One of Nigeria’s foremost legal luminaries and pro-democracy activist, Dr Olisa Agbakoba, SAN speaks on the sovereignty of Nigeria, the clamour for restructuring of the nation, the distributive injustice, referendum among other issues. Sunday Sun met him at his Ikoyi-Lagos office.

May we know from your own perspective what you think is the cause of Nigeria’s problems and the possible way out of the problems?

In our evolution (that is from colonialism, independence, military rule and military democracy) what we have had is authoritarian governments and exclusion of the people. No serious effort has been made to engage the people and build consensus. The colonial and post colonial constitutions did not emanate from the full involvement of the Nigerian people. The result is that Nigeria has remained a geographical expression. This explains the frequent national conflicts/agitations. Nigeria’s situation can be likened to a failing marriage. To salvage it, the couple need to make adjustments/changes to make the marriage work. Some people have advocated restructuring as the solution, but restructuring is conceptually wrong without reviewing why it is needed.

I think, what Nigeria needs is a new deal and the present political elite cannot deliver because of the entrenched personal interest.

Going forward, the civil society needs to wrest power from this ruling political elite to achieve a new system that is inclusive and works for all and not a few. These are the reasons why the fire of Nigeria is uncertain. The answer is in our history. In our evolution from colonialism, independence, military rule and military democracy what we have had are authoritarian governments and exclusion of the people. No serious effort has been made to engage the people and build consensus. The colonial and post- colonial constitutions did not emanate from the full engagement of the  Nigerian people. The result is that Nigeria has remained a mere geographical expression.  This explains the frequent national conflicts and agitations. – The western region crisis;(1965- 1966), the first military coup (January 15, 1966), counter coup (July 28,1966), civil war (6th july 1967 -January 15, 1970) failed military and civilian governments, Niger Delta, Biafra and Arewa agitations, Fulani herdsmen killings, killings of Fulanis in the Mambilla plateau. Government needs to adopt a flexible stance. The attitude should be: “How do we bring Nigerians together? Every constituent part of Nigeria has a right to self determination. It is guaranteed by article 1 (2) of the United Nations charter and article 20 (1) African Charter on Human and Peoples Rights. Aspiration for self determination is not new or peculiar to Nigeria. The caveat however is that it must be carried out peacefully and within the law.

What do you make out of the deafening calls for restructuring?

So, to just go into restructuring without asking some key questions, I think it is fundamentally flawed. So the summary of what I have said so far is first, Nigerian sovereignty is not sacrosanct; Nigerian sovereignty is sacrosanct for those who are eyeing 2019. They will do this, deceive us, go to 2019 pretending that restructuring is the issue; they are now climbing on the bandwagon of populism. They are everywhere- Atiku Abubakar, and can you imagine someone like Ibrahim Babangida singing restructuring. When they were there what did they do? I don’t understand why we are so taken in by these people. We are so gullible. We have millions of unemployed youths and infrastructure is almost non- existent, yet they continue to deceive us.

That’s part of the warning that needs to be passed on by the civil society that it is not in the interest of Nigerians to continue to listen to what I call the conspiracy of the elite.  The conspiracy of the elite is to be found either in the APC or PDP or whatever new party emerges for 2019. We need to look inwards and determine how best we can grow our country. I think we can do so by asking the real questions. And it is not for nothing that Nnamdi Kanu has sprung up from nowhere.  Here’s a guy who no one knew, suddenly springs up; why? It is because the politicians have created the space. Politicians are not on ground, they sit in Abuja and talk; nobody listens to them. They are detached from the people. And people can relate to their own ethnicities or sub-national groups. So, Nnamdi Kanu sees there’s an opportunity to take over the South-east; he goes there, he discovers there’s marginalisation, unhappiness and there is poverty, and they join him, but the South east politicians meanwhile are in Abuja cavourting with other politicians for Abuja power and they leave their home porous; now this guy goes in there to fill the vacuum and they are complaining.

