2023 GOVERNORSHIP AND
STATE HOUSE OF ASSEMBLY ELECTIONS
The constitution is not against a Judge belonging to a political party –Prof. Frank Asogwa
Prof. Frank Ifeanyi Asogwa is a Professor of Law and the current Dean, Faculty of Law, Enugu State University of Science & Technology, ESUT. He was previously the Head, Department of Public and Private Law, Faculty of Law, University of Nigeria Enugu Campus, UNEC. From 2007-2011, he was the Enugu state Commissioner for Local Government under the government of former Governor Sullivan Chime. In this interview with the magazine, he bared his mind on how the local government system functions in Nigeria and the development cum challenges of Nigeria’s legal system. Dateline: December 7, 2022.
What was it like when you served as Commissioner for Local Government?
I think it was fulfilling, in that I was recruited right from the classroom, I was a Technocrat. Governor Sullivan was happy that I joined his cabinet and I was also happy that I was gaining experience outside of the classroom, and because I wasn’t what one would call a core politician, he gave me the latitude to operate. It was quite challenging because I had to supervise seventeen local government areas and their chairmen were mostly core politicians, elected chairmen playing their politics, although we initially had the caretaker committee chairmen but that was for a brief period of four to five months, after which we conducted local government elections. Part of the challenges stemmed from the fact that political language is not the same thing as academic language but I had to learn fast, yet not whittling down the core values of Sullivan Chime’s administration. Due to my insistence on the application of the rules and provisions of law and doing things the right way, I fell out with some chairmen initially but overtime we got on better. Our insistence on probity and accountability accounted for my commissioning of projects in virtually all the seventeen local governments. With all sense of modesty, I will say that after our tenure, the local governments have not witnessed the avalanche of projects executed by local governments like it was during our time. Almost on a daily basis, I was commissioning projects from one local government to the other. You would be surprised that around 2007 to 2011, there were some communities that hadn’t seen electricity but because Sullivan Chime never tampered with local government funds, these local governments were able to witness monumental projects-electricity, hospitals, roads, court halls and what have you.
The local governments are the closest tier of government to the people. Having formerly served as a commissioner, what bottlenecks do you think have stopped their effectiveness?
For some time, we have seen protestations by local governments that they should be autonomous and they are simply referring to financial autonomy. Recently, the President of Nigeria accused our governors of stealing, I’m quoting him, local government funds. If you want to be nice, you can say the governors are tampering with local government funds but the President was as brutal as saying governors were stealing local government funds. I will reiterate that in my tenure as Commissioner for Local Government, Sullivan Chime never tampered with local government funds. We had in the state at that time what was called the Economic Planning Commission, I think it’s still in existence, and it was like a meeting ground between the state executive and the local government officials. What the commission did was to look at projects for local governments, prioritize these projects and while the local government will provide 30% of the funding, the state government provides the remaining 70%. That was how so many projects were constructed. So, what the complaint is now is that local governments do not have sufficient funds for projects. I do not know why that complaint should come because money still flows from the Federal to the local governments. If there is any interference midway, I can’t say since I’m no longer a part of the system. As an academic, I do not believe that the local government is a tier of government. There are two tiers of government-Federal government and state government, and that is so because Section 7 of the constitution talks about the local governments being administered by the states, in other words, a system that ensures democratically elected local government must be ensured by the state. The only little problem is that states can’t create more local governments apart from the 774 in existence and that’s why you discover that many states now create what they call development centers and they don’t operate at the same level with local governments. I would say that under Sullivan Chime, we had the golden era of local government administration and I’m happy I was part of that system. Now, when local government chairmen manage to pay salaries of the local government civil servants, they are done but it shouldn’t be so.
Do you think that local government chairmen residing in their local governments have any direct impact on their efficiency? What was obtainable during your time?
On July 3, 2007, I was sworn in as Commissioner for Local Government and one week after, I gave the same directive that local government chairmen must reside in the respective local governments. It was only obeyed in the breach than in the observance and it impacts negatively on the performance of the local government chairmen. One thing with the local government system which the law wanted to achieve was accessibility. The local government chairmen must be accessible but most of the time, they are not. It is like the Governor of a state living outside his state or the President living outside the country.
