INTRODUCTION
I congratulate the Board of Fellows of the Pharmaceutical Society of Nigeria on their Annual Luncheon/Mid Year Meeting and for choosing a topic, which is not only current but challenging.

The topic presupposes that we have not got a sane society yet. It also postulates the compulsory need for good governance of our country within the confines of the Rule of Law. In essence, the topic is advocating a sane society through good governance and Rule of Law.

The starting point in the treatment of the topic in this short keynote address is to put in perspective what "Government" means and what "Rule of Law" connotes and denotes. The Constitution of the Federal Republic of Nigeria, 1999 tells us in Section 318 that Government means "the government of the Federation, or of any State, or of a local government council or any person who exercises power or authority on its behalf".

We also know that within that Constitution, government has three arms – the Executive, the Legislature and the Judiciary.

Rule of Law simply means that the Law rules as against the whims and caprices of individual rulers or public officials. But which Law? In Nigeria, the Law is the totality of:

• The Constitution (the fundamental Law or the Grundnorm).
• Acts of the National Assembly.
• Laws of the States Houses of Assembly.
• By-Laws of the Local Government Councils.
• Statutory Instruments including rules, regulations, etc, etc.
• Judgments of courts.

I must hasten to add that the fact that there is government does not mean that there is good governance. And the fact that there is a Rule of Law does not mean that the Law is good.

What therefore are the attributes of good governance and the rule of good law? I must confess that some of the attributes are inter-related, sometimes interwoven or intertwined and most times a chicken and egg juxtaposition.

The structures, functions, purposes, powers and duties of governments must serve the interest and satisfy the aspirations of the people who must freely agree to the fundamental law of the country, i.e. the Constitution. The latter gives life to and creates or authorizes other laws in the land. That is why this fundamental law is referred to as the Grundnorm.

The structures of government at all levels including the so-called federating units have been so whimsically distorted or capriciously restructured after the collapse of the First (1st) Republic on the 15th of January, 1966, that today, there is an overwhelming demand by most Nigerians for the convocation of a Sovereign National Conference (SNC) to restructure the country and to have a new Constitution to meet the political, social, economic, cultural and religious needs of all Nigerians, and above all, to have good governance throughout the length and breadth of the country within the ambit of the rule of good law. I resolutely support this demand.

What do we mean by Sovereign National Conference? Sovereignty is acknowledged in the present Constitution as belonging to the people of Nigeria from whom the government derives all its powers and authority. (See Section 14(2)(a) of the Constitution of the Federal Republic of Nigeria, 1999). Therefore, sovereignty within the context of the Sovereign National Conference means that those who will decide the fundamental law of the country must be the peoples’ choice, undiluted and those who serve the peoples’ interest. After the deliberation of the Conference, the product of that Conference will be referred to the people of this country in a Referendum, and it is what is decided by the people in the Referendum that becomes the fundamental law of the country. Successive Constitutions that had been operated in Nigeria had never been referred to the people in a Referendum. In other words, all Constitutions that had been operated including the existing 1999 Constitution had never had the inputs of the people. For any Constitution to represent the yearnings of the people, the process of bringing it to life must accommodate the inputs of the generality of the people. The clear-cut position of the functions of the Sovereign National Conference is not to govern the country or participate in the governance of the country. The position of the Sovereign National Conference is to deliberate without any limitation on all matters, issues, problems, etc about Nigeria, for Nigeria and in the interest of Nigeria. It is a no-holds-barred conference.

I advocate the following modalities for the convocation of the Sovereign National Conference:

• The government of the Federation must be the catalyst because it is the government that has the logistics, the awesome authority and the wherewithal to midwife such colossal project. It is the only institution that has the capacity to ensure the enforcement of the decision of the people at the Referendum.

• The government must set up a Sovereign National Conference Planning Committee, say of fifty (50) members, half of whom will be officials of government and the other half non-officials of government.

• Two types of delegates will be at the Sovereign National Conference viz:

• Community Delegates
• Interest groups Delegates

Seven hundred and Seventy-Four (774) communal delegates will represent 774 Local governments in Nigeria.

Each Local Government will elect from its community a representative to the Sovereign National Conference.

However, the election will not be on party basis, it will essentially be on communal basis. The advantages of these communal representatives are legion. Notably for example, if you elect a representative from Aba, he/she is likely to be an Igbo. If you elect a representative from Calabar, he is likely to be an Efik. If you elect a representative from Ikot Ekpene, he is most likely to be an Ibibio. If you elect a representative from Ondo community, he is likely to be a Yoruba. If you elect a representative from Oturkpo, he is likely to be an Idoma. If you elect a representative from Makurdi, he is likely to be a Tiv. If you elect a representative from Maiduguri, he is likely to be a Kanuri. If you elect a representative from Kano, he is likely to be Hausa or Fulani. If you elect a representative from Benin, he is likely to be an Edo or Bini. If you elect a representative from Bayelsa, he is likely to be an Ijaw and if you elect a representative from Sokoto, he is likely to be Hausa or Fulani.

