Dr. Awa Kalu, a Senior Advocate of Nigeria, taught law at the University of Lagos. In this interview with EMMANUEL ONANI, Kalu, who was also a former Abia State Justice Commissioner and Attorney-General, speaks on self-defence and looters’ list, among other issues
A former Minister of Defence recently advocated self-defence in the face of violent attacks. What does the law say about self-defence?
It is not a matter of constitutional law; it is statutory. If you look at the Criminal Code, even the Penal Code, it gives you a right to defend yourself, if there is apprehension of danger.
So, if an armed robber comes to your house, for instance, armed with a gun or machete, what the law says is that, you should defend yourself, provided that the force applied in self-defence, is proportionate to the threat received.
So, if a man comes with a cutlass, and you have a cutlass, you match him. If he has a gun and you have a gun, you won’t wait for him to kill you first; you are entitled to act in self-defence.
So, within the context of the Constitution, you will even see that the Constitution gives you a right to defend your property. If you can defend your property, then there is no reason why you should not defend yourself.
The Federal Government has been releasing what it referred to as ‘looters list’ and this is in spite of the fact that some of the cases are a subject of ongoing litigation. Does this not offend the rule of law?
I will tell you, as a practising lawyer that the law does not allow any individual to take the law into his hands. If you have charged somebody to court, what our constitution says is that you enjoy the presumption of innocence, which is stipulated in the Constitution. That is to say that the person, who has brought the allegation of corruption has the onus – and it’s a very heavy onus – to prove that indeed, you are corrupt.
It is when the court has finished the judicial process and returned a verdict. If the verdict is one of guilt, then whoever wants to make a publication should do so. I believe that publishing names in advance of conviction is provocative and offensive against the rule of law and does not help anybody. Rather, it is a resort to self-help. And self-help is not allowed in law otherwise there will be chaos.
So, if you have taken your matter to court, all that is required is for you to be patient. Even if it’s an arbitration matter you must be patient, for people to look at the facts dispassionately. In the criminal justice system we enjoy in this country, trial by press, which is what has happened, is not allowed; for some to find you guilty in his mind, and then when you are cleared – say by a court of law – then accusing fingers, tongues would start wagging, and that is unsettling.
I think that if we still believe in trial by judicial process, we should allow the paramouncy of the judicial process to reign supreme. If we begin to condemn people individually, that will not work.
Will that amount to foisting a fait accompli on the court?
Partially and our presumption in legal jurisdiction is that every judge is sound enough, mature enough to know what to believe and what not to believe. You don’t allow extraneous information to take over the information supplied on oath because any witness, who is testifying in court, will bring the evidence on oath and your opponent will have the opportunity to cross-examine, to probe, and test the facts that have been brought. But when facts have been put out in the press, it does not help. I must say without equivocation that I don’t believe in trial by press.
Does the National Assembly have the power to legislate on election sequence?
It is an unwarranted controversy. If you look at the Constitution, you will see that the Constitution has vested powers on organs of government because the Constitution created the executive arm, the legislative arm, and the judicial arm. That is very clear in the Constitution.
The same Constitution vests legislative powers on the National Assembly. And the way you know that the argument people are pursuing is useless is that the sequence that they are worried about, is in the Electoral Act itself. The Electora Act is an Act of the National Assembly itself.
So, if there are reasons why the National Assembly wishes to amend, even the Constitution has been amended three times, so, if you amend the Electoral Act, why are you now grumbling? What they need is to build consensus within the political system.
There are two arms of the National Assembly; the Senate and the House of Representatives (360 members of the House of Representatives, 109 of the Senate). And you need a certain majority votes to amend the Electoral Act. If the amendment has come through, the next thing is for them to persuade the president to sign. If the president does not assent, the Constitution also makes provision for overriding the refusal to assent.
That is how I think the controversy should play out not for people to say the National Assembly that made the Act itself cannot amend it. That is wrong. The Constitution makes provision for amending the Constitution itself. If the Constitution can be amended, then it goes without any argument, that the Electoral Act, or any other Act for that matter, can be amended.
But there are those that argue that the Constitution which vested INEC with power to conduct elections ought to be amended first. Do you share this view?
That is based on law. Based on law, INEC is not a law-creating institution; it’s a very simple matter. The INEC is scheduled and created by the Constitution and given responsibility.
That responsibility is to be explained in a piece of legislation. And I think that what is necessary at this stage is for the public or whoever is reading this interview to know that when the 1999 Constitution came into force, the first election that brought Chief Olusegun Obasanjo into office was by virtue of a decree of 1998, which now brought in the administration in 1999. And thereafter, we had the 2001 Electoral Act; that act was lampooned by the Supreme Court and gave birth to the 2002 Act, the 2002 Electoral Act was also faulty.
This gave way to the 2006 Electoral Act. Then another one in 2010, which has been amended a number of times. Why then are we weeping over another amendment, which is not the first amendment to the Electoral Act of 2010? What if they simply repeal the act as they did to the other ones?
I have given you the sequence, and it’s verifiable. What they should do is to build synergy; to come to a compromise on any point. Why is anybody worried about who is elected first? If you see the old philosophical debate, which has not been answered: the hen and the egg, which one came first?
The ICPC is yet to have a substantive chairman for about 10 months now. What does this portend for the agency and the war against corruption?
The fight against corruption is a heavy one and I believe that we should fight a war against corruption; there is no doubt about it. Fight corruption by all legitimate means.
What is your take on the argument that the EFCC Act insulates the chairman from Senate’s clearance or confirmation?
My take is very simple because when Chief Obasanjo established the EFCC Act, he knew how important it was for the Act itself to show transparency. And that is why there is oversight on who should head that agency. Nuhu Ribadu, who was the first chairman, was screened and confirmed and that is a fact. Farida Waziri, who has headed that place, was also screened and confirmed.
Ibrahim Lamorde, who came after Waziri, was also screened and confirmed. So, why is it difficult to confirm the incumbent? That is a question that people should answer. I’m not going to join issues with those who suddenly have realised that there is no need for confirmation. But, that ‘theory’ will not pass constitutional examination.
Does the Constitution permit states to establish security outfits?
The truth is that the kind of federalism we practice is impure. I have no doubt whatsoever, that you can name the Governor of a state Chief security officer of his state and then make him subordinate to some other chief (s). You can’t have two captains in a ship.
So, you designate the Governor as chief executive of a state. You also designate him as chief security officer of his state and then you deprive him of the power to effectively monitor and counter security developments in his state. I believe that those who love Nigeria should find a means of accommodating a security outfit at state level. There is a prevailing argument that governors will abuse that power.
Of course, you have seen over the years, that the federal government has abused police power; there is no doubt about that. Nobody, who is a patriot will deny that. There had been several seminars and symposia, where, even strategies for having a security outfit at state level, cooperating with the police force.
The police force, as a monolith, cannot police this country; no doubt about that. And, I sincerely submit that, within the context of the Constitution, you can find accommodation for the means of preserving law and order.
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