RE: BODY OF SENIOR ADVOCATES OF NIGERIA INC AND OTHER MATTERS By Ademola Adewale Esq.

One of the issues over which the rank and file of legal practitioners in Nigeria is sharply divided is the move by a group of Senior Advocates of Nigeria to register under part C of the company and Allied Matters Act CAMA.

Ever since the attempt came into the open, things seem to have fallen apart amongst Senior Advocates of Nigeria, SAN and Non-SAN and both parties are no longer at ease (Apologies to the great writer Prof Chinua Achebe). So much so that at the last NBA, National Executive Committee NEC meeting in Minna tempers were said to have flared at a stage amongst otherwise learned gentlemen nearly resulting in fisticuffs. The upcoming NEC meeting at Oshogbo, in the state touted to be the source of the descendants of O’odua promises to be no less stormy when the issue comes up once again for discussion.

At the heart of the controversy is the determination of a section of the nation’s Inner Bar to register a social/friendly society of Senior Advocates of Nigeria, an action which they consider merely an expression of her fundamental right to freedom of Association guaranteed by the constitution. The point must however be clearly made that not all SAN’s are in support of this move, although quite naturally none has come out to voice any dissent to the move, while many silks are simply indifferent to the whole episode. They do not see how the registration of such a body will either improve or take away from their standing at the Bar and their ability to corner the juiciest briefs in the land.

But amongst non-SAN of all hues and class, be they Senior, middle age or junior, very rich, modestly rich or down right indigent, the fear of the proposed Body of Senior Advocate of Nigeria, SAN incorporated is very real and the rallying cry against a potential permanent class destination at the Bar contrary to the famed Equality and Oneness of the Bar.
Yet, the fear is neither exaggerated nor misplaced but borne out of the hard reality of the almost complete domination of the profession in recent times by members of the Inner Bar to the detriment of the larger OUTER BAR.

The privileged class of the Inner Bar is of antiquated English Origin just like the Nigerian legal profession itself. The rank known as Queen’s/King’s counsel depending on whether the monarch is a king or Queen is over 500 years old and has been occupied through the ages until present times by some of the greatest legal minds that ever lived, Francis Bacon, was a king’s counsel, John Scott, who became Lord Eldon and played a major role in the development of the principles of Equity was a King’s counsel, Lord Denning in his days at the Bar was a King’s counsel, Quintin Hogg who later became Lord Hailsham of St Marylebone was a Queen’s counsel while at the Bar and most recently the Cherie Booth, who has retained her maiden name for professional purposes, the wife of the immediate past prime Minister of Britain is a Queen’s Counsel.

At the introduction of the legal profession in Nigeria, a few number of Nigerians inspite of stiff British competition became Queen’s Counsel, Q.C, before the title was scrapped in 1963 when Nigeria became a republic. This elite class of lawyers included Chief Rotimi Williams, who was reputed to be the first Nigerian to earn the rank, Chief H.O Davies, Egerton-Shyngle, Oladipo Moore, Dr. Teslim Elias, Chuba Ikeazu G.C.M Onyiake, K. Kotun RA. Fani- Kayode and a few more others.

The rank resurfaced in 1975 with Chief F.R.A Williams being once again the first beneficiary together with (his brother giant both intellectually and in physical size) Dr Nabo Granham-Douglas. This time around the rank had been Nigerianised and re-styled Senior Advocate of Nigeria, SAN.
The award was repeated in 1978 when 13 of the best legal minds Nigeria has ever produced including Chief R.O Akinjide, Chief G.O.K Ajayi Chief Obafemi Awolowo, Mr. Kehinde Sofola, Chief Olisa Chukurah, Pro B.O Nwabueze, Dr. (later justice) A. Nnamani and others.
The awards have been awarded almost every year ever since with about 300 both living and dead having been admitted to the Inner Bar ever since.
Comparatively the rank is still highly coveted and exclusive when one considers that only 300 living and dead lawyers have been elevated to the rank from the fold of about 75,000 living, dead and non-practising lawyers.
In the early days of the award through the exact criteria outside of being “a lawyer of destination of over 10 years at the Bar” was a closely guided secret, the award was almost completely without controversy.
Who could question the inimitable brilliance of the doyen of the Bar Chief F.R.A Williams, the irrepressible doggedness of Mr. Kehinde Sofola (He strongly resisted being designated Chief all through his life), the professional wizardry of the 122/3 legal calculus of Chief Richard Akinjide, the forensic advocacy of Chief G.O.K Ajayi or the intellectual sagacity of Prof. B.O Nwabueze, the advocacy and colourfulness of Mr. H.A Lardner, the dexterity and booming voice of Chief G. C.M Onyiuke, or the eloquence and delivery of Sir Clem Akpamgbo etc.

The undisputed fact is that the Senior Advocates of old were selected solely on merit and the greatest of cynics could not fault their being deserving of the award.

On their own part as masters and leaders of the profession they conducted themselves fittingly: No Senior Advocate of old will lobby for a solicitor brief, no matter how juicy or any brief at all yet no case of national or jurisprudential importance could be decided without their input. Even if merely as Amicus Curiae check out the Impressive List of SAN’s in Abioye V YAkubu (1991) 5NWLR (part 190) 130.
No Senior Advocate of old no matter how brilliant will prepare a brief without an input from a team of juniors. How did the famous Black Table of Chief Williams emerge?

Senior Advocates of old were for the most approachable even to the youngest of lawyers for assistance. About 24 years ago at the premises of the Lagos High Court a group of us Law Student at the Law School accosted the late Chief Williams SAN with our Body of Benchers form, the great man asked for a big chair worthy of his size and a desk, he endorsed not less than 20 forms on that occasion. Who is that modern day SAN who can perform the same act of grace?

In the past when a silk walked into a crowded court room most of them did not think beneath their dignity to invite even very young lawyers to share the Inner Bar with them rather than stand or perch at the back. Many of the old generation Silks would not be offended if the court elects to stand down their contentious matters while running through the list to dispose off non-contentious matters.

Not these days! Most Silk will take strong exception to even lawyers who had been at the Bar almost 20 years before their admission to the Bar sharing the Inner Bar with them simply because the old lawyer has no Silk to his gown. And only the firmest and boldest of judges would dare to run down his list and adjourn non-contentious matters while standing down learned Silk’s case.

Yet, it is this preference for only rights and privileges without responsibilities, this, condescending attitude of We Vs Them”, that is at the heart of the wide gulf of separation that now exists at the Bar between Silks and Non-Silks.

To this strained relationship can be added the growing feeling in some quarters that a sizeable number of awards are now made on extraneous considerations outside of merit.

Silks also as a group, without prejudice to individual dispositions and attitudes, have been carrying on as a law unto themselves arrogating more and more powers and privileges unto themselves well beyond the traditional. Only a Senior Advocate can be Federal Attorney-General, only the SAN can aspire to the post of President of the Bar with a realistic chance of winning, the SAN are permanent members of the NBA NEC, though most of them stay away from meetings, the averages SAN insist in calling his case ahead even members of the Body of Benchers though the latter is the highest body within the NBA, with members invariably older at the Bar than most new generation Silks.

