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Legal practitioners’ role in effective implementation of anti-corruption laws

6.3 Policy Making and Administration

Legal Practitioners are generally not directly involved in policy conception, formulation and policy making. However, in some critical situations lawyers are either directly involved or form part of a team in government policy formulation.

Where legal practitioners are involved in policy making on corruption, it is important that they bring their legal knowledge to bear on such policy. One area that readily comes to mind is the complex subject of modern criminology.

For instance, it may not be enough to make policy to fight corruption, it may also be necessary to understand the underlying factors in the crime of corruption.

Knowledge of criminology

Thus, a legal practitioner with the knowledge of criminology may guide the policy making team on such issues as: physical and constitutional factors; mental factors in crime; psychology explanations of crime; personality theories about crime; social and cultural factors; the identification and measurement of crime, profiling of offenders; discretion in criminal justice process, and crime and community.[55]

Similarly, lawyers involved in the administration of anti-corruption laws and institutions must be seen to be competent and above board in the assignments.

6.4  Advisory Role

Legal Practitioners serve as advisers to individuals, companies, governments and other entities. Where their advisory role relate to legal issues on corruption, lawyers must be guided by knowledge, wisdom, diligence and morals.

6.5   Prosecutorial Role

The prosecutor has a fundamental role of diligent perusing the case file before giving advice, drafting a charge, filing his case and commencing trials.

The power of the prosecutor is well-documented in the 1999 Constitution, the Administration of Justice Act 2011 and the decided cases.

We can only add a moral note. He must not be a persecutor. He must also not soil his hands by compromising his case.

6.6   Defence Counsel Role

The defence counsel in corruption cases must be guided primarily by Rules 14, 15 and 32, Rules of Conduct for Legal Practitioners in Nigeria. These Rules put emphasis on devotion to duty; strong respect for and compliance to all relevant legal principles and laws; and fair play and honourable means of achieving his aim of giving the best service to his client.

At this stage, it is apposite to refer to an opinion expressed by a Lawyer in Indonesia[56], which I share that:

“In the fight against corruption lawyers are an important instrument because they are the key actors in our legal system, which is apparently not functioning properly. It is the lawyers who can contribute greatly to liberating our nation from corruption.

All the government’s efforts in the battle against corruption will fail if the majority of lawyers take an opposing stance or act as onlookers…

…lawyers should stand up and share the responsibility for combating corruption.”  Morality naturally comes to play here.

7.0   Lawyer as a judge & judicial corruption:  We all know that judges are appointed from the members of the Bar. Indeed it has been said, that the bench will forever reflect the Bar, as the source from which it is constantly replenished The Author[57] added rather ominously that “As things are, the High Courts up to Supreme run the risk of a decadent future, if the present rate of deterioration at the Bar is allowed to continue unarrested. This was in 1992!

Perhaps avoiding this possibility was why the Commonwealth was motivated, to develop rules for government department including the judiciary. The Commonwealth Heads of Government at its meeting in Abuja, Nigeria, in 2003 agreed and endorsed certain principles for governing three branches of Government in the Commonwealth States. These are contained in a document titled: Commonwealth (Latimer House) Principles on the Accountability of and the Relation between the three branches of Government.[58]

The objective of these principles is to provide, in accordance with the laws and customs of each Commonwealth Country, an effective framework for the implementation by governments, parliaments and judiciaries of the Commonwealth fundamental values. Specifically on the value of independence of the judiciary, the Commonwealth affirms that:

An independent, impartial, honest and competent judiciary is integral to upholding the rule of law, engendering public confidence and dispensing justice. The function of the judiciary is to interpret and apply national constitutions and legislation, consistent with international human rights conventions and international law, to the extent permitted by the domestic law of each Commonwealth country.[59]

The national Judicial Council has also made copious rules for the regulation of the conduct of Judges. It only recently launched a Judicial policy[60] all in a bid to put things straight as it were.

7.1  Structure of the Judiciary: Broadly speaking, the structure of the judiciary in Nigeria consists of a hierarchy of courts. At the bottom of the ladder are the pre-colonial traditional courts variously called Customary, Area or Islamic (lower Sharia) Courts.