In essence, the advantages of electing a representative on communal basis using the local government as a yardstick is that all tribes, ethnic groups, clans, etc numbering more than three (300) hundred are all found in all the 774 local governments of our country and all will have representatives at the Sovereign National Conference.

The second type of delegates should be the interest groups delegates that cater for the various interests, hopes and aspirations of Nigerians.

We have identified about two hundred and fifty (250) interest groups including the lawyers’ group (NBA), the pharmacists group (PSN), the accountants (ICAN and ANAN can collaborate for this purpose), the doctors (NMA), the journalists (NUJ), the architects, the structural engineers, the quantity surveyors, the registered trade unions, the Central Labour Organisations (including the NLC and TUC), the organized industry (including MAN and NACCIMA) the university lecturers (ASUU), the teachers (NUT), students organization (NANS), farmers, the traditional Rulers, the Judges, Army, Navy, Airforce, the Police, etc, etc.

Each of the interest groups will elect a representative to the Sovereign National Conference.

At the end of the deliberation of the Sovereign National Conference, which may take a year or more, a draft constitution ought to emerge which will then be subjected to another six (6) months of thorough debates having been published in as many languages as possible.

After six (6) months of debate, the Sovereign National Conference will reconvene for another three (3) months to deliberate on the views from the national debates. Thereafter, a final draft will be presented for Referendum. If the people vote Yes, all over the country, and in this case, it is not a matter of mere majority, the Referendum must garner at least two-third (2/3) of the Yes votes. If 2/3 of the Yes votes are achieved, then the first peoples’ constitution is born with a new Nation and Nigeria will cease to be a mere geographical expression. It will then become the peoples’ Republic.

After the peoples’ Constitution has come into force, any amendment of the Constitution of the country will be subjected to Referendum and a 2/3 Yes votes of the people. No amendment of the Constitution shall be made through the government of the day except through the peoples Referendum.

There are three (3) fundamental inhibitors of good governance and Rule of Law in Nigeria:

• Corruption in government and the immunity of its Chief Executives.
• Structural defects in our system of dispensation of justice.
• The undemocratic structure of the institutions which conduct elections at the centre and in the States.

Let me briefly deal with corruption, the bane of our progress. The history of governance in Nigeria is littered with corruption of most of the political leaders saddled with the responsibility of governance at all levels.

With the advent or emergence of the Second Republic on 1st October, 1979, the effect of corruption on the psyche of the Nigerian people took a new dimension with the immunity against criminal prosecution or criminal arrest of the Chief Executives and their Deputies in the states and at the centre.

Section 267 of the Constitution of the Federal Republic of Nigeria, 1979 imposed on us by General Olusegun Obasanjo’s administration gave immunity to the President, Vice-President, Governors and Deputy-Governors. They could not be prosecuted for looting the treasury while in office. It was a very dangerous cover for public office looters at the center and in the States.

When democracy fell on 31st December 1983, the arrests, trials and convictions of various political leaders who were previously protected by the immunity section of the 1979 Constitution revealed so many criminal abuses of the peoples’ money. Many were tried and found guilty by military Tribunals under General Muhammadu Buhari who promulgated the Recovery of Public Property (Special Military Tribunals) Decree No. 3 of 1984.

And when the Third Republic emerged on the 29th May 1999, the military ensured that it inserted the immunity provision again in Section 308 of the Constitution of the Federal Republic of Nigeria, 1999. With section 308 of the Constitution, the immunity clause of our Constitution still intact and extant there can be no meaningful development at the centre and in the States. But we do not need immunity provision in our Constitution. Let us take a cursory look back at the constitutional history of our country since Independence.

The British gave us the 1960 Constitution and in it there was no immunity given to the Prime Minister of the Federal Republic of Nigeria. The Premiers of the three (3) Regions then, the North, East and West did not have any immunity under their various 1960 Regional Constitutions.

The 1960 Constitution came into force on 1st October 1960 by virtue of “The Nigeria” (Constitution) Order in Council L.N. 159 of 1960 statutory instrument No. 1652 of 1960 made on 12th September, 1960 and laid before the parliament on 16th September 1960 with the following schedules:

• Second Schedule - containing the Constitution of the Federation of Nigeria 1960.
• Third Schedule - containing the Constitution of Northern Nigeria, 1960.
• Fourth Schedule - containing the Constitution of Western Nigeria, 1960.
• Fifth Schedule - containing the Constitution of Eastern Nigeria, 1960.

The Northern Nigeria Constitution which came into force on the 1st of October 1960 by virtue of the Nigeria (Constitution) Order in Council L.N. 159 of 1960 and statutory instrument No. 1652 of 1960 made on 12th September, 1960 and laid before the parliament on 16th September 1960 had no immunity provision.