Silks scramble for solicitor briefs contrary to the old rule that upon being elevated to the rank members must be devoted to only advocacy. And as for litigation, their domination of juicy briefs is complete. This domineering attitude has naturally generated much resentment within the legal profession provides the basis for the idea of the registration of the Body of Senior Advocates of Nigeria Incorporated, which many fear justifiably will seal permanently the present strangle-hold on the profession by Silks and perpetuate the division of the profession into thereby destroying the legendary unity of the Bar.

Very senior lawyers who are not Silk recall how they united behind their Nigerian Seniors drive away the expatriate Silks and lawyers and wonder whether they have only succeeded in changing one master for the other, while younger lawyers are not happy about their growing helplessness in a profession where they are increasingly becoming second class citizen with little prospects of improvement in status because of the very low probability of taking Silk – the competition is extremely stiff involving both meritorious and extraneous considerations.

Already extremists from both groups of agitators are calling for the scrapping of the coveted title as the only permanent solution to the rampaging antics of Senior Advocates of Nigeria. This throwing away of the baby with the bath water cannot be a solution to a difficult but not intractable problem. There must still be an objective reward system to which brilliant and diligent advocates can aspire. The challenges are to make system movement based and transparent and occupants of the rank alert not only to their privileges but their first amongst Equal within One Virile Bar.

The proposed Body of Senior Advocates of Nigeria negates that by seeking to create a class of super lawyers who, our immediate experience is anything to go bye will shortly claim to be greater than even the Bar that produced them.

The idea of the Body of Senior Advocates of Nigeria should be immediately and permanently jettisoned in the interest of one united strong and indivisible Nigerian Bar Association.

Ademola A. Adewale
Legal Practitioner

PROF S. A. ORETUYI (1935-2008):THE PASSAGE OF THE GREAT TEACHER By: Ademola A. Adewale Esq.

Products of Great Ife, (former University of Ife and now) Obafemi Awolowo University, Ile-Ife and in the particular context of this article, the law faculty of that great citadel of learning and culture (many a student unable to cope with rigorous academic discipline of the school had mischievously re-styled the second limb of the famous motto "torture") have always been proud, almost arrogant of their Alma Mata and the academic heritage bequeathed to them by their passage through the portals of the Ife law faculty.

One of the great academic Gurus who kept the Ife tradition of academic excellence alive for more than a generation was Prof. Solomon Akinboye Oretuyi LLB (Ife) LLM, PhD (Lond.) who recently passed on.

A great scholar and teacher. Prof Oretuyi taught several areas of the law at both undergraduate and Post-graduate levels. His specialties were Land law with emphasis on Conveyance and Customary Land law and Insurance law.

A natural teacher, he demystified those highly confusing doctrines of English land law and conveyance: Fee simple. Fee simple Absolute, Fee simple Entail, Seisin, Dowager etc which were as awe-inspiring to many of us as students as mathematics remains permanently to all generations of students. His teaching of the law of Insurance, was a must, even though Jurisprudence remained the only compulsory course in the final year for several decades.

However, having taken pains to teach the student the correct things. Prof Oretuyi in typical Ekiti style (no offence intended to the good people of Ekiti) made it very clear that the student deviates at his own peril from the acceptable path. There was the true life episode of a student now lawyer of many years standing who upon being asked in the tutorial class, what is fee simple replied quoting information obviously obtained elsewhere other than from Prof. Oretuyi's lecture. "A bundle of property rights". Prof Oretuyi property retorted "Awe, Am asking you about Fee simple, and in spite of all I have taught you, you are telling me its a bundle of right! Chances are you will fail this paper in June". Those were the days of Almighty June, you fail in one subject you repeat the whole year.

The student in that episode promptly made the necessary adjustment and "saved himself from a certain failure, potential repetition of class, even termination of academic career by the dreaded "Advised to Withdraw" from me school's Senate.

Prof. Oretuyi was reported to be amongst the earliest set of Ife law graduates graduating in the 2nd class upper Division which for a whole generation was the highest class of degree a student could graduate in at Ife until a certain Miss Folusho Aweda broke the jinx by graduating in 1st class a feat she repeated at the law school.

In fact Prof Oretuyi's academic record was reported to be the standard by which all successive graduates were assessed. The story continues that Prof. OretuuPs performance at undergraduate level was in fact worthy of a first class degree but the pioneer lectures of the faculty, may of them renown legal scholars from Oxford and Cambridge were skeptical about awarding a 1st class Honours Degree to an African from a young African University.

In any event. Prof. Oretuyi's 2.1 performance was enough to get a University scholarship to study for both his LLM and PhD at the prestigious University of London in the U. K.

Upon his return to Nigeria, Prof. Oretuyi with other equally eminent scholars such as Prof. D. A. Ijalaye SAN, Late Profs. Okunniga, Odumosu, Iluyonmade, Profs. J.O. Fabunmi, Itse Sagay SAN (many conveniently forget that Prof. Sagay was both student and later Professor at Ife before his short lived and tumultuous stay at Benin), Mr. Abel Emiko, Prof. Olu Adediran, Prof. Akintunde, Eniola, Dr. Surinda Boparai and Dr. (Mrs.) H. Boparai, Prof Esiemokhai, Prof. G. K. Vukor - Quarshie, Mr. Kaiser Bames Prof. (now Justice of the court of Appeal) M. O. Owoade, Prof Anifalaje and others: toiled ceaselessly to make the Ife law faculty the faculty of choice, it was for many years and I believe still is. Profs S. A, Adesanya SAN, C.O. Olawoyin SAN, A. B. Kasumu S.A.N no particular order, were also at various times part of the Ife success story.

Prof. S. A. Oretuyi by dint of hard work rose through the ranks to become Senior Lecturer, Associate Professor, Dean and Professor at various times at Ife. A thorough bred academic, he taught and in some instances served as Dean in many of the law faculties in the South Western part of Nigeria in addition to being visiting Professor at many Universities in the United Kingdom thus enjoyed tremendous goodwill and respect in the academic community. He was also for many years a member of the Editorial Board of the University of Ife Law Report (UILR).

Typical of the old generation of Nigerian academics, he lived a simple even Spartan lifestyle completely devoted to teaching, writing and research. Thus had no inclination towards primitive accumulation of wealth that is now the order of the day sadly even among modem day academics. He probably was worth a post retirement house at his homestead in Ijan-Ekiti or at best two, One in Ado-Ekiti the State capital the other his home town, a big farm which he must have stopped attending to personally save for supervision with the onset of diabetes about a decade ago, libraries and tons of books and research materials.