They administer traditional laws, or in some cases Islamic laws. They may consist of two or more grades, but they are usually inferior courts and generally, appeals lie from them, sometimes, through a higher grade of traditional court to the High Court. Next are the Magistrates’ or District Courts. Essentially, they administer local statutes and the “received” English law. Appeals from them lie to the High Court.

The Superior Courts of Records under the constitution consist of the customary courts of appeal of a state and the Federal Capital Territory, the Sharia Courts of Appeal of a state and the Federal Capital Territory, a High Court of a state, the High Court of the Federal Capital Territory, the Federal High Court, the Court of Appeal and the Supreme Court. Appeals from the High Court, Sharia Court of Appeal or the Customary Court of Appeal lie to the Court of Appeal and from there, to the Supreme Court, which is the final court.[61]

7.2    Judiciary and other Arms of Government  

In order to appreciate fully the role of the judiciary under the constitution, knowledge of a basic fact about the political system of the country is essential. It is that, we have adopted a presidential system of government which involves the separation of the three arms of government; the executive, the legislature and the judiciary. According to L.C. Pats Acholonu, JCA as he then was, the framers of the 1999 Constitution of the Federal Republic of Nigeria were, undoubtedly, influenced by the doctrine of separation of powers as formulated by the old French philosopher and jurist, Montesquieu.

The functions of each of the arms are clearly recognised, defined and separated under the constitution. Section 4 of the constitution vests the legislative powers of the Federal Republic of Nigeria in the National Assemblay which consists of the Senate and the House of Representatives. Section 5 vests the executive powers of the federation in the president, subject to the provisions of the constitution. Judicial powers are vested in the courts under section 6 of the constitution.[62]

The legal sector, judiciary inclusive is increasingly viewed as a critical component of national development. This is the position of major international development agencies now. This was the view of Swithin J. Munyantwali in an Annual Lecture delivered at the Nigerian institute of Advanced legal Studies in 2003.[63] According Munyantwali, the judicial sector is now generally required of the following:

(a) Well functioning court systems, registries, accurate law reports as well as up-to-date technology for court reporting; (b) Transparent and clearly thought out court decisions as the norm; (c) Public reliance on and respect for the credibility of adjudicated disputes; (d) Attention to be given to ensuring there are no conflicts of interest and that in the handling of all cases, judges observe that highest ethical standards. In tandem with this, to ensure that effective disciplinary processes are in place for errant judges; (e) That in the selection of judges, we ensure that only those with the best credentials are selected to join the bench; (f) That in eliminating the growing backlog of cases in our courts, we seek better organisation.[64]

7.3   Judicial Integrity

Commenting on Judicial integrity, Akinolu Akinjimi, SAN, in a Public lecture delivered at the Nigerian institute of Advanced Legal Studies advised that:

A Judge should not use his powers to pursue ends other than justice. The powers of a Judge are a sacred trust given to him to decide matters between persons or between government or authority and any person, and to determine any question relating to the civil rights and obligations of a person. When a Judge disregards what appears to be settled law in binding precedents, questions are bound to be asked. Suspicion brews.[65]

On corruption in the judiciary, he noted, with emphasis that:

Corruption has eaten deep into our society. It appears the focus of the battle against corruption has always been targeted at only the Executive and the Legislature. Is it being suggested that all Judges are saints? There are some quite fine, outstanding courageous, brilliant and incorruptible Judges who always stand in defence of the truth. But there are also a few you cannot say the same thing of. There are those who are more executive than the executive itself. If you have a case in their court against the Executive, just forget it. As the executive Judge takes his seat, justice takes its flight.[66]

As lawyers, we know that for good reasons, we exercise restraint in conduct and speech, but this is without prejudice to saying what is true and desirable. It is however important to note that in 2011, a Federal Attorney General and Commissioner for Justice warned every one of us. Akinolu Olujimi, SAN and former Attorney General and Minister for Justice     referred to the practice, if any, as pollution of fountain of justice by mercenary considerations. His exact words were:

The Nigeria Financial Intelligence Unit (NFIU) of the EFCC has a mandate to pry into the bank accounts of every person. There should be no sacred cows. People who pay bribes to get judgment hardly keep quiet. If to no other person, they will at least tell their lawyer and admirers. It is a boost to their personality and they sing it about after the event with considerably gusto. It casts around them the image of a go-getter. I think the fountain of justice is too pure to be subjected to any pollution motivated by mercenary considerations.[67]

