiate a fair and equitable, restructured state in good faith. That will keep the Nigerian project alive or we can negotiate an amicable burst. The choice is ours.

News Updates

Nigeria on Precipice at 60: Ways to Pull Back

Chuma Uwechia
Chuma Uwechia

New York attorney, Chuma Uwechia looks back on Nigeria hanging on the precipice at 60 and considers ways to pull back as the country’s leaders hold tight to the ropes of incompetence and corruption.

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Until we realize that only the pursuit of collective wealth will lead to collective wellbeing and embrace transformational leadership, the increasing economic inequality in the country will continue to trigger social strife and insecurity of life and property.

As we mark the 60th anniversary of Nigeria’s independence, civil servants born on the same date of October 1, 1960 are now mostly all retired. A good percentage of them are apparently proud grandparents. While they count their individual blessings and personal prosperity, every single one of them lament the state of the country – the near absence of government; insecurity of life and property; the lack of necessary public utilities, social amenities and infrastructure; and the deplorable economy.  In other words, a stunted national growth and reversed progress.

Quite a lot has been written about why Nigeria is not making political and economic progress despite the abundance of talented human capital. Some point to the flawed federal constitution and demand political restructuring. But there is no agreement on whether to go back to regional structure or fine tune the current system to reflect true federalism. Maybe, a weak federal government with a short exclusive legislative power and strong states with derivative status will fill the bill. There is ready consensus that the size of the National Assembly and State Houses of Assembly need to be drastically pruned down to reduce the bloated cost of governance.

However, there is serious concern that the National Assembly, with the legal authority to restructure the constitution, has not shown enough leadership and will to do what is necessary to craft an acceptable political structure. This is despite the increasing populism towards separatism and secession as alternative option.

Leadership we do not need

Nigeria’s biggest problem appears to be the leadership mindset and culture. This is compounded by the perception that the current federal government does not reflect true federal character in its appointments to sensitive positions, in other to promote inclusiveness and a common national identity. And that it is drifting towards consolidating power for Fulani hegemony as its primary goal. As a result, old and disappearing ethnic divides have reopened and are deepening and heating up the polity.

The Fulani have held the reins of power in the country for more than 40 out of the 60 years of Nigeria’s independence but they are now confronted by the realities inherent in the question; what is the use of power if not for its efficacy in driving economic prosperity and creating collective wealth for your people and the entire nation? Under the watch of the Fulani leadership, Boko Haram was unleashed and is ravaging and laying waste to their base in the North, while herdsmen have opened up a second flank of attack from Kaduna to the Middle belt States of Benue, Plateau and Taraba, visiting violence on farmers whose crops they turned into grazing land. The herdsmen further added a kidnapping dimension stretching all the way to the South East and South West, all as result of inept leadership. Presently, illiteracy, child marriage, poverty and disease rates are higher in the Northern States than the rest of the country, proving that cornering power as an end in itself but not a means to an end will not translate to tangible gains on the ground. The north is now learning to their chagrin that social inequities which flow from ineffective leadership will eventually always lead to upheaval and insecurity. The north is in strife today. No matter how prosperous a chicken grows, it will never have security living in a colony of foxes.

Given the right leadership coupled with the huge amount of money spent in the bygone years, collective national prosperity and economic growth would have been the dividend. Poverty, illiteracy and the feeling of disillusionment and marginalization fueling the present climate of unrest and restiveness would have been eradicated or reduced to a manageable minimum. 

While there is restiveness about Northern political domination of power at the center and perceived tribal inclinations of the federal government, the rest of the country has not fared much better in terms of redemptive governance. Learning fast from the federal template, politicians at the state level have introduced polarizing politics of geography and religion instead of merit. The outcome is stunted growth.

The country has large array of transformational leaders with proven records of performance at reputable national and international organizations, and foreign countries, especially America and Europe but when they join the nation’s public service, they are inhibited by the entrenched culture of corruption, ethnicity and religious bias.  For those good leaders to win elective office, they have to cut a pact with corrupt politicians who hold them hostage thereafter.

Pursuing common interest

This leadership malaise boils down to the fact that corruptive personal interests, ethnic and sectional politics and allegiance have been elevated above the common interest of the nation state. How can there be a viable and progressive state where individual and ethnic considerations override the common interest of the populace? A focus on the commonwealth will build up the country and eliminate the dependence on foreign countries for financial and technical assistance. When the nation prospers, the citizens prosper and crime rate plus insecurity diminish. Inversely, the national standard and quality of life for all will increase.

In contrast, the standard and quality of life in Nigeria in the 70s and early 80s was much better than what obtains now. The Naira had good value, medical care was more available and affordable, the children of the wealthy and poor attended the same public schools, which were of good standards and affordable, kidnapping and militancy were none existent, the police were better equipped and more professional, and the cost of governance was more reasonable. Pipe borne water was easily available with little or no bore holes. Although NEPA was seen as a villain, electricity was better than what obtains today and usage was metered. Federal and state roads were better maintained and managed.

The rut which was years in the making appears to have culminated with the devaluation of the naira in the mid-80s. Due to the loss in purchasing power of the national currency, Nigeria’s seasoned professionals with the medical field in the lead started checking out of the country to foreign nations as expatriates, causing a national dislocation in manpower supply and leaving irreplaceable void. Today, national institutions like the Universities, University Teaching Hospitals, General Hospitals and Research Institutions, etc., remain a shell of their former stature.

