Agbakoba (SAN)

Foremost maritime lawyer and former president of the Nigerian Bar Association (NBA), Mr. Olisa Agbakoba, SAN, has identified Nigeria’s inability to evolve a trade policy as being responsible for its ability to compete favourably with its peers on the global market.

Agbakoba who shared his views on the controversial $9 billion award against Nigeria in favour of an Irish engineering firm, Process & Industrial Development Limited (P&ID) by a British Business & Property Court, among other burning issues in the polity in this interview with BusinessHallmark’s editor, OKEY ONYENWEAKU and senior political correspondent, OBINNA EZUGWU, noted that unless Nigeria wakes up and takes trade seriously, more P&ID will happen.

In the light of the P&ID contract scandal you have called for a national arbitration policy. Is it not medicine after death? Wouldn’t the first thing be to tighten contract processes?

No, it’s an old question of trade. When people talk about arbitration, it’s only an element in a large picture called trade policy. The reason most countries are very concerned about trade is that, trade is what makes them to develop. In Nigeria, we have no trade policy. We are a dumping ground; everything comes in, there is no value added. It’s either we are exporting without value or importing without value. It’s not surprising that we are like this. Trade policy is taken very seriously by countries that think, which is why Donald Trump is at war with China. He understands that there is a trade imbalance between China and the US. So, there are all kinds of trade mechanisms.

Nigeria is disadvantaged in the sense that a lot of our trade policies were inherited and nobody has bothered to review them. If the trade policies are inherited from the past and not in our favour then we can’t grow the economy. One example is Erisco who is one of the largest tomato paste makers. He has more than N6 billion worth of tomato paste warehoused. He can’t sell because if he is selling at a price that he can make profit, the price at which China imports into Nigeria is cheaper. So people will buy the Chinese but not his own. In a country that takes trade serious, you would have a trade remedial process whereby the trade remedial office has a lot of information on international trade.

So, Erisco is here doing his tomato at the local price. Somebody is bringing in from China. The man who is bringing in from China is enjoying 50 percent subsidy grant from his government. So, if Erisco is going to sell at N5,000 for profit, the Chinese can sell at N2,000. What you do therefore, is to issue a trade remedial process so that when the man comes into Nigeria, you impose a trade tariff to protect your local industry. This is on the side of remedies.

On the side of arbitration, two countries will go into a bilateral trade deal, for instance, Nigeria and the UK. The details of the trade should be spelt out. But what they do, which we don’t look at carefully, is that they insert into the bilateral treaty, an arbitration scheme that says that in the event of dispute, we are going to America or the UK. And our people here often don’t look at it, they sign off. Let me take you through hydrocarbons.
Hydrocarbons are what give us 90 percent of our revenue. Not until about two years ago, all disputes in NNPC are settled in Paris or UK. So, we have been wasting a lot of money. It is just that the P&ID contract shook everybody.

These trade policies are non issues, but in Nigeria, it is only when we have a problem that we realise what we should have done. I am the second vice president of the Chartered Institute of Arbitrators and we have been crying that we can’t be going to the UK to do arbitration. For instance, to use a bad example, we can’t be going to the UK for arbitration on a Nigerian farmland. When we go there, typically you find that you are the only black person. The witnesses are from Nigeria. There was one we did in which they denied the witnesses visas, so we had to the witness by Skype. Why is it that our arbitration agreements require us to go to foreign countries to settle disputes? That is why we need a national arbitration policy. We should examine and review all the relevant issues.

Now that the P&ID case has come, I understand that the president is going to issue an executive order, which is good. But it’s an old issue and I’m sure that you will be shocked to know the loss we suffer in terms of revenue flight. We would have employed lawyers, surveyors. Sometimes in the maritime field, you might have a disagreement between a ship owner and the owner of the goods over all kinds of ethical things. We don’t have to leave here and take all our witnesses abroad. I think the Nigerian arbitration market should be worth more than a trillion naira.

You pointed out that why we don’t seem to be able to get things right in Nigeria is because we lack leadership. Some have argued that it’s the structure that we have to get right…?

You may have the best structure, but with bad leadership you still can’t get anything done. If those who are the political elite, and I’m not sure they are more than 100,000, are not able ready to do the right things, then we keep having the challenges. The structure is part of leadership. Any good leader would have seen that the structure doesn’t work and that it would be important to revisit it. Unfortunately, none of our leaders have had the courage to say I need a new structure to lead effectively. All that they have done is to give lip service.

It goes back to the military. It started with IBB (Ibrahim Babangida); the Dasuki report of 1985. (Sani) Abacha came and did his own. He did his constituent assembly and his constitutional conference. He was kicked out. Of course, Murtala Mohammed did his, which led to the 1978 constitution. (Olusegun) Obasanjo did his; (Goodluck) Jonathan did his own. But we are still here. I think that if Jonathan really meant it, why didn’t he do it early enough? So, we need a leader who is committed; a leader who will say that Nigeria is in such a way that it can’t work and that we need to work on the system. Some call it restructuring. I don’t like that word because if you want to change the structure of Nigeria, you need everyone to agree.

