Irrepressible human rights lawyer, Mr. Femi Falana, SAN, bares his mind on the nation’s 21 years of civilian rule, in an interview with LANRE ADEWOLE.

Expectedly, opinions are divided on the gains and pains of the last 21 years of civil rule. Where do you stand sir?

Opinions are bound to differ. For members of the ruling class, it has been 21 years of unprecedented material gains. In other words, the neoliberal policies of the Peoples Democratic Party (PDP) and the All Progressives Congress (APC) have enriched a tiny minority of local and foreign economic players. Former President Obasanjo once boasted that his regime produced 25 billionaires. On his own part, President Jonathan proudly announced that dozens of private jets were on his entourage during a state visit to Kenya. Both presidents were celebrating the opulence of a handful of members of the comprador bourgeoisie in the midst of 200 million poverty-stricken people.  While such heartless glorification of vanity was ongoing, Nigeria was declared the capital of the poorest people on earth.

For the masses of our oppressed people, it has been 21 years of unmitigated pains and agony because of the excruciating economic policies of the federal and state governments. It is indisputable that the dangerous economic policies of the PDP/APC regimes have promoted job losses, unemployment, poverty and insecurity. The conditions of the poor and vulnerable people are going to get pretty worse as the economy heads for recession or even depression due to the crash in the price of crude oil in the international market and the coronavirus pandemic.  Therefore, it has been 21 years of uninterrupted frustration and disenchantment for the majority of citizens.  Femi Falana (SAN)

This is the longest stretch of democratic rule since independence. Has it justified the saying that the worst of democracy is better than the best of military rule?

No doubt it is the longest stretch of democratic rule since independence. Even though it is dangerous to compare military rule with democratic system of government, there is no qualitative difference between a dictatorial civil rule and military junta. The point that I am labouring to make is that a military regime which imposes itself on a people and a civilian government established on the basis of an election that is rigged by armed gendarmes and paramilitary forces are birds of a feather.  That is why some Nigerians have come out to make a case for a return to military rule.  In fact, I have heard people in the rural areas say that colonial rule was much better than the current political dispensation.  So there is a limit to which one can celebrate a reactionary civil regime that has turned  general and local elections into civil wars.  Unlike the Generals who stole the country dry, some military rulers laid the solid foundation for the industrialisation of their countries. Many countries in Asia, Latin America and Europe were developed under dictatorial regimes.  In Burkina Faso, it is difficult to convince the people that any civilian government has surpassed the record of the military regime headed  by Captain Thomas Sankara. Unlike other military dictators in Africa, he mobilised the people to take their political destiny in their own hands.  Although Burkina Faso is one of the poorest countries in the world, Sankara never took a loan for the four years that he was in the saddle. The regime promoted development and self-sufficiency in food production, promoted  gender equality and set up courts that were manned by the people. Even the much celebrated development of the United Arab Emirates is taking place under Emirs that are not elected by the people. I have therefore come to the conclusion that every regime should be judged on the basis of the relevance of its programmes and policies and not on the basis of whether it is elected or imposed on the people. The saying that the worst of democracy is better than the best of military rule is dubious.

Are you surprised, sir, that some Nigerians are whispering a return of the military era, pointing at what is termed the “best of infrastructural developments era” under military rulers?

I am not surprised because the hope of the people for development under civil rule has been dashed. It is unfortunate that the civilian government has not been able to maintain and improve on the tokenistic developmental structures put in place by the former military rulers. The rule of law is treated with contempt while the reckless looting of the public treasury by military rulers has continued unabated for the past 21 years. Hence out of frustration, the people are yearning for a return of military rule.  But it has to be pointed out that a military oligarchy that colludes with civilian regimes to rig elections is not a salvation army.   A military oligarchy that engages in the criminal diversion of the fund earmarked for counter insurgency operations cannot be expected to fix any of the myriad of problems of underdevelopment confronting the nation. Those who are yearning for a return of military dictators should perish the dangerous thought and team up with patriotic forces to remove political prostitutes and economic buccaneers from power.