The major function of the judiciary is not in doubt. The principal function of the judiciary is the administration of justice, which consists, essentially, in adjudication. That is, the resolution of conflict of rights and interests. It is pertinent to mention that section 6(6) (a) and 9b) of the constitution has given the courts an extensive power to adjudicate in all matters or controversies in which civil rights of any person are involved or threatened. For the avoidance of doubt, section 6(6) (b) of the constitution provides:

The judicial powers vested in accordance with the foregoing provisions of this section shall extend to all matters between persons or between government or authority and to all actions and Nigeria and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of the person.

The role of the judiciary under the above provisions is sufficiently crucial.[68]

7.4  Corruption in the Judiciary

Between Friday 14th and Sunday 15th October 2016, the Nigeria media was awash with the reported arrest of seven judges by the operatives of the Department of Security Services. These highly placed judicial officers were alleged to have committed acts of corruption and other crimes.[69]

While the circumstances surrounding these highly troubling events affecting some Hon. Justices of the Highest Court in Nigeria and other Superior Courts of record are still unfolding, we can only await with bathed breath, its outcome. One thing is clear though, observance of due process cannot be compromised. The potentially debilitating negative effect on the cause and effect of that unfortunate incident, on the entire Judicial Institution is to say the least frightening. However, great care must be taken, not to pre-judge the issue, given that some of the matters are said to be in court already. Great care must also be taken, in moulding public opinion in order not to pack the hen with the dove, as our people would say. This is because, without doubt there are extremely hardworking and honest men and women both on the Bench and at the Bar. However, one cannot but call to mind, the very weighty allegations[70] of a former President of the Court of Appeal, made against a sitting Chief Justice of Nigeria[71], which to me, was a pointer to things that may come, once we Legal Practitioners failed to take heed concerning the dangers ahead. It provided a good opportunity to save our profession nay the judiciary, the embarrassment of the recent past, but unfortunately we seemed to have looked the other way. As Odinkalu[72] opined then:

Nigeria’s judiciary finds itself in an exquisite crisis that should not be wasted. The fork on the road out of this crisis offers two options to the country and our legal profession: impetus or implosion. With the lawsuit filed on 8 February 2011 at the Federal High Court in Abuja by the PCA, Ayo Salami, against the CJF, Aloysius Katsina-Alu…

…Nigerians everywhere deserve a dispassionate and tidy conclusion to this and anyone proved guilty should face proper sanctions. The legal profession especially has a moral burden to ensure this.

…Our judicature, our democracy, and our country are at stake. If it is right to insist on the due process for public officers accused of corruption, the rules cannot be different for judges.

Prior to that time, some highly respected Jurists have not been silent, on the debilitating effect of corruption on the administration of Justice in Nigeria; if allowed to thrive.

One that readily comes to mind, is that of that erudite, courageous one time Justice of the Supreme Court, Honourable Justice Chukwudifu Oputa (of blessed memory). In a lecture delivered at the Nigerian Judicial Institute (NJI) in 1990 on Judicial Ethics, Law, Justice and the Judiciary, the Law Lord clearly stated that it is a calamity to have a corrupt judge. Let us quote him in extenso:

Conscience comprehends honesty and moral rectitude. Both virtues should form the badge of a good Judge. They should be his uniform. It is a calamity to have a corrupt Judge. Money they say is the root of evils. The Judiciary is not a place to make money. There is no doubt the salary structure and conditions of service in our Judiciary both need complete and total overhaul. Our judges deserve the minimum of comfort to enable them perform their arduous duties attaching and pertaining to the judicial officer. But the poor conditions of service are no excuse for any Judge to be corrupt and dishonest, for one thing, no one is forced to go to the Bench. And no one should go to the Bench to amass wealth, for money corrupts and pollutes not only the channels of justice but also the very stream itself. It is thus a calamity to have a corrupt judge. The passing away of a great Advocate does not pose such public danger as the appearance of a corrupt Judge on the bench, for in the later instance, the public interest is bound to suffer and elegant justice is mocked, debased, depreciated and auctioned. When justice is thus bought and sold then, there is no more hope for society. What our society needs is an honest, trusted, and trust worthy judiciary.[73]

