A Senior Advocate of Nigeria, Femi Falana, speaks with TOLUWANI ENIOLA on how best to transform the country’s judiciary in the New Year
What are the five major things that marred the performance of the judiciary in 2016 and how do you think they can be tackled in 2017?
The major problems are poor working conditions, congestion of courts, corrupt practices, inadequate funding and disobedience to court orders. In view of the diminishing value of the national currency and rising cost of living, the Nigerian Bar Association should make a strong case for improved working conditions for our judges in 2017. More judges should be appointed to decongest the courts while the courts should adopt case management and embrace alternative dispute resolution. The ongoing purge of the judiciary should be fully supported by the National Judicial Council and the NBA. In particular, a panel of the NJC should embark on a nationwide investigation of corrupt judges. The body of Attorneys-General owes the legal profession and the nation a duty to ensure compliance with the terms of the judgments of the Federal High Court which have upheld financial autonomy for the judiciary as provided for in the constitution. Other court orders being disobeyed should be forwarded to the AGs. Any AG who cannot ensure compliance with court orders should be asked to resign or sanctioned by the profession.
What other major reforms are needed?
The judiciary has to take advantage of the review of the constitution to demand radical reforms of the administration of civil and criminal justice. It is high time interlocutory appeals were abolished in many cases. Since appeals from legislative election petitions tribunals end in the Court of Appeal, all appeals arising from governorship election petitions should end at the Court of Appeal as was the case before 2011. Election petitions should be handled by judges of the high court of each state. In the Second Republic, election petition tribunals were headed by the chief judge of each state. The practice of deploying judges in other states has promoted corruption beyond control. If state high courts are trusted to handle pre-election cases, why are they not trusted to handle election petitions? All pre-election cases should be concluded before elections while election petitions should be determined before the inauguration of the incoming governments.
You once said that the NBA had failed woefully to adopt concrete measures to purge the legal profession of corrupt judges and lawyers. How do you think the Nigeria Bar Association can retain its lost glory?
Lawyers practising in every judicial division know all corrupt judges. The information is freely circulated among lawyers. Members of the public also report judges who collect money from them either directly or through lawyers or court clerks. If the NBA is committed to the eradication of judicial corruption, it has the capacity to do so. With 120 branches spread across the country, the NBA can police judges, lawyers and court officials with a view to stamping out corrupt practices. When the Ghana Bar Association was paying lip service to corruption, a journalist decided to video record judges who were negotiating and collecting bribes. Because the NBA was condemning corruption without adopting any concrete measures to stop it, the security and anti-graft agencies have seized the initiative to the eternal embarrassment of the legal profession. If the NBA and NJC do not want any further embarrassment, they have to embark on adopting an inbuilt mechanism for exterminating the menace of corruption from the bar and bench.
It took a British court to convict James Ibori after Nigerian courts had acquitted him. What can be done to ensure that beyond mere arrests, more corrupt public officials are successfully convicted?
With the assistance of some lawyers and judges, James Ibori exposed the Nigerian judiciary to unprecedented ridicule. Even though the area court judge who jailed him testified in court and identified him, the trial court, court of appeal and the apex court held that the case was not proved beyond reasonable doubt. And when he was eventually arraigned on a 170-count charge, the Federal High Court dismissed the case and gave him a clean bill of health. He, however, met his waterloo in the United Kingdom where members of the bourgeois class, who contravene the law, are usually prosecuted. In advanced capitalist society, you are not allowed to break the law with impunity as it is done in a neo-colonial country like ours. But while the British judge jailed Ibori and accomplices, including his wife, he refused to indict the British banks and companies which aided and abetted the criminal offences of money laundering and fraud.
The Nigerian legal system has addressed the way and manner Ibori and other money bags messed up the criminal justice system with disdain. But with the Administration of Criminal Justice Act 2015, a criminal suspect can no longer abort his trial as was done in the case of Ibori. With the faithful implementation of the law, the Economic and Financial Crimes Commission has secured over 200 convictions in the last one year. Some of the convicts are politically exposed persons like an ex-Director General of NIMASA, local government chairmen in Kaduna and Kogi states, a former finance commissioner in Adamawa State etc. The trial of ex-governors Joshua Dariye, Orji Kalu, Rasheed Ladoja and others suspended for about 10 years have commenced. Similarly, the cases of other fat cats, including retired military officers and politicians, are going on without any stay of proceedings or suspension of trial. So, we are making some progress in the prosecution of many mega looters of the treasury.
Some legal experts have advocated separation of the offices of attorney general and the minister of justice. How will this separation improve the criminal justice system in the country?