You were there at the birth of this current dispensation in 1999. I know your dreams may have not been fulfilled, but is there any particular worry around now, that we could throw everything away again?

I was not just there at the commencement of civil rule in 1999; I was in deeply involved in the titanic struggle against unending military rule in the country.  When the late Chief Gani Fawehinmi SAN, the late Dr. Beko Ransome-kuti, the late Baba Omojola, Olusegun Mayegun and I were charged with treasonable felony by the Ibrahim Babangida junta at the Gwagwalada Chief Magistrates’ Court in 1992, I made it clear in my submissions that we would write the obituary of military rule in Nigeria. We eventually did, but I never thought in my wildest imagination that the incoming civilian government would wipe out the gains of our democratic struggle so recklessly and shamelessly. Unfortunately, we assumed too much. Hence we did not institutionalise democratic structures that could act as a bulwark against official impunity and other forms of rascality. However, I am involved in the ongoing moves by the Alliance for Surviving COVID-19 and Beyond (ASCAB) to expand the democratic space. We have also resolved to fight impunity which has become the order of the day under the Buhari administration.  More importantly, we are joining issues with the ruling class on the religious implementation of neoliberal policies and COVID-19 induced anti-people’s programmes.

If we chose to be fair to the military for once, would it be correct to claim that apart from repression of human rights, they are better managers of resources, especially in growing the economy?

Under a military dictatorship, the Constitution is suspended while human rights are put in abeyance. The parliament is abolished. The  courts are made to blow muted trumpets as their role is limited to interpreting the martial law promulgated by military dictators.  Specifically, the jurisdiction of the courts is ousted in a way that anything done or purportedly done by military dictators and their minions cannot be challenged in any court of law. In such an atmosphere of absolutism, military rulers who are patriotic have limitless opportunities to promote the interests of their countries. But in the case of Nigeria, the most corrupt sets of Generals were at the helm of affairs for nearly three decades. Under the Babangida junta,  corruption was made the directive principle of state policy.  Although the country witnessed oil boom, the huge revenue realised by the federal government was  completely squandered. To compound the crisis of underdevelopment of the nation, the imperialists decided to destroy the national economy through the imposition of the structural adjustment programme at the behest of the World Bank and International Monetary Fund. The implementation of the conditions of the imperialist agenda which included mass retrenchment of workers, currency devaluation and withdrawal from funding education, health and other social services promoted mass poverty in the country. Instead of growing the economy, the military dictators ruined it.  However, they stole the country dry and became stupendously rich at the expense of the nation.

I know you are not a fan of Olusegun Obasanjo who began the ongoing democratic journey, but he is still regarded in some quarters as the best of the four leaders we have had since 1999, helping to settle the nation’s debt, establishing EFCC and ICPC, privatising public institutions for efficient delivery, among others. What is your own assessment sir?

With respect, there is no  basis for comparing the neoliberal regimes that have consolidated the agenda of imperialism in the country. Even though they may differ in sabotaging the economy  and subverting the democratic process, their goal is the same. No doubt, President Olusegun Obasanjo established the anti-graft agencies, but it was for the sole purpose of attracting foreign investments.  You will recall that towards the tail end of military dictatorship, Nigeria was rated by the Transparency International as the most corrupt nation on earth. Both ICPC and EFCC were therefore set up to assure potential investors in western countries that it was not going to be business as usual. But the federal government has ensured that the anti-graft agencies are not allowed to function as autonomous institutions. The dubious privatisation programme was discredited by President Obasanjo himself when he acquired substantial interests in certain enterprises through a blind trust. Others were handed over to political allies and jobbers. At the end of the day, public assets worth over $100 billion were sold for less than $1 billion.  As the buyers engaged in asset stripping and looting, the privatised companies were liquidated.  Ajaokuta Steel Company was privatised, but the buyers removed and sold many of the assets. Osogbo Steel Rolling Mill was stripped by the buyer.  The Aluminium Smelter Company of Nigeria in Akwa Ibom State and others were sold to companies that did not revive them. The Nigeria Airways, the national carrier, was sold and liquidated. The enterprises which were privatised did not promote efficient delivery of services. Hence the Senate Committee headed by Senator Ahmed Lawan, the current Senate President, once recommended that the entire privatisation exercise be set aside so that the assets are taken back by the federal government on behalf of the Nigerian people. But the federal government could not muster the political will to recover the privatised enterprises.