The Western Nigeria Constitution which came into force in 1960 by virtue of Nigeria (Constitution) Order in Council L.N. 159 of 1960 and statutory instrument No. 1652 of 1960 made on 12th September, 1960 and laid before the parliament on 16th September 1960 had no immunity provision.

The Eastern Nigeria Constitution which came into force in 1960 by virtue of Nigeria (Constitution) Order in Council L.N. 159 of 1960 and statutory instrument No. 1652 of 1960 made on 12th September, 1960 and laid before the parliament on 16th September 1960 had no immunity provision.

Nigeria became a republic on 1st October, 1963. Under the Republican Constitution of 1963, no immunity was given to the Prime Minister and the Premiers of the Regions. Only the Ceremonial President at the centre under whom the Prime Minister worked was given immunity. The same immunity was extended to the ceremonial Governors in the Regions but the Premiers who administered the Regions had no immunity under the 1963 Constitution. For curious eyes of researchers, I refer to Section 161(1) & (2) of the 1963 Constitution which provides as follows:-

"161(1) Without prejudice to the generality of section 156 of this Constitution:

• no criminal proceedings shall be instituted or continued during his period of office against a person to whom this subsection applies; and
• such a person shall not be arrested or imprisoned during that period either in pursuance of the process of any court or otherwise; and
• no proceedings in which relief is claimed against such a person in his personal capacity shall be instituted or continued in any court during his period of office;

  but in ascertaining whether any period of limitation has expired for the purposes of any proceedings against a person to whom this subsection applies, his period of office shall be left out of account. (2) Subsection (1) of this section applies to a person holding or required to perform the functions of the office of the President or of the Governor of a Region, and in that subsection "period of office" means, in relation to such a person, the period during which he holds or is required to perform the functions of the office in question."

May be the lack of immunity probably dissuaded the Prime Minister and Premiers from being enmeshed in high class corruption, but since 1979 when General Olusegun Obasanjo introduced presidential immunity, vice-presidential immunity, governorship immunity and deputy-governorship immunity, corruption post-graduated and looting with impunity became the culture of bad governance.

Today, many ex-governors are richer than their former states and the former President himself is suffused with questionable wealth either of the presidential library where he garnered N8.5 billion in one day (14th May, 2005) from the government contractors or from TRANSCORP which he founded with some other friends of Third Term infamy to cream off petroleum contracts under his portfolio, etc, etc.

At the onset of the 1999 Constitution, some governors resisted even criminal investigation. It took me three (3) years to get Judgment in the highest court of the land that Governors, Deputy-Governors, President and Vice-President could be investigated for crimes committed while in office. See the case of Fawehinmi v. I.G.P. (2002) 7 NWLR (Pt.767) 606.

If corruption is to be tackled to achieve good governance then the protective seal of immunity which enables the President, Vice-President, Governors and Deputy-Governors to steal with impunity should be removed. Immunity is a cover for Executive Robbery.

The trend internationally is to subject political leaders and the led to the supremacy of the Rule of Law and to cast into total oblivion the unhealthy and anachronistic enjoyment of any immunity by anyone during and after tenure. Seven (7) examples will suffice:

General Suharto was the President of Indonesia from 1967 to 1998, thirty-one (31) years during which time he was found to have embezzled billions and billions of dollars of the resources of his people. Charges of corruption were preferred against him but he was hospitalized after the charges were announced.

His son Tommy Suharto was convicted of corruption and also for murdering a Judge who had earlier convicted him for corruption.

Thaksin Shinawatra was the Prime Minister of Thailand from 2001 to 2006 during which time he was found to have embezzled billions of resources of Thailand. He was found by the Assets Examination Committee of committing corruption and illegal acts as well as being unusually rich after being in governance for five (5) years. When charges of corruption were being prepared against him, he fled the country only to surface in Britain to buy Manchester City Football Club for £168,000,000 (One hundred and Sixty-Eight million Pounds sterling).

Alberto Fujimori was the Prime Minister of Peru from 1990 to 2000 during which he amassed ill-gotten money. When the Rule of Law was to catch-up with him, he fled Peru to Asia. Criminal charges of corruption have been made against him.

Frederick Chiluba was the President of Zambia from 1991 to 2001.

He lost his bid for a third (3rd) term. While campaigning for the third term, he even sought the help of Pastor T. B. Joshua of the Synagogue Church in Lagos. They prayed for him but God did not answer their prayers. While in office, he embezzled and stole the peoples’ money.

Only recently, $58 million (Fifty-Eight million Dollars) of his ill-gotten assets in England were confiscated and ordered to be returned to Zambia to help the poor. Charges of corruption against him have been prepared but we understand he is hospitalized as usual.

General Augusto Pinochet took power in 1973 in Chile after murdering the socialist President Salvador Allende in a coup d’etat. By the time he left power in 1990, he had stolen so much of the peoples’ money. Pinochet died with charges of corruption hanging on him at the age of 91 years on 10th December, 2006.

