By Eric Teniola
He was called to bar on February 7, 1956 and enrolled on March 12, 1956. He became a SAN (Senior Advocate of Nigeria) in 1978 and his number is 8. In the Nigeria’s legal Practitioner’s list, he is lawyer number 509. I met Chief Richard Osuolale Abimbola Akinjide (4 November, 1931-21 April, 2020) in 1973 after his tenure as President of Nigeria Bar Association was over. The then Governor of Western State, Brigadier Christopher Oluwole Rotimi (85) appointed him Commissioner along with Alhaji Lateef Adegbite (20 March 1933-28 September 2012), Chief Mrs Folake Solanke (88) (SAN), Professor Bolanle Alake Awe (87), Chief Ilemobayo Akinnola (1934-2013), Chief Ladosu Ladapo, Chief Gab fagbure and others. He declined the appointment. I was then in Nigerian Tribune in the old Ade-Oyo hospital road, Ibadan, along with Folu Olamiti, Olu Osungbohun, Biodun Laniyohun, Valentine Ahams, Mufu Akinloye, Kayode Osifeso, Dan Ikuniaye, Alfred Ilenre, Bode Oyewole while our News Editor was Fola Oredoyin. Our Editor was Ikhan Yakubu, Our Managing Editor was Kayode Bakare and our Managing Director was Alhaji Lateef Kayode Jakande (90). OGA JAKANDE, as we use to call him then, instructed myself and Mr. Biodun Laniyonu to go to Chief Akinijide’s chambers at Dugbe, Ibadan, to ask him why he rejected the appointment. His junior partner at the chamber then was a handsome Prince, Dr. Ahmed Kusamotu (March 23, 1941- July 8, 2005) from Ikirun in the present Osun state. Chief Akinjide told us that he rejected the appointment because he could not serve under a military regime. That was the beginning of my friendship with Chief Akinjide. In 1977, he defeated Alhaji Busari Adelakun alias Eruobodo for the Lagelu/Oluyole/Akinyele Constituency election into the Constituent Assembly. He had earlier served in the Constitutional Drafting Committee that produced the draft of the constitution which was debated at the Constituent Assembly. However it was at the Constituent Assembly of 1976-1978 that my friendship with Chief Akinjide got fully cemented. We saw each other regularly during the deliberations in the Constituent Assembly. In my recollection, the best contribution Chief Akinjide ever made in the democratic process was the speech he delivered at the Constituent Assembly on November 16, 1977. Regrettably, I could not see him in the last three years at his Idishin residence in Ibadan but I sent my regards through our common friend, Chief Lekan Alabi, THE AGBA AKIN OF IBADANLAND. The only point of disagreement I had with him was the issue of the Presidential System of Government which he endorsed but which I disagreed with.
To me that speech still stands as his legacy in the defence of the Presidential System of Government. For the benefit of readers, I hereby present the speech.
“My name is Richard Osuolale Abimbola Akinjide. I represent Lagelu/Oluyole/Akinyele constituency. I had the privilege of serving in the Constitution Drafting Committee (CDC), but I now rise to speak as an elected member and not as a member of the CDC.”
“May I, before I go on, pay tribute to Chief Rotimi Williams, the Chairman of CDC, who was an excellent leader at the CDC. We had very difficult times. Mr Chairman, may I also, by way of general comment, pay tribute to our past leaders. When I say leaders I say leaders in inverted comas because these include not only politicians also workers, farmers, leaders of religion, who brought us Independence. I think they did excellent job. It is not enough for us to condemn them. We must assess them in the light of the circumstances under which they worked. They were the first generation of Nigerians to taste true political power. They had little experience. They might have made mistakes, but I am wondering whether, if we were in their shoes, we would not have made worst mistakes. Now, Mr. Chairman, some Gentlemen had painted a rather gloomy picture of this country. May I beg to differ. I believe that this country, Nigeria is a great country with great people, with great resource, and with great future. We are only passing through a necessary phase in our history. Our mistake is that we tend to compare ourselves with developed countries of the world. I do not think we should. If you look at the history of the developed countries of the world, you will find that they passed through exactly the phase through which we are now passing. I would take one as an example that is Great Britain which was our former colonial power. Britain, of course, had the Norman Conquest and it became necessary to enact the Magna Carta. You do not enact a law for nothing. There were reasons for enacting it—because of the state of their society. And, of course, they had their military coup, too. Cromwell had to seize power. Charles the First was beheaded in 1649. The Parliament was sent packing and Cromwell governed till 1660 when they had their Restoration. Of course, it became necessary to enact the Bill of Right in 1689. Again, the fact that that Bill was enacted shows that it was necessary, and Britain did not even settle down until 1832 when the Reform Act was passed through a very stormy Debate in the House of Commons and with a majority of only one vote. If Britain could pass through all those phases—revolutions, coups, Bills of Right, Magna Carta, who are we to say we can jump that phase and then settle down immediately. This is why I think it I wrong to predict that we are doomed. I do not think we are doomed. Well Mr. Chairman, we have presented to you the CDC a Draft Constitution, but may I enter a caveat. It is very important to present a very good Constitution, but there are other things more important and that is the people of this country, particularly the politicians who will work the Constitution. No matter what Constitution you put down, no matter what form of Government you put down in the Constitution, and no amount of pages or volumes, if people do not want it to work, it will not work. But if you write your Constitution in 10 pages, in 5 pages or, like Britain, virtually unwritten or partly written, if you want it to work, it will work. So, at the end the day, it is not what we approve here that really matters (it matters I concede) but we should warn ourselves that the people of this country, particularly the politicians should be determined to make it work.
