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‘ Constitution should be amended to emphasise revenue generation’





Senior Advocate of Nigeria (SAN) and Bi-Courtney Chairman Dr. Wale Babalakin, in a paper yesterday at the annual public lecture of the Government College, Ibadan Old Boys’ Association, speaks on why the Constitution should be amended to place emphasis on wealth generation and collective wealth creation, among others.

Our Constitution, that is the 1999 Constitution, apart from the obvious flaws that it  was not the product of a democratic engagement but a creation of the Military has many issues that require enhancement. I have heard a lot of cries that the system is too expensive. I believe that the cost of running it can be pruned down. However I disagree with the suggestion that we should scrap the bicameral legislature that is the existence of two Legislative Houses, the Senate and the House of Representatives. The membership of the House of Representatives is based on various parameters including population. The Senate is made up three members per State and one for the Federal Capital Territory. The membership of the Senate for each state is the same irrespective of the size of the State or its population. This is the concept of the equality of state within a Federation. This composition gives the smaller State a sense of belonging in the Federation. It offers them protection from the larger States. I do not see how the states with smaller population and size can feel comfortable if there was no Senate to counter balance the House of Representatives. Apart from this, I strongly believe that a simple legislature in a country with such diverse interests can on the spur of the moment take wrong decisions that may be difficult to reverse. The presence of another avenue to ventilate the position and aggregate ideas is likely to lead to a more sober legislation.

It is my position that one of the weaknesses of the various states today is that the State Legislature have been taken over by the State Governors. As recently mentioned by President Obasanjo, State Governors have become emperors in their domain. The time has come when we need to have a second legislature in the states which is composed in a manner that places them beyond the control of the State Executive. And do not burden the states further financially. Most of the State Governments’ are spiraling out of order.

Nigerian constitution and the distribution of largesse

One aspect that seriously baffles me about the Nigerian Constitution is that although it is unusually detailed for a Federal Constitution, it appears to unduly place emphasis on sharing of revenue. From the beginning to the end of the Constitution, I did not see any reference to creating the revenue. We have to create the revenue before we can share the said revenue. We have inadvertently through improper constitutional making created a community where the emphasis is on how to share government largesse. This culture has led to the poverty of the whole nation. Please, do not be deceived, Nigeria is not a rich country. A country of about 170m people with a Federal budget of N7.4 trillion, out of which N2.5 trillion is a debt, is a struggling country. In this year’s budget, all Government earnings are to be spent on recurrent expenditure. All capital projects are to be funded by borrowing. This is how stretched the finance Sof Nigeria is today. Most of the State Governors believe that they are to fund the expenditure of their states largely from Federal allocation from Abuja. They have not been able to generate any substantial revenue. It is my thesis that this happened largely because of the structure of our Constitution which places a lot of emphasis on the distribution of largesse rather than the creation of collective wealth.   There is no provision in the constitution that makes it mandatory for the Government to save money for a rainy day.  According to the Constitution every amount of money accruing to the Government must be paid into the Federation Account from where its shared accordingly. Does this not explain today why Nigeria with a total of N170m people has a reserve of about N33b (thirty three billion dollars) and a Sovereign Wealth Fund of about $2 billion (two billion dollars) while Norway, another oil producing nation now  reserves  in excess of  N900 billion..

We have to refocus our Constitution. I call on the members of the National Assembly who are currently seeking to amend the Constitution, to place emphasis on revenue generation and the creation of collective wealth. A situation where state governments can barely pay salaries is wrong. It is either the states bureaucracies are too large and inconsistent with the revenue profile of the states or the states are not doing well enough in the creation of wealth. More incongruous is that most states today spend their entire revenue derived from the Federation account received on salaries of the civil servants. In effect, they spend the commonwealth of the state on 2-3% of the population and leave the masses in the state who they have sworn to serve and protect in a bottomless abyss. This cannot be described as appropriate governance.

The role of courts in a federal system of government

he Constitution we have adopted places a lot of emphasis on the legal system. The judiciary plays a very pivotal role in the successful implementation of every Federal Constitution. There are endless battles for sphere of authority between the Federal and State Governments’ and also between the Government and individuals. It is very adversarial in operation.  Even the American Constitution which has now been in operation or over 200 years still has issues about Federal Government and State Government dichotomy. In the United States some of the landmark cases that have elaborated on this issue are:

National League of Cities v Usery 426 vs. 883. 49 L Ed. 2d. 245 (1976)

Garia v. San Antonio Metropolitan Transit Authority, 469 vs 83 L Ed. 2d. 1016 (1985).

In Australia, the cases of:

Huddart Paker and Company Proprietary v Moorehead (1908) 8 CLR 330).

The Commonwealth and Anor v. Attorney General of Tasmania and Ors (The Franklin Dam case) 1983 5 7 ALJ. R. 450.