Ferdinand Marcos was the 10th President of Philippines from 1965 to 1986. Philippines was one of the poorest countries when Ferdinand Marcos came to power. In twenty-one (21) years, he and his wife Imelda Marcos held sway on the economy and politics of that country; they stole billions and billions of the peoples’ hard earned money. His wife had the largest women wardrobe in the world, with five thousand (5,000) pairs of ladies shoes. Ferdinand and Imelda Marcos had mansions dotting most cities of the world and investments in various blue-chip companies of the world whilst the masses of Philippines continued to languish in poverty and penury. When he was forced out of office, several charges of corruption were brought against him and his wife, Imelda. Ferdinand Marcos died as one of the most atrociously corrupt men that ever led any country in the world. But most of his ill-gotten assets have been recovered by the Government of Philippines.

The United States of America (USA) has a civilized legal system that has a close watch over their leaders. This became evident in 1973 during the presidential term of Richard Milhous Nixon and his deputy, Spiro Agnew. While President Nixon was wire tapping, culminating in the Watergate scandal in which President Nixon engineered the eavesdropping into the meeting of the Democratic Party that held in the Watergate Hotel in Washington. His Vice Spiro Agnew was also undergoing serious investigations into crimes he committed before he became the Vice President of the most powerful Nation on earth, America.

Although Nixon had to flee the White House by resignation in 1974 instead of facing the impeachment of the Congress for crimes he committed while in office as President, but Spiro Agnew was not so lucky when the Federal Bureau of Investigation (FBI) confronted him with facts of his criminality as the former governor of Maryland and for swearing to false affidavit in his tax matters.

He had no choice but to resign as the Vice President of the United States of America in 1973. As he was stepping down as Vice President, he was being led into a District Court in several criminal charges. He ended up with a sentence of three (3) years imprisonment and made to pay monetary compensation. That was the best era for the Rule of Law, which showed most unequivocally that Law rules in America.

In Nigeria, no Military Head of State or equivalent Deputy, no President, no Vice President, no Governor, no Deputy Governor (whether civilian or military) has been arrested, charged and convicted by a regular court for criminal acts of corruption committed while in office. And the records are there that some of them plundered their respective treasuries while in office. As for Heads of State in Nigeria and equivalent Deputies, Presidents and Vice Presidents, they have become untouchables and sacred cows. Their rewards include the Grand Commander of the Federal Republic of Nigeria (GCFR) despite the fact that in some cases, gargantuan corruption enveloped some of them and their regimes.

The problem with corruption in Nigeria is that the private sector is spared the mechanism for the enforcement and infringement of legally justified penalty for committed misdeeds.

In Europe and America, the enforcement of the Rule of Law does not discriminate between the private and public sectors. One example will suffice, the ENRON Catastrophe in the United States of America.

ENRON was into energy. But Ken Lay the Chief Executive Officer and his deputy Jeffrey Skilling were into something more, doctoring the books, misleading shareholders and committing acts of serious corruption against the laws governing stocks and shares in the United States of America. Enron collapsed and became bankrupt. Ken Lay the Chief Executive Officer and his deputy Jeffrey Skilling paid dearly for this. They were tried under the law and convicted. Before Ken Lay could be sentenced, he committed suicide. Skilling was sentenced to a long term of imprisonment - twenty-five (25) years. Enron died.

But nobody is asking in Nigeria what happened to the money of Lagos State poured into Enron. What happened to the eleven (11) Barges to generate electricity in Lagos State? What happened to millions and billions of Lagos State money committed to Enron by the Asiwaju Ahmed Bola Tinubu regime? No one is asking. No one is questioning. No one is probing.

We have heard tales of the doctoring of the books, prospectus, etc in Nigeria. We have heard of Lever Brothers and the late Rufus Giwa. What has become of that tale? We have heard of the doctoring of the books and prospectus in Cadbury by Bunmi Oni. What has become of the tales?

The most important Rule of Law against corruption in Nigeria can be found in Section 15(5) of the Constitution of the Federal Republic of Nigeria, 1999, which provides thus:

"15(5) The State shall abolish all corrupt practices and abuse of power."

To give effect to this important provision of the fundamental law of the country, the Independent Corrupt Practices and Other related Offences Commission (ICPC) Act was promulgated in June, 2000. It established the Independent Corrupt Practices Commission (ICPC). Some States spearheaded by the Ondo State Government kicked against the Law which culminated in the Supreme Court Judgment in Attorney-General of Ondo State & Ors V. Attorney-General of the Federation (2002) 9 NWLR (Pt.772) 222. However, in a truly landmark decision the Supreme Court held that the National Assembly had the power to promulgate the Act and to give effect to Section 15(5) of the Constitution through that Act. That was the first institutional attack against corruption in the last regime. Because of the inadequacies of that Act, the Economic and Financial Crimes Commission (EFCC) was established, again by the last regime.