Now that we have come to this unfortunate pass in the annals of Nigeria’s Judicial history, it is hoped that both the Bench and the Bar will rise to the occasion beyond name calling. It presents another opportunity as unfortunate as the circumstances are, to take stock and take steps to address the future of our profession. It is in the interest of us all and our country that we acknowledge our failings and make amends, without which our role, with regards to the anti-corruption Laws will become suspect. The quote below is quite instructive:

“Your laws are ineffective,’ Wen declared. ‘Why? Because no system of control will work as long as most of those administering the law against an evil have more than a finger dipped into it themselves.”

Han Suyin, Chinese physician and writer Destination Chungking (1942)

8.0   INTERNATIONAL LAW AND PRACTICES

It is important to note few instruments and institutions relevant to control of corruption globally. I do not have the luxury of time and space. So, I will be very brief.

8.1 United Nations Convention against Corruption

The United Nations Convention against Corruption (UNCAC) was adopted by the General Assembly on the 31 October 2003 and entered into force on 14 December 2005. It is the first global legally binding instrument in that field which covers public and private, domestic and international corruption. The convention basically rests on four pillars: corruption prevention, law enforcement, international cooperation and asset recovery.[74]

8.1.1   International cooperation

In this context, State Parties agreed to cooperate with one another in every aspect of the fight against corruption, including prevention, investigation and the prosecution of offenders. Countries are bound by the Convention to render specific forms of mutual legal assistance in gathering and transferring evidence for use in court and to extradite offenders. Furthermore they are required to undertake measures, which support the tracing, freezing, seizure and confiscation of the proceeds of corruption[75].

8.2 The United Nations Global Compact and its 10th Principle on Corruption

On 24 June 2004, at the UN Global Compact Leaders Summit, the addition of a 10th Principle against corruption was announced, sending the signal that the private sector shares responsibility for the challenges of eliminating corruption. Specifically, the principle states that “businesses should work against corruption in all its forms, including extortion and bribery and joins the nine other principles promoting good corporate practices in the fields of human rights, labour and the environment[76].

8.3 Transparency International

Transparency International believes that one of the root causes of poverty is that foreign aid does not reach the people in need. Corruption prevents the allocation of resources, originally planned for the poor to never reach the people in need. Furthermore, corruption impairs programmes aimed to improve the lives of the very poor to be effective. Transparency International believes that the accomplishment of the Sustainable Development Goals (SDGs) is severely hindered, maybe even to the point of being made impossible, if corruption continues to exist in such an extreme form.[77]

8.4 Attempts made by Non­ governmental Organizations

The World Bank has released its Six Strategies to Fight Corruption, which aim to provide nations with guidance in the battle against corruption. One strategy supported by the World Bank is to pay civil servants well enough that they don’t have a great incentive to become corrupt. If public servants are paid well, they usually won’t need to find illegal measures to boost their income. Another more elaborate strategy could be to promote transparency, making it more difficult for officials to hide bribes and other sorts of corruption. Tax exemptions, soft credits, extra­ budgetary funds, subsidies, and public procurement of goods and services are elements that could become more transparent. The World Bank believes, that another option is to remove any unnecessary regulations, but still enforce the fundamental ones. This strategy is intended to tackle the issue of governmental laws and programs that accidently breed corruption. The globalized economy provides reason for greater cross­ border corruption systems that could only be tackled with a multiplicity of conventions.[78]

8.5  Anti-Corruption Strategy for the Legal Profession

The Anti-Corruption Strategy for the Legal Profession is an initiative launched in April 2010 by the Organisation for Economic Cooperation and Development (OECD), the International Bar Association (IBA) and the UN Office on Drugs and Crime (UNODC). It began with a survey carried out by the IBA which was designed to assess the knowledge and understanding of the legal profession in terms of corruption. The purpose of the survey was not to determine what lawyers knew about international bribery but what they understood about their own role and their own risks. The results of the survey were fairly striking because a number of lawyers indicated that they knew of colleagues or competitors who had probably been involved in corruption schemes, and/or had experienced losing clients because they did not want to be involved in corruption. The survey indicated that corruption was not a hypothetical issue and at the same time that there was an amazing degree of ignorance among lawyers of their own role and risks.[79]

