My advice to Buhari in 2017
By Romanus Okoye
Despite the arrest of some judges and their subsequent on-going trials, a constitutional and human rights lawyer, Mike Ozekhome believes that the judiciary still stands heads and shoulders above the other arms of government.
Ozekhome said that till date, no judge has been found guilty of corruption like the executive and legislative arms that are replete with such records. He speaks on various issues.
How will you rate the performance of the Nigerian judiciary?
The Nigerian judiciary has done its bit in the nascent constitutional democracy and in the process of democratization. Of all the three arms of government as contained in sections 4, 5 and 6 of the 1999 constitution of the Federal Republic of Nigeria, the judiciary has performed most creditably than any other organ of government.
What are the basis of your judgment?
The judiciary has been able to hold on to the rule of law and protection of fundamental human rights of Nigerians. It has ensured freedom and has held it tight for all Nigerians. Even under the military dictatorship, the judiciary refused to be cowed. It refused to blow a tilted trumpet. It still acted right in spite of dangers under military rascality. Even under the present dispensation, where the executive is out to intimidate and browbeat the judiciary, it has stood its ground as the sentinel and the defender of the common man and woman.
What of the corruption allegations against some judges?
Yes, I know some people will be quick to point out that some judges are corrupt. And I say yes, that like every other arm of government, you must have some bad eggs. In every 12, there must be a Judas Iscariot. The judiciary is still a part and parcel of the Nigerian society. It cannot suddenly become angelic. Some of the bad eggs must be bad. But I dare say that it is only the judiciary that has constitutional self winnowing and self sanitation through the Nigeria Judicial Council (NJC) that has serially and severally recommended judges for dismissal, retirement or prosecution. No other arm of government has such self censorship to clean itself. Rather, what the other arms do is to defend their own, despite heavy corruption allegations leveled against them most times.
If you look at the three arms of government, the judiciary has been outstanding. Otherwise, if the executive was so good, we will not today be suffering from the economic anaemia, financial strangulation, hunger, despondency, starvation, penury, abject poverty and wanton breach of human rights and civil liberty and lack of democracy.
Also, if the legislature were as good as the judiciary, today we would be having laws that will give us good security and good governance in Nigeria; rather than legislating into their stomachs and into their pockets. So I will still rate the judiciary highest, the incidence of few bad eggs who must be smoked out again and again notwithstanding.
Mind you, outside the sensational media trial that were mere allegations and the fact of the three or four judges being arraigned in the court of law, no judge in the history of the judiciary has been found guilty of having committed any criminal offence like the many ministers, governors and many members of the national and state assemblies over the years. It is only when the judges have been tried in the law courts and found guilty that we can say that these people are corrupt.
Reason is because the Nigerian legal system is Anglo-saxon model. It is accusatorial and not inquisitorial like the French model. What it means is that an accused is presumed innocent until his guilt is proven and not the other way round as encapsulated in section 36 of the 1999 constitution of the Federal Republic of Nigeria.
In 2014 National Conference, I was among those who spearheaded the amendment of that section of the constitution so that people would be assumed to be guilty and allowed to prove their innocence. But like many other laudable suggestions in that conference, the present administration has shelved it off to gather the historical dust and better forgotten cobweb.
Does the Nigerian legal system need reforms?
Yes, we need a lot of reforms. I headed Judiciary and Human Rights sub-committee in the 2014 National Conference. We agreed that the judiciary need to be reformed. We recommended that we should have different hierarchical structures for courts in the states as distinct from the federal level. For instance, states should have Courts of Appeal and Supreme Courts as obtained in the United States. That way, it is only matters like national security, fundamental human rights that should be taken up to the federal Supreme Court in Abuja. It should not be every case, like for instance someone in a small village near Agenebode where I come from steals fish and he is arraigned in Magistrate and jailed. If he was not satisfied, he goes to High Court in Agenebode which is about 10 minutes, and then if he is still not satisfied, he goes to Court of Appeal in Benin which is about three hours from Agenebode. And if he is still dissatisfied, he goes to Supreme Court in Abuja which is about eight hours from Agenebode. How can such a system serve good justice and accessibility? It will not.
What reforms do you propose?
Aside other suggestions, we proposed creation of Special Constitutional Courts to look into constitutional matters; Special Electoral Courts to look into electoral malpractices. If you do that, you will see more cases being fast forwarded, more cases being dispensed with quicker than it is now.
Moreover, we also suggested that the present constitutional provision barring judges from going into practice when they retire should be abolished. The judges like is provided in the Magistrates Act should have the freedom to choose if they wish to go back into practice when they retire or voluntarily resign. Reason is simple: if a judge knows that he has no house to go to, no job to fall back on if he retires under the present hash economic recession, the tendency towards corruption will be higher as he would want to corruptly enrich himself towards the rainy day. For example, a supreme court judge receives an average of N700,000 per month aside servicing expenses and insurance. And the Court of Appeal judges receive about N600,000 while High Court judges collect about N500,000. Tell me which senator, minister, House of Representative members does not spend more than that in servicing and fuelling his cars alone.
Could that be the reason for the alleged corruption?
In America, from my research, a Supreme Court judge receives about N25million in a month. So, such a person does not need your money for anything. He cannot be tempted. But when a judge who receives only N500,000 in the face of all the economic challenges is faced with N50million by a desperate politician who wants to subvert the course of justice; who wants to buy justice at all cost, you have to make such a judge an angel Gabriel or Archangel Michael for him to reject such temptation. And we are talking about a serving judge who may have two to three wives, with children in the universities. So we must look into the remuneration, the salary scale and the working conditions and tools of the judges.
