Constitutional Amendment: President within His Prerogative to Reject Bills-Oyeyipo

Mr. AdetunjiOyeyipo, a Senior Advocate is a partner in one of the foremost law firm, Abdullahi Ibrahim and Co. Oyeyipo, who was among the legal team that fought to get back the Governor of Edo State, Adams Oshiomhole’s mandate at the election tribunal in 2007 in this interview told PETER FOWOYO, his expectation from the 2015 election petition tribunal, constitutional amendment, adoption law, the Supreme Court and sundry issues.

How do you see the ongoing face-off between the federal government and the national assembly over the recent constitutional amendment?

Well, the issue of constitutional amendment cannot but generates a lot of interest and from the proposed amendment it appears it covers wide area which includes the delicate but fundamental issue of separation of powers, Mr.President felt that the national assembly did not comply with the mandatory provisions of the 1999 constitution as amended that is, section 9 of the constitution and he also felt that a lot of the amendments really ought to be reconsider and so he sent the bill back.

But I am more interested in the legal reasons for rejecting the bill because if I understand him very well and what the honorable Attorney-General of the Federation are saying, the national assembly did not comply with the mandatory provisions that is required, fourth fifth majority of the members of each House in the national assembly and also the requirements of each state Houses of Assembly passing the motion approving all those sections of the constitution. I think the President is well within his prerogative to do that, I also think that the way and manner this amendment was rushed, in my opinion, leaves much to be desired. I am not sure all the states Houses of Assembly actually debated this thing and like I said, I am not sure because I don’t know but, everything appears to have been rushed.

I think the president is most likely on sure footing in this matter but again, I must say that I am not fully aware of the facts. If you look at the previous exercises of the constitutional amendments in 2010, 2011 although those ones were on a very narrow area, it has to do more of the electoral process than this one; you will see that even those constitutional amendments were done in a rush. I for one, I don’t believe this is the way a constitution of a country should be amended. I think it should be much more rigorous procedure which allows for a wider range of consultation, an involvement of as many people as possible stakeholders before that sort of amendment is carried out.

Some lawyers are of the view that not all the things in our constitution ought to be there, are you of this opinion too?

Well, it is difficult to say these are the things that should be in a constitution and these are the things that should be out of the constitution. Well, of course, it is common knowledge that England has unwritten constitution and they still run very well and they understand the way the system work but, you cannot really say this must be in the constitution and this other issue must not be in the constitutionbut for a country like ours, Nigeria, where even when things are in black and white people still find a way around it, I believe that most of Nigeria. For example people quarrel about the issue of local government that why should the issue of local government be a constitutional matter?

Yes, there are arguments for and against it but then; you find out that states have developed a penchant for suppressing and practically treating the local government areas and administration as extra ministerial bodies under the control of state government which should not be. And this is a matter that is under the constitution so you can imagine what will happen if it was not under the constitution. I think most of what you have in the constitution that people quarrel about were put in there by the framers of the constitution because they took into consideration the nature of our people and the fear is that if you don’t put this in the constitution they will abuse it and I think the fears are justified.

Many are of the view that the constitution lies about itself when it says: “We the Nigerian people…” at the opening chapter whereas the constitution itself was drafted by the military and few individuals. What is your take on this issue?

I don’t think the constitution was drafted by few people who were just put in one room and asked to come up with a constitution. Yes, the constitution may not have involved a wider range of people that some other people may want but, don’t forget that the constitution was drafted during the military regime. However, you must bear in mind at all times that there was wide consultations and there was certain committees that were put in place by the military government to consider the constitution.

Again, the constitution if you take it and put it side by side with the 1979 constitution, you will find out that they share a lot of similar provisions. 1979 constitution was a production of a constituents assembly of people who were elected and some appointed who came together to consider what sort of constitution that should govern the country and they came up with the 1979 constitution. What the 1999 constitution has attempted to do was to improve on what the 1979 constitution has done.

Let us for purpose of argument agreed that the constitution was put together by military men, we’ve had civilian administration for the past 16 years, the country has been governed from local government level to state government level to the federal government level by civilians, what have they done about it? You will see that all the attempt made to come up with some other constitution have not fared very well. During the Obasanjo regime, there was a conference set up which everybody now believe was actually put in place because of his alleged third term agenda, it failed.

Again, we had a national conference set up by the Jonathan administration which had all sorts of people at the conference, the composition of the conference itself was criticized by almost everybody, you find all kinds of interest groups claiming that they were excluded or they were marginalized. In Nigeria, I can assure you that if you asked everybody to come and vote on every section of the constitution, they will still come up with some form of excuses that no, we were excluded. I think what we should do is to hold on to the 1999 constitution as it is and perhaps if we can get whatever useful reports from the national conference and use it as a basis for amendment of the 1999 constitution.

