Robert Clarke, a Senior Advocate of Nigeria, (SAN), has been in active practice for over 40 years. In this interview with Senior Correspondent, ONYEWUCHI OJINNAKA, he speaks on constitutionality of preventing a governor from making foreign trips, declaration of state of emergency, among other issues.
Has the President constitutional power to ban a governor from embarking on a foreign trip?
According to the constitution of Nigeria, the President has no power to ban any governor from travelling abroad. However, circumstances might dictate a situation where, for security reasons, government might feel that the governor’s visit outside Nigeria is a security risk. He cannot ban, but what he can do is to stop him at the point of embarking on that trip. The security might disrupt his departure, that is what I think can happen. But whether the President can ban a governor from travelling abroad is not provided for in law. Since Section 5 of the constitution vested all executive powers in the President, and in the exercise of that executive power based on security reasons that will affect the nation, he might direct the security agents not to allow (a governor) to travel. That is just the situation that can arise.
Is it right for the President to declare a state of emergency in states where there is civil unrest, when the power to control state apparatus is vested in the hands of the governor?
According to the constitution, the chief law officer of the state is the governor; there is no doubt about that. But we have a scenario in Nigeria where the instrument of controlling the police is vested in the Inspector General of Police (IGP) who takes directives from the President. Whereas in law, a governor is in charge of the security in the state, but in fact, in exercising that power, he has to go through a commissioner of police who is not subject to his control in relation to the hierarchy or the dictates of the police force. So if a governor directs a police commissioner to do something in the state, the fact is that the latter will first get clearance from the Inspector General of Police and depending on what situation is on the ground, there might be a refusal on the part of the commissioner. So, actually the governor is in charge of the security of the state, but ,in fact and let us be realistic, it is not so at times.
There have been agitations for the creation of state police. Would you support the call, considering that it could be used by those in control of power against their perceived opponents?
This question you asked me has been on from the 1950s in Nigeria. It has been one of the contentious debates. During the constitutional conference before Independence, it was an issue. The then Action Group (AG) led by Obafemi Awolowo was campaigning seriously that states should be allowed to control their police forces. The National Council of Nigeria and the Cameroons (NCNC) and the Northern People’s Congress (NPC), who were the other major political parties, opposed it, saying that there must be a uniform police force. But then, we had what we called the Local Government Police. Northern region had its own called ‘Dandugaz’ whereas there was a centralised police hierarchy where states or regions then were allowed to have their local police. They called them Native Authority Police.
However, at the first incursion of the military in Nigeria, I remember it was the Aguiyi Ironsi government that abolished all Local Government Police and Native Authority Police because it was an instrument being used by the government to attack the opponents. I remember vividly the case of Adelabu. Adelabu was sentenced to imprisonment by Local Police Authority. He was charged to a Local Government Customary Court and was jailed and he had to appeal before he was set free. So when the military came in, they abolished Local Government Police and Native Authority Police. But that did not stop the agitation till today that state government must be allowed to have their own police force. Their reasons are cogent, good, but it depends on which divide you are. The proponents of that is that policemen are better within the locality they are born; they know the people, they know the family harbouring this or that. So if you have problem in Yoruba land, it is better you have Yoruba police who will know the family; but if you bring an Igbo man to Yoruba land as a police man, he might not be able to effect proper police work. But as far as the constitution is today, the police (force) is still centralised . Whether it should be decentralised or not is between you and I, depending on which divide you are.
So on which divide are you?
Personally speaking, people who are saying it should be decentralised are correct to a certain extent because of what they see as authoritarian use by the federal government. There is no doubt that when (the governors) too have that control, knowing what Nigerians are capable of doing, it will still be the same thing. A governor of a state, if not because the police are centralised would have used the police to destroy the opposition. So it depends on which divide you are. For me, I believe the police force should still be centralised.
The Nigerian Army reportedly claimed that it acted in self- defence during the recent Movement for the Actualisation of the Sovereign State of Biafra (MASSOB) protest in the South East. What is your assessment on the human rights record of this administration?
We lawyers have a principle that we take to our hearts that facts are sacred. It is when you are ceased of facts that you will be in a position to comment on issues. I am not ceased of the facts of these incidents you are telling me about. Whether policemen killed or the Biafrans revolted are not within my knowledge. I cannot say who is right or wrong. The question of human rights record also depends on which divide you are. Human rights activists would tell you the government is not conforming with human rights, that certain people are being detained after courts have granted them bail; but if you follow the scenario, you will find out that there is not much in that statement in refusing to release an accused person in a court after he had been granted bail. What they have carefully done is to carry that same accused person, preferred charges against him and take him to another court. So, the bail of one court does not subsist for the bail of all courts, and people fail to realise that.
What this government is doing is not actually an affront to due process of law, but it is a clever manoeuvre because we are in difficult times. I do not see anything wrong with what the government is doing because you cannot envelop due process into a small jacket. When the court grants bail and the prosecutor carries the same person on a fresh charge to another court and that court says I am not granting you bail, it is within the law. The grant of bail is within the discretion of the court, so there is no breach of fundamental right as far as I can see it.
Is it constitutional for the President to deploy soldiers in a democratic system to areas of civil unrest without consulting the legislature?
Maybe you would have listened to Femi Falana (SAN) on Channels Television and I was called in the following day to rebut what he said. Section 187 or 188 of the constitution, I cannot remember clearly now, empowers the President as the Commander-in-Chief of the Armed Forces to deploy them. The constitution also allows him not only to deploy them but delegate the powers he has to the military whenever any situation of unrest arises in Nigeria. The President has the power under the constitution to ask the military to go there and quell it.
Even without consulting the National Assembly?
He does not have to. As I have told you, Section 5 of the constitution vests all executive powers on Mr. President. That Section 5 of the constitution is so important and many people do not appreciate the extent of the powers of Mr. President and the constitution specifically provides that the President can, not only deploy soldiers, give them instructions, and delegate part of his powers to them under the constitution. He has very wide powers over the army.
How do you assess government’s fight against corruption?
Every act of investigation, every act of prosecution, every act of conviction is in due compliance with the process of law. You are given your day in court, you are allowed to ask for bail if you are taken to court and the court grants you bail and they have been following it. Do you have any incidence where you think due process has not been followed? You might wish to point to the Biafran case, Nnamdi Kanu. Well, he has been charged for treason, and treason is an offence that you cannot be granted bail. Obafemi Awolowo, the most popular Yoruba man, was charged for treason in 1963. He was not granted bail throughout his trial and the heaven did not fall, nobody carried placards on the streets that Awolowo must be freed, it is not unusual. Once you are charged for treason, you cannot be granted bail, so there is nothing wrong in not granting him bail.
