Honourable Justice S.O. Uwaifo CON is a retired justice of the Supreme Court of Nigeria. KEHINDE OYETIMI provides excerpts of an interaction with him at his residence in Benin where he touched on certain aspects of the nation’s constitution.

YOU have been an active member of the nation’s judiciary. What would be your assessment of the peculiarities of the constitution?
The Nigerian constitution, as it stands at the moment though a Federal Constitution, has failed the test of true federalism. The states do not have enough autonomy. This is because the constitution is quasi-unitary in some aspects. The Independence Constitution was more federal. Look at the situation, for example, in the USA, Canada and Australia. At independence apart from the constitution of the Federal Republic of Nigeria, the states had their own constitutions. It is true they were only three states then, and later four with the creation of Midwest State. The fact that we now have 36 states should make no difference. An easy way out is to take the six zones with which we are now familiar and frame six constitutions in addition to the Federal Constitution. Let every zone develop at its own pace.

Did the National Assembly do INEC any good by agreeing to extend the conduct of elections to April next year?
It was the most practical and commendable step by the National Assembly to extend the time for INEC. If that had not been done, it would have caused INEC almost insumountable difficulty.

The delay in the dispensation of judgement in the Tribunals and the Appeal Court. Who should be blamed, the judiciary or INEC?
It is too early to trust that candidates who lose elections will not want to have the result tested in court. It therefore appears to be in bad taste that declared winners are sworn into office while election petitions are being fought in court. We have seen what has happened recently that after almost completing a tenure, the court nullified the election results that kept particular incumbents in office. Neither the judiciary nor INEC is to blame. The system is to blame for flawed elections and flawed modalities for challeneging them.

Given our peculiarity, how can electoral petitions be concluded before swearing-in?
In order to be able to conclude election petitions before swearing-in, relevant aspects of the constitution should be amended to empower the National Assembly to enact law that can put a time frame to each step in the election petition proceedings. At the moment, the law applicable makes it inevitable for election petitions to drag till doom’s day. For instance, sections 233, 241, 294 (1) and 285 as well as the relevant aspect of section 36(1) of the constitution must be appropriately amended as they may reflect on, or affect election petitions.

Once this is done, the Electoral Act can then be properly and constitutionally enchanced to curtail time to conclude election petitions.

Subsection (2) of the Electoral Act 2010 states that “An election tribunal shall deliver its judgment in writing within 180 days from the date of the filing of the petition” while subsection (4) of the same Act states that “The court in all appeals from election tribunals may adopt the practice of first giving its decision and reserving the reasons thereto for the decision to a later date.” What are the implications of these provisions on the judiciary?
From what I read in section 134 of the Electoral Act 2010, the National Assembly has acted ultra vires against the balance of relevant power and authority of the three arms of government as provided and envisaged under constitution as it stands. The National Assembly cannot direct the judiciary on how to perform its duties as it tended to do under the said section 134.

As Justice of the federation, which parts of the constitution would you want amended and why?
I have already mentioned some necessary amendents in regard to election petitions. I will rather prefer a revisit to the constitution as a whole. This cannot be done by the National Assembly. They have no authority to give us a new constitution. About 100 or more amendments once canvassed are alarming. The US constitution of over 200 years has less than 20 amendements. A new structure of constitution must be by Constituent Assembly. A new constitution is desirable in order to have a true federalism. The six zones should have their individual constitutions. There should be a full complement of the judiciary in every zone up to its Supreme Court (or whatever name). Federal courts will still be there up to the Supreme Court of Nigeria. That Supreme court will be mostly concerned with constitutional issues. Wheras the full complement of the Judiciary in each zone will deal with ordinary matters, some of which are peculiar to each zone. When a constitutional issue arises, it should be finally settled in the Supreme Court of Nigeria (as the only constitutional court of finality).

Professor Bolaji Akinyemi stated that the legislative arm should make October 1 the handover date. He equally said that between May 29 and October 1, 2011, the administration of Nigeria should be given to the Chief Justice of Nigeria and the states to their respective chief judges. How democratic is this?
Professor Bolaji Akinyemi is a first grade scholar and a reliable public analyst. I think the suggestion he made on the handover to October 1 was done in good faith. I support the shifting to October 1. That day means a lot to us—our independence and sovereignty can be traced to October 1. I do not see why May 29 should be a thing of so much value when we have October 1 as the real democratic day for us. I support Akinyemi’s stand.

But the question on whether to hand over in the four-month’s interim to judges cannot really be supported by our constitution. Again, I will say that Professor Akinyemi is someone who feels so strongly for Nigeria. In the face of a difficult situation, he had to suggest that. Instead of handing over to the chief judge of Nigeria and the chief judges of the respective states, we can think of how to amend Section 64, 105, 135 and make it wider than it provided for at the moment. It has only provided for circumstances of war. There can be circumstances of natural disasters.

We have found cases of individuals prosecuted for financial crimes but through plea-bargain got very light punishments in respect to the severity of their crimes. Does this approach by the constitution not celebrate criminality?
I have not taken time to search for it in the constitution. But if it is there, it is most unfair. Instead of dealing with a person who confiscates billions of public funds, send him to appropriate jail term. In America, if a commercial crime is committed, the term of imprisonment is always made long. At times, 150 years because if you commit such a crime against the state, many people would be put into difficulty. If it is in the constitution, it should be removed or not practised at all.