interview
‘Judiciary is a critical partner in anti-corruption war’
By Adelanwa Bamgboye
Boma Ozobia is a former president of the Commonwealth Lawyers Association (CLA). In this interview, she speaks on the role of the judiciary in the anti-corruption war and criminal justice administration. Excerpts:
The judiciary appears to be under the spotlight with the current war against corruption. Do you believe they are playing their role creditably in the fight against corruption?
Indeed the judiciary is a critical component in the war against corruption. It is however, only a part of the collage and if the other parts are dysfunctional we will end up with a jumbled picture rather than the perfect outcome we all desire. We tend to equate the judiciary, which is a collective name for judges, with the administration of justice. We forget that there is a whole support system that has to be properly functional in order for the judges to perform at optimum as well. The judge has to have a court that works! Communication, data entry and storage, reliable research support, and all of those things we require as practitioners and more.
Where judgments have been delivered and litigants are waiting for weeks for these to be typed up, or a judge is constrained to carry files home because the registry may misplace the file due to the inefficiency of the system, then clearly the justice administration system is not only failing the Nigerian masses, it is failing the judiciary.
Is the judiciary not in charge of the justice administration system, and that being the case, why can the stakeholders not make it more efficient?
It would appear on the face of it that the judiciary is in charge of the justice system, but the reality as expressed in the old adage, ‘he who pays the piper, dictates the tune’, is that the executive and to an extent the NASS control the purse strings and therefore, have a crucial role to play in determining how efficiently our justice administration system works.
The 2016 budget is not at all encouraging in that respect as the provision for justice administration is woefully inadequate. In order to ensure that the courts are equipped to play their role as a crucial part of the war against corruption, they must be properly funded by way of a supplementary budget this year, not 2017.
What about the various petitions against judges, is that not a reflection of the quality of the judges rather than the justice system?
Well, on this issue, I think we all should be guided by the statistics. Justice Aloma Mukhtar you’ll recall said that upon her assumption of office as Chair of the NJC, the panel inherited 139 petitions of which 106 were, to quote her, “vexatious and baseless”. This description of vexatious and baseless applied to more than three quarters of all the petitions against judges that was inherited by the former CJN and the NJC at the time, for goodness sake! She went on to say that after assumption of office they received 198 petitions, 150 of which were found to be frivolous. Again, approximately three quarters. That is an inordinately high number and seems to imply, at least in my considered opinion, that the problem is not with the judges per se, but with the petitioners who are invariably litigants before these judges. And perhaps with those who represent them. It is either these litigants have not been properly guided or have not had the benefit of professional assistance at all.
What about the petitions against judges?
More recently, we are witnessing the debilitating effects of these frequent, mostly unfounded but nonetheless damaging petitions on our justice system. When a judge feels obliged to rescue himself as was reported recently, due to an allegation of bribery on online news websites and other questionable publications, then the pendulum is clearly not balanced and steps need to be taken to balance the equation. Another example is the recent furore about a judge and a litigant belonging to the same class of the Nigerian Law School. Incidentally, this happens to be my class and I can tell you that I did not know the judge in the law school, nor the petitioner, nor any of the other class members who have commented on this thus far.
If a judge is to rescue himself for attending law school at the same time as a litigant before him, it stands to reason that he must also rescue himself if a class mate appears before him as an advocate. Where will it end?
We seem to have a penchant for setting up various judicial commissions and panels of inquiry. How useful are these, do they really contribute to the yearnings of the masses for justice?
Judicial commissions are not peculiar to Nigeria and can certainly be a useful tool in investigating specific incidents or issues and possibly proffering solutions from their findings. However, such commission or panel, has to have the confidence of all the parties in order for it to perform its assignment successfully. Take the recent incident in Kaduna State between the army and members of the Shiite sect headed by Zakzaky. The lawyers to the sect recently announced that they would not appear before the commission. The incidents arising out of the recent Rivers State re-run election have also resulted in the state government setting up a commission.