Before the military left politics in 1999, they groomed and handed over to a trusted political class that emerged from the corrupt system to succeed them due largely to their distrust of the old established class.  These nouveau politicians think that corruption and nepotism is the right way to run the country and do business. In 2012, former President Olusegun Obasanjo was reported to have referred to the state and federal legislators as “rogues and armed robbers” while the legislators labeled him the “grandfather of corruption” and accused him of spending billions to sway them to support his third term agenda. The former president further accused the National Assembly of padding national budgets and drawing huge and unjustified earnings. He also called out the judiciary and police as corrupt and wondered how justice will prevail in our environment. These fundamental issues have not been resolved and the cumulative resultant mess is what we are reaping today and dangling between a political breakup and reinvention.

On the Precipice at 60: Way Out

Where do we go from here? No doubt the country needs a rebirth and the time is now. But fighting corruption in Nigeria is dangerous according to Ngozi Okonjo-Iweala in her book.  Drawing on her experience as Nigeria’s finance minister and that of her team, she describes dangers, pitfalls, and successes in fighting corruption providing practical lessons learned and telling how anti-corruption advocates need to equip themselves.

So how can corruption be controlled, asked Shellie Karabell, in his article “Corruption 101: The Dark Side of Leadership?” A recent study, “Doing Business in Russia: Informal Practices and Anti-Corruption Strategies”, make the case that the answer is not in tackling the whole aggregate of “corruption” per se, but instead as “slicing a snake” – breaking it down into manageable chunks and attacking each one.

Until we realize that only the pursuit of collective wealth will lead to collective wellbeing and embrace transformational leadership, the increasing economic inequality in the country will continue to trigger social strife and insecurity of life and property.

Chuma Uwechia, Covid-19, Politics & Policy, Viewpoints

What Now, After Abba Kyari?

His death has, however, offered PMB a golden opportunity to reverse course and chart a new deal with Nigerians by appointing a new personable Chief of Staff with a national outlook and human face.

CHUMA UWECHIA
The Abba Kyari we didn't knowOpinion — The Guardian Nigeria News ...

The death of Abba Kyari, erstwhile Chief of Staff to President Muhammadu Buhari on April 17, 2020 revealed not just a deep national embitterment and divide about his administrative and managerial style, but an indictment of the circumstances that foisted him on the nation.

Approximately two weeks after his demise, the battle over his true legacy has continued with the likes of Mamman Daura leading efforts to mold an image of Kyari as the best Chief of Staff the nation ever had. With that appellation, one wonders how to describe the likes of Chief Michael Godwin Edward Prest, Maj.-Gen. Abdullahi Mohammed (rtd.), Chief Mike Aiyegbeni Oghiadomhe, all of whom rendered patriotic and dedicated national service as Chiefs of Staff to former presidents without usurping presidential power and devoid of controversy.

The ecstatic expression of public relief on Kyari’s demise was analogous only to the emotive release of a people freed from vassalage; a stupefying public indictment. Elation at someone’s death no matter the circumstances is strongly discouraged in all cultures known to mankind. . It is one thing to be satisfied that a perceived corrupt public official is no more, but another thing to celebrate with glee.

How did Kyari manage to attract more hatred than his benefactor? How did he become the man that Nigerians love to hate? How did he become the parochial face of a distrusted cabal rumored to have hijacked the presidency? It appears that Kyari must have gone to his grave with the inside story of his part in this saga of stolen presidential mandate.  His death has, however, offered PMB a golden opportunity to reverse course and chart a new deal with Nigerians by appointing a new personable Chief of Staff with a national outlook and human face.

The most valuable asset in politics they say is credibility, a lot of which Buhari seemed to have in 2015 when he rode into Abuja as the President after ousting Goodluck Jonathan with a sweeping mandate.  Back then, Nigerians were dissatisfied with the rising corruption and insecurity and voted for change because PMB had offered credibility on the issues that mattered most to them.  It was a reputation built during his 1984 stint as Head of State and Buhari was seen more as an ascetic anti-corruption crusader than an ethnic bigot. What Nigerians wanted from him was simply good governance.

The expectation was that the resources of Nigerians should be used to better the lives of Nigerians. But that capital seems to have been expended, with the increased perception of the federal government as insensitive to federal character and unable to guarantee security of life and property. In addition, there is an ostensible failure to reign in corruption that thrives within the corridors of power, with the strong support of a cabal which Kyari’s critics appear to heap on the dead Chief of Staff.

For five years of Kyari’s service, PMB’s image was in the dog house. His political party APC, the platform on which he rode to power feels alienated by a certain Northern cabal among which Kyari was the “gatekeeper”. Ministers reported to Kyari and not the President, an unhealthy arrangement that kept vital facts from PMB except as determined by Kyari.  Perhaps, the string of health issues suffered by PMB may have exacted a toll on his ability to govern which led to that unhealthy arrangement in the first place.

Ironically, while PMB’s regime is running into issues of credibility, his helpmate and wife, Aisha Buhari is enjoying better public appreciation for calling out the cabal’s unpatriotic hijacking of her husband’s administration for sectional interest. The first lady, like Babagana Monguno, the National Security Adviser and a long list of other Nigerians had accused Kyari of undermining the constitution and overriding presidential power. The office of the Vice-President was also alleged to have experienced the meddlesomeness of Kyari. The first lady wants her husband to leave an enduring positive legacy which explains her confrontation with Kyari.  Maybe, if the President listens to his wife this time around and selects a truly trusted hand as the new Chief of Staff, the country may end up with better governance in the remaining years of his presidency. Aisha has shown enormous public empathy for the struggling Nigerians and more patriotism than known of Kyari.