But a man whose accumulation of Human capital in the last 3 Decades includes Justices S. B. Candide Johnson, H. A. O. Abiru, 0. A. Williams. J. K. O. Oyewole and K Jose of the Lagos State High Court, Justices G. 0. Kolawole, A. Ogie and Babs Kuewumi of the Federal High Court, Justice B. A. Adejumo, President of the National Industrial Court, NIC, Justices Diran Akintola and M. A. Adegbola of the Oyo State High Court, Justice C. I. Akintayo of the Ekiti State High Court, Justice L. C. Azuama of the Imo State High Court, Justice A. Ogunfowora of the Ogun State High Court, Prof. U. A. Kalu SAN, Dr. Konyin Ajayi SAN, Mr. I. A. Adedipe SAN, Mr. N. 0. 0. Oke SAN, YusufAli SAN, Chief A. B. Kalejaye SAN, Mr. Supo Shasore SAN, Mr. Layi Babatunde SAN, Mr. Femi Atoyebi SAN Mr. Seeni Okunloye SAN (Deceased) Chief Chike Chigbue SAN. (Deceased), Olu Daramola SAN, Mr. Dele Adesina SAN, Mr. Obafemi Adewale, Mr. Femi Falana,, Mrs. Roli Craig, Mr. Dave AJetomobi, Mr. Bisi Ade-Ademuwagun, Mr. Steve Kuyuro, Mr. Ade Sanusi, Mr. Dare Akande, Mr. Dele Oloke, Mr. Victor Opara, Prof. Ademola Popoola, Prof Bolaji Owasanoye, Prof. Olawale Ajai, Dr. Lanre Fagbohun Dr. Kole Sodipo, Consulting Guru Leke Aider, Financial Anaylst Opeyemi AgbaJe,' Prof Ademola Yakubu (deceased). Prof O. Akanle, and in fact a whole generation of lawyers including this Writer: was an extremely wealthy man whose passage to the great beyond is worth celebrating. Adieu, Sunre 0. Baba Oretuyi, Great teacher!

Motion on Notice under the High Court of Lagos State Civil Procedures 2004

A Broad Perspective by T.C Njoku Esq.

THE FOI BILL: THE FULL DEBATE. By Ademola A. Adewale

One of the most recurrent issues of national life since the return of civilian democracy in 1999 is the freedom of Information FOI Bill debate. The intensity of the debate wavers from time to time at certain times the debate is very intense like as at the present times, at other times, it fizzles out to almost a whisper.

The right to freedom of expression and the press has been part of the nation’s fundamental human right since the 1979 (2nd Republic) Constitution of the Federal Republic of Nigeria where it was part of the fourth Chapter of that constitution and specifically provided for under section 36 of that constitution. The right to Freedom of Expression was held in many decisions of the short lived 2nd Republic in Okogile V.A.G Lagos State (1981)2NCLR 377 the right to freedom of expression was held to cover all person and organizations, who may or may not have any connection with the press. Thus an institution such as a school set up for the dissemination of knowledge, information and ideas was held to be covered by the right to freedom of expression.

In Tony Momoh V Senate of National Assembly (1981) 1 NCLR 105, it was held that a journalist could not be compelled to disclose his source of information as to compel him to do so runs contrary to his fundamental right to freedom of expression. This principle was followed in the case of Representatives (1982) NCLR 394 and Olushola Oyegbemi V.A.G of the federation. (1982) 3 NCLR 895. The court went so far as to hold that “The purpose of section 36 of the 1979 constitution is not to erect the press into a privileged institution, but it is to protect all persons (including the press) to write and to print as they will and to gather news for such publication without interference. But it does not authorize any person to publish false news”

In the case of Chief Athur Nwakwo V State (1985) 6 NCLR 228, it was held that the law of sedition under section 51 of the Criminal Code derogates from and violates section 36 of the 1979 Constitution which gives the citizen the right to freedom of expression.

The right to freedom of expression like all other fundamental rights were expressly suspended under military rule which resumed on the 31st December 1983 by several constitution (suspension and modification) Supremacy Decrees enacted by each successive military regime. The lowest point in the enforcement of the right to freedom of expression was during the Gen. Muhammadu Buhari military administration ably assisted by his unsmiling Deputy Gen. Tunde Buhari promulgated Decree 4 titled Public Officer (Protection Against False Accusation) Decree of 1984. It was during this period that Messrs Tunde Thompson and Nduka Irabor both then of the Guardian Newspaper Limited were jailed for publishing information embarrassing to the then Government. Even the legal challenge mounted by the Guardian Newspaper Limited and the Nigerian Union of Journalist NUJ in Guardian Newspaper Limited, in cases such as Guardian Newspapers Limited V.A.G Federation, NUJ V A.G Federation, 1&2 reported in Nigerian Law of the Press under the constitution and the Criminal Law of pages C 230, C 256 and C 531 could not assist either of the two journalists from terms of imprisonment as they were both convicted in Federal Republic of Nigeria V Thompson & Irabor (Supra) at 518. Even when subsequent military administrations repealed Decree 4, the enjoyment of the right to Freedom of Expression (Information) was understandably nothing to write about given the predilection of military regime to authoritarianism and despotism. The press and various sections of civil society who attempted to exercise their inalierable right to express information about any matters of public interest were routinely arrested, detained, tortured and in many cases killed, the roll call of these patriotic include but is not limited to Chief Gani Fawehinmi SAN, Dr. Beko Ransome-Kuti, Mr. Femi Falana, Baba Omojola, Kunle Ajibade and several others, while those who paid the supreme price for expressing their opinion included Dele Giwa, Ken Saro-Wiwa, Kalttho Buguda and other martyrs of free speech. The return of Constitutional Democracy in 1999 brought with it the air of liberty and freedom to enjoy in full (within the limits of the law) the citizen’s fundamental including the right to freedom of information.

This atmosphere of liberty has now ignited renewed calls for a freedom of information starting shortly after the return of democracy government. This prompted a freedom of information FOI Bill to be sponsored in the National Assembly which Bill sailed through all legislative hurdles, 1st, 2nd and 3rd reading, committee level, public Hearing and was reaching for presidential Assent before the expiration of President Olusegun Obasanjo tenure. But the immediate past president rather than assent to the FOI Bill cited some minor short comings which needed to be corrected as the reason for withholding his assent to the Bill. This was the situation by the time the Obasanjo administration left and the Umar Yaradua’s administration came into office. By normal legislative procedure, nay Bill not passed into law by a particular legislative session must be commenced afresh from the very beginning - ab initio. However because of the great public interest the Fol Bill has generated the Bill has been fast-tracked under the present legislative session of the National Assembly. It has come up for debate before each of the 2 houses of the National Assembly. The Senate and the House of Representatives with the Fol Bill being shot down in each of the two Houses of the National Assembly in spite of the general impression that most Nigerians including the representatives of the people at National Assembly are in support of the Bill. The reality on the ground rather than the mere appearance is that a lot more or the nation’s leaders are against the Fol Bill than they readily admit in public. They make the politically correct statement that they are in support of the Fol Bill whereas in fact they are against the Bill and working behind the scene to kill it. Or how one explain the fact that while none of our lawmakers and public figures have openly denounced the Bill, it was overwhelmingly shot down at the House of Representatives and in the Senate where it is still on the legislative agenda the various modifications introduced into the Fol Bill, will if eventually passed make the Fol Bill dead on arrival or at best a toothless bull dog. Why? The Fol Bill under consideration:

(i) Permits a public officer from withholding information on grounds of national security.
(ii) Makes punishable, that is criminalizes any information which is false. Re-enacting Decree 4 under a Constitutional Democracy. It is instructive that this clause was proposed by the Senate President himself a retired military officer.
(iii) Requires a citizen who requires information from a public officer or public agency to approach the High Court/Federal High Court within jurisdiction to obtain such information. Is this not worse than the present situation, even where no Fol Act exists? Does an Fol Act containing these provisions in quality as an Fol Law?