In terms of the working tools, many of the courtrooms have no air conditioners. Some work without electricity. And the judges still write in long hand in this day of improved technologies. We have to look at it holistically. The welfare of the judges is worst among the three arms of the government. We have to acknowledge that the judges are not from the moon. They belong to the same place where the corrupt executive and legislature belong. I do agree that a corrupt judge is more dangerous than a madman gone amok; because while you can restrain a mad man physically, you cannot do so to a judge. You cannot restrain an immoral and conscienceless judge. He will destroy the system. But the truth is that in dealing with such bad eggs, we must strictly follow the constitutional organogram that we have laid down for ourselves. We must treat them like every other Nigerian who has to go through the criminal justice system. They should be treated with honour and respect like every other Nigerian. And not invade their premises between 1.00am and 5.00am, breakdown their windows and doors, terrorise them and members of their families till no end. You don’t have to treat them like animals just because you want to make a point. If you bring down the roof and mess up the judiciary, then democracy itself is finished; because judiciary no matter what some may think still remains the last bastion of the common man. So even under the Administration of Criminal Justice, in the preamble, under sections 5, 6, 32-36 of the 1999 constitution and even under the African Charter and Peoples’ Rights, the judges like other Nigerians are entitled to decent treatment when they have been accused of any offence; devoid of sensational media trials and whatever opinions individuals may have.
What is the cause of prolonged cases in the court?
Like I noted before, poor conditions of service contribute in greater measure. Then our criminal Justice System itself is complicated. If someone is accused of any offence for instance, he should be given an opportunity to defend himself. Under section 36, he may hire a lawyer or lawyers. In the course of his defence, he may raise objections to certain issues like the legal process followed in trying him, including asking to change the judge hearing his case. Especially, if he thinks he may not get fair trial under the judge. The laid down legal procedures must be duly followed. Even God did so with Adam and Eve in the Garden of Eden. You won’t say because you need quick dispensation of a particular case and rush and deny someone fair hearing.
Apart from that, we need more justices at the Supreme Court. At present, there are only 17 justices at the Supreme Court which is less than the maximum 21 required by the constitution in sections 230 and 231. There should be at least five panels not just the two of three as there is presently to ensure matters are dispensed with speedily. I tell you, there are still 2003, 2004 matters in the Supreme Court which must follow the queue aside electoral matters that have its time limit. There is need to amend the constitution so that it is not every matter that must find its way to the Supreme Court. Many of them ought to end at the Court of Appeal. And for any matter to proceed to the Supreme Court, it must be winnowed through a process at the Court of Appeal. But unfortunately, even ordinary motion or application, no matter how frivolous, find its way to the Supreme Court. So, we need to look at all these and create special constitutional courts, special electoral offences courts for us to have quick dispensation of justice.
What is your assessment of President Buhari’s adherence to the Rule of Law?
Even the blind can see, the lame can walk and the deaf can hear that this government is very deficient in compliance with and the protection and promotion of human rights and rule of law. For instance, Dasuki has been in detention for almost one and half years even when about three courts have granted him bail including the ECOWAS court which also awarded N50million damages against the Federal Government. But the Federal Government still finds reason not to release him. The Sheik Moslems’ matter is there. Right now, there is ethnic and religious cleansing going on in southern Kaduna, where close to 1000 people have been killed; soldiers and police mauled down innocent citizens at Aba and Onitsha who were clamouring for self determination under the aegis of IPOB which is recognized by the United Nations under Declaration of Human Rights. There are lots of tortures, murder, street trials going on in the country. EFCC force their way into peoples’ houses, breakdown fences and doors, cart away documents even when people are not physically present. To me, all these are against the rule of law, which says that people must be equal before the law; people should be treated with humanity. We are not in a banana republic or George Orwells’ Animal Farm or in a Hobbesian state of nature as described by Thomas Hobbes where life is brutish, nasty and short. For God’s sake, we are operating a democracy, defined by Abraham Lincolm in 1863 as government of the people, by the people and for the people. We are not operating autocracy, gerontocracy, fascism, dictatorship, oligarchy or monarchy. We are operating democracy. So we cannot afford to have a government that says “they versus us or us versus them”. People should not buy into such government.
What is your advice to President Buhari in the New Year?
I advise that President Buhari should look into his human rights records which Amnesty International, Human Rights Watch in New York and other human rights activists in the country, have adjudged to be very appalling. Because at the end of the day, people will not say, it is EFCC’s government, nor that of DSS, ICPC; but Buhari’s government. He therefore needs to make the human rights records than what it has been so far.
What is your view on the Secret Trial of Nnamdi Kanu or shielding of witnesses?
Secret trial is an antithesis. It is not known to the book of fair trial. And I am totally against it. Section 36 of our constitution makes it clear that trial especially criminal trials should be carried out in the glaring view of everybody. If you accuse a person, come in the open and say it to the person’s face. Why will you shield a witness who is making allegations against an accused person, if not for him to come and tell lie.
Witnesses should be seen so that people who had other issues with the accused, maybe on land, chieftaincy title matter or that he snatched his wife will not hide under any guise to bear false witness against him. The public is interested in knowing the witnesses. The man was subjected to sensational media trial. The issues are already in the public domain. So, make it secret at this point of the nitty gritty which is the real trial. If you begin to assign figures or numbers to witnesses and say this witness is Mr. A or Mrs X, then the trial is shrouded in hatred, bias, vindictiveness. It lacks openness and integrity. I am against it. If you accuse a person, try him frontally.