History is replete with women who are known to have successfully aided their husband’s administration in their role as first ladies.  Edith Bolling Galt Wilson, who served as First Lady from 1915 to 1921, was second wife of the 28th President of United States, Woodrow Wilson and after the President suffered a severe stroke, she pre-screened all matters of state and functionally managed the Executive branch of government for the remainder of Wilson’s second term.  One does not see why Aisha should not be more involved in PMB’s administration in light of PMB’s health issues and given her antecedents of confronting the usurpers of her husband’s presidential powers.

As we all know, representative democracy requires a strong connect between the governed and the government for those in power to succeed.  In normal circumstances without trust and participation of the citizens, the government of the day will not thrive and the governing political party will surely lose the next election. The prevailing mood in the country is that a northern cabal has usurped presidential power from PMB and APC is no longer in control, which spells doom for the party. The damning part is that the cabal is allegedly pursuing a sectional interest and not a national agenda. PMB can successfully change the narrative by reasserting his authority and appointing a nationally suitable patriot as his Chief of Staff.

This time around, PMB must be his own man, avoid reliance on others and search diligently within his own circle of long serving and trusted aides for his new Chief of Staff. There must be one patriotic good man with a national outlook to help him build a legacy in his remaining three years. A man that will help him reconnect with political allies driven away by Kyari, reconnect with APC, reconcile with the South East and South South, and leave footprints in the sand of time.

There is a burning need to change the political landscape, restructure the country and correct the number of states in each political zone to bring equity to the nation. The cost of governance needs to be pruned. This is the time to deal decisively with the Fulani herdsmen kidnapping rascality, the Almajiri issue and Boko Haram security threat.  Health, Education and Social infrastructure requires urgent rebuilding attention. The economy should be diversified from over reliance on oil as its primary source of revenue, which makes steady and constant supply of electricity an imperative.

Real leadership and governance is about nation building and can only truly happen if PMB appoints a man who will do what it takes to make his remaining years a success. We hope he does the right thing because we want the country to prosper.

Chuma Uwechia, Viewpoints

The Early Arrival of Tomorrow

Chuma UWECHIA

For too long, the Nigerian political class appears to have equated the future to a distant and imaginary moment in life that may never arrive, or at best, will only arrive after their earthly sojourn. This seems to be the only explanation and basis for their recklessness and impunity in governance.

Well, not anymore, since the terrifying and unwelcomed visitor, Coronavirus, unexpectedly ushered in the future, today, without any advance notice.

We have dared to peek into the ugly face of that future and do not like what we see. Not even the tea leaves that we have been reading, nor the babalawos, or the prophets and seers that we have being consulting prepared us for this early and unexpected arrival of tomorrow. Its visitation came like a bandit in the dead of night.

For starters, federal legislators should relinquish to the healthcare sector for upgrading and equipping our teaching and general hospitals, the N37 billion that they appropriated for renovation of the National Assembly complex.

The nation’s political elite – our self-styled stakeholders, who have been busy day and night, looting our treasury and stashing the spoils abroad in the name of their children, grandchildren and great grandchildren – suddenly woke up to a sad reality that “money won’t save you,” as aptly captured by the music legend Jimmy Cliff in one of his musical tracks.

In plundering the nation, the political class impoverished and pauperized their fellow country men and women. They destroyed economic and social infrastructure and tore the fabric that held us together as a nation. They sowed and nurtured the seed of divisive tribalism and ethnic chauvinism that is meant to hold us down while they have their way. They wrecked God’s own country; a country that flows with crude oil, gold, tin, natural gas, palm oil, groundnut oil, cocoa and some of the most gifted human beings that the Lord ever created. They polluted a nation with one of the most conducive weather on earth.

Deluded, they prepared a place for themselves and their loved ones to shelter abroad in calamitous times but corona, the lethal virus leveler, struck with a devastating swiftness; locking down every nation and spreading its deadly fangs, from the elite class and without discrimination to commoners and downtrodden. The scourge appears to be spreading with impunity among the elite/ruling class for a reason and to drive home a point. With the halt in international travel, there is no ducking or hiding place for the jet-setting elite. Not even the famed Aso Rock Villa security perimeter fence could keep the formidable virus at bay.

The once high and mighty now shiver and cower from this master leveler. They jostle with their servants and commoners at various university teaching hospitals and city general hospitals that they had continuously starved of direly needed functional funds. In those general hospitals, there are no ventilators, no face masks, no hand gloves, no functional wards, not to talk of isolation wards, and no equipped research labs that will aid the medical community to take care of the sick and fight the ugly onslaught of this virus invader. The pharmacy units are empty without vital drug stock. The medical personnel are unmotivated, underpaid, and in most cases paid in arrears, whenever funds are eventually made available for their pay. These doctors now get to make the ultimate life and death decision of whether to help the unpatriotic elites now flocking to them for care or give them a dose of their own brew. Imagine a payback scenario with your life ultimately in their hands. The ugly face of the future is a grim reaper and doesn’t portend well for Nigeria, unless we make a 180 degree turn around from our current attitude and inclinations. It is a stark reminder that the evil that men do will eventually always catchup with them.

With all access to foreign countries blocked, fleeing to other climes with highly developed, functional and efficient healthcare system for medical care is no longer an alternative. In any case, some of those preferred foreign destinations of choice are now epicenters of coronavirus, and flying there at this time, assuming it is possible, will be akin to suicide and the surest way to checkout to one’s own creator for the last and final judgment. Obviously, this is an unpalatable conundrum for the raiders of our treasury. We know that they are right now busy as ever calculating how to outwit nature, but the options appear foreclosed.

