•Explains N’Assembly has power to give Nigeria a new constitution
•Posits an amendment includes substitution
A renowned Senior Advocate of Nigeria (SAN) and founder, Afe Babalola University, Ado Ekiti (ABUAD), Chief Afe Babalola, has said the current state of the nation presents a democracy with a paralysed legislature and judiciary, thus defeating the very essence of democracy as the most viable system of government.
In an exclusive interview with THISDAY, the legal luminary and businessman, who reckoned that Nigeria was yet to have an ideal democracy given that scenario, argued that the National Assembly has the power to give Nigeria a brand new constitution contrary to the position of NASS leadership. “Let me say that it was totally wrong for the National Assembly to say they cannot produce or write a new constitution. Under the 1999 Constitution, the National Assembly can produce a new constitution. One, the 1999 Constitution gave the National Assembly the power to amend. In its broad interpretation, an amendment includes substitution.
They can exercise their powers and say the 1999 Constitution needs a substitution. They gave a narrow interpretation to the amendment clause. This same process was undertaken in Sudan and many other countries. All the National Assembly needed to do is to call for a conference where people will advise on where and how the 1999 constitution can be substituted. That is all.”
Babalola also spoke on the recent Twitter row with the federal government, and posited that President Muhammadu Buhari erred by his decision to suspend the operations of the microblogging giant in the country.
Answering to a question on the autonomy of the judiciary, which had prompted a strike by judicial workers for over two months, Babalola said, “Democracy thrives on three fundamentals pillars – the executive, legislature and judiciary. If a man with two legs has one of its legs cut off, will he be able to move freely?
“But out of the three arms we have, two have been paralysed. I mean the legislature and judiciary. Do we now say we have a democracy? Where can people ventilate their anger? Do they want them to resort to self-help? There can be no fairness and justice, where the executive continues to pay those in the judiciary.”
Supporting his claims, the Ekiti-born lawyer, noted: “I have been in the legal practice for 60 years or thereabouts. I knew how our courts were when I came back to the country from England in the early 60s. Then, we had lawyers from Ghana, West Indies and many other countries competing with us in the Nigerian courts. So, it was very competitive. In my 60 years of practice, however, Nigerian courts have never been shut for a day. Even in those days, lawyers and judges were respected.
“Don’t forget the aphorism that says he who pays the piper dictates the tune. Commonsense dictates that there should be independence for legislature and judiciary. If the car of a judge breaks down and he only relies on a president or governor to get it fixed, then, it will be difficult for him to pass a judgment that will be against the state.”
Speaking on the process of recruiting members of the Bench in Nigeria, he said,
“That is critical. But we have not got it right. A practice, whereby people are asked to apply to become a judge, is affecting the system. The process cannot guarantee fairness and justice. After filing the application, the governor will now decide, who to pick among them. In those days, people did not need to apply to become judges.
“It is the system itself that looks for qualified men of integrity to become judges. That is part of the rot in our system. I believe that the judiciary must not only be autonomous, but also the courts must be accessible and open to all. The president and governors, as high as they are, are equal before the courts. That is the beauty of it.”
On the suspension of Twitter operations in Nigeria, Babalola said, “I do not believe the president was right to have given the directive just because Twitter removed his post about the security in the Southeast. Don’t forget that the English law we are operating presumes that you are innocent until the court proves otherwise.
“Twitter, like human beings, has the right to suspend Buhari’s personal account in this context. The president cannot be a judge in his own case. If he felt wronged by what Twitter did, what he ought to have done is to approach the court of law, which has power of adjudication. He cannot jail Twitter for removing his comment. Only the court has such powers and not the president.”