Unlike the American Constitution where the power of the court to declare laws inconsistent with the constitution invalid was inferred by the Supreme Court of the United States of America in the case of Marbury v Madison. In Nigeria, the power is specifically provided for by the Constitution:

S.4 (8) of the Constitution provides:

“…. as otherwise provided by this constitution, the exercise of legislative powers by the National Assembly or by a House of Assembly shall be subject to the jurisdiction of courts of law and of Judicial Tribunal Established by law and accordingly, the National Assembly or a State Assembly shall not enact any law that ousts or purports to oust the jurisdiction of a court of law or a judicial tribunal established by law”

This is a specific jurisdiction that must be taken very seriously by the courts. This is designed to ensure that the Legislative and the Executive conform with the Constitution of the Federal Republic of Nigeria. Any Judicial officer that does not apply this provision properly would not be living up to his oath of office.

How well have we fared in this area?

ith the enormous powers, conferred on the Courts by this Jurisdiction, have we enabled the courts to perform this role? Have we created Judicial Institutions that is robust enough to undertake this phenomenal responsibility. It is my candid opinion that we have not been fair to the judicial arm of government. I will say that we started well but years of military intervention in the governance of Nigeria eroded significantly the status of the Judiciary.

I would like to celebrate those who pioneered the judiciaries of Eastern, Northern and Western Nigeria. The three judiciaries were placed on a commendable footing through the effort of the members of the legal profession and the society at large I will highlight my point by using the Western Nigeria Judiciary as a case study. The legal society I knew growing up was very organized. Cases went on the dates they were scheduled for. There were hardly any adjournments then. Objections were raised and resolved immediately. There was no adjournment to consider any interlocutory issues. Judges were so knowledgeable and so versatile that lawyers knew that they could not play any delay tactics. Criminal cases were disposed of within a month of commencing the trial. The Assizes, which was the Special Criminal Court held for a specific period and loads of cases were disposed of during the period.

An investigation was very thorough and the office of the Director of Public Protection was very active and versatile and would hardly proffer charges against an accused person without proper consideration of the merits of the case and the probability of securing a conviction. This was the legal society that I was born into. I was so fascinated by the Court that once I had the opportunity of obtaining information about how it was created, I seized it with both hands. In 1964, the salary of a High Court Judge in Western Nigeria was £3,400.00 (three thousand four hundred pounds) per annum. The salary of the governor of the CBN was £2,700.00 (two thousand seven hundred pounds) per annum. With this sort of comparatively high remuneration and reverence for judicial officers, it was very easy to attract the best minds to the Bench. It is sad that no judge today earns the salaries and allowances of a Deputy Governor of the Central Bank of Nigeria.

The Ministry of Justice was also a very formidable institution. The Military intervention in the governance of Nigeria was an unmitigated disaster in the development of the Nigerian legal system and the Legal profession. Initially, the judiciary stood its ground against the Military’s onslaught and targeted erosion of its powers. The celebrated case of Lakanmi and Kikelomo v. AG Western State (Nigerian Supreme Court Case 1969 – 1970 6 NSCC. 143.) was the hallmark of judicial courage. The Courts had the confidence to hold that the Military Government could not exercise judicial powers. The Court held that the Forfeiture of Assets etc. Validation Decree violated the principles of separation of powers provided for under the 1963 Constitution. The Decree was an exercise of judicial power by the Executive and Legislative branches of government. By promulgating the Decree, the Federal Military Government was passing a legislative judgment. Such an exercise of judicial power was ultra vires the Federal Military Government under the 1963 Constitution. The Court courageously declared the Military Law invalid being inconsistent with the Constitution. The Military Government invalidated this decision by enacting the Federal Military Government (Supremacy and Enforcement of Powers) Decree 1970.

“any decision, whether made before or after the commencement of this Decree, by any court of law in the exercise or purported exercise of any powers under the Constitution or any enactment or law of the Federation or of any State which has purported to declare or shall hereafter purport to declare the invalidity of any Decree or of any Edict (in so far as the provisions of the Edict are not inconsistent with the provisions of a Decree) or the incompetence of any of the governments in the Federation to make the same is or shall be null and void and of no effect whatsoever as from the date of the making thereof.”

The sin of this law is not the promulgation of this Decree, but the support it received from some members of the legal profession and the society at large. We tend to celebrate bad laws in Nigeria as long as it is favourable to our position at that time, not realizing that a bad law remains in the books until it is repealed or overturned and thus a dangerous weapon in the hands of a bed Government

With the raw show of power by government after the promulgation of the Supremacy and Enforcement of Powers Decree, there was no end to the draconian use of decrees and edicts. One example that continues to shock me till date is the case of JH Bassey v Federal Government of Nigeria. Chief Bassey’s properties were confiscated by the government. We challenged the confiscation in Court. While the case was still  pending in Court, and while I was busy blowing grammar in Court on behalf of my then boss who had kindly allowed me to continue working on the case, the Federal Government promulgated The Assets (Title Vesting and Validation) (Mr. J. H. Bassey) Decree 1992. S3 (1) which provided that:

“1. – (1) notwithstanding the provisions of the Land Use Act, the title to the assets clearly described in the Schedule to this Decree, is by virtue of this Decree and without further assurance vested in the Federal Military Government.