The National Assembly passed the Economic and Financial Crimes Commission (Establishment) Act in 2004, which repealed Act No. 5 of 2002. The Commission is a very strong body. If you look at the composition under Section 2, you will find that it has the following members: The Chairman, the Governor of the Central Bank of Nigeria or his representative, a Representative of the Ministry of Foreign Affairs, a Representative of the Ministry of Finance, a Representative of the Ministry of Justice, the Chairman, National Drug Law Enforcement Agency (NDLEA) or his representative, the Director-General of the National Intelligence Agency (NIA) or his representative, the Director-General of the State Security Services (SSS) or his representative, the Registrar-General of the Corporate Affairs Commission (CAC) or his representative, the Director-General of the Securities and Exchange Commission (SEC) or his representative, the Managing Director, Nigeria Deposit Insurance Commission (NDIC) or his representative, the Commissioner for Insurance or his representative, the Post-Master General of the Nigeria Postal Service or his representative, the Chairman, Nigerian Communications Commission (NCC) or his representative, the Comptroller-General, Nigeria Customs Service or his representative, the Comptroller-General, Nigeria Immigration Service or his representative, the Inspector-General of Police (IGP) or his representative, four eminent Nigerians with cognate experience in Finance, Banking, Law or Accounting, and the Secretary to the Commission.

The Economic and Financial Crimes Commission (EFCC) was established to deal with advance fee fraud, money laundering, counterfeiting, illegal charge transfers, futures market fraud, fraudulent encashment of negotiable instruments, computer credit card fraud, contract scam, etc, see Section 6 of the Act. In addition to the above powers, the Commission is to enforce the Money Laundering Act, the Advance Fee Fraud and Other Related Offences Act, the Failed Banks (Recovery of Debts) and Other Financial Malpractices in Banks Act, the Banks and Other Financial Institutions Act, the Miscellaneous Offences Act and any other Law or Regulation relating to economic and financial crimes including the Criminal Code and Penal Code. (See Section 7(2) of the Act).

It was given the power, by ex-parte application, to freeze accounts, see Section 34(1) of the Act; for an interim forfeiture order of property, see Sections 27(4) and 29 of the Act; to search, arrest and prosecute, see Section 13 of the Act. And by Section 40 of the Act, any application for stay of proceedings in respect of any criminal matter brought by the Commission before the High Court shall not be entertained until Judgment is delivered by the High Court.

The Economic and Financial Crimes Commission (EFCC) Act is a good law. It was that law that enabled the Economic and Financial Crimes Commission (EFCC) to recover more than $100,000,000.00 (One hundred million US Dollars) from the fraudsters who duped a Bank in Brazil. It was the Act that enabled some public officers to be arrested, prosecuted, jailed and the loot recovered from them. The activities of the Economic and Financial Crimes Commission (EFCC) are a success story under the dynamic, incorruptible, courageously determined and passionately focused, Chairman of the Commission, Mallam Nuhu Ribadu.

But I must sound a note of worry that since the advent of this present administration, Governors and other public officers who have bled the economy of this country to stupor are now seen walking in and out of the Economic and Financial Crimes Commission (EFCC) headquarters without arrest, without a charge, without a trial for the criminal offences some of them have committed. Even some who dressed up like Emirs to escape the dragnet of the Economic and Financial Crimes Commission (EFCC) before May 29, 2007 and could not hand over the reins of government to their successors, now find it convenient to fly into the country, enjoying the loot as if it is business as usual. Even those who were taken before the Code of Conduct Tribunal and those who should be taken to the Code of Conduct Tribunal now talk to the Press in a truculently confident manner as if nothing will happen to them anymore. Nigerians are watching!

The person most affected by the bad governance occasioned by the corruption of government is the proverbial man in the street.

Good governance to the man in the street means that the affairs of State are conducted in such a manner as to give happiness and security to the people. The expectation of the man in the street in this respect corresponds to or tallies with the constitutional requirement that the primary purpose of government is security and welfare of the people. [See Section 14(2)(b) of the Constitution of the Federal Republic of Nigeria, 1999]. But there can be no welfare where:

• the man in the street cannot find employment.
• the man in the street cannot have access to good education.
• the man in the street is denied good health delivery system.
• the man in the street cannot be housed.
• the man in the street is denied good infrastructures (rail, road, waterway, etc for his business and other needs).
• the man in the street is thrown into darkness and there is no power for his business and other needs.
• the man in the street does not enjoy National Minimum Living Wage and when he is out of employment, the man in the street cannot have employment benefits.
• the man in the street when he is weak as a result of old age, he cannot get old age care.
• the man in the street is not allowed to determine who should govern him and to make those in governance accountable to him.
• the man in the street is inhibited by no locus standi in a court of law to question the corruption of the government or to question other acts of misgovernance.
• the man in the street wants stability in the prices of petroleum products.
• the man in the street is not safe even in the street.

The welfare of the proverbial man in the street can only be guaranteed by government that cares about employment, health, education, infrastructure, unemployment benefits, good housing, cheap and nutritious food, national minimum living wage, old age care, pension, gratuity, security of life and property, free and fair election, transparency in the conduct of affairs of state and access by all to justice in a court of law.

