In true federal set up, states should have their own constitution, says Karibi-Whyte (INTERVIEW)

No Comments » April 8th, 2009 posted by // Categories: Electoral Reform Project



In true federal set up, states should have their own constitution, says Karibi-Whyte

Retired Supreme Court Judge, Justice Adolphus Karibi-Whyte told KELVIN EBIRI in Port Harcourt that the Federal Government lacks the will to resolve the problems in the Niger Delta. He said that one way to neutralise the insurgency or militancy in the region is to provide sustained development for the Niger Delta. He also spoke on the constitutional amendment. Excerpts:

WHEN the amendment of the constitution commences, what issues should the South-South legislators canvass?

We want fundamental areas of the constitution to be looked; the fundamental areas, which we have always talked about, the structure of the federation. We want true federalism, which means that every state should be free as much as it can within the federation. We should also have fiscal federalism, which most people are translating to mean resource control. You control the resources in your state and contribute to the finances of the Federal Government.

Now there is the Land Use Decree, the Petroleum Decrees, the Petroleum Mining and Licenses. These are the decrees, which affect the exploration of oil and gas within the state. There is also the onshore and offshore issue. These are issues, which affect the South-South people. These are things that we feel should be looked at. The president is been keen to amend the Land Use Decree, which to a large extent will affect most of these things we are talking about.

How will the Land Use Decree make a difference?

What the people are clamouring for is that the land should not be vested in the governor. I agree that is the purest way of protecting the interest of everybody. But what the law says is that the land is not actually vested in the governor. It is vested in the people but the governor is merely a trustee of the people. I don’t think many people have read the provision of the decree carefully. The land is not vested in the governor. It is vested in him as the trustee of the people; so the land is still vested in the people. When you are left free to use your land without consulting him the land belongs to you. You can transfer the land without him. The only area I am particular about as to where he might exercise control is where he wants to claim land for public purposes. In which case he can go ahead to do that and then the appropriate compensation is paid. But actually, the best thing is a complete abolition of the Land Use Decree. Let it go so that everybody should have his or her own land and use it. But it has some difficulties in terms of economic purposes. When you want to have a wide area for industrial purpose, it means you have to consult so many people for the purpose of one land and it might be difficult to get all of them to agree for an industrial project. So if you can get the governor to deal with this, it will be easier.

Some people have the squabble between the Senate and House of Representatives on who should chair the Joint Constitution Review Committee as an impediment to the amendment…

That is a domestic issue, which is now affecting the whole country. The National Assembly can organise how they want the chairing of that body to be; they should settle it among themselves. I don’t think it matters to Nigerians who chairs the committee. I am bothered that this matter has lingered for so long. It is not wise to keep it hanging for so long because it affects the future and peace of the country and everything, which we want done within this period. The earlier they ignored this ego thing between the House of Representatives and the Senate, the better for the country.

The Niger Delta crisis has lingered on despite been part of President Umaru Musa Yar’Adua’s seven point agenda.

I think that he might mean well but the problem perhaps is that the political will is not there. Nigeria will not have peace until there is peace in the Niger Delta. For now, everybody believes that that oil is a wasting asset and it will soon finish, so they are waiting for it to finish. Even if that is their view, gas is still there as a substitute, which is still being discovered. But the point is that there are lots of interests outside the region, which want to continue to share the resources of the Niger Delta. And it is this interest, which makes it impossible to have the political will; this is why it has been delayed. Anyway this is just my speculation. There might be other reasons but to me, it is the absence of a political will that has allowed the problem to fester.

Are you impressed with the way that the present this administration has handled the issue of the Niger Delta?

I would not say that I am disappointed because things are happening and they cannot happen as fast as many people think or want. It has not happened the way we want it because we are running against time. And time is very precious for this type of matter. People are still suffering and the question of militancy is there. If the delay in delivering dividends to the region is not there, there will be no good reason for the militancy to continue. But while it is continuing, they have something to point at to explain why they should continue struggling. If the reasons are not there, if the developmental projects are going on, if people are suffering less, even those who say they are fighting for the liberation of the Niger Delta will not do so. But at the moment, we have a good cause to keep fighting, even if it is a losing one. Everybody knows that the Niger Delta militants come from the poorest part of this country, which has no hope of being developed. Even the little development that should have come is not coming, so why shouldn’t they struggle. Their struggle is to draw attention not necessarily because they can change things. They are just drawing attention to what is happening to them. So the thing is to try to make them realise that they should not fight and that the country is behind them and that the development they are seeking is coming.