Looking at the Draft, power is vested in four clear institutions and this was deliberate, having regard to our experience of the last 17 to 20 years. The first institution is the People of this country. The second is the President. The third is the Legislature, and fourth is the judiciary. You will and that all are evenly balanced and that one serves as a check on the other. This is why I feel rather sceptical when Member said somebody can turn himself into a Dictator, Although one must concede that there is no absolute insurance against dictatorship under any system of Government, but as far as I know, it is extremely difficult, if not impossible, for a dictator to emerge under the
Draft as it stands. Another important feature of the Draft is the fact that in the balance of power, we deliberately make it centripetal instead of being centrifugal. In the last Constitution, you will find that the trend of power was backwards, towards the States, but if you look at the Draft carefully, it is now towards the Centre. It gravitates towards the Centre, and not backwards. This is what I mean by centripetal instead of being centrifugal. We did that deliberately in the light of our experience in the past. The third feature of the Draft Constitution is that we have no State Constitution again. If you look at the 1963 Constitution, you will find that each Region or each State has got its own Constitution, but that method has been abolished. If you look at the Draft Constitution, from Clause 1 to Clause 212, there is no separate provision for States or for the Federation. You have to read through the whole thing to know which governs which. Again, this is deliberate. So, you have a single document to run 20governments, both the Federal Government and the 19 State Governments. If you create more States, that is the thing that is going to happen because in the past the tendency was for one to read, if one liked, the Constitution of the Federation and that of his State. Then he needs not bother about the Constitution of the other States. This was divisive, but now if you want to know about the Constitution of this country you have got to read the whole document and be a Nigerian.
Now, the fourth feature of the new Draft which is peculiar is the Legislative List. In the past there had always been two Legislative Lists-the Exclusive List and the Concurrent List. We have deliberately abolished these two lists and we now have one Legislative List. I know this has been criticised but the reasons are many. If you look at the Report, we did give our reasons why we did that. A second list is a nuisance. It leads to a lot of clashes between the State and the Federal Governments and it leads to a lot of litigation. If you have one Exclusive List, you would know that these are the powers of the Federal Government and the rest are the powers of the States and there is no dispute. The Federal Government will tell you this is the Concurrent List. It has already entered the list. So, you should not legislate on that particular item. That will not arise. Then you will not have the dichotomy and the clash of interests between the State and the Federal Governments. When we come to the Committee Stage I hope I would be able to give more reasons and try to persuade our Colleagues who are sceptical about having only one list. In other words, Mr Chairman, the Constitution we are producing is meant to be a referee in the game of soccer among politicians from 1979 upwards and I hope that it will be a good referee.
I now go to specific subjects and the first I would like to touch within this short time is what is called chieftaincy. I come from an area where chieftaincy is very sacred. Mr Chairman, I would at the Committee Stage propose that wherever we have the word Chief in the Draft, we should insert Traditional Rulers because they are not really Chiefs but Traditional Rulers.