These are the criteria of good governance from the standpoint of the proverbial man in the street within the context of the Nigerian society.

The second inhibitor is the lopsided structure of the Judiciary, particularly the apex court of Nigeria – the Supreme Court. Let me start by saying most categorically that Justice in court depends on the perception of the adjudicator. Therefore, those who dispense justice are fundamentally critical to the success or failure of adjudication.

Apart from the stipulated qualifications and the prescribed authority for appointment of our Judges, Nigerians know little about those to be appointed. This process must change. Every prospective appointee must be published in a gazette before the appointment is made. Details of credentials and curriculum vitae about such prospective appointee must be published in a gazette and in the media, preferably in the print media to enable Nigerians make their comments, recommendations or condemnation to the National Judicial Council (NJC). After all, the Press is given a special responsibility under Section 22 of the Constitution of the Federal Republic of Nigeria, 1999 to make the government accountable to the people and government includes the Judiciary as its third arm. Even lawyers wake up to hear the appointment of some Judges they believe could not have been appointed. The present system of secretive mechanism of appointing Judges must stop and change.

The apex court - the Supreme Court of Nigeria is the most important arm of government. It is the personification of the Judiciary of Nigeria. What is decided in the Supreme Court amounts to the law of Nigeria, which must be enforced by all authorities and persons and by all courts in Nigeria. Whether such decision is right or wrong, it is law. Whether it is right or wrong, it is not appealable. Unlike the controversial Lakanmi’s case (Lakanmi v. Attorney-General (West) delivered on the 24 April 1970, reported in (1971) U.I.L.R. 201) and Decree No. 28 of 1970 (Federal Military Government [Supremacy and Enforcement of Powers] Decree No. 28 of 1970) that set aside the Judgment of the Supreme Court, no Act of the National Assembly can frontally set aside the decisions of the Supreme Court of Nigeria. Given the enormity of its powers, it is only right and proper that the structure be reviewed in order to make it perfect or near perfect to cope with the supremacy of its decisions. But do we have that structure today?

I state most emphatically before the pharmacists today that we don’t have that desirable structure. In essence, I advocate the restructuring of the Supreme Court of Nigeria.

Let’s examine the existing structure. Section 230(2) of the Constitution of the Federal Republic of Nigeria, 1999, provides for the Chief Justice of Nigeria as the head and twenty-one (21) other Justices of the Supreme Court. In reality however, we have fifteen (15) Justices today. The full numerical complement has not yet been attained but I don’t consider that variance to be critical. Five (5) Justices normally sit in the Supreme Court on any matter except where the court is sitting in its original jurisdiction or dealing with interpretation of the Constitution or taking an appeal that relates to Chapter Four (4) of the Constitution, in which cases Seven (7) Justices of the Supreme Court will constitute the Court. I refer to Sections 230(2) and 234 of the Constitution of the Federal Republic of Nigeria, 1999 which provide as follows:

"230(2) The Supreme Court of Nigeria shall consist of -

• the Chief Justice of Nigeria; and
• such number of Justices of the Supreme Court, not exceeding twenty-one, as may be prescribed by an Act of the National Assembly."

"234 For the purpose of exercising any jurisdiction conferred upon it by this Constitution or any law, the Supreme Court shall be duly constituted if it consists of not less than five Justices of the Supreme Court: Provided that where the Supreme Court is sitting to consider an appeal brought under section 233(2)(b) or (c) of this Constitution, or to exercise its original jurisdiction in accordance with section 232 of this Constitution, the Court shall be constituted by seven Justices."

I wish to point out that five (5) out of twenty-two (22) or fifteen (15) Justices is a dismal minority. It is even not up to one-third (1/3). Seven (7) out of twenty-two (22) is less than one-third (1/3) of the membership of the Supreme Court and less than half of the present number of the Supreme Court. Either sitting ordinarily or sitting specially, the Supreme Court decision on any matter is a numerical minority decision and this has to change. I will like to examine four (4) judicial systems with regards to the structure of their apex courts. One is International (World Court), the other three are National i.e. Japan, South Africa and the United States of America (USA).

The International Court of Justice (ICJ) is otherwise known as the World Court. The World Court has fifteen (15) Justices. May I say, as an aside, that Nigeria has been lucky to produce three (3) Justices of this Court at different times - Hon. Justice Charles D. Onyeama (1967-1976), later Hon. Justice Taslim Olawale Elias (1976-1991) and lately Hon. Justice Bola Ajibola (1991-1994).

This Court normally sits as a full court of fifteen (15) Justices to consider all cases before them.

The second most industrialized country, second richest country and second most technologically advanced country of the world, Japan, has the Supreme Court of Japan as the highest and final court. In the Supreme Court of Japan, there are fifteen (15) Justices made up of the Chief Justice of Japan and fourteen (14) Justices with a Grand Bench made up of all the fifteen (15) Justices and Petty Benches, each made up of five (5) Justices.