Do you fault the fact that the government has been accused of spending more on security than on developmental projects?

It is an anomaly. The only way to neutralise this question of insurgency or militancy is to provide amnesties and the development, which everybody is asking for. As long as you rely on providing for security and ignore the question of development, there will be a problem. The money provided for security, could have translated into development. If it is the other way round, things could have been different because the whole place could have been bubbling with development. So the better thing is to use the vote for security for development. The issue of militarisation of the Niger Delta is a little bit exaggerated. There might be people outside the region who are fuelling not only the militancy but also the theft of the resources (crude oil). Ordinarily, dwellers of the area do not know how to steal crude oil, so it must be organised from outside. It might be people highly placed people. Who knows? In any event, we should not blame the South-South alone for this problem.

Do you share the view that the lack of good governance is part of the problem in the Niger Delta?

Lack of good governance has been a major part of the crisis in the Niger Delta. But I think that the people might be responsible for this bad governance. The government starts from the council to the state government. How can the people sit back and those in power people are stealing their money and they say nothing. Who do you now blame? They should help themselves and cry out. It is not enough to say that people embezzle money; they should also try to stop them.

While some state legislatures have prescribed capital punishment for kidnapping, the Inspector General of Police said there is a bill before National Assembly prescribing life imprisonment. Is this a contradiction?

It is not a major contradiction. There are punishments for the offence. The criminal code has always been a state offence. There is a bit of history to it. The criminal code initially covered the whole country. It was in 1960 that the North passed the penal code governing the northern area. We did not have states then as we have now. Now with the states, we have the penal code for the northern states including Abuja and the criminal code for the southern states. When we talk about the criminal law, we separate the criminal code area and the penal code area. There are differences in nomenclature too. When you talk about homicide, the North talks about culpable homicide. The South might call it murder. When you deal with it that way, I don’t know how the National Assembly can cover both jurisdictions because the National Assembly has no jurisdiction in terms of criminal laws. There are federal offences, which they can legislate on like treason, sedition, economic offences and so on. But they cannot pass any law or any sentence on a criminal code. This is part of anomaly.

Are you convinced that capital punishment will deter kidnappers?

As a deterrent, it will be effective. But in another way when a person knows that if he arrested for kidnapping, he will be killed, he might simply say ‘okay, I better kill since when and if they catch me I will be killed.’ Again, you can arrest somebody by mistake and convict him mistakenly. When you discover that he is innocent, you might have already killed him. And you cannot correct this. That is the snag in capital punishment. You cannot reverse it when you find that you are wrong. That is why most people prefer life imprisonment or a long term in prison. If the person is innocent and still alive, you could exonerate him. Capital punishment is not the better option; it is not a solution. You don’t kill one because he has killed another. That means you are losing two.

What is your comment on the raging debate on whether the president should appoint the chairman of the electoral commission?

Nigeria is still a very crude and rural society. People have not understood that the president is not appointing a person in his own right. He is exercising the right vested in him by the constitution and the country. If he is appointing a person, he should look for a suitable person to appoint. But Nigerians think that the person so appointed is the president’s personal servant and when he appoints them, they begin to run his errands. The people he appoints are not his servants; rather they are servants of the country and are expected to do the best for the country irrespective of who appointed them. However you look at it, somebody must appoint. What we need is the integrity of the person who is appointed and the integrity of those using these appointees. We don’t need people who cajole and make the appointees feel that after all we appointed you. People should understand that these (Independent National Electoral Commission) INEC people are working for the country and not for the individuals who appointed them.