I have nothing against him except that he must do what he is doing according to Nigerian law. What he is doing is called self-determination. He started from the natural law, moved to the American revolution, French revolution. Everywhere you have self- determination- the Catalans in Spain, the Scottish UK are asking for self determination; so there’s nothing that says that any ethnic group in Nigeria that wants self determination cannot organise themselves within the context of the Nigerian law, present themselves for departure from Nigeria. So, there is nothing sacrosanct. What is sacrosanct about Nigeria, and this is the missing jigsaw, is that we have to agree whether we want to be together. The issue is like- if you have a wife at home who is not happy with the way things are going, you cannot force her to be happy in an unfriendly environment; you can’t say, I am going out, you can’t go out; I will lock the door. Whereas you should be asking her, ‘my wife what is wrong with our marriage? Are there things I am doing wrong that I can improve upon that can help us resolve our differences?’

So, all I am saying is that you can’t force government on people; for people to live together or remain in an association you must include them. You must talk to them and create time to listen to them. Then this dangerous noise about restructuring- that’s the buzz word-, what does it mean? In whose interest is the restructuring? Will the restructuring in the context the politicians are saying it going to mean, ok, bring the country back to regions? Will it create jobs? Will it transfer the inequality from the centre to the regions? If you ask people in the streets what they understand by restructuring, they have no idea.

So, is it economic restructuring, political or simply a matter of Nigerians needing to have a social justice, equality, inclusion? Those are the debates we need; we don’t just need a debate where we say restructuring for the sake of it.

So, my key point here is that we should be very wary about our politicians who, as usual, like to pull the wool over our eyes and we fall for it. We have been doing this consistently since 1914. In 1914, the colonial government pulled the wool over our eyes and we followed like cattle. Then when they saw that it was no longer relevant for them to continue, they engineered independence constitution (colonially-generated independence constitution), which had nothing to do with us. It collapsed. Then the military came. Again when they saw it was no longer relevant or possible, they engineered the present structure- a military-generated constitution. These  steps, not even one represents the people; that’s the problem.Agitations for restructuring is a political calculation for 2019. Most politicians advocating for restructuring today will abandon it when they get power. I believe Nigeria needs federalism.

 What then is the biggest challenge confronting Nigeria today, beyond restructuring?

 The biggest challenge is that people are not feeling too good about their nation right now.  We need an agenda to release energy. But first, we need to agree on the basics. These include an acceptable political framework, new constitution, new rules of engagement, good governance, happiness for common good, and sound economic development policy

Why is federal system not working in Nigeria; again, the once vibrant civil society in the country has gone comatose; how can they make themselves relevant in the present circumstance?

That obviously could affect the response of the civil society to be influential, but that’s not to say they should not keep trying. Second point is Federalism. There’s a book, ‘federalism: An Introduction’ by George Anderson; There is no one sign fit-all for federalism. You can’t say federal state, federal state, federal state, but they are symptoms of where you can apply it.  The best place where you can apply federalism is where you have diverse views; where you have multi-lingual, multi-ethnic and multi-cultural views. We are perfect for that. We have six federal sub-zones. Federalism will suit Nigeria, but the problem is can you point to any of  the sub-zones in which the federal process has been applied? The only period when federalism applied in its best form was the First Republic, when you had regional governments with their own constitution; self authority, etc. So, we are looking for a federal system that is fully genuine and that can deliver Nigeria from its present morass. There is no supermodel of federalism. So there is no one size that fits all. The 28 countries in the world that are federal are all different. Federalism unites diverse peoples but supports assertion of distinct identities and recognises autonomy in certain matters. Federalism unites without eroding identity of distinct groups. Striking a balance and identifying a workable federal model that is inclusive is a challenge for every country.Again, I still repeat, there’s nothing sacrosanct about Nigeria. To say that nobody should talk about it is wrong. It is a debate. The debate should be on the basis of convincing people that it is in their interest to be part of the Nigerian process; that is it.

Are you then saying that the call for restructuring is misplaced?