When people complain about the constitution telling a lie about itself and if I remember very well, I think it was the late Chief Rotimi Williams SAN, one of the best legal brains that Nigeria has ever produced who raised this issue when he said the preamble to this constitution which says: “We the people of Nigeria having resolved….” When people say that I think they are doing that against the realities of our country Nigeria and against the realities of how the fourth republic came into existence.

Some have alleged that the adoption law in Nigeria is too cumbersome, do you share this view?

I don’t. You see, we have to consider two things, the African society actually has its own mechanism for taking care of children who don’t have their biological parents with them anymore or with children whose biological parents are unable to look after them or even couples who for some reasons are not able to have children of their own. I am not a particularly old person but, when I was growing up there was a time I didn’t even know the number of children that my parents had because I grew up with cousins, distant cousins, near cousins even children of friends and other people referred to as houseboy or house help who somehow become integrated into the family and so adoption in the way the English man has it is rather alien to our culture but then as our culture continues to develop and we began to have the influx of European or Western cultural norms into our own system, we became confused

You find out that our children can’t speak the mother tongue very well and language is the very first line of contact when you talk of culture and so over time we have become seriously confused about what exactly is our culture in Nigeria. Let us go back now to the issue of adoption law, we now have something that is alien to us but, you know you have to have all these things in place to prevent an abuse of the adoption system. You want to be sure that people who seek to adopt these children genuinely will love these children as if they were their own biological children. You want to be sure that they will not turn these children into some other objects and so it has to be rigorous, on that point I cannot fault the adoption law.

The 2015 elections have ended, what are your expectations from the election tribunals?

Well, for the first time in the 16 years life of this particular republic, we fin d losers in the elections accepting defeat and even openly congratulate the victors; this is a very good sign. I think it is partly a reflection of the level of fairness in the conduct of the election by INEC, I think to a large extent, in most part of the country elections were free and fair and people just decided to accept that.

Having said that, there are some cases where the losers feel that elections were not free and fair, there were some malpractices and so they can challenge the elections. Oh, that is alright, that is why the law courts are there while people like us are also there to assist anybody who have any grievances about the elections to ventilate their grievances before the appropriate tribunals.

What I expect is that the tribunals will probably not have as much issues as in the past. The 1999 elections and the 2003 elections up to the 2007 elections were characterized by widespread malpractices. I mean one of the elections, I believe it is the 2007 elections was conducted with ballot papers that were not serialized and that is a very, very grave noncompliance because if you use ballot papers that were not serialized it becomes difficult to audit the elections based on the ballot papers used for the election. But here, we have ballot papers serialized, we have the card readers which unfortunately failed in some places and which INEC said in those areas where the card readers does not work, you can use manual accreditation. All these things put in place by INEC will make the tribunals to determine whether the elections ought to be upheld or should be annulled.

I expect that those who will go to the tribunals will go, I expect lawyers to come up with their usual arguments but, I think to a large extent it will be fairly easier for the tribunals to come to just decisions in these cases.

Some of your colleagues have observed that the volume of appeal before the Supreme Court is enormous and that the court is overburdened. Do you share this sentiment?

Yes, I do, the court is actually overburdened, there are too many appeals going to the Supreme Court. I think the solution really include one, ensuring that these justices of the Supreme Court have aides who can help them to do their researches on issues that come up such that even before the matter is called in open court the justices would have had a fair idea of what the issues are and would have even know which areas they want the parties to emphasize on and then they can easily dispense with the matter.

Secondly, I think there must be a mechanism for filtering appeals that goes to the Supreme Court. Right now, there are certain appeals that goes to the Supreme Court as of right, criminal appeals where there is death penalty, civil appeals which involves question of law alone, interlocutory appeals which also involve question of law alone. I think there should be a filtering mechanism at the Court of Appeal that will determine whether any proposed appeal should get to the Supreme Court at all.

You see, our people have this nature that unless the Supreme Court has spoken on their case, they will not give up, I think it’s wrong. The solution really will be to make sure that the aides of the justices of the Supreme Court are people who are very well educated, very well learned and who can make the jobs of the justices easier and appeals going to the apex court must be properly filtered to make sure that it is only the ones that raised genuine issues of substantial law that end up at the Supreme Court. The Supreme Court is not like a Magistrate Court or a Customary Court where you take all kinds of cases to for adjudication, no. Unfortunately, that is what they have turned the Supreme Court to now.