In this interview with Jiti Ogunye, the erudite lawyer frowns at the issuance of orders that seek to scuttle court proceedings. Specifically, he advises Senate President Bukola Saraki to confront the Code of Conduct Tribunal, CCT, and defend himself on the charges of fraudulent assets declaration levelled against him and, where he trumps the CCT, he should sue for damages
Comment on the public declaration of the President and his vice
The presidential spokesperson, Garba Shehu, released a statement wherein there was a summary of the asset declaration of the President and the Vice President and he also gave information that verification was on-going and that, in due course, the Code of Conduct Bureau will come up with its verification.
The CCB is obligated by the Constitution – the Third Schedule, Part 1, made pursuant to Section 153 of the Constitution to make disclosures on the inquiry of Nigerians. It is stipulated and not just an administrative duty, but more importantly, a constitutional obligation which is further strengthened by the Freedom of Information Act to make disclosures to Nigerians who want to know. Others at the top like governors and ministers should follow because, too often, we mouth probity and transparency without obeying the dictates of such.
If the asset is privately declared, how would those who know what you have ascertain if you’ve declared all. It’s about having a more transparent government.
There is a problem now about the Senate President and the CCB. When you look at the timing, which is what some people are complaining about, what would you say?
How long did it take the same CCB to bring Bola Tinubu before that tribunal? He was even no longer in government. Almost six years after he left government and we were all in this country and he went before that tribunal and he was defended by a battery of lawyers and the charge was struck out.
So, when people talk like this, they don’t think of tomorrow.
Damn that publicist! We live in an open era now. People just come out to say things without thinking of the implications.
Don’t you think…?
Where is it stated that because of timing you cannot prosecute somebody in this instance? And if the process is your problem, go before that Code of Conduct Tribunal, CCT, and raise your objections there and have the charges quashed.
At the tribunal?
Yes, at the tribunal
Not at another court?
The Federal High Court does not have a supervisory jurisdiction over the CCT. It doesn’t even have an appellate jurisdiction over it. Because decisions at the CCT are appealable at the Court of Appeal. And, if I must tell you, the CCT is a special court created under the Constitution, invested with special powers.
Tell us more about the CCT
It is the only court that can give an order that a person who, otherwise had been lawfully elected and who is occupying office for the violation of the code of conduct, should vacate the office.
It is the only tribunal that can bar a public office holder for up to 10years from holding office as well as forfeit the assets that were found to be in contravention of the law.
The other point is that Section 24 of the Act says any charge preferred against the person can only be handled by the Attorney General of the Federation?
I agree and I’m familiar with that section. In fact, that section goes ahead to say that the Attorney General shall prefer the charge or any officer that is directed by him or, in the case of expediency, any other legal practitioner who does not work in the Attorney General’s office.
The argument can be made, therefore, that there is no sitting Attorney General
But I am saying that even if that is conceded, you have to go and raise it before that tribunal because, as it is now, it is almost becoming a culture of using the High Court to truncate cases – ‘I cannot be arrested’.
Look, Kingsley Kuku, the (Presidential) Adviser on Amnesty, has just obtained an order from a High Court restraining the EFCC, the ICPC and the DSS from inviting him and arresting him. Does he have immunity?
Some of our judges are not getting the feeling that there is change.
What do we do?
I would advocate that there should be a Commission outside the NJC to look into the way our courts serially give orders truncating judicial proceedings, truncating investigation.
As a lawyer, I’m trained to explain to my client that we would have our day in court but this whole idea of preempting judicial proceedings, of going to court and obtaining orders, is bad. Where are these things coming from? It is indeed an abuse of judicial process.
What do you do to judges who give orders?