Mr Chairman, the importance of this institution cannot be over-stated. Lugard found them so important that the pivot of his Indirect Rule was based on Traditional Rulers. To make a Constitution without definite and adequate provisions for this institution, to my mind, is like making tea without sugar. At the appropriate time I would propose that each State should have a House of Traditional Rulers which should either be deliberative or legislative and it should be made voluntary or permissive so that those States which do not want it, need not have it. I can assure you, Mr Chairman, that we of Oyo State definitely would like to have a Second Chamber which will be called House of Traditional Rulers. I also think that Traditional Rulers should have a place in the Senate. The mechanics of how they get there is a matter of details and this should be evolved. Under Section 137, I think we should create a body to be called National Council of Traditional Rulers or whatever we may call it which will be a platform for traditional of a particular grade throughout the country whether from Onitsha, Sokoto, Ibadan, or Calabar. They will be able to meet and discuss formally and informally. This is all I have to say on Traditional Rulers.
I will now move to the next subject which is the Presidency. There has been a lot of debate and a lot of contribution on this point . So, I do not think I can really improve seriously on the argument advanced. However, Mr Chairman, I am a convinced believer in the Presidential system. There are definite reasons for this and I will try to give some of them.
One of the causes of instability in Africa is what I would like to call bifurcation of authority
at the crucial point, that is at executive level where you have Prime Minister and the President. A distinguished member of this Assembly a few days ago proposed the French system. May I say that that will not be advisable for a number of reasons. I give an instance of where bifurcation of authority had never worked. It has not worked in this country. It has led us to crisis. It did not work in Senegal. We remember the problem between Prime Minister Dia and Senghor. It was because of bifurcation of authority at the crucial point. In Congo it did not work between Lumumba and Kasavubu. In Uganda it was Obote and the Kabaka and the Chairman of this Assembly is my witness. He was the distinguished Chief Justice of that country when the trouble between the Kabaka and Obote started. It was so serious that Obote has to seize power. It was a case of a seizing power and he used our good friend Idi Amin to storm the palace. Of course, the supporters of the Kabaka challenged the legality in court in the case decided by Mr Chairman in a famous judgment in Ex-Parte Natopho. Now, the same thing happened in Australia which is even a more settled society than our own, where you have bifurcation of authority. Until within the last three years there were clashes between the Head of State and the Head of Government because of certain peculiar provisions in the Australian Constitution which gives the Governor-General certain powers upon which Guy Whitlam was dismissed by the Governor. Australia, up till today, has not totally recovered from that crisis.
Even Great Britain which is a settled society had its own problem although the Monarchy is supposed to be constitutional. That was the time of Edward VIII. The euphemism used for him was that he abdicated when in truth and in fact, he was dismissed by Prime Minister Stanley Baldwin, the prestige and the support Churchill for the King notwithstanding. So if this can happen in a fairly developed country like Australia, if it can happen in a developed country like Britain, we should not near it. It is poisonous. If it worked in France, it worked because of the circumstances of the French. If it was introduced before the French Revolution, I doubt if it would have worked because they were virtually at the stage where we are now before that Revolution. So, we should not do in ten years what should really be done in 50years.
Now, Mr Chairman, another advantage of the Presidential System is that the President has no power of dissolution. He cannot dissolve not dissolve Parliament, whereas the Prime Minister can use with ingenuity, his dissolution power. If he brings a Bill to the Floor of the House and Members do not want to co-operate, they do not want to play ball, all you have to do is to drop word that if they do not support your measures, you may have to go back to the country. If you adjourn the House for 24 hours and come back, the Bill will be passed. This is so because Members do not want to go for election because they can never be sure of coming back. A member also spoke of Senatorial approval.
This is third reason. We did approve that the Senate should have the power to review Ministerial materials assembled by the President. If it is not in the Draft, then it must be an omission, the printer’s error. I am sure, at the appropriate time, at the Committee Stage, it will be restored. In the case of the Prime Minister, there is no power of review but in the case of the President you have power to review. You can reject S and say that he is not a good ministerial material for certain reasons. Fourthly, at the time of election, you know who is going to be the Head of your government in a Presidential System. In the Prime Ministerial System you do not. It is only after the election that the party decides that X will be Prime Minister. So, at the time, under a Parliamentary System, that you and going to election, you do not know who is really going to rule you because you are never sure. A may be Prime Minister for sometime. After three months he can be changed by his party, B becomes the Prime Minister and the country may not like him. I would like to know who is going to govern me at the time I am voting.
Of course, the point has been made to the effect that the whole country is a constituency and I cannot improve on what my good Friend, the Member for Ideato/Nkwerre/Isu (Dr K. O. Mbadiwe) said on that point. Of course, you also avoid being in power indefinitely because if you are a Prime Minister and you have the support of the Parliament and of your party, you can be in power as Prime Minister for as long as possible.