THE GREAT DEBATE
Just as is the case with any debate there are two sides to the debate. The proponents of the Fol Bill and the opponents. Incidentally both camps will seem to fall into the two ideological groups that survived the post-cold war era, the progressives and the conservatives, with the proponents of the Fol Bill falling into the progressive camp and their opponents; the conservatives.
To be continued…

THE PROGRESSIVES
The provisions of the Constitution on freedom of information amount to nothing except an Fol Act exists to give light to it and no modern society can progress where citizens have no access to information as to how the nation is being governed by leaders who held power at the pleasure of the people.
Our leaders must realize that they hold power on behalf of the people by virtue of section 14(2) of the Constitution. They must therefore remain accountable to the people at all times by running a transparent system of government where citizens have access to information and can question their leaders actions and inactions including decisions. For so long, our leaders have carried on as being laws unto themselves without any responsibility to those who they are they supposed to serve. While that might have been tolerable under the military it is not at all acceptable in the present constitutional democracy.

The transparency that the Fol Bill guarantees is bulwark against maladministration and profligacy that has been associated with governance in Nigeria till date, which vices have crippled the nation from realizing its full potentials in spite of its over abundant human and material resources. Had a regime of Fol laws been in place and operational earlier the nation will not be in the sorry state it presently is. In fact any talk of fighting corruption will remain still-born as long as government and governance is shrovided in secrecy as the recently administered oath of secrecy by the President on certain members of the presidency.
The sordid tales of corruption, embezzlement of public funds and abuse of public office by public officers will continue to assail our sensibilities so long as an Fol Law does not exist.
Laws such as the official Secrets Act and the Law on seditious publications are colonial relics and have no place in a modern society, where the Fol law prevails. It is antiquated and unprogressive laws such as these, under which public officers hide that continue to provide cover for corrupt public officers to hide. The same also applies to most of the claims in official quarters of national interest and security. Usually these claims are mere cover ups for the shenanigans of self-serving and treasury looting leaders who have no desire to serve no one but their pockets and parochial self-interests. Where citizens including journalists overreach themselves by publishing false information that embarrass government or public officials the laws of libel are more than sufficient to deal with the matter. On the other hand where there is a threat to national security appropriate prosecution in a court of law, which can in one breath promptly check the threat to the nation’s security and in the other breath punish the offender upon conviction.

Nigeria as a signatory to several International treaties and conventions which have since been domesticated under section (2(2) of the constitution is merely paying lip service to its International obligations by refusing to pass Fol legislation. None of the several countries in Europe, America and the models of development that we desperately aspire to, is without an Fol law. The fear in some quarters that the Fol Bill is a journalist crusade meant to make ‘Super Heroes’ of journalist and the media is exaggerated and completely misplaced. The Fol Bill is a citizen’s law meant to guarantee the citizen’s access to information and thereby ensure transparency and accountability in government in the interest of the whole society. The Fol Bill is for all citizens and journalists are only in the vanguard of the crusade being better organized as a group than most other sections of civil society. The Fol Bill is a citizen’s crusade. Yours sincerely is an unrepentant member of the progressive group. But then it is only to listen to the other side-audit a terrain partum

THE CONSERVATIVES
The Fol Bill crusade is nothing short of a journalistic crusade meant to make Super Heroes and Untouchables of journalists and media practitioners. There is no need for the Fol Bill on view of the constitutional provision on freedom of presison and the press under section 39 of the Constitution. The Fol Bill even when passed is a law that will remain permanently inferior to the provisions of the constitution.
The Fol Bill even when passed is a law that will remain permanently inferior to the provisions of the constitution. The constitutional right has been interpreted liberally in the past, in cases such as
Tony Momoh V Senate (Supra)
Adikwu V Federal House of Representatives (Supra)
Oyegbemi V Federal A.G (Supra).
Indeed, in Okogie V A.G Federation, the court held that the constitutional right to freedom of information includes the right to operate schools and educational institutions.
In the last ten years several media houses have been opened all through the length and breath of the nation guaranteeing the citizens rights to reality, many of these houses whether in the print and electronic category in the purported exercise of their constitutional right to freedom of information publish false and damaging information about leadership and government. A classic illustration in the recent incident when a private electronic media house published a false story of the President intention to resign from office which story turned not to be false but caused considerable embarrassment to government.
Even as decided in the celebrated Oyegbemi V AG Federation case (supra) no one has the right to publish false news in exercise of his constitutional right to freedom of expression. Also as decided in Dokunbo Asari V Federal Republic of Nigeria (2007) 5-6SC. 150, the exercise of a citizen’s constitutional right is not absolute.
The issue of national security is particularly sensitive and no exercise of a citizen’s right including the right to public information should jeopardize national security as held in Dohunbo-Asari V F.R.N (supra) at page 183. Human rights of individual rights must be suspended until the National security can be protected or well taken of. This is nothing new. The corporate existence of Nigeria as a united, harmonious, indivisible and indissoluble sovereign nation, is certainly greater than any citizen’s liberty or right. Once the security of this nation is in jeopardy and it survives in pieces rather than in peace, the individual’s liberty or right may not even exist.”

In that regard the official Secrets Act and the Law on seditious libel remain relevant and the need to maintain national security is paramount. These laws and considerations are in fact constitutional under Section 45(1) of the Constitution that requires a citizen’s right to be curtailed by law in the interest of defence, public safety and public order.
Even in those countries where the proponents of the Fol Bill refer to glibly like the U.S.A and United Kingdom, there has been a graphic curtailment of the citizen’s right including the right to information in the face of terrorist attacks like the September 11, 2001 attack in the U.S, and the 7th July 2005 attack on London in the United Kingdom through such laws as the Homeland Security Act and others. Indeed, Nigerian journalists do not need the Fol Bill to practice their investigative journalist by which several scandal and shady deals have been exposed; where was the Fol Bill when the press unearthed:
* The N2.8b oil scandal of 1978
* The $ 12Million Dollars Gulf oil windfall
* The Schneider scandal
* The Etteh-Gate, the present N2.8b House car scam
* and several other numerous scandals.
The Fol Bill is a clever attempt by the journalist parading themselves as speaking for the ordinary people to seek to be all powerful beyond control and should not be accepted.
Thus, the Fol Bill should either be shot down or so watered-down to deny it any potency after all journalism must be practiced with responsibility.

WAY FORWARD
Both camps come to the debate with formidable arguments, but if democracy is to serve the interest of majority of the citizenry who need to see the much touted individual of democracy in their life. If leadership is about service to the people to improve their lot, if leaders must be held accountable to the people if the affairs of the State are to be nun in a transparent manner. If leaders realize that power is transient and is only to be held in trust for the people and not to serve selfish and parochial interest. If we are interested in genuinely fighting corruption and abuse of public office which is the bane of our undevelopment as a nation and not merely pay lip service to the anticorruption – crusade to appear politically correct, then a true Fol Bill not the strawman Fol Bill presently in the Senate.
Indeed, the Nigerian people should reject outright the poisoned chalice of an Fol Bill presently before the Upper Legislative Chamber. To accept the Fol Bill as it is in desperation, will be double jeopardy, it will be on record that there is an Fol Bill in place yet the Bill will directly negate the Fol Crusade.
The concerns about national security is also misplaced in view of Section 36 (4)(a) (b) of the Constitution which allows the court to keep out prejudicial information under the doctrine of State privilege which has been upheld in several cases including R V Administrator of Western Nigeria Exparte Bamgbalu (1962) NRNLR 344 and Moronu V Benwn (1960) NMLR 66. Thus, the issue of national security can be solved by public officers who object to the given of a particular information applying to apply to the court and to the court that it would be adverse to national interest for him to disclose the information requested rather, the other way round as the Fol Bill in the Senate provides.
Finally, it must be under be understood that the Fol Bill is not a media Bill to confer special status on media practitioners but a sovereign people’s Bill to ensure transparency and good governance for the overall development of the nation.

