Dafe Akpedeye, a Senior Advocate of Nigeria was a former Attorney General and Commissioner for Justice in Delta State. In this interview he speaks on capital punishment and signing of death warrant by the executive arm of government, corruption in the judiciary and sundry issues. Excerpts:
WHAT is your take on the argument that the ongoing trial of judges, could instil fear in others, preventing them from giving judgment against government or its agencies?
Given the distinct role of each arm of government turning the wheel of a nation, I would say that the current trial of judges is part of this process and no arm should intimidate or lord it over the other as they ought to be separate and independent. Also, our Constitution operates on a principle of checks and balances and the prosecution of the judges is in tandem with the prosecutorial powers of the Executive to checkmate the excesses of the Judiciary.
Unless there is a clear hidden agenda or ulterior motive behind the trial, the process should be welcomed by all in our nation. It is high time for us to rid this nation of corrupt judicial officers.
System of checks and balances
However, I must caution that the rule of law must be strictly adhered to in the said trial and the manner with which the judges are prosecuted should not be such that desecrates the well-established judicial institution.
How do you see the action of the Attorney General of the Federation, AGF, Abubakar Malami who said recently that he ordered the arrest of the Judges?
As I earlier said, the three arms of government are separate and distinct from each other and they operate a system of checks and balances. The Judges are not above the law and enjoy no immunity against prosecution if there are allegations that they committed an offence.
They are also subject to prosecution. The AGF is the Chief Legal Officer of the Federation and has constitutionally protected prosecutorial powers under section 174 of the Constitution. If he has evidence to show that any judge has committed an offence, he can order the arrest and trial of the judge. However, due process must be followed in prosecuting any judge and the constitutional right of the judges, as suspects or accused persons must be protected.
Are you in support of the call that the office of the AGF be separated from that of the Ministerof Justice?
The Attorney General of the Federation is responsible for providing legal advice to the executive branch of government and representing the government in all legal proceedings. In certain matters, the Attorney General of the Federation ought to act completely independently in the public interest without reference to partisan politics. The Attorney General of the Federation is charged with ensuring that the administration of public affairs is in accordance with the law. However, the Minister of Justice, as the name suggests, is the Minister responsible for the Ministry of Justice, developing policy for the administration.
The functions can be quite demanding and given that the Attorney General of the Federation ought to act solely in the public interest of the country, combining such a role with that of a cabinet member, answerable to the President of the Federation makes him subject to the dictates from the President leaving the opportunity for abuse of power.
Based on the foregoing, I support the separation of both offices. Furthermore, the removal of the Attorney General of the Federation should be constitutionally protected such as requiring the confirmation by the Senate for the removal so that the President cannot use the office to harass his perceived political enemies and the Attorney General of the Federation can discharge his functions without fear of removal.
Governor Ibrahim Ganduje of Kano State recently called for the review of death warrant law to allow the Chief Justice of Nigeria (CJN) take over the signing of death warrant. How would you react to this?
Nigeria operates a federal constitution hinged on the principles of separation of powers, checks and balances and rule of law.
Opportunity for abuse of power
All these are protected by the Constitution of the Federal Republic of Nigeria, 1999 (as amended). The three arms of government have specific roles and thus the Legislature makes the law, the Judiciary interprets the law and Executive implements the law.
Therefore, it would be contrary to the spirit and intendment of the constitution to foist on the Judiciary, the additional function of executing its decision.
The signing of death warrants is the responsibility of the Executive and it falls on the Chief Executive of the State or Federation, being the Governor or the President respectively. Such a review, as propounded by the Governor of Kano State is not a step in the right direction as it would be inconsistent with the entrenched principle of separation of power and rule of law, required to ensure a balance of power between the ruling arms of government.
The House of Representatives is planning to remove the power of the President of the Court of Appeal to appoint Election Tribunals Judges to the CJN. What is your view on that?
In order to decide whether this proposal is meritorious, the important question to pose is, what exactly is the motive behind such move or attempt? Honourable James Faleke sponsored the Bill and we can recall his turbulent legal journey after the Kogi State governorship election.
Perhaps, he saw a lacuna in that regard during the court sessions. Personally, I do not see the need for it. As it is now, the authority to appoint the judges for the tribunals as well as the appellate tribunals rests on the President of the Court of Appeal (PCA) in consultation with the Chief Judge of the State, the Grand Khadi of the Sharia Court of Appeal of the State or the President of the Customary Court of Appeal of the State, depending on the State where the said tribunal members are to be appointed from.
Thus, the President of the Court of Appeal is not the sole appointer. The spirit behind the constitutional provision that vests the responsibility on the PCA, I believe is to relieve the CJN of some tasks. Thus, calling for the CJN to be in charge of the appointment may be overbearing on the CJN. The status quo should remain.
Would you subscribe to the appointment of the CJN from outside the Supreme Court?
Interestingly, in our political history, the appointment of the CJN was the prerogative of the Executive.
In fact, the first four Chief Justices of Nigeria were highly skilled and intelligent people recruited from outside the Supreme Court. However, in our current clime, the seniority norm has been firmly institutionalised. Many argue that this has led to a lackadaisical culture within the judiciary allowing judges to be promoted, not entirely based on merit but merely seniority. It has also created an insular judiciary, without external influences from senior lawyers in private practice or academia outside the judiciary.
On the other hand, there is also the danger that appointing non-judges to the highest court in the land may lead to nepotism and patronage, which would almost certainly harm the institution of the Supreme Court.
Therefore, in order to ensure a fair and unbiased judiciary, any appointment of a CJN (whether within or outside the Supreme Court) must be within carefully crafted parameters specifying the skill set for the CJN, who shall be appointed by an independent committee and subject to the confirmation of the Senate.
I believe such a criterion for the appointment should be treated with the utmost reverence, as the Supreme Court is the ultimate protector of the liberties of the citizenry.
What’s your view on the recently enacted law by the Lagos State government making kidnapping a capital offence?
Generally, there are proponents of the death sentence and there are opponents to the death sentence regime. However, globally, there has been a shift away from the death sentence as a criminal punishment. In fact, research has shown that the death penalty has not been a deterrent in certain states in the United States where it is utilised for some offences.
It would be interesting to consider what research Lagos State carried out to determine the level of deterrence that will be achieved from such sentence flowing from the results achieved thus far in other capital offences like murder, armed robbery etc.
Did the imposition of the death penalty affect the rate of commission of such crimes? If we ask people in certain regions in Nigeria, I believe this answer would be in the negative.