The question that arises, to my mind every time a commission is set, is how inclusive is the process. Did government consult all stakeholders in relation to the composition of the panel, terms of reference and modus operandi prior to setting up the commission or did it proceed unilaterally and then invite stakeholders as has been the case more often than not. Furthermore, do we set up these panels and commissions as a means to an end rather than an end in itself?
Are lawyers part of the problem or the solution?
Our professional ethics requires us to be a part of the solution. We are officers of the court as well as advocates and advisers to parties before the court and our clients in non-litigious transactions. Every Nigerian is entitled to a lawyer if charged before a court, no matter how heinous the crime or how large the sum alleged to have been stolen. Hence, all of those currently charged with corruptly enriching themselves or others with our common wealth are entitled to their day in court and their choice of lawyer or lawyers. However, we must not assist litigants who may be inclined to do so, to pervert the course of justice by our superior knowledge of the justice administration system and the inherent weaknesses of the system.
What to post on social media
BY DANIEL BULUSSON ESQ
The cyber generation is blessed with an invention called the social media to ease networking, bonding and communication between individuals irrespective of how far apart they are to each other. Mark Zuckerberg is a billionaire today because of the patronage and acceptance facebook got from the world when it hit the market, then came along whatsapp. As long as one has a phone number of another individual with devices empowered to accept the app, you can chat with the person almost instantaneously irrespective of location. We also have Instagram, Snapchat, twitter, BBM et al which provides an avenue for people to share their status, pictures, feelings and emotions to the world.
Some have complained that this social media is not being put to adequate and appropriate use in Nigeria by the youths and needs regulating. In the legal profession the drafters of the Rules of Professional Conduct did not envisage the influence of the social media to the legal profession, and so there is no specific provision as to what a lawyer ought to or not post to the world using any of the social media platform.
The closest being Rules 46 of the RPC which provides for press, radio and television: “A lawyer may write articles for publications, or participate in radio and television programmes in which he gives information of the law… A lawyer shall not take steps to procure the publication of his photograph as a lawyer to the press or any periodicals” which in my humble opinion, doesn’t cover publishing of photographs as a lawyer on social media platforms.
Does this now mean that a young lawyer is free to post whatever he likes, be it good or bad, on his social media platform? True the young lawyer has the inalienable right to do so and I don’t think such right should be regulated, but then a lawyer must make use of this opportunity to enlighten the public about the importance of the service of a lawyer to the society.
A lawyer’s post on social media platforms, for all intents and purposes, must be different from that of a layman. We have a lot to offer the society and instead of using the social media platforms to just take pictures and share personal feelings and experiences, we should go a little further to be an example by sharing posts that would help enlighten the public about the law, current affairs, politics, state of the nation et al.
In doing this, we must also be careful, like criticising judgments of the court on these platforms. It doesn’t help the public to understand the true meaning and implications of the judgment but rather whip up sentiments on the public’s mind as to why the judgment went this way and not the other way. This sentimental feeling is not what we should be encouraging the society to have but a true appreciation of the wisdom of the learned judges and justices as reflected in the judgments. It is understood that not all judgments must be in favour of all, the aggrieved parties have a right of appeal, it would do everyone good if we reserve our dissatisfaction to the appropriate appeal court and seek relief there, not the social media.
Restoring the citizens’ confidence in the judiciary is a responsibility of both the Bar and the Bench. A young lawyer can also play a part by using the social media to disseminate information about the operation of the law in Nigeria to friends and followers – you need not advertise yourself as a lawyer. The kind of post and picture you share to the world should show what a gentleman you are.
This does not mean that legal practitioners are not allowed to update personal post and pictures on their wall, NO, I am saying we should be our own censorship board when it comes to the content value of what we let the world know through our platforms. This would help in changing the perspective of the society about law and its operation in Nigeria.
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SC to the rescue: Smart Card vs. Voters Register
By Adelanwa Bamgboye
The real issue in the 2015 general election petition tribunals and appeals up to the Supreme Court in Nigeria was the use of the smart card reader.
The smart card which introduced the electronic system of accreditation and authentication of voters by the use of card reader machines was a critical component in the elections.
Not only was it used for the first time in the electoral process in Nigeria but it was also one of the greatest technological innovations of the 2015 general elections.
