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Amending the constitution will not solve Nigeria’s problem – Orbih, SAN


Mr Fred Orbih, Senior Advocate of Nigeria, based in Benin, Edo State, in this interview, cautioned that amending the country’s constitution was not the solution to the problems facing the country. He stressed the need for Nigerians to imbibe attitudinal change, which according to him was the only way  the nation’s constitution will be appreciated.

He also spoke on the call for the removal of the immunity clause, autonomy for local government administration and other national issues. Excerpts:

AS a senior lawyer, how would you describe the nation’s judiciary in 2012 and the way the Justice Ayo Salami matter was handled?

The judiciary performed creditably well in 2012 in the discharge of the functions for which it was created under our constitution. We can only say that we can build on those achievements this year.  If you talk about controversy, life it self is controversial, there is no society that is not controversial, it is how issues are resolved that varies from one society to the other.

Commenting on cases that are in court

The Justice Ayo Salami issue you mentioned is still in court and as a lawyer, I am usually very reluctant to comment on cases that are in court. But the credit I will give to the judiciary as far as the issue is concerned is that every body is respecting the simple fact that the matter is in court, so there is a limit to which they can go unless the matter is either resolved by the court or withdrawn from the court.

There are calls for the removal of the immunity clause, so that corrupt elected office holders could be tried while they are in office rather than when they are out of office. What is your position on this?

To a very large extent, I think the immunity clause is causing havoc in our body polity and the earlier we take a second look at it, the better. I believe that if the immunity clause should continue to exist at all, it should only be in respect of the President, for obvious reasons.

The Presidency as an institution cannot afford a situation where it is bugged down with countless court cases because court cases are time consuming, they are expensive and if the President is to devote his time to that, then he will not have time for any other thing.

*Mr Fred Orbih, SAN
*Mr Fred Orbih, SAN

However, let me say this, either for President or governors, where there are weighty allegations of corruption, I think the immunity clause must give way so that those allegations can be investigated. Where there is substance in such allegations, then they should be prosecuted in court.

Until we begin to do that, we will continue to have a situation where people continue to act with impunity. This culture of impunity must be brought to an end in Nigeria. That is the foundation of corruption in Nigeria. People do things and nothing happens. And now, it is even worst that the constitution creates a kind of cocoon around certain public office holders and invariably and inevitably, they will continue to believe that they can get away with every thing and any thing and they have been getting away with everything.

We have seen it in operation and it does not augur well for the country. There must be consequences, especially if criminal allegations are leveled against any officer at any level and it is the possible consequences that will act as a deterrent. How many governors have we been prosecute successfully after they left office.

The number is negligible. Even the most successful one was not prosecuted in this country. It was outside the shores of this country. And those who are vast in criminal investigation will tell you that time is of the essence in every criminal investigation.

The more time lapses, the greater the opportunity to cover up the crime, whether in high or low places. So the immunity clause in my humble opinion should be removed from the constitution as far as criminal matters are concerned, especially criminal matters bothering on corruption.

But the judiciary is part of the problem too?

I am not one of those who subscribe to the view that the Nigerian judiciary is corrupt, rather, I am of the humble opinion that there are some corrupt judges but like in every system, you know it is one rotten apple that can spread corruption to the many that have nothing wrong with it.

You will always have a few bad eggs. The reason why this allegation of corruption rings such a loud bell is because of the nature of the job they perform. The judiciary is not more corrupt than any other segment of the society. I can even tell you that it is to a large extent, cleaner than other arms of government.

I make bold to tell you that if you compare the legislature, executive and judiciary, you will always find that the judiciary will be smell like roses but that is not to say that you don’t have few bad eggs that don’t deserve to be in the offices they occupy.

And like every self cleansing society, I believe in the mechanism in place to get rid of these bad eggs, and that is why we have the National Judicial Council, NJC, that take care of discipline of judges. I can tell you that the few cases that have gone there were promptly handled.

Let me tell again, it is sad that when people lose cases, they accuse the judiciary of bribery but when the win, the judiciary is good. That is very bad. Accusing the judiciary of bribery always is a reflection of our attitude, culture and our way of life. What I am telling you is that Nigerians are not good losers, some of these allegations of corruption you hear, arise when one loses a case and because they must find a reason for losing that case, they say the judge was bribed.

Some times, you can even lose a case you ought to have won not because the judge was bribed but because of the way the case was presented to him or her by your lawyer. It will not be because he received money, and don’t also forget that judges are human beings.

Allegations of corruption

If we were so sure that every judgment will be right, there will be no need for the Appeal Court or the Supreme Court. It is because the system is conscious of the fact that these judges can make mistake, that is why you have the Court of Appeal. Even at the Appeal Court level, the system recognised that mistakes can also be made and that is why you have the Supreme Court.

Even at the Supreme Court level, they are not infallible but they only happen to be the final court and that is why there is no further appeal, that is not to say that they cannot make mistakes. They can also make mistakes of the heart. But the only thing is that if they make mistake at that level, then you leave the matter to God.

But I think that it is wrong to accuse judges of corruption after every judgment especially when there is no proof. I am not saying that some judges are not corrupt but I don’t think it is as rampant as we intend to believe. This country had produced great judges. We have produced Chief Judges in the Gambia, Uganda.