When people talk about the National Judicial Council (NJC) appointing the INEC chairman, they have to consider the constitution. If they bring the Judiciary into doing this, it means they want them to do the work of the Executive. Unless the constitution is amended, it will be wrong for the president to be barred from appointing the chairman of INEC. We should learn to trust our leaders.

The states should retain their independent electoral commissions. In fact, the states should have their own constitution. The states have other matters outside the federal constitution that they should have in their own constitution. All the states are not the same and their demands are not the same. States are peculiar and so are the councils. So we should have constitutions for each state and electoral commission to run the affairs of the state.

Why should the national electoral commission conduct elections for the states now since there is no uniform tenure? If Rivers State wants its tenure to run differently, it can do so. Must it have the same tenure with Imo and Anambra states? People should realise that we are different people within the same geographical area and we can decide the way we want to live. Why must me do everything in the same way? That is why we are having trouble. We are thinking globally when we have differences within our system. The council system is not uniform. States should have their own structure to determine how they live for the purposes of good governance. The constitution is a general one that focuses on the national concern. But the local problems of the states are different from that of the Federal Government.

What would you advice the President on the Niger Delta?

I have always said that the first is development, and then enlightenment. This is what the people of the Niger Delta are looking for to be part of this country. You cannot be part of this country when you have nothing in common with the country. Nobody can easily go into the Niger Delta now because of transportation difficulties. Unemployment is highest in the Niger Delta. Many towns in the Niger Delta do not have petrol stations. They are riverines and are not accessible by road. I fault the suggestion that you cannot construct roads to those places. Of course roads can be constructed in these places. Where there is a will there is a way. A place like Holland and some Europeans countries are even worst off but they are all connected with good roads. Boat transportation is effective in these Europeans countries. But here they say it is impossible to develop the area. The president should invest massively in infrastructural development of the Niger Delta.

What do make of the President’s offer of amnesty to militants?

Amnesty is a very good thing. The moment they show that they don’t desire to continue fighting, amnesty will be granted. It is difficult to grant amnesty to somebody who is still fighting. This is where massive development comes in. If the militants see that development is going on, they will certainly reconsider their stance. They are human beings and they come from this area. But I think things are slowing down. When people hear of kidnap they just pass it on to militants. Even the ordinary criminal now says he is a militant. They are two different people. If the government invests in the development of the area, there will be peace. The militants have made it clear that it is the lack of development that pushed them into the struggle. We have seen what has been made of Abuja, a city, which was started in early 80s and 20 years or so. Who says any other place cannot be so if sufficient money is pumped in the place. It is the same oil money we have been denied that was used to build Abuja. They are now talking about rail system in Abuja while even the water transport system in the Niger Delta is still primitive. It is unfair. The militants have drawn enough attention to the situation in the Niger Delta and the international community is aware of their grievances. The country is very much aware of the problem. If the president will show the needed political will to tackle the problem, if he can change the strategy of investing more in development than security, then we will get somewhere. The president once said that the Niger Delta is his nightmare. He should have been aware that the problem we are facing now was as a result of abject poverty caused by neglect. The other parts of the country thought after all what can the people of the Delta do and the militants have shown to them what they can do. They have shown the country that they can do something, although we are more pained than the rest of the country because of the number of young people who have died in this struggle. And as the saying goes, the youths are the hope of tomorrow. Who are those that will be left for this tomorrow? That is the greatest fear. There will be a generation gap if nothing is done to address the problem now. And that is why we feel the country should understand what is happening to the Niger Delta. They should not just think that the militants are criminals. No criminals want to die. Many of them are convinced that this is the only way for the government to address the challenges the region faces. The country should take the real positive steps to correct the wrongs inflicted on the region.

Do you think it is totally possible for a movement of the oil economy outside the Niger Delta?

When militancy started, we warned that this would be the effect. We are in a very competitive economy. When the oil companies moved down, the western states lost a lot in terms of taxes, rent and even their economy. So they were waiting for an opportunity to attract them back. They were particularly instrumental both in the Internet and media of preaching how unsafe the Niger Delta was. So every opportunity that presents itself, they harp on it. So the companies have to return to the place they left. We are hoping that they will come back again. And when they do, they won’t go back again.


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