He was Attorney-General and Commissioner for Justice in the administration of James Onanefe Ibori, the second civilian governor of Delta State from 1999 to 2007. Today, Amos Agbe Utuama, Senior Advocate of Nigeria, SAN, is the deputy governor of Delta State. In this interview with the TELL team of Adekunbi Ero, executive editor, Tony Manuaka, senior associate editor, Tony Akaeze, senior assistant editor, Stella Sawyerr, associate editorand Adewale Adelola, photo journalist, Utuama who has been part of the democratic journey since the past 15 years, thanked God “and the spirit of Nigerians for sustaining democracy for this long”. He says democracy had been tested and sustained in Delta State positing that “Delta State has done very well within these 15 years. Ibori laid the foundation upon which Uduaghan’s administration is building”.
Given the events that led to the military handover of power in 1999 – the arrest of Chief Moshood Abiola during the regime of General Sani Abacha and later his death under the General Abdulsalami Abubakar administration which ushered in the transition to civil rule programme – do you think that Nigerians were really convinced that democracy was here to stay?
Yes, when you think about the antecedents and in particular the free and fair elections in 1993 which most Nigerians, and indeed the world over, adjudged to be the best elections this country had conducted, and the whole world, including Nigeria, was expecting that a winner will be declared; of course, when the election was annulled, that took away, as far as I am concerned, the sympathy of the Nigerian people from the military. People were angry; the audacity of the military to annul their democratic effort, and of course, as you rightly know, various groups immediately emerged to oppose the military stay in government and the foremost of these groups was NADECO. They never had any rest and that forced out the military president then, and installed Ernest Shonekan and Shonekan’s government was the weakest government ever put in place because it lacked legitimacy. Almost every newspaper was filled with criticism of that government. They were heavily against Shonekan’s interim government. Shonekan was later pushed aside and Abacha came in, but there was no respite.
The Pope later visited Nigeria and although we didn’t know what the Pope discussed with Abacha, the general feeling then was that the Pope advised Abacha to step down and conduct elections and return the country to constitutional democracy. That didn’t happen until Abacha died. When he died, I thought that a way was being paved for Chief Abiola to be sworn in. I don’t want to go into circumstances that led to his death; but then, Abdulsalami came on board as the head of state. He was wise in the sense that he quickly drew up a programme of disengagement for the military. So, when you look at the history; history of adversity, history of rejection of the military regime in Nigeria, one was sure that the time for democracy was ripe for Nigeria. So, I am not surprised that for the first time, Nigeria is having a constitutional democracy for an uninterrupted period of 15 years.
And of course, there was also the globalisation effect of democracy. Every country was now embracing democracy and military rule became obsolete, out of fashion. And given all these scenarios, one was convinced that democracy had come to stay. But having said that, people were still sceptical. You find that not many people really came forward to contest the elections in 1999. We thank God and we thank the spirit of Nigerians for sustaining democracy for this long.
Between when we began the democracy journey and now, what would you say had been achieved specifically in Delta State?