The realities and imperatives of this coronavirus pandemic leaves Nigerians with only one option apart from sudden extermination, without regard to tribe, ethnicity or economic status. For the first time, we are now faced by a common existential threat that requires us to close ranks in a nonpartisan manner for our common survival. Surely, coronavirus has the potential of becoming a seasonal menace rather than a onetime epidemic. It may also be the harbinger of other more deadly bacteria and viruses. Not long ago, we were warned by scientists about long-dormant ancient bacteria and viruses trapped in ice and permafrost for centuries in Iceland that are reviving and being released into the environment due to melting ice as a result of global warming. The ancient viruses may include some that have caused catastrophic global epidemics in the past.

For starters, federal legislators should relinquish to the healthcare sector for upgrading and equipping our teaching and general hospitals, the N37 billion that they appropriated for renovation of the National Assembly complex. We also expect that all the state assemblies should redirect similarly appropriated funds to the healthcare sector to cover the free care and treatment of coronavirus victims, as well as the upgrade and equipping of local hospitals. Further, funds earmarked by the presidency and all the state governors for their 2020 medical tourism should also be ploughed back into fortifying the local healthcare sector, since our destiny now clearly lies in the development of our own medical infrastructure.  

Restructuring the country by the National Assembly to ensure more government efficiency and to reduce the huge overhead cost of governance should now proceed with great haste. More than ever, we need to jettison tribalism and ethnicity for merit system, cooperation, mutual trust and growth of nationalism/patriotism as the necessary key to drive progress and economic revival. The presidential and state governors’ security votes must be made subject to audit, and should only be used for pressing security matters. The unavoidable burden foisted on us by this pandemic is to develop a just and sustainable economy for Nigeria and for the common good of all citizens. It requires us to reposition our nation in line with countries such as South Korea, so that we will be in a much stronger position to survive the next impending natural disaster.

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Chuma Uwechia, Viewpoints

Restriction on Diaspora Voting is a Constitutional Issue

New York-based attorney, CHUMA UWECHIA, explains that the current exclusion of the diaspora vote by Nigeria is based on the premise that they are not resident in Nigeria at the time of registration of voters. He argues, however, that citizens’ right to vote cannot be abridged based on their geographical location – and suggests practical ways to scale the hurdles.

By Chuma UWECHIA

Nigerians travel back to their states of origin and villages to vote rather than at their places of residence and work; … the diaspora vote will follow the same route to be electronically routed to their respective states of origin and constituency in Nigeria for collation during elections…”

Chuma Uwechia

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Senator Surajudeen Ajibola Basiru, the Chairman Senate Committee on Diaspora, Non-governmental organization and Civil Societies, was recently quoted as saying that diaspora voting being championed in the country may not be achievable in view of many challenges accompanying it. To diaspora Nigerians, this is a highly troubling statement even if it is the personal opinion of Basiru which is not based on the outcome of his committee’s working report. For now, it is safe to consider this a personal opinion since the committee has not held public hearings, has not solicited memoranda, and has not taken expert testimonies.

Basiru in his press interview stated, among other things, that: “it would be infeasible for diaspora to register physically most especially for legislative elections.” He asked, “Which constituency and ward will their vote be counted for? Even if they are allowed to vote for the presidential election, what would be the value of their vote? Would the diaspora votes represent addition to required percentage in any state? Or, will such votes be regarded as the 38th State or what?” Basiru stressed that “the issue of data is very important and the key to diaspora voting which the country does not have.”

To address the concerns he raised, it is common knowledge that a good number of Nigerians travel back to their states of origin and villages to vote rather than at their places of residence and work, thus the answers to Basiru’s posers are quite evident. The diaspora vote will follow the same pattern and will be electronically routed to their respective states of origin and constituency in Nigeria for collation during elections, as absentee ballots. Currently, the Electoral Act requires only proof of citizenship and that one is ordinarily resident, works in, originates from the Local Government Area Council or ward covered by the registration centre to register.

Almost, if not all Nigerians resident abroad have international passports, so verification of identity won’t be a problem. The Nigerian passport captures relevant biodata information ranging from State of origin, Local Government area, town to street address, as well as the geographical location of issuance. That comprehensive and accurate data is readily available from the Nigerian Immigration Services server to confirm the diaspora population and worldwide distribution. The challenges listed by Basiru are therefore surmountable.

The Nigerian diaspora around the world is credited to have sent back almost $24 billion in remittances in 2018, contributing to the Nigerian economy in a robust and very dynamic way. They deserve immediate recognition and voting rights in their nation.

Providentially, the Chairman of the Independent National Electoral Commission (INEC), Professor Yakubu Mahmood, supports diaspora voting and urges the National Assembly to expedite action to amend sections of the Constitution and the Electoral Act (2010 as amended), on a statement posted on INEC’s official website. He disclosed that the Commission had identified areas of the Constitution and the Electoral Act which needed amendment and was willing to discuss it with the Senate Committee.

Therefore, the only obstacle seems to be the reluctance of the Senate committee to immediately commence work and public sitting. And, to receive necessary memoranda and expert testimonies, which will guide them towards an expeditious resolution of this long lingering issue.

The Nigerian diaspora around the world is credited to have sent back almost $24 billion in remittances in 2018, contributing to the Nigerian economy in a robust and very dynamic way. They deserve immediate recognition and voting rights in their nation.