But why do we keep recycling leaders who are more of same?

The political system has been structured by the ruling class to maintain and sustain the status quo. The democratic process has been monetised in a manner that only the very rich can have access to political power. But the contradictions in the system have sufficiently exposed the rulers to the extent that they have become so vulnerable. With increasing consciousness on the part of the masses, the political system will sooner than later end the production and recycling of leaders who are not prepared to defend and protect national interests. I am confident that political leaders who are committed to the country will soon step out to redirect the affairs of the country.  Otherwise the ship of the state will capsize with dire consequences for the Nigerian people.

Now that we have tried all known governance structures: parliamentary, diarchy (under IBB, which Zik first advocated in 1976) military and presidential, and none seems to be working for us, where do we go from here?

The parliamentary system was imposed on Nigeria by the British colonial regime while the presidential system was imposed by military dictators. To that extent, the people have not been afforded the opportunity to choose any system of government. However, the demands of the people for basic necessities of life have been constant and consistent.  They are the rights of the people to education, health  housing, security and welfare. The ruling class was compelled to incorporate those rights in chapter two of the 1979 and 1999 Constitutions. The ruling class deliberately decided not to call them socioeconomic rights but fundamental objectives and directive principles of state policy which are not enforceable in the law courts. Unless those basic rights of the people are implemented, this country will know no peace.

Are you for constitution review, re-write or a return to the 1963 model?

The 1999 Constitution has been altered or amended four times in the past 21 years. But such amendments have not addressed the actualisation of the basic rights of the Nigerian people and the control of the national economy by the people as stipulated by section 16 of the Constitution. This is not surprising given the ideological interests of members of the ruling class.  The option of constitutional amendment for fundamental changes in the political system is ruled out.  Of course, the 1963 Constitution cannot meet the expectations of the country any longer. More importantly, no constitution can work if it does not accommodate the interests of the youths, women,  workers, physically challenged people and other vulnerable people who constitute the majority of the population  That is what the challenge of popular democracy is all about.

Nigeria’s democracy can’t be called nascent again after 21 years of opportunities to grow. But there are also silver linings like anti-corruption institutions becoming more effective and citizen-participation in governance growing in leaps. How can we transfer these positives to the epicentre of the agitations for a better Nigeria.

While we must acknowledge the limited success recorded so far by the anti-graft agencies, it ought to be realised that the ruling class cannot genuinely fight the menace of corruption. This is because corruption is part and parcel of the peripheral capitalist system operated by Nigeria. To that extent, the managers of the neo-colonial system cannot confront the monster of corruption.  Mind you, the ICPC and EFCC are not independent and well funded. With fewer than 10,000 staff,  both institutions cannot  possibly prevent corruption in hundreds of ministries and parastatal agencies,  the 36 state governments and 774 local governments in the country. Out of the 36 states, only two states, Kano and Oyo, have set up anti-corruption bodies. The Code of Conduct Bureau has frustrated the work of ICPC and EFCC by refusing to allow access to the asset declaration forms submitted by public officials. If the members of the public do not know the assets declared by public officials, it is difficult to trace and expose the additional assets illegally acquired by them while in office. With harassment of some public officers who exposed corruption in high places, the whistleblower policy of the federal government has collapsed.  However, the Nigerian people are using all opportunities to expose official corruption. After all,  the masses are the greatest victimsf corruption and abuse of office.

What is the role of the rule of law in civil governance and how has it, so far, failed the nation?

