On January 5, there was a confrontation between Governor Babajide Sanwo-Olu and a Chief Superintendent Officer, Abimbola Oyewole, over the Magodo phase II issue. The CSP obeyed the instruction of the Attorney-General of the Federation, Abubakar Malami and the Inspector General of Police, Usman Baba, on the police presence in the estate. What is your take on this?
In this case of court judgment, it is an obligation saddled on all courts in Nigeria, but when it comes to decisions of court, normally the bailiffs and sheriffs of the high court are used to carry out such enforcements. So while all courts in Nigeria are used to carry out execution of judgment of the Supreme Court, it is fundamental that such execution is usually done by High court bailiffs and sheriffs.
In this circumstance, the procedure has been laid down in the high court rules of each state and also the Federal High Court. The police will not just jump into a legal process, claiming to be executing a judgment of the court.
Execution is not to be done by the police. It is only for the police to provide the necessary security to take over such a process. Where agents of the IGP and police officers are claiming to be enforcing a judgment of the court without the necessary process of the bailiffs and sheriffs, it is illegal and unconstitutional.
That is why the presence of Governor Sanwo-Olu at that particular place is a commanding process to which the IGP ought to leave a good measure of recognition, but if the police were there claiming to be enforcing the judgment of the court, without following the proper rules and guidelines earlier stated, then they ought not to have been carried out that way.
Can we say that the response of the CSP to Governor Sanwo-Olu that he cannot follow his instruction is a display of disrespect or it is just one of the symptoms of the flawed structure on which Nigeria runs?
Yes, your conclusion with respect to the latter part of the question is absolutely correct. It shows the deficiency in our constitutional makeup; it shows the inadequacy that characterises the constitutional structure upon which Nigeria is presently constructed.
Where the police belong to the Federal Government, and the police are supposed to only take directives from the Federal Government, the implication is that, the states, the federating units are mere appendages of the Federal Government and they are just being tolerated by the Federal Government when it comes to the force of arms.
However, nobody is agitating for a state to have a parallel structure that can rival the FG but there is no federal structure where the entire instrument of police is concentrated in the hands of the FG and the states have no structure by which they can enforce laws. What played out in Magodo estate is a reflection of the lopsided nature of the so-called federal system, which is more unitary than federal.
If you look at the provision of Section 2 of the constitution, the police exist as a FG agency, more or less and the state governor cannot just give an instruction. While the state governor may give an instruction, the commissioner of police in a state will have to seek the permission of the FG before such an instruction is carried out. The implication is that the governor is not the chief security officer of the state, and here we now have a CSP countermanding the instruction of a governor, it shows that the governor is quite helpless.
In this case of the Magodo land dispute, should the police have been deployed in the site to enforce the Supreme Court judgment?
It is the sheriffs and bailiffs of the high court that should have carried out that judgment. In fact, there is a procedure, rate of execution and rate of possession which should have been signed by the high court judge, as the case may be, who will now authorise the enforcement of the judgment of the court.
So where the Supreme Court has decided the matter, it will be brought down to enforcement, because the sheriffs and bailiffs will not come from the Supreme Court to come and enforce it. It is a duty of the high court to make sure that all judgment of the Court of Appeal or the Supreme Court is registered at the level of the high court. They are notified that here is the decision of the Supreme Court, decreeing that a particular property belongs to a particular person or a group of persons.
Now, for the police to come, probably from Abuja, to say they are here to enforce the judgment of the Supreme Court, it is an affront; it is an illegality; so it is not a process that should be countenanced at all.
With state governors being unable to control the police in the state, can we really say that state governors are the chief security officers of their states?
The governors are not and that has shown in the obligation to provide security in the various state of the federation. It is the inability of the governors to effectively give instructions to the police in providing security against marauders, intruders and other criminal elements that led to the formation of Amotekun in the South-West.
Because the state governors discovered that in many cases, where there will be farmers-herders clashes and what have you, the police will be there just watching without taking necessary steps and it became very rampant that these clashes went uncontrolled. It got to a point that the governors too realised that a lot of criminal elements might be hiding under the cover of herdsmen and the fact that the police were not up to their duty made the call for state police to be more obligatory.
To what extent is the separation of powers observed in the Nigerian system?