Somebody suggested the French system and added that there should be approval of the National Assembly. Again, this is sowing the seed of discord because if he nominates A and it is not approved, it might lead to crisis between the President and the National Assembly. He might say one, two and three and all might be rejected. Then when it comes to dismissal, you may say that he needs not go to the Assembly. Suppose he dismissed the Prime Minister approved by the National Assembly and the Assembly is not satisfied with the reasons given or not given? That might again lead to crisis between the National Assembly and the President.
My own idea is that as far as possible, we should avoid anything that will lead to confrontation between the Head of Government and the legislative body which is supposed to be a check on the President.
Mr Chairman, I will touch briefly the Sharia. I was involved at the Sub-Committee level which worked on this particular subject, and also involved at the CDC level on this subject, and at the drafting stage. I asked myself: What was the cause of the controversy? I think the causes are two. One, a lot of big names got unnecessarily involved in the controversy, so people thought there must be something in it. The second reason, to my mind, is a misunderstanding. I will state briefly that we in fact have three legal systems in this country, not two. One of the reasons given is that we are leading ourselves to a multiplicity of the legal systems.
Some people say two legal systems. We in fact have three. I will restrict my analysis to personal law, that is marriage, divorce, testate and intestate succession. The first system is what we call the Received Law-those who go under the Act marriage. You may go under the Act marriage for the purpose of your divorce and marriage and for the purpose of testate and intestate succession. Certain consequences follow and then there is a particular court to which you go for these consequences. The second one is the Customary marriage. If you do Customary marriage, your marriage is potentially polygamous and the divorce, testate and intestate succession follow the customary way. The third one is the Islamic law system. If you marry under the Islamic system, your marriage, your divorce or succession-testate and intestate-follow that. So, it is not a valid argument to say that we are creating a new legal system. We are not. If you look at all our case laws and all our courts, you find that the distribution of estate under the first heading- the Received Law-has been laid down as high as at the Supreme Court and if you look at the customary law system, the system as followed in those areas, it is as laid down by the Supreme Court ; whether it is ori oju ori or idi igi system. Now to the Islamic system. The problem arose from what I said earlier on that we have different Constitutions for different States, and I am sure many people have never read Constitutions of other states, particularly in the old Northern Region. In the olden days, there was only one Region and therefore there was no need to create an appellate court beyond the Region for that area which had this Islamic law system.
Before I go on, may I make it clear that in the Draft, as provided, there is no criminal jurisdiction whatsoever, so that the question of using it to persecute anybody does not arise. People have stopped me outside and asked : If this is approved, will it not be persecute people ? We were very, very careful to restrict it to personal law only-marriage, divorce and the questions of testate and intestate; and you go there only as of choice. You are not even forced to go there even on matters of personal law. So the question of persecution does not arise.
Two, if you look at the provisions, particularly of section 180, of the Draft, those areas which do not want Islamic law system will never have it. It will not be forced upon them. I mean, it is unthinkable that in Ovo State we are going to have Sharia. As a matter of fact even those areas in the North who do not want the Islamic law system could abolish it through their legislature. They do not have to have it. So, it is not forced on anybody. Anybody feels or alleges that this country is being into a Moslem State is simply being mischievous. It is not true at all. Mv Lord, although l am a Christian. As I said, Mr. Chairman earlier on, we had Appeal Courts at the Regional level before, but with the creation of more States, this was the trouble that faced the CDC. What do we do ? Now, under the old – two matters used to go to the Supreme Court—matters which pertain to fundamental rights and matters which pertain to interpretation of the Constitution-so that from the Sharia Court of Appea1 in the old North, appeals used to go to the Supreme Court on those two grounds. What lawyers used to do, I am not letting out any secret, is that if we are briefed on a particular matter that we know will not normally go to the Supreme Court, all we have to do, by ingenuity, is to find grounds which will lead to interpretation of human rights or interpretation of the Constitution so that the Supreme Court will have the jurisdiction to review the matter. With the creation of more States, what do we do? Nobody is saying that the North should not have what they had before, but what do we do ? You have eleven courts, or let us even assume only five or six State courts at the appellate level, where do appeals go?