9.0   CONCLUSION AND RECOMMENDATIONS  

A Legal Practitioner is undoubtedly a special specie of a professional. The Law and the society vests him or her with much respect. Indeed, he is the only, one whose profession constitutionally guarantees him a seat, in the council of Ministers. Professor I. E. Sagay[80] speaking on the role of the Attorney General in the Administration of Justice, had this to say:

“In Nigeria, the Attorney-General is the most Senior Minister in the Executive Council of the Federal Government and of the States respectively. He is the only appointed member of the Council specifically mentioned and assigned functions in the Constitution.

By Section 150(1), the Constitution provides that “There shall be an Attorney General of the Federation who shall be the Chief Law Officer of the Federation and a Minister in the Government of the Federation. This is repeated in Section 195 in respect of Attorneys-General of States.

This pre-eminent position of the Attorney-General is further re-inforced by the wide and uncontrolled discretion and powers given to him with regard to criminal prosecutions. Under Sections 174 and 211, Federal and State Attorneys General are empowered:

“(a) to institute and undertake criminal proceedings against any person before any court of law in Nigeria other than a court marital in respect of any offence created by or under any Act of the National Assembly;

(b) to take over and continue any such criminal proceedings that may have been instituted by any other authority or person; and

(c) to discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaken by him or any other authority or person.

(2) The powers conferred upon the Attorney-General of a State under subsection (1) of this section may be exercised by him in person or through officers of his department.

(3) In exercising his powers under section, the Attorney General of a State shall have regard to the public interest, the interest of justice and the need to prevent abuse of legal process.”

In holding that the exercise of the Attorney-General’s powers under public prosecutions, particularly, to enter a nolle prosequi is absolute and unfettered, and not subject to judicial review, Eso, JSC, giving the leading judgment in The State v. S.O. Ilori & Others (1983) 2 S.C 155 stated thus:

“The pre-eminent and incontestable position of the Attorney General, under the common law, as the chief law officer of the State, either generally as a legal adviser or specially in all court proceedings to which the State is a party, has long been recognized by the courts. In regard to these powers, and subject only to ultimate control by public opinion and that of Parliament or the Legislature, the Attorney-General has, at common law, been a master unto himself, law unto himself and under no control whatsoever, judicial or otherwise vis-à-vis his powers of instituting   or discontinuing proceedings. These powers of the Attorney General are not confined to cases where the State is a party. In the exercise of his powers to discontinue a criminal case or to enter a nolle prosequi, he can extend this to cases instituted by any other person or authority. This is a power vested in the Attorney-General by the common law and it is not subject to review by any court of law. It is, no doubt, a great ministerial prerogative coupled with grave responsibilities.  In the learned Justice’s view, the requirement that the Attorney-General shall have regard to the public interest, the interest of justice and the need to prevent abuse of legal process in exercising these powers, as contained in our Constitution, adds nothing to the position at common law. The discretion of the Attorney-General remained absolute. According to the learned Justice,

it is one thing to point out the dangers of an Attorney-General in arriving at a decision without taking into consideration what he is expected to have regard to. However, to my mind, it would be completely wrong to regard this as a precondition to the exercise of his powers under S. 191 of the 1979 Constitution. The exercise of these powers by the Attorney-General, that is, he institution and discontinuance of criminal proceedings cannot be questioned, and subject to the reserved right of his appointor to remove or even reassign him without giving any reason whatsoever for so doing, neither that appointor nor any other person for that matter can question such exercise of his powers. [81]

To the extent, that there are no special nor separate schools or institutions, for the training of prospective or future Attorneys General, it behoves us all individually and collectively, to take responsibility for our professional calling, if we are not to endanger the wellbeing of the larger society, who depend on us, to stand up for the Rule of Law. To my mind, the requirements of learning, integrity, courage and independence of mind germane to the due performance of the role of the Attorney General are such, that every Lawyer should possess, if we are going to be of any help to our country, in the implementation of the anti-corruption Laws.