The cases before the Supreme Court of Japan are first assigned to one of the three (3) Petty Benches and those cases that involve constitutional questions are transferred to the Grand Bench of fifteen (15) Justices for its inquiry and adjudication.

The Grand Bench made up of all fifteen (15) Justices sit at a time. All constitutional matters are dealt with by the full court of fifteen (15) Justices by the Supreme Court of Japan. No contribution of any Justice of Japan is left out in the consideration and determination of any constitutional issue, because the Japanese take every constitutional matter as fundamental to their constitutional order.

South Africa is a young democracy with a long history of struggle for ideals, humane and progressive constitutional order. Today in South Africa, the hierarchy of courts is as follows:-

• The Constitutional Court
• The Supreme Court of Appeal
• The High Courts including any High Court of Appeal that may be established by an Act of Parliament
• The Magistrate Courts

In South Africa, the Constitutional Court is different from the Supreme Court of Appeal because of the pre-eminent position of the Constitution of South Africa. A Constitutional Court was established which is the highest court in all constitutional cases. It is made up of eleven (11) Justices consisting of the Chief Justice, Deputy Chief Justice and nine (9) other Justices. Any matter before the Constitutional Court must be heard by at least eight (8) Justices, that is at least over two-thirds of the Justices. However, all the eleven (11) Justices have the right to sit on every matter but under no circumstance will their number be less than eight (8) in the consideration and determination of any constitutional matter. The decision of the Constitutional Court in all constitutional matters is binding on all in South Africa.

To demonstrate the importance of the structure, I refer to the first sitting of the Constitutional Court of South Africa on 15th February, 1995. All the eleven (11) Justices sat to hear the first case of A v. Makwanyane, which raised the constitutionality of death penalty. On 6th June, 1995, the Constitutional Court unanimously found that death penalty was unconstitutional. In that epochal judgment, they gave laudable reasons which were obviously convincing and clearly borne out of thorough research work, appreciation of the diverse cultures of the South Africans and the global environment which South Africa has now found itself.

The United States of America Supreme Court is the highest court in America. In each of the fifty (50) States in America, there is a Supreme Court but for the entire country of America, there is only one Supreme Court and that is the Supreme Court of America.

In the Supreme Court of America, there are nine (9) Justices made up of the Chief Justice of America and such number of Associate Justices as may be fixed by the Congress. The number of Associate Justices is currently fixed at eight (8). Therefore, as at today in the United States of America, there are nine (9) Justices of the Supreme Court of America and all must sit to hear every case brought before that court.

Having traversed the continents of Africa with the South African example, Asia with the Japan example, America with the United States of America example and the entire world with the World Court example, how can anyone justify the present structure of the Supreme Court of Nigeria where in all constitutional matters, seven (7) out of the prescribed twenty-two (22) will constitute the Supreme Court of Nigeria to hear a constitutional case and where five (5) will constitute the Supreme Court of Nigeria to hear non-constitutional matters? This lopsided structure must give way to one that gives greater confidence or engenders higher levels of trust in the course of administration of justice. I must point out that the structure has not diminished the competence of individual justices of the Supreme Court. Our Justices are some of the most honest and incorruptible judges in the world. But the structure is still not right even if the justices are angels.

A system as we now have in the Supreme Court whereby two-thirds (2/3) of the Justices cannot participate in determining and charting the constitutional course for this country is wrong and structurally defective.

The panel of Justices who shall sit on any matter is determined by the Chief Justice of Nigeria. He selects who shall sit. However good natured, brilliant, benevolent, progressive a Chief Justice may be, such a system is not good for our country. And, it is fraught with the danger of abuse. It is not done in the United States of America from where we copied the Presidential system of government. It is not done in Japan. It has no place in South Africa. It is unknown to the World Court. Nigeria must stop it.

Let me state most unequivocally: the tyranny of the Executive can be corrected by the Judiciary. The tyranny of the Legislature can be corrected by the Judiciary. But I ask, who corrects the ‘tyranny’ of the Judiciary? That is a food for thought for all of us.

The undemocratic structure of the institutions which conduct elections at the centre and in the States.

You cannot use an undemocratic institution to organize, undertake, conduct and supervise any manner of democratic election. Therefore, we must ask ourselves whether the structure of the Independent National Electoral Commission (INEC) established by the Constitution of the Federal Republic of Nigeria, 1999 is democratic enough to organize, supervise and undertake the conduct of general elections into the following offices, President and Vice-President, Governor and Deputy-Governor, National Assembly and States Houses of Assembly.

The first structure of the Independent National Electoral Commission (INEC) is the composition of the Commission. It has thirteen (13) members including the Chairman. (See Paragraph 14, Part I of the Third Schedule of the Constitution). They are both appointed by the President of the Federal Republic of Nigeria, who could be a candidate for re-election as President. The appointment is subject to confirmation by the Senate. (See Section 154(1) of the Constitution).