The separation of powers, we all know, is a cornerstone of democratic governance and in any modern state, where there is no separation of powers, powers would be concentrated in one organ or one human being and that person would abuse the power concentrated in his hands.
First of all, the judiciary was subjected to a humiliating treatment as we witnessed against Justice Ayo Salami under the Presidency of Goodluck Jonathan, or the kind of devastating treatment meted out to Justice Walter Onnoghen, or where the judicial officers’ houses were been invaded by Department of Secret Service and Economic and Financial Crimes Commission officials under the pretext of wanting to fight corruption. These are people that should have been invited to assist in investigations and would be duty-bound to come.
Such invitations should be given to the CJN, or the President of the Court of Appeal or the chief judge of a state to pass on to the relevant judges or justices. That is when you respect the sanctity of the judicial offices, not by breaking their doors or invading their houses by force of arms. It shows how animalistic our law enforcement agents are. They are not law enforcement officers, they are rather hooligans. They operate in the Gestapo fashion.
Secondly, the situation where the judiciary is made to be an appendage of the executive, then there is no separation of powers. The implication is that the judiciary would not be independent, and a dependent judiciary is never a working institution because judges would be afraid to give judgments.
Anytime you have cases in many high courts, and the EFCC is involved, you will see some judges already panicking. In fact, they already take the side of the prosecuting counsel from the EFCC or take the side of the police, refusing to allow a suspect who is still presumed innocent under the law to be granted bail.
This is borne out of fear that if a judge consistently rules against the illegal practices of the EFCC or the police, such a judge may be called by the Department of Secret Service or become a victim of punitive or vindictive punishment by the executive. That is not an independent judiciary. In Nigeria, we are not observing the rule of law and the doctrine of separation of powers and it is unfortunate.
We cannot blame the incumbent governor or President, but we would expect that the incumbent President would deviate from the unlawful practices of the past.
There have been calls made for entrenchment of true federalism and restructuring in the country. What are the key things in our present constitution that ought to be changed?
There are a lot of things, but I will mention the few ones that readily come to mind. When you look at the constitution, you will discover that it says, “We the people of the Federal Republic of Nigeria…Do hereby make, enact and give to ourselves the following constitution.” There was never a time that Nigerians gathered together prior to 1999 to give this constitution to ourselves. That means that provision is actually lying against the people of Nigeria.
However, when you look at the allocation of legislative powers between the Federal Government and the state government, it is highly lopsided in favour of the FG. In the exclusive legislative list, on which the National Assembly, the FG alone can legislate and no state government or local government can legislate or do anything with respect to such items. We have 68 items in the exclusive legislative list. Each item has sub-items contained therein that only the FG can legislate on.
The implication is that we have legislative powers concentrated in the centre and that is why everybody wants to die in the centre. That is why everybody is saying, “It is our turn; we must be there. We have been cheated and marginalised.” We have only 30 items in the areas that the FG and state government have the power to legislate. The implication is that, the powers contained in the concurrent legislative list, each of them is divided into two, between the federal and the state. And whenever the federal has legislated on a particular item, the state government has no power to legislate on that item anymore.
Now, when you look at what is contained on this list, you will realise that our federal structure is actually unitary, only masquerading as a federal system. Furthermore, the items referred to as ‘residual matters’ which only the states can legislate on are quite nebulous and undefined. That is one fundamental area that should be looked into.
We also have to maintain one single army as a federating unit. No sane person would agitate that each state should have its own armed forces, no, that does not make any sense. But each state should be able to have its own state police by which security of lives and property can better be guaranteed. Where we do not have state police, to have community policing would be impossible. So it is important that we also look into what is contained in Section 2.14, Section 2.15 and Section 2.16 of the constitution relating to police powers.
Equally, when it comes to the judicial offices, the other two arms of government have both the head and the deputy. We have the President and Vice President, Speaker and Deputy Speaker, Senate President and Deputy Senate President, meaning that when the head is not available, there is somebody to deputise for the head. In the judiciary, we do not have such. We only have one person exercising the administrative judicial powers. We have only the Chief Justice of Nigeria, no deputy CJN, so once the CJN is sick or out of the country, nobody can carry out certain constitutional responsibilities or duties that the CJN alone has powers to do. The same thing occurs at the level of Court of Appeal and the High Court. We need to make the judiciary more viable.
Copyright PUNCH.