However, while the Committee Chairman may be worried about logistics which is the purview of INEC, his attention should be more focused on the fundamental constitutional conflict issue raised by the diaspora voting restriction. It violates the Constitutional Guarantee of Equality Clause. Section 77.2 of the 1999 Nigerian constitution provides that “Every citizen of Nigeria, who has attained the age of eighteen years residing in Nigeria at the time of the registration of voters for the purposes of election to a legislative house, shall be entitled to be registered as a voter for that election.” A literal and strict interpretation of this provision has the effect of barring citizens living abroad from registering to vote, even if they intend to return home to their localities to exercise their franchise during elections.

The exclusion of the diaspora from registering to vote is hinged only on the premise that they are not resident in Nigeria at the time of registration of voters. But the right to vote, following the universal adult suffrage should not be abridged based just on the geographical location of a citizen and should be made available on an equal basis to all citizens of voting age. Though a constitutional provision, this residency precondition to register and vote is prima facie discriminatory against the diaspora community and disenfranchises them from exercising their civic responsibility.

There is no discernible national interest issue or rationale basis for such restriction. Further, it infringes on the fundamental rights equal protection clause enshrined in section 42 of the constitution that no citizen of Nigeria of a particular community, shall be subjected to disabilities or restrictions to which citizens of Nigeria of other communities are not made subject. All Nigerians born and/or residing in the diaspora community suffer this restriction. While all citizens ordinarily resident in Nigeria have in contrast been accorded a privilege and advantage that is not accorded to the diaspora community. The voting restriction consigns the status of pariah or stranger on the diaspora community to the constitution. This is a constitutional absurdity.

The idea of equality under the law dates back to the foundations of democracy. Equal justice under law remains an intrinsic part of our democracy today. Section 42 is universal in its protection of “all citizens of Nigeria of a particular community,” and this voting restriction subverts the principle of equality, which is at the heart of our constitution. It perpetrates an impermissible injury on the Nigerian diaspora community.

Moreover, since resident citizens are free to register and vote in their State of origin and not in the cities where they live and work, the constitutional restriction placed on the diaspora is not intended to ensure that only those who live within a particular ward province vote in that ward. The restriction is undemocratic, arbitrary and should be expunged expeditiously by the National Assembly. If not amended, the restriction is not likely to survive a legal challenge and will be stricken by the courts for infringing the fundamental rights equal protection clause. It is irreconcilable with the general guarantee of equality in the constitution.

In 2006, the Ghanaian parliament addressed and resolved a similar issue in their country with the enactment of Act 699 – Representation of the People (Amendment) Act 2006. That law specifically provides “That a person who is a citizen of Ghana resident outside the Republic is entitled to be registered as a voter if the person satisfies the requirements for registration prescribed by law other than those relating to residence in a polling division.” Clearly, the Ghanaian experience is similar in all respects to the problem before Senator Basiru and the Senate Committee on Diaspora.

All the other issues that Basiru raised in his press interview remain secondary and merely administrative logistics of voter registration and conduct of election which the constitution placed squarely in the exclusive domain and discretion of INEC. Section 78 of the 1999 constitution provides that “The registration of voters and the conduct of elections shall be subject to the direction and supervision of the Independent National Electoral Commission.” Based on the current law, INEC made no regulations for diaspora registration and voting abroad because residence in Nigeria is a precondition for registration. Once the constitutional restriction is taken care of, INEC has assured its willingness to make provisions for diaspora registration and voting.

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Chuma Uwechia, Viewpoints

The Sound and Fury of Restructuring

New York attorney, NNABUENYI CHUMA UWECHIA, boldly cuts through the many legalistic positions taken by famous Nigerian luminaries and focuses on what is important and urgent for Nigeria to overcome her federating challenges.

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The agitation for restructuring of Nigeria is shaping up as the country’s first major constitutional battle since the enactment of the 1999 constitution. While the social media is awash with write-ups, eminent citizens have outdone each other with calls on the president to convene a sovereign or national conference to address the burning issue of restructuring. Strangely, however, restructuring the country is a legislative and not executive function that requires an Act of the National Assembly.

The goal here is to cut through the befuddled agitation for restructuring to isolate the politicking and focus on a course of action. We will therefore examine the positions laid out by two eminent legal professionals; Professor Ben Nwabueze, SAN, author of Constitutionalism, Presidentialism and Judicialism, and Chief Afe Babalola, SAN, proprietor of Afe Babalola University.

Professor Nwabueze is a revered constitutional lawyer and seasoned academic who was one of the architects of the 1979 constitution. He revealed in various press interviews that he and the late Chief Rotimi Williams, SAN, two unelected members of the 1978 Constituent Assembly, were solely responsible for concentrating too much power at the center in the 1979 constitution. They thought it was the panacea to the country’s divisiveness. But that strong center is what is tearing the country apart today. The 1979 constitution was subsequently updated and promulgated as the 1999 constitution.

There is, however, no existing mechanism to gauge whether the populace want a new constitution or just restructuring because plebiscite and referendum are not in the constitution. To establish one will require a constitutional amendment, which is a tall order.