Unfortunately, the North has a different view of it and the South cannot change the structure by itself. I have always advocated that we must take into account the concerns of the North and start with the low hanging fruits. We don’t need to have national conference or sovereign national conference to do this. Tell the Northern governors that they need to direct their security. Why would they want the Inspector General of Police to do that for them? Why should there be a federal agency directing you as a state governor on what to do? No governor has ever controlled the river ports in his state. So, it is just an avenue for corruption. Since the Onitsha river port was built as the contribution of Alex Ekwueme at the time he was vice president, not a single ship has come there. Yet, the ports in Lagos are chocked. So, why don’t you simply remodel the process so that everybody is included? Why are the Eastern ports lying fallow while the ports here are congested and we are losing billions of naira as a result? This is why you need good leadership.

Could the problem be a lack of national vision? Again, because here we are talking about how dire the economic situation in the country is, but the leadership appears to be more concerned with Ruga and Livestock Plan?

That is the summary of Chinua Achebe’s book. And when I read that book, which is just about 80 pages, it is so appropriate. You have a head of the family who, every new year calls his wife and children, makes a resolution to begin to do the right things. But at the end of the day, it is just talks. He ends up doing exactly the same things. The trouble with Nigeria remains that of leadership. When there is no leader, then everyone does what he wants. There is no organization without a leadership issue. When I was reading about the Nigeria and South Africa issues and how we should respond, I had to ask myself, how many businesses do we have in South Africa? None!

But here they have over twenty. I don’t agree that we should start closing them down, but it shows you that South Africa is a country that has trade policy. Again, the reason Brexit is so difficult is trade. The Europeans don’t want the British to go because they feel that they are inside the trading circle. The British want to go believing it is in their favour, which I don’t see. But they now want to retain a trade relationship. They want the Irish backstop, but the Irish don’t want the backstop. If there is no backstop, the English are totally isolated. It means that they will be importing and exporting.

The issue of the backstop has taken two Prime Ministers, and it will take the third one. The shame of it is that we don’t have any rudiment of understanding of what a trade policy is. If we had a solid trade policy, the South East would have been cramped with cottage industries. We would have been a massive export nation. That’s the challenge of leadership, the fact that trade policy is not understood. It has become topical merely because of this judgment. Once the judgment passes, we will forget about it.

Talking about the South East, you now have growing agitations there. There is IPOB, MASSOB and so on. What is the challenge and how can it be resolved?

The challenge of the South East is the challenge of Nigeria. The South East is not a very big place. When I ran for NBA president, I discovered that it was easy to campaign. You could tour the South East in a few hours. That’s why I’m against Biafra, even though I understand the soul of the Igbo is Biafra, just as I understand the soul of the Yoruba to be Afenifere, not AD or Action Congress, which is why (Bola) Tinubu has deliberately maligned Afenifere.

The missing link of the South East is in the establishment and reconnection of the Igbo spirit with the Nigerian one that was dislocated during the war. I’m not interested in the story of who was right or wrong, but the fact is that the South East, wittingly or unwittingly, has not returned into the Nigerian experiment. So, there has been this frustration as expressed by IPOB and MASSOB. But if they understand the issues well, they will see that the South East is trapped. What we need is the political space to get our economy going. If I was in the South East discussion, I would press for what is commonly called restructure. We need that space. And there are all sorts of things. Many years ago I talked about the maritime super-highway so that the South East is fully connected, because if we are not able to move around, then you can’t do much.

I know that when Willie Obiano came in as governor of Anambra, he had a meeting with the Nnewi business men. There are about 20 or 30 Nnewi men who can produce N20 trillion. They can say OK, since you guys don’t want us, we will stay on our own. These are guys that can fund the Nigerian budget for two years. But I don’t understand why there is no synergy between the business community and the government. Why can’t we decide, for example, that these private business men should take the Enugu-Onitsha Expressway, build it and toll it? The road has never been finished, right from my school days in 1971. The other day I was going for an Ohanaeze meeting in Enugu, the road is in terrible shape. That’s the state of the economy of a region that has arguably the highest number of self-made billionaires; not government contracts. Some don’t even know the way to Abuja, it’s by their hands. They can impact on Nigeria GDP. But nobody is calling them.