CONSTITUTIONALISM AND THE RE-INVENTION OF THE NIGERIAN STATE (Being the paper presented by Femi Falana at the Gani Fawehinmi Annual Lecture orga

INTRODUCTION
The theme of the 2009 Chief Gani Fawehinmi Annual Lecture/Symposium would seem to suggest that the Ikeja Branch of the Nigerian Bar Association believes that constitutionalism can be a mechanism for re-inventing the Nigerian state. In view of the fact that the National Assembly has, once again, commenced the process o amending certain provisions of the 1999 Constitution this programme could not have come at a more opportune time than now.

However, in my presentation herein I intend to argue that as long as Constitutions are imposed on the Nigeria people, from time to time, by the various factious of the arrogant and visionless ruling class the directionless Nigerian state cannot be re-invented in any meaningful sense. The paper concludes with a call on credible civil society organizations led by the Nigerian Bar Association and the Nigeria Labour Congress to mobilize Nigerians I insist on an inclusive, participatory and transparent process of compacting a new Constitution for the nation.

The Concept of Constitutionalism
In his demystification of constitutionalism Wole Soyinka once maintained that even the so called brutes have a constitution which is unwritten, but clearly understood among the species. However, it is only the homo sapiens which appears to have "constantly adjusted its constitution to changing circumstances and encounters with others. Constitutions are very simply, the protocols of survivals and continuity for any social grouping. The^ need not be written down, though experience dictates that they are much better off set down. The United Kingdom viewed by many ex-British colonials as the model c popular, participatory government sometimes known a democracy does not, till today, boast of a Constitution (Soyinka 2000).
Most lawyers would agree with bourgeois scholars who have defined a constitution as "a formal document having the force of law, by which a society organizes government for itself, defines and limits its power prescribed the relations of its various organs inter se and with the citizen." (Ben Nwabueze, 1973). Apart from being a legal document a constitution is a reflection of t balance of forces in a society. As it cannot exist in vacuo the process of producing a constitution, as well as nature and content are usually influenced by existi social reality.
Constitutionalism has been described as "a process political rules and obligations which bind both governors and the governed, both kings and ordinary citizens. There is no absolute presidents. Constitutionalism is necessity a version of limited government". (Mazrui, 2001). With respect to the chequered experience of Nigeria with constitutionalism it has been observed that under "the various oppressive authoritarian regimes which the country has had the misfortune to chafe under for the greater part of its post colonial history, Nigeria has been treated to a bastardization of constitutionalism and growing impotence of the judiciary in the face of countless acts of impunity, executive lawlessness and economic brigandage by praetorian guards that had imposed themselves on the political landscape of the nation". (Oyebode 2005).

History of Constitution Making in Nigeria
When the British arrived in Nigeria the various city states, clans and emirates had their unwritten constitutions with which they administered their societies the engineering of the various communities into one Nigeria came into existence "through the unification action of the British administration" (Momoh, 2000). It can therefore be stated that modern constitutionalism began in 1914 when Lord Lugard imposed a Constitution on the territory of Nigeria. Other colonial constitutions viz, Clifford (1922), Richards (1946) and Macphenson (1953) were also imposed in like manner. However, the Constitutions of 1960 and 1963 were made by the nationalist ruling elite.
While military dictators - Ironsi, Gowon, Buhari, Babangida and Abacha promulgated and imposed constitutional supremacy decrees for the governance of the country the 1989 and 1995 never saw the light of day. The 1979 and 1999 Constitutions were enacted by Generals Olusegun Obasanjo and Abdulsalami Abubakar respectively for the second and fourth republics. The dubious plan of President Obasanjo in 2001 and 2007 to elongate his tenure through the manipulation of constitutional amendment was rejected by the Nigerian people. Indubitably, only a few countries can beat the record of Nigeria in producing and discarding constitutions.

Constitutionalism and the Rule of Law
Since the powers of government are defined and limited by law governmental actions of the various organs of government are required to be in strict accordance with the law. Therefore, constitutional democracy cannot survive without a strict observance of the rule of law.
Unlike the Olusegun Obasanjo Administration which had gross contempt for the rule of law President Yaradua decided suo motu to make the observance of the rule of law and due process the cornerstone of his government.
Accordingly, government has been commended for complying with the judgments and orders of election petition tribunals.
But like previous regimes the Yaradua Administration has ignored certain court orders or engaged in executive lawlessness in total subversion of the rule of law. In many instances grave economic and financial crimes have been condoned under the pretext of upholding the rule of law.

i. Reconstitution of Councils of Federal Universities
On October 22, 2007 President Yaradua dissolved the governing boards of all federal government parastatals and agencies. The 27 federal universities were affected in the exercise as their governing councils were sacked "with immediate effect". The several demands of the Academic Staff Union of Universities(ASUU) for the reconstitution of the Councils were ignored. In the circumstances ASUU filed an action at the Federal High Court with a view to compelling the federal government to reconstitute the councils.
In its official reaction to the suit the Federal Government has appointed the external members of the councils. But contrary to Section 2 of the Universities (Miscellaneous Provisions) (Amendment) Act, 2003 which provides for six members who shall be "knowledgeable and familiar with the affairs and tradition of the University”,
Government has appointed 10 persons as members of each of the councils. Some of the members have never been associated with the university system!

ii. The case of Malam Nuhu Ribadu
In challenging his demotion from the rank of Assistant Inspector-General of Police to Deputy Commissioner of Police Malam Nuhu Ribadu prayed the Federal High Court to restrain the Police Authorities from imposing any punishment on him pending the determination of the case. In justifying his dismissal from the Police force during the pendency of the case one of the reasons adduced was that he had challenged constituted authority by suing the Police Authorities in the Federal High Court.


Indeed, in a desperate bid to shield certain highly placed Nigerians from prosecution at home and abroad the law has been manipulated by the office of the Attorney- General of the Federation. At this juncture it is pertinent to mention a few cases.
Even under the military era when the rule of law was under the jackboots the courts did not hesitate to set aside dismissals that were carried out when suspension of officers was being challenged in Court. Thus, in the case of Garba v. FRSC (1988) 1 NWLR (PT 71) 449 the Supreme Court ordered the reinstatement of the Appellant who was dismissed while the case against his interdiction was pending in the Lagos High Court. In berating the military junta Eso JSC thundered:

"What remains now is an examination of the act of the Respondents in dismissing the Appellant from office during the pendency of the action.
Such action, I think is contemptuous of the judiciary, which has been seized with determination of civil right under the constitution and which has been left unscathed by all military coups. For the judiciary, a powerful arm of government to operate under the rule of law, full confidence, and this must be unadulterated, must exist in that institution. It must indeed be demonstrable confidence in the judiciary. The responsibility is greater during military rule. The military in coming to power is usually faced with the question as to whether to establish a rule of law or rule force. While the latter could be justifiable a rule of terror, once the path of law is chosen the mighty arm of government, the militia which is an embodiment of legislature and executive must in humility bow to the rule of law this permitted to exist. The rule of law knows no fear, it is never cowed down, it can only be silenced. But once it is not silenced by the only arm that can silence it, it must be accepted in full confidence to be able to justify its existence".