The unitary and centralized government was an invitation to tyranny and corruption, which has led to restive clamoring from the populace for restructure. It was never the people’s choice. Professor Nwabueze now admit that a centralized government was misconceived and wants a reversal. He doesn’t just want a constitutional amendment to repair the error and restructure the system; he wants a complete overhaul to a fresh new parliamentary system as in 1963, with federating regions. But if we are to overhaul the system every time we run into a constitutional problem, we may never evolve any system.
Nwabueze previously called on President Jonathan before the expiration of his term of office, to empanel him and some colleagues to draft a new constitution to be adopted through referendum. He argue that the National Assembly, the duly elected people’s representatives cannot give us a new constitution because a new constitution is the work of the people. And that the 1999 constitution was made by the military though it says, “we the people of Nigeria”.

There is, however, no existing mechanism to gauge whether the populace want a new constitution or just restructuring because plebiscite and referendum are not in the constitution. To establish one will require a constitutional amendment, which is a tall order. Empaneling some brilliant professors and lawyers, or some other elite group to make that determination, runs counter to the idea that a new constitution should originate from the people. The dominance of any elite group will never replace the voice of the people in a democratic setup.

It is curious that Nwabueze having participated in the making of the presidential constitution under the military, now asserts that the National Assembly cannot give us a constitution. The United States is the originator and primary example of the presidential system that Nigeria follows. Contrary to Nwabueze’s stance, in 1787, it was the US Congress that authorized delegates to gather and recommend changes to their existing charter of government and Articles of Confederation, which eventually ended in a new form of government and the 1787 US federal constitution.

Further, the learned professor’s position that a constitution can only be adopted at a referendum is not supported by constitutional history. The constitution adopted in the United States after the Revolutionary War (1787) was not through referendum, yet, the Preamble says “We the People of the United States”. Also, the constitutions adopted in Germany after the Second World War (1949 & 1990), in South Africa after apartheid (1994 & 1996), and in Tunisia after the Arab Spring (2014), were not through referendum.

Experienced lawyers have a way of double speaking and can convincingly argue both sides of an issue.

Whether a constitutional order is approved by referendum or not apparently makes little difference to whether that constitution makes preambular claim to speak for the people and to bear the imprimatur of popular sovereignty. The validity of a constitution is determined by its social acceptance, or its efficacy and not necessarily by referendum.

Besides, the United States like Nigeria practices representative democracy in the form of a constitutional republic and not direct democracy. That system does not allow national referendums because the general population gets to vote indirectly on all issues through their representation in either Congress or National Assembly when an issue is tabled. As such, referendum in a presidential system equates to an excess of democracy and is superfluous.
Now let’s examine Chief Afe Babalola’s position. A legal icon, Babalola wants President Buhari to convene a Sovereign National Conference, whose decision will not be available for amendment by any legislature or anybody. He says it is simple and can be done. Then he introduces complexity by further saying that “The legislature and presidency can, together, convene the National Sovereign Conference.” And went further to express doubt that the National Assembly, which is a beneficiary of the “mess we have now” will likely move for a Sovereign National Conference, but he is of the belief that the mounting pressure may clinch it.

Experienced lawyers have a way of double speaking and can convincingly argue both sides of an issue. Chief Babalola only succeeded in presenting a truly complex issue, which is by no means simple.

We already have a sovereignty in the form of elected executive president and members of the National Assembly. We cannot have a second or parallel sovereignty as there is currently no legal way of doing that, except by abdication of responsibilities by the executive and legislature. Both executive and members of the legislature swore to uphold our constitution in its current form, save for any amendment. Clearly, the president is not above the law, is under the law—not a law unto himself and has no constitutional or legal plank on which to summon a Sovereign National Conference envisaged by Babalola.
Babalola did not advocate for a public poll to elect members of his envisaged conference thus leaving the impression that he wants an appointed panel of society elites. But a just Sovereign National Conference must be the result of dialogue that incorporates all citizens and allows for their differences to be adequately addressed. Ultimately, such a conference requires each citizen to have a voice in the framing of the constitution under which they are governed; a complex undertaking.

Further, a National Conference based on the President’s appointment have no legitimacy to the toga of sovereignty than the current National Assembly.

Fortunately, the National Assembly has taken up its constitutional responsibility and recently announced the creation of a 58-member Constitution Review Committee on February 12, 2020. The Committee’s sittings will afford all citizens, groups, organizations and zones an opportunity to present their position.
States may also simultaneously propose a convention of states where the consensus agreement of at least two-third of 36 states (which is 24) on the text of an amendment will be adopted and the harmonize draft presented to the National Assembly to expedite the review process.
The US has fought three constitutional battles since 1787 and is battling to abolish the Electoral College presidential elections and to have every presidential election determined by a majority of the national vote. But the two-senator allotment to each state has made amendments very difficult for US.

Presently, Nigeria seems divided beyond repair, but like the United States will surely survive this crisis of confidence in her democracy.

Chuma Uwechia is a New York-based Attorney

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Chuma Uwechia, Viewpoints

Dissolution of LGA Councils is attack on Federalism

Chuma UWECHIA

When news filtered out of Imo State on January 6, 2020 that the 27 elected local government council chairmen that were sacked by the State governor forcefully tried to reclaim their mandate; my primary concern was not on the legality of the self-help, but on the escalating widespread attack on the constitutionally established third tier of government and arguably the most vital arm of true federalism in a presidential democracy.

Government can’t get any closer to the grass roots than the local government councils.

Almost all prior and current state governors since 1999 are guilty of extra judicially sacking their states elected local government councils. The incessant dissolution of elected councils by almost every new incoming state administration is now the rule rather than the aberration and disrupts governance, development, progress and continuity at the grass root level. The ill-advised practice cuts across political parties and tribes and stifles as well as destabilizes our nascent democracy. It makes a mockery of the agitation for restructuring of the federal polity and the call for devolution of powers to states or regions to make for sustained economic stimulation and growth. It is therefore antithetical that the same people agitating for federal restructuring are the same people attacking the third tier of federalism.