So they are happy to stay and make their money. But making money is only up to a point. I don’t know of any of them who can drive two cars at a time or sleep in two beds at a time. So, the money is wasting. Many of them can decide – because in that meeting with the governor, they were unable to agree on how to assist in the development – they can decide just like Bill and Melinda Gates, to contribute N40 billion to good courses. Others will join them and contribute the little they have. That’s what is happening in America. We have billionaires from the East who can build hospitals and so on. But if there is no synergy, they will say OK, there is no need.

So as much as we could say there is a failure of leadership in Nigeria, there is also a failure of leadership specifically in the South East?

No, the failure of leadership in Nigeria cascades down; it affects everything. If the Nigerian leadership structure understood how to free up the potential, then you will identify the strengths of each region. How, for instance, can we have the kind of terrain we have in the North and we are importing food? How can that be? I was born in the North. If you go from Abuja to Jos, the land is so fertile, it can produce anything. In fact, Jos is so fertile that they even named a street potato street. There are some countries in Europe, all they are doing is planting tomato, pineapple, groundnuts – that’s all. So, in the North, we can have food basket. In the South West, we can have industry. Each of the regions has its own specialisation. But the centre, unfortunately, hasn’t allowed states that freedom. So, we are all in this huge confusion.

What’s your position on the Waterways Bill?

It depends on where you are coming from. If you see the bill as political, then you will say but why give land to the federal government? But it goes back to leadership. Why should a leader not see that the person closest to the land should exploit it? Why would the federal government wish to own land in Ikoyi? The only reason is that these were crown lands bequeathed to the colonial government of Lagos by Her Majesty, the Queen. But that’s a long time ago. What is the federal government doing in Lagos? Nothing! If I were a leader, I would allow Lagos State to take its land. I don’t need Ikoyi, I don’t need Apapa. Lagos will develop it better.

All these ideas about creating federal highways bill so that all federal highways belong to the federal government doesn’t make sense. What they now argue is that because a road is connecting Onitsha and Enugu it becomes a federal road. A good leader should promote economic zones. The zones can have interstate relationships so that many things need not be duplicated. The federal government shouldn’t own anything. It should own policy. Federal government should not own business.

I once went with my late sister from Enugu who looked after me when I was detained in Enugu prison. When I came out, I encouraged her to become a lawyer and they were denying her promotion. I went with her to the prison headquarters in Abuja and I was shocked. I got tired of counting how many people wearing epaulette. Ideally, if you are wearing epaulette, you should have a state command. But there are only 36 states. So they were all packed in Abuja. These are the men who would never agree that they should remove prisons from the exclusive list to the states.

Apart from Sowore, I don’t know how many prisoners the federal government has. Let’s say ten. So, how do they justify the N10 billion every year? That one should go to the states. Then you have drivers’ license. It’s another thing that the federal government has no business issuing. It’s a matter of states. Another is marriage certificate. What is the business of federal government with marriage certificate? It’s a local thing. So, you can see that with a good leader, the leader will be telling himself, you know we don’t have money to do all these, so Mr. Budget Minister, bring me a budget that reduces my power. What are the states doing? Why is it that they are all in Abuja? It means that they are not busy enough.

So, are there any items of power in the constitution I can devolve to them? That’s what a good leader should do. That way, you balance out the federation. When you balance out the federation, you put responsibilities on the heads of the state governments and the local governments so that they don’t have to wait for handouts. Can you imagine if every local government in Nigeria produces something? We won’t be in this rot.

You are a past president of NBA. The legal profession in Nigeria has come under serious criticism, especially as concerns the removal of Walter Onnoghen. Are you concerned?

Yes, I am. But as I have said, all I can do is go to court. I felt Onnoghen was improperly removed. I’m not concerned with whether or not he was corrupt. But if he was corrupt, there is a process. The process was not followed. When I was arguing the decision before the NJC panel, I made that clear to them that if a CJN can be removed like that none of you here is safe. Again, it gets back to leadership. There was a lecture I delivered sometime this year. It was titled “Strong Institutions or Strong Men.” I took the view, at the beginning of the lecture, that it is strong institutions but not strong men. But I came out convinced that we need both. We need a strong leader but the leader must follow the institutions. The institution will control him.

Look at all the noise that Boris Johnson has been making, he has been defeated by the institution. Donald Trump, despite all his noise, the American institutions keep him in check. He would do wrong things at the border, the court will overturn it. But here, there is no restraint. It is what Professor Ben Nwabueze has referred to as the notion of an unlimited government. When a government is unlimited, it can do anything.

Governor Nasir El-Rufai recently kicked against rotational presidency. What is your position on rotational presidency?

The thing about rotational presidency is that it has become political and it has become tainted. I’m not too sure that I have an answer, but if we had proper institutions, there would be an opportunity for several different smaller presidents. The problem is that the president we have now is actually president of the 36 states. I am not particular about Buhari. Any Nigerian president can do whatever he likes. He can withhold your money. Obasanjo did it. So, everybody now feels that unless I’m Nigerian president all other things are irrelevant.

