Judiciary in era of change
By Chris Iwarah
WHEN President Muhammadu Buhari stepped up the podium on May 29, 2015 to deliver his inaugural speech, he rode on the frenzied wave of his climaxing popularity to make many daring vows.
“Having just a few minutes ago sworn on the Holy Book,” he pledged, “I intend to keep my oath and serve as president to all Nigerians. I belong to everybody and I belong to nobody.
“A few people have privately voiced fears that on coming back to office I shall go after them. These fears are groundless. There will be no paying of old scores. The past is prologue… We face enormous challenges. Insecurity, pervasive corruption, the hitherto unending and seemingly impossible fuel and power shortages are the immediate concerns. We are going to tackle them head on. Nigerians will not regret that they have entrusted national responsibility to us. We must not succumb to hopelessness and defeatism. We can fix our problems…
“Daunting as the task may be, it is by no means insurmountable. There is now a national consensus that our chosen route to national development is democracy. To achieve our objectives we must consciously work the democratic system. The Federal Executive under my watch will not seek to encroach on the duties and functions of the legislative and judicial arms of government. The law enforcing authorities will be charged to operate within the constitution … The judicial system needs reform to cleanse itself from its immediate past. The country now expects the judiciary to act with dispatch on all cases especially on corruption, serious financial crimes or abuse of office. It is only when the three arms act constitutionally that government will be enabled to serve the country optimally and avoid the confusion all too often bedeviling governance today.”
Besides the nagging issue of corruption, three coincidentally intertwined aspects of the speech of the returnee occupant of the federal seat of power appeared to have clicked with the people the most – respect for the rule of law, fight against corruption and reform of the nation’s scandalously slow judicial system.
Then, the euphoria of victory soon wore off and signals that the president’s pledges to defer to the rule of law, beat corruption and reform the nation’s justice dispensation machinery may have been premised on a very weak audit of the factors precipitating delay in adjudicating cases, especially those bordering on graft, began to emerge.
Just about three months into his presidency, Buhari had a broad platform to betray the fact that he was coming to terms with the nation’s judicial reality rather too late – almost. It all played out on the stage of the 55th Annual General Conference (AGC) of the Nigerian Bar Association (NBA) held in the Federal Capital Territory, Abuja from August 21-28, 2015. With the theme: “Lawyers and National Development,” the NBA invited the president to perform the opening ceremony on Sunday, August 23.
Not many really expected the president to personally make the event. With the prominent position of Vice President Yemi Osinbajo in the nation’s legal community, the convoking local and international legal practitioners had expected the Senior Advocate of Nigeria (SAN) to represent Buhari at the conference. They were wrong! At about five minutes to the 5 p.m. kick-off time for the opening ceremony, attendees were shocked to see Mr. President appear in the International Conference Centre venue of the AGC in company with the vice president.
Those schooled in protocol insist that it is unusual to have both a president and a vice president attend the same event at the same time. Yet Buhari appeared to have an urgent message he wanted to deliver straight to lawyers himself. Communicating the message through a representative might devalue and weaken the urgency of the matter – perhaps.
So, when he was eventually invited to speak, the president did not waste time in launching into the heart of the matter.
“I am convinced that law, lawmakers, lawyers, law courts and the law enforcement agencies all have pivotal responsibilities to discharge, if the change we seek is ever to materialise. As you all know by now, this administration has taken on the challenge of improving security, fighting corruption and revamping the economy, among many others.
“The fight against corruption is in reality a struggle for the restoration of law and order. Corruption and impunity become widespread when disrespect for law is allowed to thrive in society. Disrespect for law also thrives when people get away with all sorts of shady deals and the court system is somehow unable to check them… As may be expected, this has left many legal practitioners and law courts tainted in an ugly way.
“In a gathering such as this, I do not need to elaborate on the way that corruption and impunity have damaged our economy. But I would like to say more on what, I believe, should be your role as legal practitioners, in helping us back to the path of rectitude.
“First, we need to make our courts functional and effective again. This means that we must have lawyers who take the ethics of the profession very seriously; lawyers who will not frustrate the course of justice, even though they defend their clients with all legitimate means and resources. Nigeria needs ethical lawyers who always keep the end of justice in mind and will never sacrifice the integrity of the legal system to cover the misdeeds of their clients, no matter how lucrative the brief may be,” he said.
Although many participants at the NBA conference agreed that the president’s speech was powerfully delivered, not a few lawyers were of the view that it only focused on the symptoms of a more fundamental problem and left the real issue unaddressed.
Where a case is improperly investigated, they insisted, a defence lawyer had a duty to point out the lapses in court in favour of his client and the judge would be left with no choice than to properly apply the law. Conversely, where the investigating authority does its work well, no deft move by a lawyer can alter a patently bad case and the judge will then be adequately armed to impose the appropriate sanctions. The Nigerian situation, most lawyers at the event however regretted, was such that the investigators are only content with making a media show of alleged infractions of the law while ignoring the need to build credible evidence upon which courts can base their decisions.