The very same argument being canvassed for devolution of federal powers to states applies equally for the independence of the local governments that states should respect. Not only do states sack local governments with impunity, they also hijack local government federal funds allocation and deprive the grass roots of the necessary development funds. States are required to promptly transmit the 10% statutory allocations paid from the Federation Account into the States Joint Local Government Account to local governments but they don’t in direct contravention of open government required by constitutional democracy.

It is a well-established fact that local governments are the nursery for germination of true and enduring democracy. The reason being that they are the closes that governance can get to the grass roots. The elected chairmen and ward councilors live in the immediate locality and take personal the development of their immediate environment where everyone knows everyone and relates to each other. Their agenda is the community development agenda and their allegiance is to their community and the people who voted them into office. Accountability of the elected officials is to their people and there is some sort of social ostracism by the community for mismanagement of resources. But a local government caretaker or sole administrator appointed by the state governor owes their allegiance not to the community but to the governor. They are political cronies and hangers-on out for their own personal interest. As they are beneficiaries of political patronage, they treat the local government treasury as their private piggy-bank as well as the piggy-bank of the political party in power; a sort of political war booty and bounty.

Democracy is more alive at the grass roots because there’s more political and civic accountability at the local government level. If this democracy were to be nurtured and allowed to take firm foothold, it will spread and usher in true democracy at both the state and federal level where service to the people is faceless.

We are aware that the Supreme Court has consistently ruled in at least a couple of cases that it is unconstitutional for state governments to sack duly elected local government councils except through judicial remedy or removal at the polls. In the case of Hon. Chigozie Eze & Ors v. Governor of Abia State & Ors, SC/209/2010; (2014) LPELR-23276(SC); the Supreme Court held that the governor and any of its agents lack the legal competence to dissolve the elected council of the Local Government Councils of Abia State and appoint Caretaker Committees or Transition Committees. The Court however ruled that an order compelling the governor to reinstate the Chairmen and Councilors have become impossible to grant as the appellants said tenure had lapsed by effluxion of time. It however ordered the governor to immediately pay all the appellants’ their Salaries, and allowances for 25 months, plus costs. Obviously, this is a complete waste of scarce state resources and time that should have gone towards much needed infrastructural developments. Indeed, the the litigants should have requested and that the court should have also order the forfeiture of the salaries paid to the caretaker committees since their appointment was unconstitutional, null and void.

In the second case of Governor Ekiti State & Ors v. Prince Sanmi Olubunmo (Chairman of Ido Osi LG and Chairman of Association of Local Governments of Nigeria – ALGON, Ekiti Chapter and 13 Ors, Case No. SC.120/2013; (2016) LCN/4394(SC), the Supreme Court clearly ruled that the powers of the State to remove elected local government officials is violative of, and in conflict with section 7(1) of the Constitution. Hence, it is bound to suffer the fate of all laws which are in conflict with the Constitution, section 1(3) thereof. It held that Section 7(1) of the Constitution seeks to guarantee “the system of local government by democratically-elected local government councils and conferred “sacrosanctity on the elections of such officials whose electoral mandates derived from the will of the people freely exercised through the democratic process”. “Hence, any action of his (governor) which has the capacity of undermining the same Constitution (as in the instant case where the first appellant, ‘Governor of Ekiti State and others’ dissolved the tenure of the respondents and replaced them with caretaker committees) is tantamount to executive recklessness which would not be condoned.”

Justice Nweze who read the lead judgment unequivocally stated that the tenure of the local government councils could not be abridged without violating the supreme constitutional provisions. Simply put, the election of such local government officials into their offices and their tenure are clothed with constitutional force. They cannot, therefore, be abridged without breaching the Constitution from which they derive their force. “The only permissible exception, where a state governor could truncate the lifespan of a local government council which evolved through the democratic process of elections, is ‘for overriding public interest’ in a period of emergency.”

Yet this unconstitutional rascality and impunity continues unabated and unchecked. Obviously, state governors know that dissolution of elected local government council is unconstitutional but nevertheless engages in that unlawful act in order to foist a fait accompli on the elected local government officials given the unduly lengthy time it takes to litigate cases in Nigeria. Additionally, the practice continues because there is no deterrence or penalty against the governors personally for doing that which they know is unconstitutional.

The ideal solution would be for the National Judicial Council to issue serious directives to federal and state judges at the risk of disciplinary action that an injunctive relief must issue forth in any lawsuit filed by duly elected local government Chairmen, their deputies and Councilors to protect their tenure pending outcome of litigation challenging their removal by any governor until judgment is rendered. We cannot prevaricate on whether we really want the rule of law and democracy in Nigeria.

Further, the Attorney General of the Federation as the chief law officer of the nation should drag all the states to the Supreme Court to estop them and put a finality to the question of whether states can sack elected local governments.

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Chuma Uwechia, Viewpoints

The Making of Igbo President

By Chuma UWECHIA

New York Attorney, Nnabuenyi Chuma Uwechia exhorts qualified Igbo personalities to make the effort to secure nomination as presidential candidates for both APC and PDP – as this is the only scenario that will ensure that, heads or tails, a Nigerian President of Igbo extraction will emerge the next president from the 2023 election.