iii. The Political Economy of Nigeria
In rejecting the national honour of the Officer of the Federal Republic (OFR) recently conferred on him by President Yaradua last month Chief Gani Fawehinmi SAN stated inter alia:
“The directionlessness of the Federal Government has been characterized by the following, amongst others: collapsed infrastructure total paralysis of the health sector at all levels, constant nationwide power failure and the attendant negative effects on all sectors of the economy; pervasive unemployment thereby generating increased armed robbery cutting across all ages of our people, debilitating homelessness; retrogressive educational programmes and policies, which have made no Nigerian university to be ranked within the first 500 universities in the world, and no effort is being made by the regime to improve on the humiliating situation".
Since the restoration of civil rule in May 1999 the provisions of the various Appropriation Acts have been observed in their breach by the Federal Government.
Although President Yaradua has been commended for ensuring that unspent funds are returned to the treasury it is submitted that the practice is illegal in as much as the projects for which the funds were appropriated have not been executed. In order to stop such brazen violation' of the Appropriation Act the Nigerian Bar Association should monitor annual budgets to ensure their full implementation so that projects that are designed to improve the quality of life of our poverty stricken people are executed.
Unlike their counterparts in many other countries Nigerian lawyers have not shown any appreciable interest in the management of the national economy. In fact, the issue of political economy is hardly discussed in the gathering of lawyers. In the light of the implications of globalization on legal practice Nigerian lawyers ought to take more than a passing interest in the current crisis of global capitalism.
When the so-called "economic melt down" was officially acknowledged by the governments of leading capitalist countries last year the triumphirate of the Governor of the Central Bank and Ministers of Finance and National Planning informed the National Assembly that the Nigerian economy would not be affected by the crisis of global capitalism. Since then over $7 billion has been withdrawn from local banks by foreigner depositors. The value of the stocks and exchange rate of the naira has continued to crash. The price of oil in the international market has fallen from $147 to $40 per barrel. Any discourse on constitutionalism that does not address the full implications of global capitalism on the neo-colonial economy of Nigeria may amount to empty rhetorics.
Instead of admitting like President George Bush that "we are all in this together" the Nigerian ruling class is yet to admit the gross mismanagement of the economy. Even the economic team belatedly constituted by the President two days ago has terms of reference that are essentially anchored on discarded neo-liberal theories. The challenge before Nigerians is to ensure that the economy of Nigeria is run in the interest of the country. As Olorode recently pointed out:

"Ruling classes of the metropolises and their peripheries are now using large chunks of public funds to, as they put it, bail out' corporate organizations which, they insist as a theology, were driving growth and development. While the catechism of capitalism in the last two decades insists on withdrawal of public funds from public welfare (education, health, housing etc), they are now deploying these same resources to clean up the havocs created by the corruption and greed of their class. Some commentators call it policy reversal; we call it policy reinforcement". (Olorode, 2007.)

The on-going devaluation of the national currency by the discredited apostles of market forces has been attributed to the crisis in the global economy. But a concerned Nigerian has reminded the National Assembly of the fact that "in the oppressive days of General Abacha, when Nigeria was a pariah nation in the comity of Nations, our total reserve base was $4 billion which was barely enough for five months' imports demand cover, and yet our exchange rate remained stable at N80/$l".

iv. The Jos Crisis
In November last year Nigerians joined the rest of the world in celebrating the historic victory of Mr. Barrack Obama as the 44th President of the United States of
America. Even the PDP, the largest conglomeration of election riggers in Africa joined in the celebrations. But the euphoria had hardly died down when the PDP government in Plateau State declared that it had won all the chairmanship and councillorship seats in the local government election held in December, 2008.

The misdirected violence that greeted the subversion of the democratic process assumed an ethno-religious colouration. But for the presidential order stopping the swearing in of the "winners" of the controversial election the violence would have spread to other states through reprisal attacks. As was the case in the recent past the mindless destruction of lives and property has been put behind us as religious leaders have appealed to the people to "forgive and forget".

Having forgiven and forgotten such violent attacks on innocent people in several parts of the country. Apart from the direct military invasion of Odi and Zaki Biam ordered by President Olusegun Obasanjo the "do or die" elections of 2003 and 2007 which claimed scores of lives over 20,000 people have been killed under the PDP-led government in the last decade. In the case of Jos it is clear that the Government cannot, on account of political expediency, get to the root of the matter.
The Plateau State and the Federal Governments have set up two panels headed by Prince Bola Ajibola SAN and General Emmanuel Abisoye respectively. Both Chambers of the National Assembly have also announced plans to investigate the crisis. The Nigeria Police Force has since commenced investigation into the crisis. The Plateau State government has challenged the power of the Federal Government to investigate the crisis at the Supreme Court. Meanwhile, indigenes and "foreigners", Christians and Moslems have pitched their tents with either the federal government or the Plateau government. Without prejudice to the positions of the feuding parties.

It is the constitutional duty of the Police to investigate the serious criminal offences of murder, arson, willful damage to property etc and prosecute all the culprits. Instead of usurping the powers of the Police in the circumstances the federal and state governments should dissolve their panels and assist the police in carrying out a thorough investigation of the criminal activities and the prosecution of those who are involved in such genocidal attack on innocent people. In Military Governor of Imo State & Anor v. Chief Nwauwa (1997) 2 NWLR (PT 490) 695 at 706 the Supreme Court (Per Iguh JSC) held:

“It is well settled that once a person is accused of the commission of criminal offence, he must only be tried by a court of law established under the Constitution where the complaints of his prosecutors can be ventilated in public in accordance with the law and where his constitutional right of fair hearing would be assured. No other tribunal, investigating panel or committee will do. See Dr. O.G. Sofekun v. Chief N.O.A Akinyemi and others (1981) 2 NWLR 135; (1980) 5-7 SC 1 at 18, Denloye v. Medical and Dental Practitioners Disciplinary Committee (1968) 1 All NLR 306, Federal Civil Service Commission v. J.O. Laoye (1989) 2 NWLR (PT 106) 652. Accordingly, the panel was incompetent to 'try’, as it were, the Respondent and to find him ‘guilty’ on any criminal charges. The determination of the guilt or innocence of any person accused of the commission of a criminal offence is within the exclusive Jurisdiction of a court of law constituted in the manner prescribed under the Constitution of the Federal Republic of Nigeria, 1979. it seems to me that what the State Governments should have done was to refer the criminal allegations of misappropriation of sundry public funds to the Nigeria Police for investigation and prosecution if necessary but not to vest the panel with any authority to deal with the same"

In the last 10 years three judicial and administrative panels had investigated similar carnage in Jos. But the government was unable to release the reports talk less of implementing the recommendations due to political expediency. To the extent that the killings in Jos have always been targeted against specific ethnic and religious groups they fall under the category of crimes against humanity. Convinced that the crisis was going to be swept under the carpet once again, I was compelled to advise the Federal Government to invite the Special Prosecutor of the International Criminal Court to conduct an enquiry into the pogrom in Jos and prosecute those indicted.
Since Nigeria which is a signatory to the Rome Statute is "unwilling or unable genuinely to prosecute" the criminal suspects this appears to be the only way out of the conundrum in which the government has found itself.