El-Rufai is suggesting that we have never agreed on rotational presidency. He cited Obasanjo, correctly. He broke the agreement. He cited Jonathan correctly, who broke the agreement. So, I think it is for Nigerians to decide the kind of system they should run. The way things are, we have simply surrendered our fate to about 2,000 men who decide for us. What about the 200 million Nigerians? Don’t they have a say? I don’t care whether it is rotated. If the man who is coming in is a good material, I don’t mind whether he is Hausa, Igbo, Yoruba or anyone. The issue remains that we need a good leader.

The Petroleum Industry Governance Bill has become an albatross. What is really the challenge?

The whole thing still boils down to leadership. It came up during the national conference and there were different views. We then said that there are many issues in Nigeria that are contentious, but we can’t resolve all our problems in one day. Even the American constitution continues to be amended. You now have up to the 5th amendment. Why should we amend the constitution wholesale? I suggested then that whatever problems we have; let’s look at it bit by bit.

So we now have up to 4th amendment and I think we can keep going. Natural resources will continue to be an issue because there are three players. The North, the South, excluding the Niger Delta, and the Niger Delta. Niger Delta believes that they should get all. They say, because the land is ours. But I don’t think that is practicable. The North will be slow to allow a reformed PIGB that makes the inefficiencies of NNPC to disappear for some obvious reasons. So, it’s bogged down by politics.

Again, you need a leader who truly recognises that the national interest is higher than any of the sectional interests. It’s just like Ruga. There is nothing wrong with Ruga per say. There has always been Ruga in the North. But the problem is when you now want to impose it on people who say they don’t want it. Again, why must we have everything controlled from the central?

Sahara Reporters publisher, Sowore has been in detention. A lot of people are drawing parallels between what is happening now and what happened in the Abacha days. As someone who was actively involved in the agitations against the military, is it Deja vu?

No, because the actors are different. As I said earlier, the actors during the days of military dictatorships were the soldiers on one side, us on the other side. It was an unpardonable sin to be seen associating with the soldiers. You just couldn’t try it. When Beko Ransome-Kuti was freed by Ernest Shonekan because he was detained by IBB, who also took my passports all the top guys were in prison. Beko was in prison, Gani Fawehinmi was in prison, Femi Falana was in prison. So I was the one coordinating. When Shonekan came and I was invited to go to Sweden for the Nobel Peace Prize, but I didn’t have my passports.

So he said do I mind asking Shonekan to return my passports? I said why not? He went to Shonekan and he returned it willingly. In fact, it was the first time in the history of Nigeria that the SSS would return someone’s passports to his house. The rules then were very clear. But even though Shonekan is maligned, he did a lot of good things. He released Beko and so one day Beko passed Aguda House where he was staying to greet him. The civil rights movement split into two: Campaign for Democracy and Democratic Alternative. Those who felt that he had committed a crime left and formed their own group. But how could he have committed a crime by just going to say hello to the man who released him; who was also his classmate?

I tell this story to emphasis how we took exception to any form of association with the military. But today, it’s different. Today is not ruled by the ethos that drove us. So, when the government does things that sound similar, you have to ask who is with me? In those days I could say, yes, these are my boys. Now, I can’t. The one who I think is with me is probably a government agent and is passing information. So, that’s the difference. Again, ethnicity has set in. And that’s what has made it very difficult. It doesn’t sound like Deja vu, it’s just a shame that our movement has lost steam.

Is ethnicity and religion also responsible?

Obviously! But that’s unfortunate because the politicians who, as I said, are less than 100,000. Out of that 100,000, less than a thousand take the real decisions. And when they are deciding things in Abuja, the language that they speak is not Yoruba, Igbo or Hausa. It’s the language of money, which they all understand. For me, as an active member of the human rights movement, what saddens me is the decimation of the values that we had. The conduct of people in power has been the same since the 60s, but the response from the people is now different.

You have attained great heights in your chosen career. For a young Nigerian, such as my son who is 13, who wants to attain the heights you have attained. What does he need to do?

He should have an early consciousness of what it is he wants to do. And he should develop in his consciousness, a clear path of where he wants to be. He should decide where he should be every ten years, and ask himself what the impediments and the opportunities that might come his way. And if that is clear to him, he will find out that it’s easy to move forward. The problem is that a lot of young people have no history of the past to be able to project for the future. So history is important.

A lot of young people don’t know, for instance that Raji Abdallah was one of the greatest nationalists, but he died early. They don’t know Alhaji Umoru Altine the first Hausa mayor of Enugu. It can’t happen now, but they then need to ask, why can’t it happen now? You must have an inquisitive and curious mind. You can’t just stay and grumble. And that’s the problem with Nigerians. I can’t believe that with what is going on, nobody is saying anything.

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