It is difficult to say whether the views of lawyers at the NBA event were properly communicated to the president. But when judges met in Abuja recently, Buhari again took his dissatisfaction with the nation’s justice delivery system there.
Represented by Osinbajo, the president told the All Nigerian Judges’ Conference that corruption and delay in the administration of criminal justice constituted a great hindrance to government’s efforts at recovering looted funds and punishing those who abused public trust.
He insisted that it would be difficult for the government to effectively tackle corruption and encourage investments unless the judiciary addressed its challenges and shortcomings. Again, the core issue of lack of proper investigation of cases taken to court for trial was ignored.
The nation’s economic police, the Economic and Financial Crimes Commission (EFCC) soon joined the fray. The commission’s Chairman, Mr. Ibrahim Magu accused senior lawyers of shielding corrupt Nigerians from prosecution by frustrating the justice administration process.
Perhaps, to demonstrate that its complaints were not an empty idle talk, the EFCC subsequently went after some senior lawyers, including Mr. Rickey Tarfa (SAN). He was accused of compromising Justice Mohammed Yunusa of the Federal High Court. The case is still running in court.
Although NBA President, Mr. Augustine Alegeh (SAN) assured Buhari of lawyers’ cooperation in the anti-graft war, he insisted that his colleagues had a constitutional duty to properly represent those accused of running foul of the law and that the responsibility could not be compromised for any reason.
Other opponents of Buhari’s brand of ant-graft campaign have, however, insisted that the statements and conduct of Buhari and EFCC were simply aimed at intimidating judges and browbeating judicial officers to do their bidding unquestioningly by jailing the president’s political enemies.
Many legal practitioners have also insisted that the Federal Government and the EFCC have only worsened the trend of trying accused persons on the pages of newspapers without any credible evidence to prove the allegations against them in court. There are, however, other reputable lawyers who dispute the view that the anti-graft war is merely a media hype.
Reforms without funds
While the debate on Buhari’s approach to the anti-corruption battle easily divides lawyers and other justice sector stakeholders, a vast majority of legal practitioners believe that the government at the centre has so far not shown that it is truly committed to reforms aimed at oiling the mills of justice for quicker adjudication of cases. This view is often anchored on the funds made available to the third arm of government to operate.
With Buhari’s pledge to reform the nation’s judiciary, many had expected to see a great leap in the budgetary allocation to the sector in the N6.06 trillion 2016 budget – the highest in the history of the nation. But what did the sector get in an era of “change”? The president cut the N73 billion allocation his predecessor in office, Dr. Goodluck Jonathan gave the sector in 2015 by N3 billion.
Despite the government’s explanation that the nation was running an austere economy, no one appears impressed by the N70 billion budgetary vote for the nation’s judiciary. Even the Chief Justice of Nigeria, Justice Mahmud Mohammed has refused to pretend over the matter. Since the budget became public, the nation’s number one judicial officer has kept condemning the government’s disposition to reforms in the sector.
Court orders versus self-help
In the run-up to the 2015 presidential poll, one of the biggest issues of perception Buhari and his handlers battled to conquer was the president’s opponents’ attempt to tar him with the brush of a dictator. The president’s opponents had urged the people to reject him, insisting that he was going to rule with an iron fist and cast the law aside if elected.
Buhari did not take the matter lying low. He responded in full measure, assuring the nation that he was already a converted democrat. Whether the president has so far demonstrated his belief in the rule of law – the very essence of democratic practice – is an issue of passionate contention among Nigerians.
But there have been certain statements and actions Buhari’s opponents say have validated their stance that the president does not have the temperament required to function in a democracy. There is one such ready example those displeased with the president’s leadership style say gave him away as an unrepentant dictator.
On December 30, 2015, Buhari addressed a number of national issues during his maiden media chat. The president appeared cool and calm when the panel of interviewers began unwrapping their questions one after the other. Until the interviewers touched a sore point. The interviewers wanted to know why security agents were holding some accused Nigerians, including former National Security Adviser, Col. Sambo Dasuki and leader of the Indigenous People of Biafra (IPOB), Mr. Nnamdi Kanu, against the law and in disobedience of court orders.
The president lost his cool. He insisted: “Technically, if you see the kinds of atrocities these people are believed to have committed against the country, if they are given the opportunity, they will jump bail.”
Apparently expressing his dissatisfaction with the court order allowing Dasuki to seek medical attention abroad, the president queried: “What of the over two million people displaced, most of them orphans, whose fathers have been killed? What type of government do you want to run? We cannot allow that.”
He quickly moved to the case of Kanu, saying: “The one you are calling Kanu, do you know he had two passports – one Nigerian, one British – and he came into the country without any? Do you know he brought equipment into this country and was broadcasting Radio Biafra? Which kind of government do you think should harbour that kind of person? There is a treasonable felony suit against him and I hope the court will listen to the case.”
