By Dayo Benson, Ass. Political Editor & Oamen Areguamen
Since the inception of this democratic dispensation, there is no doubt that the Judiciary has been playing a major role in deepening the fledgling roots of Nigeria democracy. Lately however, the institution has been rocked by allegations bothering on corruption and subversion of justice, especially at its top echelon . These are other imperatives that have made reformed minded senior lawyers to advocate for democratisation of judicial institutions. One of them is Mr. Olisa Agbakoba, Senior Advocate of Nigeria, SAN and member of the National Judicial Council, NJC.
In this interview , he spoke on issues affecting justice dispensation and how judges and lawyers have not helped matters . He also spoke on election petition tribunal and the presidential panel on post- election violence that occurred in some parts of the country as well as other issues.
The presidential election petition tribunal has been inaugurated headed by justice Ayo Salami. Some people have raised objection that he ought to have disqualified himself , because of the issue that is pending between him and the CJN . As a member of CJN how do you react to that?
I am happy you said that, I am a member of NJC , it means I am not qualified to answer this question, because it will be prejudicial to speak about the NJC meeting. Having said that, I do not see the relationship between him presiding in the presidential election tribunal panel just because there are pending issues with him and the NJC. I think these are different issues unless either of the parties, that is, the C.P.C and PDP are raising questions over the propriety of his presiding. This is a matter the NJC will have to resolve. But if parties in the case raise it, then, it might be an issue and if not I don’t think it matters.
After the court of appeal, the matter will still get to the supreme court and the CJN who is also party to the issue is expected to preside. What is your take on that ?
It is not the best, it is something that ought to have been avoided , and they are both the heads of the courts. The practice has been that the heads of the courts both at the court of appeal and the supreme court preside over the presidential election petition, nothing says the head of the court of appeal should preside , but he is presiding and nobody has raised any issue as to whether he is not competent to preside. I think it is good to let the sleeping dog lie.
The president has set up a panel to investigate the post election violence that rocked some parts of the country and some people have raised objections that he lacks the power to set up such a panel. Do you agree with this position ?
I didn’t see the panel as a legal panel, the president by virtue of section 5 of the constitution is the chief executive officer of Nigeria , and he has to do things to give us confidence that he is concerned. One thing I like about presidents in advance countries is the way they respond personally to handling national issues.
I don’t think that the set up of the panel has anything to do with polities or law. If you were one of those affected, you would be emotionally satisfied by the president setting up the panel. If the president can express condolence to Nigerians, I think that would bring some kind of satisfaction and send text messages to the parents and relatives of the dead corps members involved, I think that is what the president should do. We intend in Nigeria to put everything we do into legalism, the panel is not a legal panel. If he wanted to form a legal panel he would institute a commission of enquiry. It is simply a fact finding panel and if he don’t do it , the respond would be that he is ‘Callous’. What he has done, may not be perfect but I think if I were the president, I would do exactly that. I think what this shows is that we need to have a permanent constitutional mechanism that deals with election violence.
Remember that the Mohammed Uwais’ electoral review committee recommended the election offenses commission. What I hope the panel will establish is the culpability of those who took part in the election violence so that they can be appropriately punished. People may say we already have the police, why didn’t the police or the Attorney General simply prosecute this people accused of murder? Nigeria is a very complex place; it is the perception, for me, that is important. But I do hope that the panel will see how we need to establish a permanent institution to deal with this issue of election violence.
The argument is that it is the state governments concerned that have the power to set up such panel and not the federal government
This panel is not pursuant to any law, this is a national issue that affect Nigerians. It is not enough for the state to set up a panel, which state are we talking of ? I think it was a national issue for the president to set ad hoc fact finding panel, nothing stops the states from taking what ever legal measure in order to deal with the identified culprits. The president does not stop them from taking what ever legal action they can take to deal with the situation.
Will you like to compare this to what happened in Plateau State, is there any correlation?
Clearly what has happened, this time was about election but what happened then was about violence in a state, therefore it was localized within this state. But this one is about presidential election which is a national issue. The president cannot stand by a mere fact that the problem happened in a state and allow things to degenerate. He is bound to react. The president of a country represents the national aspiration and emotion and I think the way he reacted conveyed the importance of what happened to Nigerians.
Some had argued that the supplementary election that took place in Imo state is unconstitutional, what is your position on this?
If I were a judge I will take a very broad view on the issue . We need not be looking at any small problems that will unravel our democracy. The constitution does not talk about the supplementary election clearly, it simply talks about time lag. The election started within the time lag but the constitution does not say that it must be concluded within a specific time. You may assume that the election should end on same day, nothing says it cannot be carried over, therefore it is legal if it has started within the time lag. It is not illegal because the election ended within the time lag, so as to save the democratic processes.
What we want is for the election to succeed and people in the INEC to succeed. But why would people keep interpreting laws for INEC? We will have problems if the supplementary election is unconstitutional. What do they want? They want state of emergency because that is the only way forward. We must keep in mind the need to interpret our constitution in a way that deepens our democracy and avoid crisis, which is the function of the judges. These judges use necessities exigencies to interpret issues before their courts to save the situation.