In the case of Fawehinmi and IGP, concerning Bola Tinubu over the certificate forgery allegation, the assumption was that once you have immunity, you cannot be investigated but Fawehinmi, of blessed memory, pursued that case to the Supreme Court where it was established that it may be expedient to investigate someone who has immunity while the evidence is still fresh, so that you collate your evidence and the case, so that once he drops that toga of immunity, you then proceed against him. Everybody in Nigeria can be investigated. He may not be prosecuted if he has immunity.
But somebody who has not occupied any office that has immunity will just saunter into the court and say ‘give me an order, I cannot be arrested, I cannot be investigated’, then that investigation body would have the additional burden to now go before that court to discharge the order. We are in a crisis. If we want to make any progress in this country, this kind of culture must not continue.
What makes the CCT special?
Look, even if you want to be charitable, you can say it is on the same pedestal with the High Court. For you to be a member of the tribunal, you must be qualified to be a judge of the High Court; so, in terms of qualification, they are the same. Once you are judge of the CCT, you cannot be removed from that position without two third majority endorsement of the entire National Assembly – Senate and House of Representatives. In the case of other judges including the CJN, it only requires an endorsement of the Senate to have him removed from office, but for the CCT, you need the entire NASS vis a vis what Section 292 provides regarding all other categories of judges; for the ordinary judges, just a recommendation from the NJC will solve the problem.
Has the CCT not opened itself to supposition with the way it is going about this because it is now 12years? Would you say it is because of lack of capacity?
I never knew that witch hunting, which is what the Senate President is talking about, constitutes a defence in criminal prosecution. I was told in the Law School that if you are objecting to a charge, you have so many things you can plead, but I wasn’t told that the fear of being witch hunted is a defence in law. Anybody can say anything.
You referred to the issue of capacity, but do you know that some of these people have more capacity than the CCT? Let them go to court and you will see hundreds of SANs falling over one another to defend them.
What I am saying is that it is not right for us to elevate this kind of chicanery to a code of standard practice and say the rule of law is there. No. I disagree. What we have is the ruse of law – you’re using the law as a ruse.
If you have a case in court, go there and defend yourself. At the end of the day, if it is malicious prosecution, sue the state and get damages.
This law is being mischievously re-written and some of us lawyers are just watching.
For a bureau that is that powerful, we haven’t seen it exercise its powers?
The CCT is a very powerful body. But the Nigerian state is so structured that power becomes powerlessness and it becomes so diluted depending on the whims of those in power.
Moving forward, I think it is up to the political leadership and ultimately the people to rid their country of corruption, to encourage their institutions to work in such a way that the high and low will obey the law.
It is not acceptable. Every society that has succeeded achieved that based on the rule of law. In fact, there are some societies where the people fear the law more than God – you cannot evade tax, you cannot overspeed.
But in a situation where people don’t fear the law, anarchy reigns supreme.
Many of the cases that we are talking about that have been dormant all the while can be brought before the CCT and its Act and the schedules (First Schedule Part One, Fifth Schedule) provide that the CCT, having exercised its powers, can leave the matter to be dealt with by the regular courts – for example, if somebody stole money, once the CCT would have exercised its powers regarding under-declaration, the CCT can still hand such a person over to the regular courts.
We can hardly remember any case apart from the Tinubu case. This is the first case since 2011.
Institutions work in an environment. The judiciary, for instance, if it is riddled with corruption and is not supportive of anti-corruption or rule of law or doing its best as the third arm of government, then it would not perform. If you have a permissive environment where anything goes, then you will not have anything positive. The political environment determines what happens.
But this thing has been with the CCB since 2003
What I am saying is that all the arguments should be taken before the CCT to knock out the charge. That is the rule of law I know. The idea of encouraging courts of coordinate jurisdiction to interfere in the proceedings of other courts, which, in itself, also amounts to subverting the independence of the judiciary, should be jettisoned.
THE INTERVIEW WAS FIRST AIRED ON CHANNELS TV
VANGUARD
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This is a better light to issue of witch hunting by d marimaje senator I think dey should go back and think of how there leader will tender his resignation letter.