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On a beautiful fall evening last week, with foliage sparking into wild colors of amber and golden in the low slanting sun-rays, I sauntered into a Nigerian party in Long Island, New York and right into an explosive debate about the turn of Ndigbo to produce the next president of Nigeria.

I quietly joined the audience and made myself comfortable.

According to the discourse, the gravamen of Ndigbo complaint is that they have been marginalized and shortchanged out of producing the country’s president because of their role in the Biafra – Nigeria civil war. As one of the three dominant tribes in Nigeria, Ndigbo believe that it is now their turn to produce the next president after Muhammadu Buhari. They contend that the position of president has unfairly rotated between the South West and the North. The South-South, which is one of the minority tribes in the country had also ascended the country’s executive position.

Now, is the time for Ndigbo to lay the groundwork of their run for the nation’s president with tested, trusted and nationally visible candidates. The right candidates need not be career politicians

Chuma Uwechia

The consequent feeling of repression and deprivation fuels the current Igbo nationalistic drive. It’s also at the root of the political call to zone the position of president to Ndigbo in other to complete their integration into Nigeria post-civil war.

But those opposing the idea contend that Nigeria is a democratic country with no constitutional provision for zoning of elective offices. They reason that zoning technically deprives the country the opportunity of getting the very best candidate at the expense of assuaging tribal sentiments. Politics and elective offices they contend are a game of numbers.

However, negating that argument is the fact that the country practices federal character at the federal level in all other areas where Ndigbo excel, in order to provide a level playing field to the so called disadvantaged tribes and zones. Federal character places less qualified citizens ahead of more qualified Ndigbo for employment opportunities, job promotions, university admissions and other national benefits. Merit, they assert, is not recognized in Nigeria’s political discourse while zoning aligns with federal character. Zoning will ensure that all the geo-political zones will get a stake and sense of belonging in the country and help build national solidarity/cohesion that is presently lacking for a strong indivisible nation. And, if the yardstick is to get the very best, then Igbos are more than eminently qualified.

Igbos can hold Nigeria together, says IBB

Whether you are for zoning or against it, one thing is clear: there is no national solidarity and cohesion – and that void has far reaching consequences. It is the biggest factor holding back the country from genuine nation building and economic harmony. It is the engine driving the current political extremism.

Unexpectedly, a third voice of northern extract observed that aspirations and yearnings alone will not deliver the presidency to Ndigbo. The federal government also has no such obligation. There has to be positive political planning and manifestations by Ndigbo at the political party level. Presently, no Igbo person has declared interest to contest for nomination as the presidential candidate for either PDP or APC, the two dominant political parties. Without the requisite declaration of intent from viable Igbo candidates to create the right enabling environment, the call for zoning will appear misplaced.

Waiting for their inheritors … The strong men of Igbo politics built bridges and stood their ground to save their people from political marginalisation

Inertia is not an option. It will take action not words to get the position of president. Ndigbo have to appreciate that nobody gives you power. Power is taken. The process of the taking is empowerment in itself – Gloria Steinem.

The next presidential election will take place in 2023. Presently, in APC, there are rumblings that suggest that Bola Tinubu and Nasiru el Ruf’ai may be cranking up their political machinery and quietly energizing their base in readiness for contest of their party’s nomination. But, there is no rumor of any Igbo candidate stirring up for action in any of the existing party platforms.

PDP still appears to be in post-election coma with no discernible move by any person to contest for nomination. The forecast is that Atiku will remain their presidential candidate. Other political parties have the challenge of national spread and resources to surmount in order to become viable contenders in the presidential race.

Nigeria is not a one-party state. Therefore for zoning to work, Ndigbo must secure nomination as presidential candidates for both APC and PDP. This is the only scenario that will ensure that, heads or tails, a Nigerian President of Igbo extraction will emerge the next president from the 2023 election. To actualize the goal, Ndigbo must fall back to the route already paved by the old Igbo political vanguard – forging political and ethnic alliances.

Whether you are for zoning or against it, one thing is clear: there is no national solidarity and cohesion – and that void has far reaching consequences. It is the biggest factor holding back the country from genuine nation building and economic harmony. It is the engine driving the current political extremism.

Chuma Uwechia

Late Dr. Nnamdi Azikwe led the National Council of Nigeria and Cameroons (NCNC) into alliance with the Northern Peoples Congress (NPC) to safeguard the interest of Ndigbo and escape any institutional marginalization. He subsequently led Nigeria Peoples Party (NPP) into alliance with the National Party of Nigeria (NPN) in which Ekwueme was the nation’s vice president, and Igbos were rewarded with positions beyond the minimum stipulated by the Constitution.

The importance of fully participating in the national political processes and getting active in all the registered political parties to avoid being consigned to the opposition corner cannot be overemphasized. There should be no specific designated party for Ndigbo and no vilification of any person for joining the political party of their choice. The permanent goal should be the interest of Ndigbo first and foremost. In politics, there are no permanent friends and enemies, only permanent interest. Late Dr. Chuba Okadigbo was Muhammed Buhari’s running mate in the All Nigeria Peoples Party in the 2003 presidential elections. Who knows what would have been if he were still alive?

According to an old Igbo adage, it takes a shrewd person to catch a cock. Have the Igbos run out of that shrewd streak? Now, is the time for Ndigbo to lay the groundwork of their run for the nation’s president with tested, trusted and nationally visible candidates. The right candidates need not be career politicians. Donald Trump was not. There are reputable and well established Igbo captains of industry as well as in the professions that can be drafted to fit the bill.

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