How would you advice that local governments be strengthened?
It’s very easy. My advice is that local governments be granted the autonomy not just on paper but by ensuring that they are financially independent. In other words, grants or local government funds should move straight from the Federal Ministry of Finance to the local governments. There’s this committee called JAAC, Joint Account Allocation Committee, I don’t think the committee is necessary. Revenue Mobilisation Allocation and Fiscal Commission should be able to determine how much the Federal, State and 774 Local governments should earn and the money should be paid directly into their accounts. If this is done, local governments should be able to function effectively but the fear of state governors is that it is likely to be abused if local government chairmen are given the free hand to manage millions of naira. One other thing that works against the local government system is this idea of governors having caretaker committees or transition chairmen. It is unconstitutional and can’t be justified under a democratic setting that inspite of Section 7 of the 1999 constitution of the Federal Republic of Nigeria as amended, that says the system of local governments in Nigeria should be democratic and must be guaranteed at all times, governors appoint local government chairmen. So, it is like a conduit pipe through which some state governors tamper with local government funds because when they appoint someone as a caretaker committee chairman, he takes orders from the one who appointed him which is the governor. In an event that he receives 100 million naira as the monthly allocation, once the local government wage bill, of say 20 million is paid, the balance is usually unaccounted for and spent as the governor directs. So, we will begin to get it right when governors stop appointing caretaker committees and RMAFC begins to pay local government funds directly into local government accounts.
Let’s get to your profession as lawyer. There have also been the argument for the independence of the judiciary. How independent can the judiciary ever be when judges are constitutionally appointed by the Commander in Chief?
You have said it all. It is he who pays the piper that dictates the tune. Talking about judicial independence is like talking about local government autonomy. What they mean is that allocations and budgets of the judiciary should be released to them directly and they should be allowed to operate their budgets by themselves. There was this case decided in 1983 where the governor of a state questioned why the judge he appointed should give a judgment against him. One of the things judicial autonomy will achieve is to make sure that the judiciary is independent of the executive. What is obtainable presently is that a Chief Judge cannot approve the purchase of cars for Judges; he only recommends to the executive who decides whether the Judges deserve new cars or not, and the kind of car they deserve. It is like the judiciary going cap in hand to the executive to beg for funding which shouldn’t be. If this is maintained, it means that the executive will be breathing down the neck of the judiciary and it doesn’t make for autonomy. Some judges will be able to resist that but some won’t.
So, would you advocate for an amendment of the constitution?
Precisely. There should be an amendment of the constitution. When you talk about the three arms of government, each should be complimentary, not superior, to each other, although we should take the word “superior” with a pinch of salt. Presently, the executive appoints the judiciary but if we amend the constitution to empower the judiciary to appoint judges and pay judges from its independent finances, then you will see a very vibrant judiciary. The Bar Association and other law professional bodies should be able to have a say in terms of who becomes a judge. What is obtainable now is that for a judge to be appointed in any of the 36 states, he has to go to Abuja to be interviewed by the National Judicial Council. Then, what is the job of the State Judicial Service Commission if a judge must be interviewed and approved at Abuja, then appointed by the state governor? It makes no sense of the Federal system of government we say we are running, and that is why some critics say we are actually running a Unitary, not a Federal system of government.
Recently, during the commissioning of a project by Governor Wike of Rivers State, the Chief Justice of Nigeria made some comments about the PDP’s G-5 and this led to the call for his resignation. You consider the call an overkill?
I consider the call an overkill although judges are supposed to be insulated from the everyday politics. We know the evolution of G-5 and how they came to be. However, that somebody is a judge does not prevent him from exercising his constitutional right of freedom of expression. That is his freedom of expression and he has expressed himself in the way and manner he felt he could express himself. It is when a matter goes before him and he becomes biased because the matter is related to G-5 that you can tackle him for not being independent. The constitution does not say that a judge shouldn’t belong to a political party.
(Cuts in) Really?