It (separation of offices) is designed to remove the influence of the executive from the prosecution of criminal cases. There will always be conflicts of interest whenever the Minister of Justice is also the Attorney General. As a Minister of Justice, the Attorney General may not want members of the ruling party prosecuted to the detriment of the society. To avoid such conflicts, the two offices have to be separated. As a cabinet member, the Minister of Justice will run the Ministry of Justice while the attorney-General will be an independent prosecutor who will ensure that all indictable offences are charged to court without fear or favour. Unlike the Minister of Justice, the Attorney General is not a cabinet member, and so can charge members of the executive who contravene the law.
Britain has separated the two offices. Out of the 15-member states of the Economic Community of West African States, not less than 10 countries have separated the two positions. Out of the remaining five, the President-elect of Ghana, a former Attorney-General, Mr. Nana Addo-Akufo, has promised to separate both offices. The 2014 National Conference unanimously agreed that the two offices be separated. It is hoped that the ongoing review of the Constitution in Nigeria will see the wisdom in separating both offices in the interest of the country. It will improve the criminal justice system by ensuring that the prosecution of criminal cases is not influenced by political considerations.
The bribery of judges has been linked to the underfunding and poor welfare packages for judges. In what ways will an increase in funding discourage bribery and enhance their performance of?
Judicial corruption has nothing to do with the inadequate funding of the judiciary. No one is forced to be a judge. Instead of selling justice to the highest bidders, any judge who is dissatisfied with inadequate funding of the judiciary should opt out of the bench. Even though Nigerian judges work under poor working conditions, the majority of them are men and women of integrity. Therefore, the legal profession owes it a duty to identify and remove the few corrupt judges from the bench.
What specific roles can the judiciary play in getting Nigeria out of recession?
I totally disagree that the executive and the legislature are trying to rescue the economy. An economy that is controlled by foreign and local economic interests cannot be rescued in the interest of the nation. Section 16 of the Constitution provides that the economy shall not be concentrated in the hands of a few people or a group of people. In violation of the injunction of the Constitution, the Federal Government has handed over the economy to the so-called private sector, which is largely sustained by the government through the purchase of public enterprises, contract awards, intervention funds, duty waivers, currency speculation and capital flight. Even though the economy is said to be in recession, top government officials are still living a life of opulence and prodigality. Not less than 70 percent of the budget is earmarked for servicing a parasitic and corrupt bureaucracy while the remaining 30 per cent is allocated to payment of questionable debts with little left for the execution of capital projects.
However, the judiciary can contribute to economic development by ensuring that the provisions of welfare laws are upheld by promoting the socioeconomic rights of the Nigerian people. The courts should also promote accountability and transparency in government. Matters relating to the economy, including corruption cases, should be speedily tried by our courts. Fast track approach should be applied to the handling of commercial cases. Instead of promoting foreign investments, the courts should interpret the law to ensure that the Nigerian people are empowered to control the economy in the national interest. However, you can take out a peripheral capitalist economy out of recession completely. Hence, we have always had poverty in the midst of plenty. In other words, the contradictions inherent in a capitalist system are bound to engender recession. In advanced capitalist countries, the recession is being dubiously addressed by expelling immigrants and pulling out of economic unions. Britain has voted to leave the European Union while the President-elect of the leading capitalist nation on earth, the United States, Donald Trump, is planning to expel Muslims and illegal immigrants and build walls to prevent Mexicans from travelling to the US. In Europe, nationalist politicians with anti-immigration programmes are winning elections. These dangerous policies are seen as the panacea to recession in capitalist countries. But they are diversionary.
There has been a call for the merger of the ICPC and the EFCC. Do you think both anti-graft agencies should be merged?
The merger of the anti-graft agencies is not a solution to the lack of effective performance of the ICPC. Both anti-graft agencies are not enough to fight the menace of corruption at the federal, state and local government levels. However, the ICPC ought to be reorganised and repositioned to fight corruption. The EFCC is currently overburdened with corruption cases which ought to be handled by the ICPC and the Code of Conduct Bureau. Even the Department of State Services has decided to fight corrupt practices due to the failure of the ICPC to contain the menace. In the fight against corrupt practices, the government has focused on politically exposed persons alone, whereas drug barons, peddlers of expired drugs, human traffickers and other economic saboteurs are more dangerous than corrupt politicians. Therefore, the government should reorganise the Code of Conduct Bureau, Bureau of Public Procurement, National Agency for Food and Drug Administration and Control, National Agency for the Prohibition of Trafficking in Persons, National Drug Law Enforcement Agency, Standards Organisation of Nigeria, Nigerian Copyright Commission etc.
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