v. Credible Elections
In a critical review of the several judicial authorities on the 2003 General Elections Professor Ben Nwabueze lamented the fact that the Nigerian courts including the Supreme Court had cast themselves "in the image of aides and abetters of rigging”.
Convinced that fraudulent election results would hardly be set aside by the courts Obasanjo declared that the 2007 General Election was "a do or die affair". Following the wholesale fraud and unprecedented violence that characterized the election I had urged the election petition tribunals to jettison the highly technical and restrictive interpretation of the electoral laws and guidelines had tended to promote electoral malpractice in Nigeria;".
Regrettably, majority of election petitions were dismissed on the ground that they were not proved beyond reasonable doubt. In Osunbor v. Oshiomole (unreported) the Court of Appeal upheld the decision of the election petition tribunal that the Edo State governorship election was won by Comrade Adams Oshiomole. It was view of the Court that the petition was proved on the balance of probability.
Instead of endorsing the progressive trend the Supreme Court stunned the nation when it held that the Appellant in_Buhari v. Yaradua (unreported) Suit No: SC: 51/2008 failed to produce sufficient evidence to prove the petition before the Court of Appeal. Pray, what other evidence was the Appellant required to produce when it was established that the ballot papers used for the election were not serialized as required by law?
In his epochal dissenting judgment Oguntade JSC vehemently maintained that the non-serialization of ballot papers vitiated the entire presidential election. In his lordship's words:
"The result is that each of the candidates at the Presidential Elections 2007 scored zero or no votes. An invalid ballot paper cannot yield a valid vote. Clearly therefore^ the petitioner/appellant in view succeeded in making the case
that the non compliance with Section 45(1) of the elections Act, 2007 substantially affected the result of the election. Let me reiterate very respectfully that the lower court erred by not coming to the conclusion that each of the candidates at the election scored zero as no valid votes were recorded for any of them."
However, in dismissing the Petition Niki Tobi JSC who read the leading judgment of the court stated:
“Nigeria is one vast and huge country made up of so many diversities in terms of tribes, cultures, sociology, anthropology and above all, quite a number of political parties (some large, some small). These diversities, coupled with the usual aggressiveness of Nigerians arising particularly from the do or die behaviour in politics; there must be irregularities".
This is an unfortunate statement having regard to the successful conduct of credible elections in Ghana in December 2008. Nigerians who have been commending the maturity of political class in Ghana should note that riggers of election in that country do not enjoy immunity from prosecution, I strongly believe that genuine electoral reforms should start with the prosecution of those who committed sundry criminal offences during the 2007 General Election. Investigation of allegations of electoral malfeasance has been concluded by the Police. The report has been submitted to the INEC as required by the law. I have it on good authority that INEC has been directed from above to stay action on the plan to file criminal charges against election riggers.

vi. Immunity or Impunity
President Yaradua is currently championing a campaign for the removal of the immunity clause from the Constitution. In making a case for the retention of Section 308(1) of the Constitution some public commentators have given the erroneous impression that absolute immunity exists under the law. No doubt the issuance or service of legal processes on the President, Vice President, Governors and Deputy Governors is prohibited by the Constitution. But in a number of cases it has been held that the immunity clause cannot be invoked with respect to the prosecution of election petitions in order to ensure the credibility of elections in the country.
I had argued that such exception be extended to cases of corruption as the menace of corruption has been said to be the greatest impediment to the development of the country. This demand is anchored on Section 308(2) of the Constitution which provides that the immunity clause shall not apply to civil proceedings against any person covered by Section 308(1) "m his official capacity or to civil or criminal proceedings in which such a person is only a nominal party".
Furthermore, Section 52 of the ICPC has empowered the Chief Justice of Nigeria to appoint an independent counsel to investigate allegations of corruption made against the President, Vice President, Governors and Deputy Governors. An independent counsel who shall be a legal practitioner of not less than 15 years standing shall investigate the allegation and make a report of the findings to the National Assembly, or State House of Assembly as the case may be. Even though the ICPC has submitted not less than 25 applications to the office of the Chief Justice of Nigeria no independent counsel has been appointed since the law became operational in June 2000.
As if that is not enough the Court of Appeal has held, rather curiously, that "the Code of Conduct Tribunal has no power or jurisdiction to hear and determine allegations
of contravention of any of the provisions of the Code of Conduct Bureau and Tribunal Act or as contained in the Fifth Schedule to the Constitution of the Federal Republic of Nigeria, 1999 against a President, Vice President, Governor or Deputy Governor, while his tenure of office subsists". See AG, Federation v. Atiku Abubakar (2007) 8 NWLR (PT 1035) 117 at 155.
With respect, the decision cannot stand having regard to the fact that complaints of infraction of the Code of Conduct for public officers such as failure to declare assets, operation of foreign accounts or conflict of interest cannot be classified as criminal charges. In view of Part II of the Fifth Schedule to the Constitution which has listed "^ public officers including the President, Vice President, Governors and Deputy Governors for the purpose of the Code of Conduct ex-president Olusegun Obasanjo has raised a preliminary objection to the writ of mandamus to have him brought to justice before the Code of Conduct Tribunal to justify the primitive accumulation of wealth by him during his 8-year presidency. The basis of his objection is that is no longer a public officer.
In the case of James Ibori v. Federal Republic of Nigeria (unreported) the Court of Appeal held that every accused person should be charged where an offence has been committed. Since the Federal High Court has only one Jurisdiction which is exercisable throughout the federation it is hoped that the EFCC will appeal against the curious decision. Otherwise, the security of judges, prosecutors, lawyers and witnesses may be endangered if some federal offences like treason, terrorism, money laundering etc are prosecuted in the villages of accused persons. In any case, I have just requested the Chief Judge of the Federal High Court to discontinue the trial of Mr. Henry Okah in the Jos Division of the Federal High Court on the ground that none of the elements of the 62- count charge took place within the vicinity of Jos, Plateau State.

Having regard to the practice of renting crowds to disrupt court proceedings by influential accused persons in Nigeria the Court of Appeal may have unwillingly frustrated the prosecution of certain persons in the country.