We produced judges in the International Court of Justice in the Hague. So, I think it is wrong to paint the entire judiciary bad, the only thing we should do is to flush out the bad eggs. It is important that we don’t castigate the judiciary to such an extent that the public will lose confidence in it because if the public loses confidence in the ability of the judiciary to adjudicate on issues, then there will be anarchy.

It means that no body will take his case to court, as he will rather pick up a cutlass or a gun or whatever extra-judicial means available to settle the matter because he has no confidence that if the case was taken to court that he will get justice. So we need to be careful.

Engaging in propaganda

You know the judiciary does not engage in propaganda, in the course of this interview, I have mentioned the NJC several times. Do you know that judges are expected to make returns to NJC on quarterly basis to show the number of cases they handled within a given period, how many they concluded and how many of those are pending to serve as a yardstick for accessing whether they are productive or redundant?

All these things are there and they are being implemented by NJC. But you know the judiciary by nature is supposed to be calm, it hardly shouts even when every other person has lost their heads, it manages to keep its cool. You will not know that things are being done to see that he system was improved upon. I will agree with you that a lot still needs to be done to strengthen the system.

Some judges are fond of delaying cases before them. Do you subscribe to a disciplinary committee being set up to deal with such judges?

I will rather subscribe to the view that divisions of existing court be created to handle criminal cases. You had that in other countries, in the United Kingdom for instance, you have Queens Bench Division and Probate Division Council, so there is some form of specialization and you know that the more you specialize, the more thorough you become.

That will also address the issue of how expeditiously cases are concluded. But let me add this, the slow pace at which corruption and criminal matters are concluded is not restricted to those matters alone, it is a function of the system. So apart from creating divisions of these courts, we need to actually overhaul the system. That is being done, it is just that it is going to take time to get the effects. Court rooms are being changed now to fast track trial. It is an issue that needs comprehensive attention not just criminal matters.

Talking about investigation of cases before trial, we have noticed this confusion between the police and Department of State Security, DSS while investigating cases. Is this not part of the problems facing the judicial system?

The truth of the matter is that unless we create a system where there is complete corporation between all law enforcement agencies, we will continue to have problems. It is not peculiar to Nigeria. The September 11, 2001 attack in the United State of America, occurred because there was no inter-agency corporation, some people got information instead of passing it to those who would have acted on it, they kept it to themselves.

Now they have eliminated that, so we should also do the same in Nigeria. There must be sharing of intelligence and where you are both investigating the same case, you should be able to corporate because they are all geared towards serving the same purpose.

Economic and Financial Crimes Commission, EFCC has on several occasions lamented that the judiciary had made it almost impossible to prosecute corrupt governors, through court injunctions and other judicial pronouncement,  like the case of Dr Peter Odili, who secured a perpetual interim injunction against the commission. What is your position on this?

Let me tell you, allegations are easy to make but to prove them are always difficult. I don’t know how many judges EFCC had complained against to NJC and how many of such complaints had been investigated. And in those cases, how many judges had been found guilty of shielding criminals. If court injunctions are not useful tools in the hands of those who administer justice, there will be no provision meant for them in our laws. When I hear things like this, I begin to wonder how serious we are as a people.

Ventilating grievance

If a High Court grants an injunction wrongly, the Court of Appeal is there. If the Court of Appeal feels that the order was wrongly made, it will lift or vacate the order. But if the Court of Appeal upheld the decision of the High Court, there is still a further avenue to ventilate your grievance against that decision, you can go to the Supreme Court.

If a High Court gives an injunction rightly or wrongly in favour of Peter Odili, what has EFCC done about it? Assuming that was their impediment, have they appealed? Have they exhausted all judicial avenues available to them to attack the order? Some times, we like to push blames to other people.

What is your opinion on calls for Local Government autonomy?

There is no constitution that is perfect, just like there is no husband that is a perfect one and there is no wife that is a perfect wife, also, there is no child that is a perfect child. There is no constitution that is perfect, Nigerians must realise that. So, if we have to amend the constitution because of Local Government autonomy, the question we must ask is, why are people clamouring for Local Government autonomy?

Is it because they believe that the governors are interfering with the funds meant for Local Governments at the local level, will that solve the problem? What if you give them the autonomy and the chairmen of the councils now misappropriates the funds themselves, will you now call for another constitutional amendment for us to have community autonomy, so that the various communities that make up the councils will have their funds directly? We need to look at things differently in this country. I think a lot has to do with our attitude. If for instance the governors were giving Local Government Councils their funds, there will be no clamour for this.

I have my doubt whether even if you give the Local Governments their autonomy, whether we will have development at that level. The question is, how do we evolve a system that will ensure not only that these funds get to the Local Governments but that they are used for what they are meant? You now begin to look at the entire society, how do we ensure that the Local Governments use funds meant for the development of the Councils?

Private pockets

How do we ensure that funds voted to the states are used for the development of these states and that they do not end up in private pockets? How do we ensure that the money for the centre is also spent for the benefit of Nigerians and that such money does not end up in private pockets? How do we ensure good governance, is it by continuing to change our constitution?

For instance, I will tell you that there was nothing wrong with our Republican constitution of 1963 or even the Independent Constitution of 1960?  It is the operators of the system that bastardize the constitutions. If you ask me, I even still believe that the parliamentary system of government is far better than the presidential system of government, but Nigerians have managed to make every system of government look bad because of the way we govern ourselves. It is a fundamental issue. How do we change the attitude. It is more important and more fundamental than writing a new constitution at every opportunity we have.


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