Well, I think this country has known more peace. The daily agitations we used to have against the military are gone and there is greater commitment to development all over the country. Governments are becoming more accountable than before and the spirit of competition has become more robust. Each time I travel out of Delta State to other states, I see development springing up. And in Delta State, much has been achieved and we can look at it from various perspectives. First, from the point of view of fiscal federalism which is key to the development of this country; once we cannot entrench a viable principle of fiscal federalism, forget it. What do I mean by that? Now, we have a federation, as the 1999 constitution tells us. We have in place, 37 constitutional governments. That is, the federal government and the 36 state governments. Because we are running a federation that is two-tier, although people make the mistake of thinking that local government is the third tier of government in our federation. No, local government is established by state law, so it doesn’t derive directly from the constitution, that’s why I said 37 governments. Now, the revenue of the nation is supposed to be shared or distributed among the 37 governments, and through the state governments to the local governments. During the military, nobody was sure what was coming into the federation as revenue, I wasn’t sure. I didn’t know what was coming to my state, I didn’t know what was coming to my local government, and that was why we had stunted growth. But, from the point of view of Delta State, when we came on board, by March 2000, maybe because of my experience as a lawyer, I knew what the issues were. We found that the federal government was not being fair in allocation of revenue to the state and the governor then, Chief James Ibori said we needed to do something about this and he quickly met with governors from the South-south and canvassed the need for true federalism and true fiscal federalism. The agitation was, first, the 13 per cent derivation must be implemented because it was not being implemented when we came in. To cut a long story short, the federal government itself, because of the agitation, and to halt the agitation, went to Supreme Court, asking that the Supreme Court define and demarcate the seaward boundary of the littoral states. I think they were ten, those of the South-south and Lagos State, for the purpose of sharing the derivation money. Of course the Supreme Court gave judgment that the seaward, the low water mark, is the boundary of littoral states. The Federal Government went on to start implementing; it enacted this onshore and offshore dichotomy for that purpose. But, the sum total was that they began to implement the 13 per cent derivation. But we moved further as a state to say no, there are some of these first line charges that are being levied against the federation account; namely ecological fund, NNPC joint venture, payment of judiciary, payment of allocation to Abuja, Federal Capital, withholding of our short stamp duty, all those type of things, we lumped it as part of our counter-claim which succeeded. So, that automatically released more money to Delta State and all others concerned. So, you will find in Delta state, as in most other states that we have moved very much from where we were before the military handover. We now have a constitutional framework upon which governance is driven, both at the federal and at the state levels. That’s a very major thing because, how do you practice democracy without a constitution? How do you practice federalism without defined roles? We are not quite there in terms of the very essence of federalism because the exclusive list of the federal government is too large. They have 68 items in the exclusive list, then 30 items in the concurrent list from which both the federal government and the state can legislate. So, in effect, they have 98; they are covering the entire field in the sense that if a state legislates say on education which is concurrent and federal government legislates on the same subject and there’s inconsistency between the state law and the federal law, the federal law, by the Act, will prevail, and to that extent, the state law is null and void. So, how do you have a federation where there needs to be a government of equal power, independent of each other, and one government has the power to cover the entire field to the exclusion of all the others, so to speak, and where the state government can only legislate exclusively on residual matters? Of course, that cannot work. So, that’s why I say we are not yet there. But, everybody now knows that what we describe as a federal constitution of the republic of Nigeria is not federal; it’s a constitutional constitution And you ask yourself, can a unitary constitution sustain this country, the answer is no. We have rejected that one long time ago. In 1966 when Aguiyi-Ironsi took over power, he said Nigeria wanted unity, he declared Nigeria a unitary state and abolished the regions and they became provinces, and what happened to him? He was killed, assassinated, and war ensued. So we have rejected that one violently, very violently and very costly too. And yet we have a constitution, which is a unitary constitution wrapped in federal constitution. It can’t work, and that’s why you have ambiguity and constant quarrel between the federal and state governments.
To that extent, what do you expect from the ongoing National Conference?