Since the creation of the States, we have already got the Federal Intermediate Appeal Court which is between the High Court and the Supreme Court, so that the State Sharia Court of Appeal, you cannot straight to the Supreme Court because you cannot jump that gap. Something just has to be done. No matter on what line of argument you are, there has to be an appeal somewhere between the Supreme Court and State Sharia Court of Appeal. I will not now go to the semantics of the details of that, but I have a proposal which I will submit at the Committee Stage. But hon. Members of this House, Mr Chairman, we cannot – it will be unfair and improper under the federal system to allow a group of States to gang together to enact laws which will govern them. That will not be permissible. It has to be done by the federal authority, it has to be done by the National Assembly and it has to be done in the Constitution. I do not want to widen the area of conflict, matters of details or how it is to be done will come forward at the Committee
Now, hon. Members, somebody has raised the argument of interaction, and this is my distinguished friend, a nominated Member, (Professor J.I. Tseayo), who is from the University of Jos not from Ahmadu Bello, University contrary to the press reports. This is an argument that cannot be supported. If you create the system and people go there to adjudicate, they will not interact with others. But those of us who did Act marriage, we have been doing out things in our separate courts. Those our brothers who did customary marriage do not complain that they do not interact with us and those our colleagues who did customary marriage had never complained that because of their customary marriage they do not interact with us. As a matter of fact when we do our thing they come there and when they do their own thing we go there. Nothing prevents us from going there. So the argument of interaction, with great respect to my good friend, is unsupportable. Again, Mr Chairman, if you do not create an appellate arrangement for these courts, suppose there are issues of fundamental human rights, suppose there are issues pertaining to the interpretation of the Constitution, how are they going to be resolved ? Do you want them to interprete the issues the way they like and rest there without the Supreme Court having an advantage of looking into them and having a common interpretation for the whole country? These are very serious matters and I want us to look at them very seriously. In any case there is more important point than all the arguments I have advanced. If you look at the Draft, the primary responsibility for law and order in this country, is vested in the Federal Government and this issue is a matter of law and order. You cannot really eschew the Federal Government from this matter because the primary responsibility is there and all the territories of the 19 States are the territories of the Federal Government.
Mr Chairman, I will now talk briefly on the judicial system. 1 agree entirely that the recommendation abolishing the Revenue Court is a mistake and I will give my reason. I served on the sub-committee which dealt with the matter and gentlemen will see in the report, I think it is on page 113, what we recommended with sound argument but at the CDC we were -ruled. But some of us told them that we reserved the right if we were in the Assembly to raise the matter My view is that the name Revenue Court should be changed and it should be called the Federal High Court and that Federal High Court should take over all the functions of the Federal Revenue Court. It should also take over election petitions pertaining to Federal Legislature. There could be election petitions about the Senate, there could be petitions about the National Assembly and I would not advise that all these should go to the State Courts. These should go to Federal Courts. Again, this is talking from my own experience, you do not want to use the machinery of States for the purpose of adjudicating on Federal elections either to the Senate or the National Assembly. Again they should be vested with power, where one State wants to sue another State, they should have to go to the Federal Court. Where a State wants to sue the Federal Government it should go to the Federal Court or where an individual wants to sue the Federal Government that person should have to go to the Federal Court so that this Court will be very busy and it will have plenty of work to do.
Mr Chairman, this Court transcends the State of origin. The gentleman in Ibadan now is from Port Harcourt and the gentleman in the Revenue Court in Sokoto before was from Anambra. Nothing is better than this and the trend of appointing people of State origin as court judges, I think, this will certainly be an improvement on it.
Mr Chairman, I will try to wind up. Now the Civil Service. I felt sad when I heard people condemning our Civil Service either in temperate or intemperate language. Frankly speaking, I think we have the best Civil Service in black Africa. If you look at what they did during the civil war, without a good Civil Service during our trouble, I do not know what this country would have become. Furthermore, we should not scare them away. I know as a fact that some Civil Servants want to run awav before 1979. We should be very careful of new and inexperienced politicians and new inexperienced Civil Servants. We are courting trouble if we are not careful. We should encourage them to stay because if they go to the private sector, they are hot loaves and they will get better pay and better condition of service. So for God sake, these excellent people should be encouraged and not discouraged.
Now on local governments, if we look at the Third Schedule specific functions are given to local governments. The local government is the infrastructure of any government and they are made an important tier of a governmental system but we should make sure that they are given sufficient money to run their essential services which we itemized in the Third Schedule. Again, good personnel should be attracted and they can only be attracted if their conditions of service are good. We should encourage them and we should not make it a blind alley. Also responsible people in the society should be encouraged to contest elections into local governments because local government is as important as State Government if not more important, and it is as important as the Federal Government.
Mr Chairman, this is the brief contribution I have to make. I thank you for the opportunity given to me.