Expectedly, the president’s stand drew divergent reactions from members of the public. While many saw the president’s reaction as a clear case of resort to self-help and undisguised disregard for the independence of the judiciary, which has the duty to assess applications for bail and fix bail conditions, others insisted that Buhari acted in the best interest of the country. Almost six months since, Dasuki is still being held by the government after fulfilling the bail conditions imposed by the different courts which heard and granted his applications. Like Dasuki, Kanu has remained in custody, a situation that appears to have helped in depleting the fundamental rights credit of the Buhari administration.
The president is, however, not on a solo walk in his position on those alleged to have looted the nation’s treasury and constituted themselves a threat to the peace and corporate existence of the diverse peoples of the country. Many of the president’s supporters insist that the nation’s laws are too weak to deal with corruption and security threats. For them, a strongman is needed to put the nation back on track. In other words, the end of Buhari’s anti-graft campaign and war against security threats justifies the means for doing so.
Cleaning the judicial Augean stables from within
Although many may not share Buhari’s view that the judiciary has not shown enough will to handle corruption cases, no one appears to be in doubt that graft and misconduct have eaten very deep into the fabric of the nation’s judicial set-up. Many legal practitioners, however, believe that the judiciary has shown enough capacity to fight the evil in its midst through the National Judicial Council (NJC).
In the last 12 months of the Buhari administration, there seemed to be no sign of deviation from the need to defeat graft in the judiciary. Since the coming of Buhari, the NJC led by the Chief Justice of Nigeria, Justice Mohammed has not only heavily punished graft among judicial officers, but has gone on to discipline judges for indolence and other infractions.
In February, the council barred Justice Rita Ofili-Ajumogobia of the Federal High Court from elevation beyond the High Court bench for misconduct. About six weeks later, in April, it again sacked Justice Oluyinka Gbajabiamila of the High Court of Lagos State and Justice Idris M. J. Evuti of the High Court of Niger State. It also sanctioned Justice Tanko Yusuf Usman of the High Court of Niger State.
The council okayed Justice Gbajabiamila’s sack after it established that he delivered judgement in a matter before him 22 months after written addresses were adopted by the parties and 35 months after the close of evidence in the suit.
Justices Evuti and Tanko Yusuf Usman were said to have been punished for falsifying their dates of birth. The council explained that it could not suspend Justice Usman because he had earlier voluntarily retired from the bench. It, however, ordered him to refund all the salaries he received from June last year.
The NJC said Justice Ofili-Ajumogobia attracted the sledge hammer for failing to deliver judgement in a pre-election case until the tenure of the challenged occupant of the office elapsed. The council also placed the judge on its “watch list” for the next four years.
The disciplinary body for judicial officers in the country also recently queried Justice Mohammed Yunusa of the Federal High Court for allegedly receiving financial gratification from Mr. Tarfa (SAN) to compromise justice in a case in his court.
Theory of a cowed judiciary
But while the NJC appears to be working hard to assure the public that it would ensure that the bench does justice without fear or favour, some lawyers insist that the conduct of some judges shows that they have been thoroughly intimidated by the Federal Government and the EFCC. Those who subscribe to this view, including activist lawyer, Mr. Ebun-Olu Adegboruwa, point to the almost impossible bail conditions being imposed by some courts hearing corruption cases. They also cite the readiness of some courts to accede to EFCC’s frequent applications to detain those accused of crime beyond the constitutional limits.
Obviously worried at the ease with which the EFCC secures court orders to detain accused persons without trial, the Chief Judge of the High Court of the Federal Capital Territory, Justice Ishaq Bello recently barred magistrates in the jurisdiction from issuing remand warrants in favour of the anti-graft police.
There is, however, no doubt that lawyers and other justice sector stakeholders are split on developments in the judiciary in the last 12 months. And all sides of the debate appear to have some merit in their different positions.
Assessing events in the judicial sector in the last 12 months, Chief Mike Ozekhome (SAN) said judges deserved to be commended for standing firm in the face of alleged intimidation by the Federal Government.
He accused President Buhari of prosecuting a one-sided anti-corruption war targeted at his real and imagined political enemies. But for the fearlessness of the nation’s judiciary, he insisted, the nation would have been completely destroyed by the actions of the president.
In his own assessment, former 1st Vice President of NBA, Mr. Osas Erhabor said not much had happened in the fight against corruption since the emergence of Buhari. He regretted that the Federal Government and the EFCC had only succeeded in trying allegedly corrupt Nigerians in the media rather than keeping their eye on the necessary pieces of evidence to prove the guilt of those accused of crime against the state.
Chief Ladi Rotimi-Williams (SAN), however, dismissed claims that President Buhari was acting dictatorially and flouting court orders.
The president, he stressed, deserved commendation for working tirelessly to fix the rot allegedly encouraged by the administration of former President Jonathan.
Rather than judging the president hastily, he urged Nigerians to support him to deliver on his pledge to change the parlous state of affairs in the country. He feared that if Buhari failed at the end of the day, it will have been over for the country. Rotimi-Willaims, however, assured that the president would finish well.