‘ACJA’s introduction is revolutionary but ...’
Abdulhakeem Uthman Mustapha, a Senior Advocate of Nigeria (SAN), in this interview speaks on the call for the Administration for Criminal Justice Act (ACJA) to have jurisdiction over military courts, calls for restructuring, and the introduction of indepe
During the recent sitting of the Presidential panel of investigation to review compliance of the armed forces with human rights obligations and rules of engagement, it was recommended that the National Assembly should ensure the Administration of Criminal Justice have jurisdiction over military courts. What do you think of this?
We should be careful about that. In the first place, there is no legislation that is perfect. It is only God through his holy books and that is because God has foreknowledge of events. Legislation is not perfect but just something that over time you can improve upon. So, if need be, the provisions can be looked at in time to time.
The military set up is completely different from conventional, civilian courts and even their way of life and the rules of engagement and command structures. I think in a limited way, the ACJA can be applied, but the court martial should still be in place.
In appropriate places, when it bothers on fundamental rights, maybe the provisions of ACJA can be engaged. I think it can work hand in hand where there is inconsistency, but not a holistic jurisdiction on the military courts. It will not work for their special way of life and structure.
And a military court is not a final court; an aggrieved person can always approach the Appeal Court.
The ACJA itself if already two years old, what is your general assessment of the act?
I think the law is revolutionary. I think some provisions of it might be unconstitutional, the Supreme Court has made pronouncement about it. Two years is too short in the day for one to fully assess it. Some of its provisions would have to be given judicial interpretations. But, it is a right step in the right direction, especially in criminal prosecution. The ACJA has addressed the idea of interlocutory appeal that could stall the prosecution of cases. There are other revolutionary aspects of the law.
The issue of bail is a constitutional one. You are presumed innocent until the contrary is proved. Before the advent of the ACJA, it was not very clear. But, with the act, it is now almost compulsory that a defendant is entitled to bail. So, there are so many salutary provisions in it that is revolutionary. But, like I said, it is still at its evolutionary stage. I am happy that the provision that interlocutory appeal should not stall proceedings has been given a judicial stamp by the Supreme Court. Has it been able to address the
issue of court decongestion?
Like I said, it is still very early. But, I think in the context of expeditious criminal prosecution, yes.
But, the congesting of courts is not so much of the provisions of law. It is more of the arrest, investigation and prosecution and even the prison system, which to my mind, is very archaic and needs to be changed. If the police are still investigating a matter, the person should be entitled to bail. More than half of the inmates in our prisons today are suspects. Some of them might have been granted administrative bail at the police level, but they are unable to meet the conditions.
Some of these bail conditions are so onerous. Someone that is selling pure water and you ask him/her to bring a surety that has two or three million naira, that is not fair. That is even contrary to the presumption of innocent.
Given the opportunity to add your inputs to the ACJA, what would these be?
That’s a difficult one. The ACJA has not been fully implemented; so, I think it is still too early in the day to see the lacuna in it. I have seen some in the course of trials, but I cannot readily pinpoint them now.
There has been continuous calls for restructuring, what do you think the problem really is?
I think what we need just like every other entity is to look at the structure and see if it is working for us, but the agitation is much more profound now. If you look at it deeply, you will see it is more about political appointments that a section feels it is lopsided.
The problem with Nigeria is more of leadership. And by leadership, I do not mean strictly from the context of the president or the governor but leadership at all stages of our life.
Given the kind of leadership structure that we have, even if we restructure and we give powers to the state, I don’t think that will impact very well on an average person in the society.
So, what we need really is for us to bridge the leadership deficit we have in the country and to have more people that will be ready to serve.
In Nigeria today, if you are fortunate enough to find yourself in the ruling political party and get appointments, overnight you become rich. That is not sustainable and it is not development. When you go to other jurisdiction, and you see someone that is a millionaire, you will see that he has added values to the society; the source of income can be traced.
For us to be able to move forward, we need to encourage those who are in their comfort zones that the inclination to steal public funds is not so much and they want to serve. But the present structure does not allow it; because they need to join a political party and they will have to be compromised.
I want to thank the 8th National Assembly for introducing the independent candidacy option. I hope it will encourage some people to come out without going through the rigour of party primaries that are often bedevilled with corruption.
In terms of restructuring, yes, I think the centre appears to be too large. And the resources there appear to be too much. It is my opinion that things like state policing should be But, the congesting of courts is not so much of the provisions of law. It is more of the arrest, investigation and prosecution and even the prison system, which to my mind, is very archaic and needs to be changed. If the police are still investigating a matter, the person should be entitled to bail handled at state levels.
If the governors want to tell you the truth, you will find that they bankroll most of the police operations in their states. But, they do not have control over the same police. Nobody can deny that there might be abuses here and there. I remember that, before the broadcast and aviation industries were deregulated, people expressed fear that the private investors could abuse the privilege. But, we are wiser today.
If we allow state policing, in my opinion, I think Nigeria will be better policed. The fear everybody has that during election, there might be abuse is real but we have to find a solution to this. We should not say because somebody might control them at one point, that we will not see the larger benefit of it.
Is the present constitution adequate for our peculiarities?
Definitely the presidential system of government is too expensive for a country like ours. Even the way it is in America, it is taking too much of their resources.
A hybrid of some of the provisions in this Constitution and what we have in that of 1963, with a little devolution of power to the states will do.
But, we need to be careful because currently, at the federal level, we have some semblance of checks and balances. We have the National Assembly that at times calls the Executive to order. But, with respect, and I stand to be corrected, that is not the situation in most of the states. The state Assemblies are like appendages or parastatals under the executive. If we retain this current structure and we devolve more power and resources to the state level, we might be worse off than we are now.
So, we need to separate the noise from the real issues and understand what we want. We should not allow this bandwagon to push us into taking a decision, so that we do not end up like the Brexit. We need to be sure that we are making the right choice. So, it is all about leadership.
Which system between parliamentary and presidential do you think can guarantee this?
I think it is a hybrid. The parliamentary system works better in a way, because if you are part of the executive and you are a legislator, you are forced to understand the problems and dynamics of the society and you have to be substantially prepared. With respect, a lot of our legislators are absentees. They hardly go to the constituents.
So, in my opinion, a hybrid of that will work. I also think we need to look at the area of whether we need to have the Senate and the House of Representatives at the same time with our current resources. It requires that the structure we currently operate needs to be reviewed because it is not delivering and it is taking too much of our resources. Very soon oil will dry up and we have to start looking for other sources of income, so I believe in the long run, the hybrid system will pay Nigeria better.
On the hybrid system, since you can’t create something out of vacuum, do we have prototypes to guide us?
Citing example might not be ideal because if you are benchmarking somebody, it might be that by the time you are benchmarking them, they are already moving on. The human nature is dynamic and not static.
Much as we can look at other jurisdiction as examples, the experience that Nigeria has gone through is enough for us to be able to fashion out what works for us. This is because it was the mad-rush of the presidential system in the America that forced us to this system and we all agree now that it is just not working for us.
So, we need to look inward and see our peculiarities. More importantly true federalism where some of the items in the Exclusive Legislative List are devolved to the Concurrent List. But, more importantly, we need to look the drivers of the system need to look at it if we want to move forward.