Without doubt, the Legal Practitioners’ responsibilities are indeed heavy. The wisdom of one of the Nigerian best legal minds of the past is relevant here. We quote his words:

A heavy responsibility devolves on a legal practitioner by virtue of his profession. He is not only an officer of the court who assists in the administration of justice; he is also the defender of the rights of the citizens and custodian of their confidence. In the course of his duties, he risks coming into conflict with the state and even sometimes with the court. He must maintain the rule of law and avoid putting himself in a position where his personal interest will conflict with that of his clients. He must act honourably, for the profession is “the honourable” profession.

In this paper, I have tried not to be bore you with cases. I have tried instead to focus on the topic given to me without casting Newspaper Headlines! The main objective of this lecture is to highlight the expected role of the Legal Practitioner in the effective implementation of Nigeria’s anti-corruption Laws. I have done that, within limitations of space and time. In broad terms, this lecture has seven main components. These are introduction; definition of terms; legal education in Nigeria; Anti-corruption Laws and their implementation; Role of Legal Practitioners and rules guiding them; the Lawyer as a Judge and implications for implementation of anti-corruption law; ethical and moral dimensions; and the influence of international law. I also draw the conclusion that laws, morals and ethics must work together to create the synergy required for the effective role of Legal Practitioners in the implementation of anti-corruption law in Nigeria.

Nevertheless, I want to conclude on moral note. First, the present perception of lawyers in relation to the fight against corruption is less than favourable. Secondly, our poor role (perceived or otherwise) has both economic and social costs. It leads our people to greater poverty and utter feeling of dejection. Thirdly, from generation to generation, lawyers have served   and continue to serve as agents of positive change. They are too numerous to mention names. However, our generation and those coming after us, obviously need to do more, if our profession is not to suffer odium and perdition. The war against corruption is the major war in our country now. The war cannot be won except lawyers take morals along with laws. It has been said, the spirit of the law is morality. Borrowing from Justice Oputa, JSC; (of blessed memory) The plea I wish to make here is that the Nigerian “Legal conscience should be open to the demands of morality and the profession should lead us back to the path of legal and political rectitude[82]”.

Leading us back to our origins, brings to mind the following passages from the Novel: Remembrance Rock by Carl Sandburg:

When we say a patriot is one who loves one’s country ran the voice of Justice Windom “What kind of love do we mean? A love we can throw on a scale and see how much it weighs? A love we can take apart and see how it ticks? A love where with a yard stick we record how long, high, wide it is? Or is a patriot’s love of country a thing invisible, a quality, a human shade and breath, beyond all reckoning and measurement? These are questions. They are as old as the time of man. And the answer to the, we know in part. For we know when a nation goes down and never comes back   when a society or a civilization perishes, one condition may always be found. They forgot where they came from. They lost sight of what brought them along. The hard beginnings were forgotten and the struggles farther along. They became satisfied with themselves. Unity and common understanding there had been, enough to overcome rot and dissolution, enough to break through their obstacles. But the mockers came. And the deniers were heard. And vision and hope faded. And the custom of greeting became “What’s the use?” And men whose forefathers would go anywhere, holding nothing impossible in the genius of man, joined the mockers and the deniers. They lost sight of what brought them along. You may bury the bones of men and after dig them up to find they have mouldered into a thin white ash that crumbles in your fingers. But their ideas won. Their visions came through. They ought not to be forgotten  the dead who held   in their clenched hands that which became the heritage of us the living.[83]

As our national Anthem goes “the Labour of our heroes past shall never be in vain”.

Fourth, we need to be cautious with the emerging grouping of lawyers along tribal and religions lines. It can be a double edged sword and if not properly managed, constitute a present danger to the performance of our role in fighting corruption. Fifth, there is a wise saying that “not all that glitter is gold.” As it has been said, we should shun every invitation to participate in corrupt practices, no matter how lucrative it may seem. A good name, is undoubtedly preferable to silver and gold. Should we elect to abide by the guiding rules of our profession, then our leading role in the effective implementation of Nigeria’s anti-corruption Laws shall remain guaranteed.My Lords, Mr. Vice Chancellor, Dean of the Faculty of Law, My Learned and distinguished Colleagues, Senior Advocates of Nigeria, Senior Academics, Ladies and Gentlemen, this my humbly lecture in honour of our man of integrity – Justice Mohammed Mustapha Adebayo Akanbi.


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