The second structure deals with the State Resident Electoral Commissioners who are not members of the Independent National Electoral Commission (INEC). They are thirty-seven (37) in number, each representing each State of the Federation and Federal Capital Territory. They are appointed by the President without the confirmation of the Senate for their appointments.

Undoubtedly, the manner of appointment of the members of the Independent National Electoral Commission (INEC) by the President who would at one time or the other seek re-election as President is not right as it is not democratic.

Secondly, the unilateral appointment by the President of all the thirty-seven (37) Resident Electoral Commissioners without any form of supervisory confirmation is capable of being abused by any President and/or the President’s political party, as they are only answerable to Mr. President for the security of their tenure.

Electoral events have taught us in this country, particularly in the 2003 and 2007 general elections that the thirty-seven (37) Resident Electoral Commissioners owe their allegiance and loyalty solely to the President and his party. Therefore from the structure and its imperative impact on the conduct of the general elections, the Independent National Electoral Commission (INEC) needs a fundamental change.

To democratize the structure of the Independent National Electoral Commission (INEC), the interest of all the political parties must be represented. In addition, all other members of the Commission, including the Chairman, should not be more than one-third (1/3) of the total membership of the Commission. The representatives of all the political parties must be members of the Commission to represent the interest of their parties. The other members including the Chairman are to be appointed by a collegiate of the Chief Justice of Nigeria, the President of the Court of Appeal and all the thirty-six (36) Chief Judges of the States and of the Federal Capital Territory.

The appointment of the thirty-seven (37) Resident Electoral Commissioners should also be made by the collegiate of the Chief Justice of Nigeria, the President of the Court of Appeal and all the Chief Judges of the thirty-six (36) States of the Federation and the Federal Capital Territory. This suggested new structure would most likely raise the level of confidence of the Nigerian people in the conduct of general elections in Nigeria.

Apart from the suggested method of appointing members of the Commission and the States Resident Electoral Commissioners, there should be in place an amended Constitution to ensure that –

• three months to the end of tenure of the President, the latter should vacate his office to enable an independent and non-partisan but respectable person, preferably the Chief Justice of Nigeria to act as President of Nigeria for the period until election to the Office of the President is conducted, determined, and handing over ceremony is performed.

• three months to the end of tenure of the Office of the Governor, the Chief Judge of the State should act as the Governor of the State for the period until election to the Office of Governor is conducted, determined, and handing over ceremony is performed.

The reason for this suggestion is to remove the diabolical influence of the incumbent President or Governor as the case may be during the period of the election.

It is my view that the fact that there is government does not mean there is good governance and the fact that there is a Rule of Law does not mean that all Laws are good.

Good governance cannot be attained without a government structured to cater for the welfare and the happiness of the people, and the Rule of Law will be a mirage where the law serves only the interests of the rich, the privileged, the powerful and the advantaged at the expense or detriment of the poor, the deprived, the ignored, the cheated and the oppressed whether socially, politically or economically.

In essence, the best Rule of Law is where the Law is good. Law cannot be good where a few men and women in the Nigerian society have access to the good things of life and can fast-track the process of getting justice while the poor are denied those good things of life and are consigned to a dilatory process of ever-getting justice.

It is my view that for Nigeria to be sane, the following fundamentals must be addressed:

• Nigeria needs a Constitution, which is a product of the free choice of the people through a Sovereign National Conference (SNC) where the representatives of the Nigerian people are made up of two (2) sets of delegates:

• Elected Delegates at community level, (for this purpose, every local government constitutes a community and we have 774 Local Governments. Delegates (a) will be 774); and

• Elected Interest Groups Delegates (there are 250 interest groups delegates and each will elect a representative to the SNC),

  and such Constitution must be duly authenticated by two-thirds (2/3) Yes votes of the generality of the people (not less than 18 years old) in a Referendum.

• Such Constitution must re-structure a system of government which must ensure that the political, socio-economic, cultural and religious needs of the people become the sole purpose of governance where:

• the people will determine who should govern them and those who govern them are accountable to the people;

• where nobody is treated like a sacred cow and all negative protective mechanisms including immunity have no place;

• where the structure of adjudication i.e. dispensation of justice and access to same are open, equal and quick;

• where institutions for conducting elections are structured in such a way as to engender openness, fairness, equality of representation and participation of all political parties;

• where mechanisms or institutions for combating corruption are established to strengthen the war against corrupt practices whether in the public or private sector so that all corrupt men and women are promptly brought to book through the court process and ostracized from public life forever if found guilty and sentenced to terms of imprisonment; and

• where access to each of the following is also a fundamental right:

• employment and in the absence of employment, then unemployment benefits

• health

• education

• housing

• cheap and nutritious food

• national minimum living wage

• old age care

• security of life and property

• free and fair election

• access by all to justice within a reasonably short time in a court of law (i.e. quick justice).

  I thank you all for your attention.

  
  
  
  CHIEF GANI FAWEHINMI LLD, SAN
  Thursday, June 28, 2007