That’s the point. If you look at the position of the Southern delegates, they are asking for more money to be given to the states, for power devolution. The Northern delegates, from what I read in the newspapers, are saying that there are no states, that the states are mere administrative units or whatever, that the present situation should remain, that the status quo be maintained. They know that what we have is not a federal system of government. So you now ask yourself: why did the British colonial masters decide to give us a federal constitution? The answer is clear. Nigeria is a multi-ethnic society. It has a multi-religious people and the only constitution that can hold this type of people together, all over the world, is a federal constitution. That’s what they gave to us in the 1954 Littleton Constitution. At independence in 1960, we continued with it. In 1963 Republican Convention we continued with it. Although it wasn’t a perfect system, you find that much was gained during that time – the regions were strong; the regions were very strong. And they were able to undertake people-oriented projects for the benefit of their people. You found in the western region where we were part of, there was free education; and many people benefited from it; I benefited from it. That was the kind of people-oriented policy. In the North, they focused on agriculture to produce the groundnut and hide and skin for which the North was famous, and they, of course, established Ahmadu Bello University, Zaria. All these were very good programmes. Of course, the West established University of Ife. In the East, they concentrated on the production of oil palms and of course established University of Nigeria, Nsukka, which today is still thriving. And you also found that in the Western region, because of Awo’s (Obafemi Awolowo) vision, we were the first to have a television station. So, much was gained under that arrangement, even though it may not have been perfect. At that time, people were not interested in the centre. It’s the attraction of the centre that is pulling this country down. Everybody wants to preside over the affairs of Nigeria from the centre because it controls over half of the wealth of the nation; 52 per cent of the revenue is for the federal government. The remaining 36 state governments and 774 local governments share the rest and yet it is the state that is nearer to the people. One of the reasons for creating states was to make them focal points of development and yet they are being underfunded. So we have this challenge. But within this financial constraint, Delta State, as far as I’m concerned, has done very well within these 15 years. I don’t know where you people were in 1999. When the former governor, James Ibori, invited me to join his government, I said I wasn’t coming; because I said, how am I going to get to Asaba since there’s no airport? Even if I got to Benin, how am I going to get to my destination? But that question now, nobody can ask it again because there’s a viable airport in Asaba. Even if that’s the only thing that this state has got, it’s worth it. But people want more. When I came to Asaba in 1999, this was not the Asaba I came to; it was bush, real bush. But today, Asaba is one of the fastest growing urban centres, with good roads, light and houses. What brought it about? Is it not democracy, is it not good governance? It is. When I came to Asaba in 1999, there were not more than five banks. Within government circles, we had no more than 20 cars. At that time, we didn’t have quarters, we were living in a hotel and the five-star hotel then was Mike White. But all of that are things of the past now. Asaba today has so many good hotels and offices. Today we have more than 15 banks in Asaba and a flyover is coming up. Then go to the Warri area. Flyovers are coming up. Those are signs of development. In specific terms, roads are being built, our schools are being renovated; the health sector has been revamped. Delta State didn’t have a teaching hospital before; people forget so soon; we now have a teaching hospital in Oghara, one of the best, where kidney transplant is being done. Now, a pregnant woman in Delta receives free medical care; and as soon as a child is born, and up to the age of five, he receives free medical care. And from the age of six when he’s entering Primary School, it’s free education. For the University, you have bursary and scholarship. For the bright ones who are able to make first class, there’s automatic scholarship to do higher degrees to Ph.D. in any university in the world. These were not available in the 35 years of military rule. Much is going on now for people who can take advantage of them. Also, we are now beginning to grow entrepreneurs in order to enlarge the economy. During the military, nobody was thinking this way.
Since 1999, Delta State like other states in the country has gone through series of elections. How would you say democracy has been tested in this state given the outcomes of such elections?
Well, democracy has been tested and sustained in Delta State. You will appreciate that we belong to the set of states where election results have been litigated fiercely, from back to back. It was only in one situation that the election was nullified and there was miscarriage of justice. That was in 2010 and it was the election involving Governor Uduaghan and myself. What did the court of appeal do to nullify it? The court of appeal misconceived the applicable law relating to burden of proof because the basic law of evidence or proof is that he who alleges bears the burden of proof. If you say something is not, you are to tell us why it is not; if you say something is something, you are to tell us why it is something. It’s not for that person against whom you are alleging to prove. We put our case forward in line with our understanding of the law but the court of appeal, Benin said no, we bore the burden of proof and that’s how it overturned our election. But of course, when we went back for re-run, Deltans spoke again and we came back. And that principle of law placing the burden of proof on us that led to the nullification by the appeal court had been reversed by the Supreme Court which said no, that’s a very novel procedure. You asked whether election has been tested. The only legal way of knowing whether election process had been tested or not is by judicial assessment of each election and pronouncing whether the election was conducted with substantial compliance with laid down rules. So, democracy has taken roots in Delta State in general. There might be some issues here and there like any other state where elections are nullified but all are a process of testing the validity of the procedure through which someone came to be elected or not elected.