Of course yes. It merely says that in the discharge of his functions as a judge, he should be impartial and do that without fear or favour to any person. Of course we know that Judges vote and one can’t vote for more than one political party, which means that they have sympathy for one or two political parties. Also, section 40 the 1999 constitution of the Federal Republic of Nigeria as amended, talks about freedom of assembly including the right to belong to a political party. So, if a judge says he’s a card carrying member of one of the political parties, what is the law to prevent him from being a card carrying member of a political party? Morally, one may say it might be a bit wrong but the law doesn’t say you can’t belong to an assembly. It only says that in the performance of your judicial duties, and in keeping with the judicial oath of impartiality, you must do justice to all manner of people inspite of their political leanings and position in life. The same constitution would have exempted judges if it intended to do so. However in the case of Judges this right must be exercised with utmost caution because of section 36 of the 1999 constitution of the Federal Republic of Nigeria as amended, on fair hearing. If a Judge is likely to be biased in a case before him because of his membership of a political party, then such a judge should disqualify himself from presiding over such a matter. It is a moral question as opposed to the legal issue of strict constitutionalism. In America for instance, you have the Democrats and the Republicans. When President Trump was there, he appointed majority of the Supreme Court and Federal Court Judges from those who are loyal to his own party, the Republican Party.
On December 6, 2022, some new wigs were called to the bar and the President of the NBA was absent, citing alleged misconduct against the Chairman of the body of benchers as his reason. Do you see a crack in the leadership of the largest bar in Africa?
The Bar association should be the conscience of the people and if they must play that role effectively, they must be steadfast, outspoken and ensure not to take sides in any matter but look at the justice of the case and that is why we always crave for the rule of law. If there’s an accusation of any wrongdoing against a principal officer in any arm of government, it behooves that person to step aside and let an independent investigation be carried out and determined one way or the other. Unfortunately, we know that in this part of the world, public officials hardly resign. Having said this, we must also not lose sight of the fact that it is a mere allegation of impropriety which hasn’t been investigated and it is only after investigation and the Chairman of the Body of Benchers is tried by a court of competent jurisdiction that you can assign guilt. So, for now, he’s just being tried by the public.
How would you advise that the melee between the NBA and the Body of Benchers be resolved?
The courts are there. The Body of Benchers is not immune from litigation and if the NBA feels strongly about their position, they can go to court and let there be an independent inquiry into it. Aside from that, the Body of Benchers is operating within the law and the NBA is also a body of lawyers recognized by law. In that case, nothing stops arbitration from taking place. Having said these, as a lawyer, I do not think that it augurs well for the legal profession that the highest body, the Body of Benchers, that is saddled with the responsibility of calling new wigs to the bar and the NBA that is saddled with maintaining decorum and finest practice of the bar, are at loggerheads.
The advancement in digitalization world over has been amazing. We have also seen a lot of digital/internet assisted crimes being committed. How do you think the present Nigeria criminal law can expand to accommodate the cyber-criminal law? Will there be challenges?
Law is dynamic, Criminal Law is also dynamic, and we have a Law on Economic crimes and on Cybercrimes but these laws have not repealed the Criminal Code. So, it is just a matter of making sure that you have a kind of symbiotic relationship among all these legislations. As the society evolves and people think more about technology, we must expect that there should also be advancement in crimes. Criminality has gone higher now compared to when people were naïve. Crime has become sophisticated and you need similar sophistication in legislation to be able to tackle it. We have in place the Administration of Criminal Justice Act, at the federal level, and the Administration of Criminal Justice Law, at the state level. The essence of the Law Reform Commission is for constant review and reform of our laws and if this is done overtime, it should be able to take care of these technological advancements and the associated crimes. We have been able to do that in some areas. Section 419 of the criminal code when obtaining by false pretense was at its lowest ebb. When it developed to cybercrime, that offence was taken away and enacted as Advanced fee fraud. It didn’t repeal the offence provided in section 419 of the criminal code but it is now a special offence that can be tried specially.
Contents provided and/or opinions expressed here do not reflect the opinions of The Pacesetter Frontier Magazine or any employee thereof.
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