Chief Malcolm Richard Omirhobo, is a Lagos-based constitutional lawyer. He once dragged the Central Bank of Nigeria to court for inscribing Arabic on the Nigerian currency.
In this interview with Olalekan Awojodu, he delves on a wide range of issues like judiciary reforms, anti-graft war, unbundling of the Supreme Court, police brutality, rights violation and where the #ENDSARS protesters got it wrong.
There has been endless agitation on whether or not the Supreme Court should be unbundled as a way of decongesting case files, what is your take?
Let me start by saying that I am hundred percent in support of the unbundling of the Supreme Court of Nigeria. For me, the basic problem at the apex court has been the inability of the Supreme Court justices and the administration officers to perform their duties diligently.
Imagine people queueing up to have a date at the Supreme Court, I mean parties in matters get 2023 or 2024 date, about four years to this time. For me, that is unacceptable and it is just so sad.
Even though the government just appointed eight Supreme Court judges recently, I still insist that laziness on the part of the administrative officers of the apex courts and the judges has not helped matters at all.
Did you know that this has been the style since former CJN Walter Onnoghens time? Yes, they are politicizing it. However, the system for me is still okay if they now make up their minds to be up and doing.
But then it would be better if each region has its own Supreme Court and, I can assure you, we would be done with cases and file congestion at the apex court.
I mean why did it take so long for the federal government to appoint Supreme Court judges in the first place? So, whether they unbundle the apex court or not, if the court workers and the judges did what they are supposed to do, I do not think there would be congestion of cases the way it is now. Nevertheless, it is best if it is unbundled or decentralized.
Cuts in….. What shape should it take?
I think each region should have its own Supreme Court but with a caveat. Or if there is a way they can structure it probably, they could still keep the same structure such that while the central Supreme Court handles constitutional matters, issues between governments and all that while others will make do with land and other lesser matters like that and it then terminates there.
By doing so, the main Supreme Court would have its own area of specialization and other cases would terminate at regional level.
The restructuring question has continued to crop up in our polity and it has now become an endless argument, what is the place of the constitution here going forward?
Well, the place of the constitution is that as it stands today, we don’t have a people’s constitution. The constitution that we have was the one that was handed down by the military government.
The constitution right now even though it reads we the people, the people in that context did not we anything. And the earlier we get out of this delusion the better.
I have always said that the only constitution we had that is autonomous was the 1963 constitution which did not have the input of the white men, the military or any other influence at that. The people of Nigeria came together to discuss their future as a republican nation.
I think that is the only constitution that we really have. And if you look at it, you would discover that each region had autonomy.
Did you know that each region before had their own constitution, coat of arms and even anthems, coupled with a lot of other things that made them to be autonomous and competitive.
From their resources then, a certain amount goes to them as owner while the central government also had its own share.
Just as we have the Zamfara gold now, whatever they wish to do with it should not be anyone’s business. All they need do is pay certain percentages to the centre government says 20% and keep 80% in that proportion.
Sadly, the competition is no longer there. What we have now is everyone going to the centre to bring in money and start allocating. That is not good enough.
We claim to practice federalism in Nigeria but in reality what we practice is Unitarianism because everything is centre to the central government that is why we are where we are today.
Today we are in a crisis as a country. Apart from the insurgent’s war, the #ENDSARS riot just shook the nation to its foundation, Is your constituency, the Nigerian Bar Association still playing its agenda setting role?
I would not know per se. We have a new President and I would not speak for him or his government but give them the benefit of doubt to see what they are working out.
Truth is, things are happening so fast and I think they should also move at that pace. Although their response lately was not a bad one, things are so complex now that you need to carry out a comprehensive investigation as an individual or institution before apportioning blames.
But in all am still not comfortable with their roles. Nevertheless, some of us are watching to see how things unfold.
If for instance some of the arrested protesters are arraigned as threatened by the government and the NBA did not wade in as expected, then some of us will come in and we will do the needful.
Before now, I have vowed to offer free legal service to anyone whose account was closed by the government, anyone who was arrested or arraigned for protesting in the #Endsars protest or looting of palliatives. Please get it right, I won’t extend such gestures to those who looted people’s properties and those that destroyed people’s properties, for me that was criminal.
Prison congestion is still a problem in the country, are you comfortable with the current reform as championed by this government?
With the new Criminal Procedure Act, if followed to the letter, you would discover that there is a provision for the magistrate to visit the prisons and prison facilities in the country every month.
In carrying out this responsibility, the Magistrate has the power to discharge and acquit anyone that is unduly detained. And in so doing, the facilities would be decongested.
But in all of this, there should also be a general reorientation for the police in the country. There should also be reformation.
There are some cases that are mere trump up charges which should ordinarily not get to court, but because of lack of training on their part, they come up with all manners of frivolous cases and they justify it. Imagine somebody being charged to court for robbery for not being able to bail himself.
Protest is a global culture if I am right? Why is the #ENDSARS scenario different, is protest now a crime?
Protest is not a crime. But, let me explain to you what we are failing to realize as far as this #ENDSARS scenario is concerned.
On Arise TV sometimes in October, I address the youth to stop the protest adducing some reasons and their approach to the whole thing.
I even went as far as doing an advert on the social media given them the rules of protesting, more like an audio visual advice on how to go about the protest but it did not go anywhere.
Now, let me tell you some things about protest. This thing called protest is a three way traffic thing. We have the rights of the state, the rights of protesting citizens and the rights of citizens not protesting.
What I have always said is that the protesters must know that their rights stops where the rights of others begin. For instance, the protesters are not supposed to block the roads, obstruct pedestrians, block traffic flows or be violent or loot. Looting is not part of protest.
Now, you could see that the constitution gives the rights to protest under freedom of speech, movement and association.
Do you also know that these rights can be derogated, limited or restricted by that same constitution? Yes, because it is not an absolute right.
In a nutshell, let me say here that we don’t have the culture of protest in Nigeria. What we have here is a culture of riot which is archaic.
Government has the right to also restrict you. Even the right to life which was given by the constitution can also be taken by the state if you want to destroy or kill other people while protesting.
It is mandated by the constitution and it would be justified because they have the statutory rights to ensure peace and tranquility in the country.
So, in this context, I am not saying the #Endsars protesters were completely violent, but they were wrong in blocking the roads and even the toll gates. The moment they did that, they have violated the law.
At that moment the government has the right not to go and kill them with live bullets but to remove them from there in order to protect the rights, properties and interests of those not protesting.
The crux of the whole thing has been brutality, impunity, misconduct and rights violation which I think must stop.
The police IG have over the years refused to treat petitions that have been submitted by Nigerians. The police helmsman is not in charge and has encouraged impunity by not allowing victims to get justice.
What is your take on the anti graft war?
The anti graft war has failed. No one has faith in it again. Imagine Orji Uzor Kalu being convicted by the court and the Supreme Court technically discharged and acquitted him and the same government has failed to re-arraign him months after. The exercise is selective and a mere witch hunting. They have lost focus.