Thereafter, petitions came before the election tribunals and the issue became what was the proper place of the smart card reader information vis-à-vis the register of voters in proving corrupt practices or non-compliance with the provisions of the Electoral Act, 2010.
Also, there was the issue of the status of INEC Manual and Guidelines which introduced the smart card reader vis-à-vis the provisions of the Electoral Act, 2010 (as amended).
These issues challenged the interpretative skills of our jurists from the various tribunals up to the Court of Appeal as there was divergence of judicial opinions.
This however did not create any problem for the jurists at the apex court. In several unanimous judgments, the Supreme Court in the governorship elections in several states, particularly Rivers, Akwa Ibom, Abia, Lagos, Imo, Zamfara, Ebonyi, and several others clarified the issue on the use of card readers.
At the Court of Appeal level in the case of Wike v. Peterside, the Court held that:
“INEC Guidelines and Manual cannot be obeyed in breach of its provisions. Even Exhibits B30, B31 and A301 the Press Release, Directive and Instruction of INEC to its officials are enough warnings and pointers that INEC meant it and wanted Smart Card Reader to be used in accreditation of voters for Governorship election in Rivers State.”
While in Hon. Helen Nwobasi v, Hon. Sylvester Ogbaga the Court of Appeal, per Agim, JCA held that: “The voters register is the only authoritative means by which the number of registered voters can be established by virtue of S. 49 of the Electoral Act. It also remains the only valid and reliable instrument by which the number of accredited voters in a polling unit can be ascertained and verified, especially as the card reader accreditation machine has proven unreliable in its capacity to efficiently store information and function mechanically. By virtue of S. 49 and S. 138(2) of the Electoral Act, the use of voters register for accreditation of voters during poll is mandatory. Accreditation by the use of card readers which is an innovation introduced by the manual for election Officials 2015 is not mandatory.”
Whatever the divergence of opinions, the matter has been settled by the Supreme Court in Wike v. Peterside, where it was held that: “This court in a number of recent decisions has commended the introduction of the Card Reader in the 2015 elections by INEC. The court has noted however, that its function is solely to authenticate the owner of a voter’s card and to prevent multi-voting by a voter and cannot replace the voters’ register or statement of results in appropriate forms” per Kekere-Ekun, JSC.
The Supreme Court went further to hold that: “Nevertheless, Section 49 (1) and (2) of the Electoral Act 2010 (as amended) which provides for manual accreditation of voters is extant and remains a vital part of our Electoral Law … the use of the Card Reader has not done away with manual accreditation provided for in Section 49 of the Act”.
In Okereke v. Umahi and others the Supreme Court per Nweze, JSC held thus: “Indeed, since the Guidelines and Manual, which authorised the use and deployment of the electronic Card Reader Machine, were made in exercise of the powers conferred by the Electoral Act, the said Card Reader cannot, logically, depose or dethrone the Voters’ Register whose juridical roots are firmly embedded or entrenched’ in the selfsame Electoral Act from which it (Voter’s Register), directly derives its sustenance and currency.
Thus, any attempt to invest it (the Card Reader Machine procedure) with such overarching pre-eminence or superiority over the Voters” Register is like converting an auxiliary procedure – into the dominant procedure – of proof, that is proof of accreditation.”
Meanwhile, the decision of the apex court in Wike V. Peterside and others, reversed the judgment of the Court of Appeal which hearkened to the view on primacy of voters’ accreditation by the card reader machine on the basis of the INEC guidelines and manual, and as a result nullified the governorship election and ordered a fresh election.
These verdicts have however put the apex court on the spotlight. This was because of what some Nigerians and election observers witnessed; some of these elections were allegedly deeply flawed and marred with violence.
These judgments were made unanimously by the apex court; they are still in full force and they have also sent a very clear message. The justices of the apex court had to deliver these judgments late into the night so as not to be caught up with the time limit within which to handle election matters.