Well, restructuring will not solve Nigeria’s problems. You need to hear what the Itsekiris are saying about the Ijaws or what some of the non-Fulani Hausas are saying about the Fulanis. The cleavage is deeper than restructuring can cover. It is a very deep gulf. Restructure is, for instance, when you are building a house as an architect and you only have a ground floor; but here, there is no ground floor. So without the ground floor you can’t go to the first floor. We need to have a conversation in which we can find some common benefits why we need to be one. Once we have done that, we can then go to say how? So restructuring is the second question, and that is the how? But without the first one, restructuring will transfer the incompetence, the corruption from the federal to the regions.

Was the 2014 National Conference, in which you participated, not qualified enough to be considered the type of conversation you talked about? Secondly, You recently dragged the Federal Government to court over alleged neglect of the South east, which is also the grouse of some of the groups in that zone; do you think there is a deliberate policy by successive governments in Nigeria to keep the Igbos down?

 No, there isn’t a deliberate policy by the government to put the Igbo down, but there is a selfish policy by those political elite who hold power to chop everything. That’s the problem. They are greedy and selfish that they can’t see beyond their interest. When they are there they forget everything and everybody. That’s why the contestation for presidency is phenomenal because the person who becomes the president determines how the things flow. So, if it is a Yoruba-led government, it excludes every other person; if it is an Hausa-led government or Igbo-led the same thing. The only way we can make things work is to bring everybody on the table. Afterall, Jonathan favoured the Igbo, but what Igbos did he favour? The political elite. I was going from Onitsha to Enugu last week; I remembered that as a student in 1972, I had been on that road. It is still under construction because the governor has no control. The minister of works controls it from Abuja. Fashola sits in Abuja talking about electrical power across Nigeria, whereas if they decentralise it, people can take on power even at the local government level. In Apapa Local Government Area of Lagos State, we can create a private sector initiative to power up Apapa, but it’s not possible because we don’t have the political authority. So, we need to have a discussion about how to change this narrative. And that discussion is not restructuring, that’s my point. It is about this geographical expression called Nigeria, how can we get it to work? If we can get it to work, then what do we want to make of it?

On whether or not there are things to draw from the 2014 National Conference, yes, but first of all, we must discuss whether we want to be Nigerians. The late Bola Ige encapsulated the issue in two questions: Do we want to be Nigerians? That question was not answered by the national conference. The second question is, if we want to be Nigerians, how? The second was addressed at the national conference. The first is where the problem lies.

What would you consider the key issues for constitutional review? 

I believe the nation can make good progress if we consider devolution of power from the centre to the federating units and define the units that are federating. There should be fiscal federalism/revenue sharing, national institutions critical for democratic consolidation  There are two kinds of devolved power – political and technical. Technical devolution is easier to agree than political. Nobody will argue that the states are better able to manage drivers’license, trade with states, prisons, than the Federal Government. State Police may be more difficult as it is perceived to mean exercise of political control. The concept of shared or joint power helps to resolve some items of power seen or perceived to be ‘political’- electoral, police, judicial, etc.

On police, the concept of municipal policing for states is a possibility, while streamlining the present Nigeria Police Force in a shared power scheme between Federal and State governments, The Federal Government exercises power over 68 items on the exclusive list and 30 items on the concurrent list. The states may exercise power on the concurrent list of 30 items only if the Federal Government has not already ‘covered the field’ in any of the 30 items. In effect state governments really have no power.

 Those agitating for secession in the South- east want referendum. Do you support it?

Absolutely. I support it The cleavage is deeper than restructuring. The 2014 constitutional conference report cannot solve it. There are a lot of contradictions in our society and government’s inability to resolve them is at the core of the agitations.For instance do you know that  50 Nigerians have 80% of bank deposits in Nigeria.?  You can see the deep cleavages behind some of the agitations. There is clear injustice in the economic distribution . So why do you think that people will not protest or ask for a more human social order.  There is bound to be unrest in a society that creates this level of disharmony. The government is not helping matters by pretending that all is well. Certainly, all cannot be well in this kind of economic set up.

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