The law does not operate in vacuo in any society.  The law is not neutral but an amalgam of the rules designed by the ruling class to regulate a society in order to protect its own interests. In other words, the rule of law in a capitalist state is the determined by the law enacted by the bourgeoisie.  So, when I speak of the rule of law, I am only asking the people in government to obey their own laws and respect the judgments handed down by the courts empowered to hear and decide cases between the people and the government and between the people inter se. Since the majority of the leading politicians are either former military dictators or former political office holders under military rule, the rule of law is viewed with suspicion. Having been used to a system which placed decrees promulgated by military dictators over and above the Constitution, public officers find it difficult to kowtow to the rule of law.  This explains the hostile attitude of the PDP/APC regimes to the rule of law. In particular,  the civilian regimes led by General Obasanjo and General Buhari have the same disposition towards the rule of law.  The parliament whose leadership is usually nominated by the president often overlooks constitutional infractions, official impunity and abuse of office.

I know there isn’t a single-dose antidote to mis-governance, but there must be a prognosis pointing to the trigger that can get things moving in the right direction again. Do we take restructuring as the proverbial wand?

It was the agitation for restructuring that led to the creation of 12 states from the former four regions.  Further agitation for power devolution led to the creation of 36 states and the federal capital territory as well as 774 local government councils. To that extent, the ruling class has always restructured the country. But the current wave of agitation for restructuring, otherwise called power devolution, is limited to the transfer of power from Abuja to the states. With respect, the state governments have failed to take advantage of the loopholes and contradictions in the Constitution to consolidate the institutionalisation of federalism.  For instance, in abolishing state police, the Constitution decided to establish the Nigeria Police Force which shall be supervised and controlled by the Nigeria Police Council. The council is constituted by the President, the Governors, the Inspector-General of Police and chairman of the Police Service Commission.  But since 1999, the governors have allowed the president to superintend and manage the police alone. While the Obasanjo regime kicked against the establishment of state police, the governors never challenged the enactment of the Civil Defence and Security Corps Act for setting up another police force. In fact, the law was passed by legislators representing all the states of the federation.  In many other areas, the state governments and legislators have conferred more powers on the federal government. For example, under the 1999 Constitution, state high courts were empowered to hear and determine cases relating to civil servants and public officers in the public service of each state. But by the 2011 Alteration of the Constitution, the powers to determine cases relating to employment and other labour matters in the states were taken from state high courts and vested exclusively in the national industrial courts. The amendment was passed by the National Assembly and all the houses of assembly of the states. The law setting up the Asset Management Corporation of Nigeria (AMCON) has also usurped the powers of state high courts to hear cases relating to bank debts involving state governments or individual customers and banks. The National Assembly has since vested the federal high courts with the exclusive power to determine such matters. With the recent repatriation of $308 million from the United States the federal government has collected $3.6 billion out of the Abacha loot of about $5 billion. Even though the entire fund was stolen from the Federation Account at the Central Bank of Nigeria. They were foreign currencies which were removed from the vaults of the CBN by a top security officer on the instructions of the maximum ruler and transferred to about 140 banks around the world. Upon the recovery of the loot, it should have been paid into the federation account. But curiously, the state governments have allowed the federal government to pay the recovered loot into its own account. It has since been confirmed by the Buhari administration that apart from the $321 and $308 million recovered in 2018 and 2020, the federal government cannot account for the remaining sum of $3 billion. I can go on and on ad nauseam.

I have noted that some  state governments are operating successfully in areas that are exclusively reserved for the federal government in the Constitution.  For instance, Akwa Ibom, Delta and Imo states have established their own airports. The federal government has not succeeded in setting up an airline, but Akwa Ibom has done so.  The Cross River State government is planning to establish an airline too. The fight against the COVID-19 has confirmed the powers which state governments can wield in the area of law and order. To the best of my knowledge, the authorities in Abuja have never restrained any state government from developing agriculture, education, health, tourism, transportation etc. With the fall in the price of crude oil, it is high time every state government embarked on economic development by empowering and mobilising the people to engage in viable economic activities. It is only by involving the people in budget conception and implementation that the campaign for restructuring can be meaningful and relevant to the needs of the people.

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