Day rights lawyers outlined key constitutional sections for review
The 1999 Constitution is one piece of document that has received so much criticism from both legal practitioners as well as other members of the society. But over the years, not much has been done in getting it right with the constitution that birthed the Fourth Republic. However, some human rights lawyers are saying since the piecemeal approach appears to be what works in Nigeria, they have decided to highlight key areas where attention should be focused on.
From Nurudeen Oyewole, Lagos
When lawyers under the aegis of Human Right Law Service (HURILAWS) gathered in Lagos few days ago, they said they had come with the sole aim of assisting Nigeria to have a constitution that works.
For a constitution that attracted so much criticism but with little changes so far, the concerns of the lawyers could be described as timely.
And for a country known for organising constitutional conference per each administration, most of which have achieved little or nothing, the recent move by the National Assembly to yet again saddle both the Deputy Senate President, Ike Ekweremadu, and Deputy Speaker of House of Representatives, Yusuf Lasun, committees with the responsibilities of amending the constitution, is being perceived as the right opportunity.
The right lawyers led by Collins Okeke at the gathering said since both chambers of the National Assembly have again inaugurated committees on the constitution, it is important to bring to limelight, four sections of the constitution that should be reviewed to “make it a constitution that works”.
Areas being considered for amendment include: Section 1 of the principal Act of the constitution which deals with the proclamation of the constitution’s supremacy; Section 81 (1) & (2) of the Constitution which they said “gives the impression that budget estimates of the judiciary is part of the Appropriation Bill”; Section 251 (1) of the Constitution which they said was not explicit on jurisdiction shared by both the Federal High Courts and Specialised Tribunals; and Section 153 which establishes National Institutions that ought to function as executive agencies but are still tied to the apron-string of the Executive.
According to Okeke, HURILAW believes that Section 1 of the Constitution should contain a Declaration of Nullity Clause.
He said the constitution should be able to declare unconstitutional acts, null and void.
“It is not enough for the courts alone to declare nullity. Evidence of violation of constitutional provisions should be enough for acts to be considered null and void. The courts would only play a narrow role of declaring invalid, any breach of the constitution. Section 1 of the principal Act should be altered by inserting immediately after Subsection (3), a new Subsection “1(4).
“We can therefore have something like: ‘1 (4) If any act is inconsistent with the constitution, that act shall be null and void’,” Okeke said.
On Section 81 (1) & (2), the HURILAW leader who is also the Senior Legal/ Programme Officer at Olisa Agbakoba Legal Firm, said the non-separation of jurisdiction under the Federal High Court has become a tough challenge for legal practitioners and needs to be clarified.
“The Federal High Court in Olisa Agbakoba vs. Attorney General & 2 others Suit FHC/ABJ/CS/63/2013 has decided that the Executive cannot appropriate for the Judiciary. Section 81 of the principal Act should be altered by inserting immediately after Subsection (2), a new Subsection ‘81 (2) A & B,’” Okeke said.
He said the group is suggesting that: “81 (2) (A) notwithstanding Subsection (2), estimates of the revenues and expenditures of the Judiciary are not part of the Appropriation Bill while in “81 2 (B), there should be a provision that read thus: The National Judicial Council shall cause to be prepared and laid before each House of the
National Assembly at any anytime in each financial year estimates of the revenues and expenditures of the Judiciary.”
On Section 251 (1) of the Constitution which the lawyers observed was not explicit on jurisdiction shared by both the Federal High Courts and Specialised Tribunals, Okeke said the non-separation of jurisdiction is capable of stirring conflict in judiciary.
“Although this has been contested up to the Supreme Court because of the provision of Section 251 (1) of the Constitution, the constitution still needs to clarify the jurisdiction of the Federal High Court and these specialised tribunals to avoid conflicts. The international best practice is to encourage specialised administrative tribunals because they have technical expertise, flexibility and speed. The regular courts tend to lack skills and are overcrowded,” Okeke said.
He said HURILAW is proposing two options which include: “Option 1 – make jurisdiction of the Federal High Court in Section 251 (1) concurrent.
Section 251 (1) of the principal Act is altered by deleting from Section 251 (1) the words “to the exclusion of any other court.” And
“Option 2 – clearly delineate jurisdiction of the Federal High in relation to specialised tribunals. This will require alteration of Section 251 (1) (a)-(s) of the principal Act.”