(2) The title to the assets so vested by subsection of this section is hereby validated.

  1. The title of any claimant, real or purported, to the said assets referred to in section 1 of this Decree is hereby extinguished.
  2. – (1) No civil proceedings shall lie or be instituted in any court for or on account of, or in respect of any title vested in the Federal Military Government or validated by or under this Decree, or in respect of any act, matter or thing done or purported to be done by the Federal Military Government with regard to the assets which is the subject matter of this Decree or any act, matter or thing whatsoever done or purported to be done under or pursuant to this Decree by the Federal Military Government.

(2) If any such proceedings referred to in subsection (1) of this section are instituted at any time before or after the commencement of this Decree, the proceedings shall abate, be discharged and made void and of no effect, and any right, interest or privilege, accruing, obtained, granted or purported to have accrued, have obtained or granted thereby is hereby extinguished.

(3) Accordingly, any judgement or order of any court or tribunal delivered at any time on, before or after the commencement of this Decree shall by virtue of this Decree be made null and void and of no effect whatsoever.

(3) For the purpose of this section, the question whether any provision of Chapter IV of the Constitution has been, is being or would be contravened by anything done, being done or proposed to be done in pursuance of the assets described in the Schedule to this Decree or in pursuance of this Decree shall not be inquired into in any court of law or tribunal, and accordingly, no provision of the Constitution shall apply in respect of any such question.”

This was a rape on the Rule of Law and confirmed the depth of the collapse of our jurisprudence under the military interregnum.

In order to create the sort of judiciary that is capable of discharging the enormous responsibilities placed on the Judiciary under the Constitution, the following actions should be taken:

The way forward

e must find a way of attracting the best mind into the Judiciary. The salary and allowances must be attractive enough to make a successful lawyer contemplate leaving the practice of law for judicial appointment as it was seen in 1955 and 1976. I had earlier mentioned what the salary of a High Court Judge of Western State was vis a vis the governor of Central Bank of Nigeria. It is instructive to note that a Judge of the High Court of England earns more money than the Prime Minister of England. This is the sort of high premium placed on members of the judiciary by a discerning legal system.

The development of the law had always being anchored on the hierarchical system of courts.  The hierarchical system of courts had always being premised on the respect of the lower tier of the court system for the courts on the higher echelon.  This respect had been predicated on the intellectual superiority and comparatively higher practical experience of the members of higher court than the courts in the lower tier.  What does this mean?  It means that the high court Judges look up to the Court of Appeal for guidance and direction through their judgments.  Ultimately the Court of Appeal justices look up to the Supreme Court justices.  A pronouncement by the Supreme Court on any area of law is the final word on that area of the law. It is as expected to define the issues.  It is supposed to be a refined articulation of the law which resolves the issues and provide guidance for the entire legal system.  It cannot afford to be unintellectual.  The reasoning must be convincing.  It cannot leave loopholes.  Loopholes at the apex court create severe problems at the lower courts.  Amongst other things, it allows the lawyers to maneuver extensively. It may lead to conflicting judgments of the lower courts.

We have to accord the right status to judicial officers. I grow up in the home of a judicial officer. I am always confused, if not perplexed when I try to make comparisons between the environment which I was brought up and the situation in the country today. I want to commend the National Judicial Council for all the effort so far in insisting that Judges are fairly treated and disciplined when necessary. However the National Judicial Council budget is dictated by the executives. It can only spend what is made available to it. I have listened to all Chief Justice of Nigeria since Honorable Justice Aloma Mukhtar GCON complained about the poor funding of the Judiciary. I have been told that some States are unable to pay the full allowance to judicial officers. This is totally unacceptable and unconstitutional S84 (7) of the 1999 Constitution provides that ‘ the recurrent expenditure of judicial offices in the Federation in addition to salaries and allowances of the judicial officers mentioned in subsection 4 of this section shall be  charge upon the Consolidated Revenue Fund of the [email protected]  We have to pay judicial officers appropriately and it is my submission that their salaries should be indexed link to inflation. In Nigeria today most people have lost 50% of the value of their earnings to inflation which implies that judges now earn less than half of their salaries in real value.

The size of the High Courts in the various states is too large. I believe that most of the jurisdiction being exercised by High Court in the states can be handled as the magistracy. We need to enlarge the jurisdiction of the magistrate courts to take away some burden of the High Court so that the High Court can concentrate on issues that require great attention. We have to place serious emphasis on the hierarchy of courts.

Appointment to the Bench must be based on merit. Law is essentially a profession that requires very serious intellectual capacity. The various levels of courts must look up to the courts higher than them in the hierarchy. The argument that it will offend Federal character is a non-starter. I have been to every part of Nigeria. Every corner of Nigeria has very outstanding people and they should be identified and appointed.


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‘ Constitution  should be amended to emphasise revenue generation’
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