At the end of the day, nothing was lost. The election took place and the people of Imo state voted for the candidate of their choice. If we are to talk about how votes were stolen and the issue of substantial injustice to Ohakim, I think we will not help Imo state by declaring the supplementary election illegal simply because the election was two days out of time. Some of the rules of court would say you must hear fundamental rights proceeding within seven days of filing, it didn’t say you must hear and finish it within those days.
What are your expectations on election petition tribunal considering allegations of corruption against the judiciary?
I think public confidence is quite low because of the face off between the CJN and the court of appeal president.
The feeling now is if you are going to court, “you hear the counsel asking themselves I hope the judges is going to seat. ”
That is not good, that is not how it should be. The old view is that judges know what is presumption and judicial incompatibility but today the presumption is no more there. We need to do every thing to heal the process, I don’t know how the tribunals are going to operate , I am going to assume that they are going to operate based on people’s feeling.
Justice can be done, we can see how the NBA and other relevant stakeholders are concerned on how to reform the judicial process. Nigeria can see that all hope is not lost in spite of the do or die politics we were hearing about.
Today confidence is restored in spite of the challenges here and there but it is a general feeling that Professor Jega did well. Jega’ s performance, his integrity and competence will be the yardstick within which all agencies of government will be viewed. On the issue regarding the judiciary, can we say we have Jega’s style of leadership? What can we do, if we have to reform the judiciary? We have to look at the institution.
We need to democratize the institutions and I don’t think it is good enough to have the NJC appointing , disciplining, budgeting, promoting judicial officers. I will recommend that the heads of courts focus on their primary functions, running their court files and presiding over cases and delivering judgment because the quality of judicial service is poor.
It takes about ten years to get a case finished in the supreme court, why will I want to go there, it takes about eight years to get a case through in the high court, it takes about 12 years to get a case through in the appeal court, that is not justice.
Things to do with judicial policy and judicial administration should move away from the NJC. We have the federal judicial service commission, but unfortunately it is headed by the CJN. We have the National Judicial Council, NJC, again it is headed by the CJN.
We need to democratize this institutions, bring in other relevant persons of integrity with judicial back ground to run those other institutions, so that there will be necessary checks and balances in the judiciary. The issue of automatic elevation to the head of court by the next most senior officer needs to be reviewed. I just say it generally, I do not say that with respect to the person who are number two now.
These people feel that once you are number two, you automatically become number one . It encourages laziness, but if they know that there will be a debate and the best person will be picked not by the out going head of court who recommends the next person by the independence federal judicial service commission headed by a different person, he and his members will look at the work of judges and say yes, we feel that is the person , it is not number two in that case.
I think quality will go. To summarise the issue, the quality of the judicial service is very poor , the quality of the legal service are too slow , there is need for fundamental shakeup and reform on the ways lawyers and judges do their work, it is very poor now, so that confidence can return to the way we work. I personally, to be honest with you, lost interest in going to court because even at my level I cannot see any assurance that if I go to court the judge will be there. The presumption that the judge will not seat is a prevailing view among lawyers. We all laugh at it and say I hope your judge will be there, that is terrible. Then, we talk about the way the courts work, why are they taking so long? The rules, the operational mechanism in a computer must be upgraded from time to time.
Just the other day, I was given an example to judges at the bar and bench conference held by the Lagos branch of the NBA and I said that in England, the way the judicial service is rendered now does not require the presence of a lawyer, except when it is very necessary.
For instance, we have a pre-trial stage, in which a case is filed, you applied for amendment and you apply for all kinds of procedural things. The judge is in electronic communication, so, if you file your papers on behalf of your client and I file my papers on behalf of my client, we will need time to amend, the judge just does it on his electronic system and he replies the order electronically. You don’t have to come to him. But here we are still doing oral presentation which cases delay. There is a whole new way the judiciary needs to work. They need new culture. Take issue of bail for instance, the principle upon which bail is granted is very clear that no other principle can be added. Yet judges adjourned to rule on bail application for a month or two, whereas it is a matter of dealing with it on the spot. So, the culture of some judges also contribute to wasting time.
Having said this, as a member of the NJC, how receptive are the member to this idea of reforming the judiciary?
I cannot talk about the working of the NJC I don’t think the NJC is the platform to which I will approach the idea of reform , I would rather present my idea on the platform of the NBA. We have National Executive Council in Abuja , it is better for the NBA to be the one to institutionally lunch the reform rather than me as a person. Me in particular. I have access to the institution of the NBA . That is a strong goal .
I think the time has come when we need transformation . Two lawyers come to mind about how far we have gone down. Chief Obafemi Amolowo lost a case in court and said that was the last time he will go to court. Mr. Fred Egbe lost a case in court and also said that it was the last time he will to court. Law is science. If I have a bail application and I am denied, unless there are clear reason the judge has done so. I will be a bit concerned why he has refused it, when law is no longer certain you have a strong case and you lose you begin to wonder .
There are so many gaps now in the quality of judicial service rendered that make you wonder. We have to look at the Judges appointed. Who are these judges? who appoint them, are they qualified? There are also some in the rank of silk. As a senior silk, a lot of us know that many of our colleagues are not qualified, how do they get appointed . So there are problems everywhere senior counsels are not well groomed, Judges are not well groomed, young lawyers have absolutely no idea why they are called to the bar, the law school teaching methods are poor. A lawyer comes out from law school and want to set up his practices, what about pupilage? We need to restructure and organize the legal and judicial profession.