On the last section of the constitution being proposed for amendment, the legal practitioners are suggesting that Nigeria should incorporate Chapter 9 of the South African Constitution to replace Section 153 or Section 153 of the Nigerian Constitution be amended to strengthen and ensure independence for critical agencies of government such as INEC, Police, ICPC, Accountant General, Attorney General, CBN, National Human Rights Commission, EFCC, Public Defender and Code of Conduct
Bureau.
“They should be recognised and made vital National Institutions. They should be entitled to first charge on the federation account and other necessary guarantees by the constitution,” Okeke said.
Another lawyer at the event, Dr Wilfred Mammah, Head, Development Law Group, however, said the group’s recommendations could not be said to have encapsulated all that needed to be reviewed in the constitution, but that these remain key areas where whatever efforts being discharged for constitution review must not gloss over.
Sagay, Falana, others on how law combats corruption
From Nurudeen Oyewole, Lagos
Legal luminaries and Senior Advocates of Nigeria, Prof. Itse Sagay and Femi Falana, among other eminent personalities have suggested ways through which legal frameworks could be used to combat the menace of corruption in the country.
The legal practitioners made these known while speaking at the at the Roundtable ?discussion organised by the Department of Jurisprudence and International Law, University of Lagos (UNILAG) on the topic “Winning the War Against Corruption”.
According to Sagay who was the chairman of the event, continuous implementation of the 2015 Administration of Criminal Justice Act will go a long way in taming the menace of corruption as there are provisions which make it difficult for alleged offenders to stall trial by seeking frivolous injunctions.
The rights activist further suggested that the proposed court will specifically handle cases of corruption, terrorism, drug trafficking, human trafficking, advance fee fraud and other economic crimes.
He said judges of the court should be carefully selected to ensure that they are manned by those with integrity while ensuring that each corruption case shall be heard and concluded by the trial court in 180 days. He added that all appeals arising from the judgment should be heard and determined in three months.
Another lawyer and former president, Civil Liberty Organisation (CLO), Ayo Obe, however, expressed reservation on the need to create special courts to try corruption cases, saying the government can adopt technology capable of preventing corrupt practices especially among its officials.
The gathering also witnessed the launch of a book “Legal Perspectives to Corruption, Money Laundering and Assets Recovery in Nigeria”.
It is co-authored by many legal scholars.
Stakeholders on imperative of oral, written advocacy
From Nurudeen Oyewole, Lagos
Stakeholders have reinstated the need for legal practitioners to sharpen their oral and written advocacy skills in the practice of their profession.
This is a joint position taken by many of the stakeholders who were present at the launch of the book “Oral & Written Advocacy: Law & Practice – Traditional & Modern Trends in Advocacy”, co-authored by Chief Folake Solanke, SAN and Prof. Fabian Ajogwu in Lagos.
The book reviewer, Olasupo Shasore, SAN, who was also a former Attorney General and Commissioner for Justice in Lagos State said legal advocacy, either oral or written, was central to having successful career in the profession, thus the need to be trained in it even while in school.
In his remark, Lagos based human rights lawyer, Femi Falana, SAN, said the book was a repository of both the old and new trends in legal advocacy. He said notwithstanding that Solanke belonged to the older generation and Ajogwu belonged to the new generation, the two authors have touched on the most significant aspect of the law profession, which is advocacy.
Speaking at the event, Mrs Solanke said the book emphasised the need for both lawyers and non-lawyers to cultivate the habit of reading.
On his part, Ajogwu urged legal practitioners to often ensure that they elaborated on their briefs, saying that remained a key aspect of advocacy that must not be ignored.
He also admonished that counsels must avoid writing frivolous petitions targeted at cowing judges.
In the 180 pages, 10 chapter book, the authors explained that most lawyers, over the centuries, have acquired oral advocacy skills in the public theatre of the courtroom. They also agreed that the courts and the lawyers have accepted the ascendancy of written advocacy because it saved litigation.