vii. On the New Constitution
A critical examination of the history of constitution making in Nigeria reveals that the Nigerian people have never been afforded the opportunity to exercise their sovereign power of producing a constitution. In a move which smacks of arrogance on the part of the ruling class both Chambers of the National Assembly have constituted a Joint Committee for the Review of the 1999 Constitution. Even though the Committee has not commenced the assignment President Yaradua was reported to have proposed a review of a few provisions of the Constitution. On their own part different functions of the ruling class are making a case for new states, fiscal federalism, state police etc.
It is indisputable that the Nigerian people and their organizations are being deliberately excluded from the process of packaging a view constitution for the nation. No doubt the crises in the polity can be resolved through adherence to constitutionalism. In other words, the Nigerian State which is expected to be built on the principles of participatory democracy and social justice can be re-invented through constitutionalism.
When President Obasanjo set up a Technical Committee to review the Constitution it was observed that "such arrogance of power and disrespect for popular will simply widen the already wide gap between the state and civil society, and between the government and the governed. It is not surprising therefore, that imposed and elite-driven constitutions in post-colonial Africa have never enjoyed widespread acceptability. This lack of acceptability mediates its utility as a veritable weapon to be deployed in the defence of the democratic project. If nothing else, the diversity of approaches to remaking constitutions require some articulation of basic principles and mechanisms of constitution-making in order to establish minimum standards by which we can measure past, present and future exercises". (November 2000).
Once a constitution review is hijacked and made the business of the elite it is bound to fail. This has been the experience of Nigerians under successive regimes that excluded the people and their organizations from constitution making. Therefore, in order to bull legitimacy around the constitution the process of constitution making has to be transparent, all inclusive and participatory.
Apart from the unanimous verdict of local and international observers to the effect that the 2007 General Election was highly flawed President Yaradua has equally admitted that the exercise was devoid of credibility. To that extent the current members of the National Assembly cannot be said to have the genuine mandate of the Nigerian people to review the Constitution. Inorder to guarantee maximum participation this time around, the government should convene a Sovereign National Conference consisting of accredited representatives of all interest groups including the National Assembly. It should be pointed out that the sovereign nature of the conference is to ensure that the outcome is not manipulated by the government but subjected to a referendum for its ratification by the Nigerian people.

References
Abubakar Momoh, The History And Politics of Constitution Making in Nigeria (1922-1999) in Segun Jegede (ed), Path to Peoples Constitution, CDHR 2000

Akin Oyebode, Law and Nation-Building in Nigeria Selected Essays, Alamtex Printers, Lagos, 2005 P. 126) Page 60)

Akin Oyebode, Law and Nation-Building in Nigeria, Selected Essays, Alamtex Printers, Lagos, 2005.

Fawehinmi Gani: Press Statement on The Published National Honour of Officer of the Order of the Federal Republic (OFR) on me dated December 15, 2008.

Femi Falana, 2009 TELL Magazine, January 9, 2009 P.35).

Femi Falana, The Electoral Act 2006 - Practice, Rules and Case Law: Which Way Nigeria? In www.ruleswatch.org 2007

Mazrui, Ali, Constitutional Change and Cultural Engineering: Africa's Search for New Directions in Constitutionalism in Africa in J. Oloka-Onyango, Fountain Publishers, Kampala, Uganda, 2001.

Nwabueze, B.O., HOW PRESIDENT OBASANJO SUBVERTED THE RULE OF LAW AND DEMOCRACY, Gold Press Ltd, Ibadan, Nigeria, 2007

Nwabueze B.O., Constitutionalism in the Emergent States, London Hurs and CO, 1973

WELCOME ADDRESS BY THE CHAIRMAN OF THE NIGERIAN BAR ASSOCIATION, IKEJA BRANCH OF THE OCCASION OF 5™ CHIEF GANI FAWEHINMI ANNUAL LECTURES ON 15TH JANUA

The Chairman of the great occasion, milord Honourable Justice Salihu Modibo Alfa Belgore, the immediate past Chief Justice of Nigeria, the Hon. Minister for Information and Telecommunication, Prof. Dora Akunyili, milords Honourable Justices of the Court of Appeal, Lagos division, milords Honourable Judges of the High Court of Lagos State here present, your Honours, the president of the Nigerian Bar Association, Mr. Rotimi Akeredolu SAN, all members of NBA NEC, Learned Senior Advocates here present, Chairman and executive members of branches of NBA in Lagos State and beyond, my learned colleagues, gentlemen of the Press, distinguished ladies and gentlemen.

It is my great honour and pleasure to welcome you all to this epoch making event designed and articulated to celebrate the apostle of change, the voice of the voiceless, the defender of the orphans and the oppressed, the dogged, unrepentant and consistent human, civil, political and economic rights crusader, the greatest of them all.

The man we are celebrating today is of the belief that Nigeria has no business with poverty, disease and illiteracy, considering the enormous resources God had bestowed upon us as a nation. This belief, he has pursued with unusual courage and commitment even at the risk of his life. His courage has earned him the fame he enjoys today.
What then is courage? Courage is;

• Confronting the dragons
• Overcoming the obstacles
• Understanding risks
• Really living
• Always believing
• Going the distance
• Expecting the best

You will agree with me that Chief Fawehinmi SAN has all these attributes.
Talking further on courage, Martin Luther King Jr. said:
"Courage faces fear and thereby masters it. Cowardice represses fear and is thereby mastered by it. Courageous men never lose zest for living even though their life situation is zestless; coward men overwhelmed by the uncertainties of life lose the will to live"
What distinguished Gani from his contemporaries was his unusual courage/ he was never known to have chickened out when the chips were down. No wonder Keshavan Nair said:
"with courage you will dare to take risks, have the strength to be compassionate and the wisdom to be humble. Courage is the foundation of integrity"

No wonder Gani is endowed with the following attributes: compassion, humility, and integrity.
Gani is not only known for his consistent, courageous and radical beliefs, the legal profession was privileged to enjoy the products of his industry as evidenced in his various law publications particularly the Nigerian Weekly Law Reports, before the advent of the NWLR, only few Legal Practitioners enjoyed the privilege of having the latest decisions of appellate courts in Nigeria. Gani blazed the trail of liberalization and deregulation of law reporting in Nigeria.

The virtues aforestated made the flagship of the Nigerian Bar, NBA Ikeja to resolve to immortalize Gani with this annual lectures, Symposia series, I am proud to say that I was part of the team that designed and executed the 1st Chief Gani Fawehinmi Lectures in 2005 and has remained part to date.
The rationales behind the instituting of this programme are basically:

1. To demonstrate that consistency in fighting for and on the side of the people pays.

2. To encourage the generation next to make sacrifices for their nation with Chief Fawehinmi as a worthy example,
3. To propagate what Gani stands for, i.e, the ideals of Fawehinmiism.
4. To show Nigerians the contenders and the pretenders in the struggle to liberate the nation from shackles of extreme poverty, misrule and cycle of under-development.
Chief Fawehinmi has been consistent and vocal on national issues inspite of ill health and has won several awards both at home and abroad. How far has Nigeria been able to implement the Cam's ideals is for all to judge e.g
1. Has there been free and fair election at all levels of government?
2. Has the natural resources of Nigeria been used for the overall benefit of the people?
3. Has there been strict adherence to rule of law?
4. Does our country consider merit above mediocrity?
5. How serious and consistent are we in our battle against corruption?
6. Any hope for the poor in the face of mass unemployment, constant power how has our education system fared?
These are some of the questions we should be asking ourselves, because these questions summarise what Gani has been fighting for.
In rounding up, I wish to express our heartfelt appreciation to our guests today from Milord the Chairman who is retired but not tired Honourable Justice SMA Belgore, Prof. Dora Akunyili, the amazon with a common touch, we wish you well in your new posting, our own Femi Falana my big brother, my learned senior Mrs. Ayo Obe who accepted our invitation first via text messages; milord Rhodes-Vivour JCA, milord Judges of the Lagos State High Court, and other eminent personalities here present, may the Lord continue to preserve, promote and provide for you all.
Above all, I wish to thank the Almighty God for making today a reality.

Once again I welcome you all to the celebration of this great son of Africa, spokesman for the oppressed, defender of the defenceless, friend of the wretched of the earth, terror to treasury looters and executive lawlessness.

Thank you all.