You were part of the Ibori administration as attorney-general and commissioner for justice. How would you describe the Ibori years in the development of Delta State?
One thing I know of that government, the first cabinet of ten commissioners, is that it was a very purposeful, well-focused cabinet. And when Ibori came in, he wanted to do three things. (I can say so, not that he told me): defining the principles of federalism, which to a large extent, the Supreme Court defined; because we were always in court – I, as attorney-general, Lagos State’s Professor Yomi Osinbajo and Awa Kalu of Abia State. He did that. Then, there were no roads in Delta State. He undertook the building of roads all over the place. There was no connection between the land and the riverine areas; he built unity bridges. That’s how Bomadi Bridge came into being; that was how Omadino Bridge came into being; that was how Olomu Bridge came into being and of course the Trans-Warri Bridge now that is ongoing. And he was also very interested in ensuring that there was electricity in every part of the state, including the riverine areas. It is on record that his administration was the first to extend public electricity to any Ijaw community. He did it before Bayelsa could even attempt it. Another area he was very interested in was to develop the locals, Deltans, a body of Deltans who we could use to construct roads and houses because at that time, the only company that was constructing roads in Delta State was Inter Bau. The owner of Inter Bau is not from Delta. He said no, we must encourage Deltans, empower them, we must expose them through contracts. Then he introduced the idea of mobilisation. They didn’t have money, he said okay, give them mobilisation. When you award contract to a Deltan, give them mobilisation. That was how a pool of Deltans ventured into the construction and building industries and even supplies. So, he was interested in empowering Deltans; he was interested in building roads and he was interested in electricity. So, he did those, and I believe, one day, history will record for him what is due to him. He did a lot. He laid the foundation upon which Uduaghan’s administration is building. One big advantage we are enjoying in Delta State is that of continuity. Uduaghan was in the government for eight years; I was in the government for eight years. We knew the workings of government; we knew the strength and weaknesses of the state; we knew the direction to go. For instance the airport in Asaba, he started it; it’s not original to us. His government was building an airstrip; he acquired a piece of land in that place now, to serve as an airstrip instead of going to Benin or Enugu to board a plane. He wanted to build an airstrip, like Osubi, so that, at least, smaller planes can come in. But then he couldn’t do it. Then we now decided to embark on it. Thank God we changed the concept; we enlarged it from an airstrip to international airport. But the gem started from him; the same thing with the new Government House. He started it with Costain. Costain couldn’t perform, even after being mobilised. Then we came and we decided to use a local contractor. So, I think he played his part.
You have worked for two administrations in the state. Do you see yourself a fulfilled man?
Well, I’m fulfilled to the extent that I’ve tasted government and I have a full appreciation of the workings of government. You know, I was in the classroom for 17 years and when you talk, they will say, classroom talk. So, by next year, I would have spent 16 years in public office. So I’m richer for it. And to that extent, I feel fulfilled. I can talk about government and I can talk about academics. I can tell you the good things in government and also the bad things in government. I can also tell you the good things in academics and the bad things in academics; I can tell you the merit of practice and the demerit of practice in that environment. So I am globally grounded and I just thank God for the opportunity He has given to me to serve and to acquire this pool of knowledge. So what I will do with it, I believe that God will also tell me.
2015 is around the corner. How serious is APC’s threat to your party, the PDP at the national level?
To me, looking at the APC and people involved, I don’t see the party going too far. The only agenda I think they have is to replace PDP. They have not come to say that they will do it better than PDP but that they must stop PDP. And each of them, as I see them, wants to be the arrowhead of that process of termination. So when you have people who are pursuing their personal agenda but have decided to come together in the name of something but really know in their hearts that this is what they want, they are already acting in conflict with each other’s interest. To me, while not underrating their capacity for some opposition, I do not see them going far because they are strange bedfellows.
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