EndSARS, protest in Nigeria

By Henry Ojelu 

Former Lagos State Solicitor-General and Permanent Secretary, Ministry of Justice, who turned 60, this month, in this interview spoke on some national issues, including judiciary independence,  the #EndSARS, Value Added Tax, VAT, insecurity in the country among others.

 Excerpt:

The Chief Justice of Nigeria, CJN, recently summoned judges over conflicting judgments and improper granting of ex-parte orders. What do you think is the real problem with our legal system?

There is need for discipline among our colleagues.

When some judges were summoned over conflicting orders and grant of ex-parte motion. 

I felt that is not the solution. The lawyers involved in the cases also have case to answer.

Judges can be given benefit of doubt of not being aware of earlier order on the subject.

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I know that some of these judges actually try to insulate themselves from what is happening around them and would like to premise their decisions on evidence before the court.

Therefore, if neither counsel to the parties brought the earlier decision to the judge’s attention, he should be pardoned but the lawyers should take the blame. 

But if the earlier decision was brought to the attention of the judge and he still proceeded to make a conflicting order, the judge has no excuse and should be sanctioned

What particular areas do you think the government should pay more attention to?

The government should focus and spend more on the security and justice sector.

When that is done, you will see rapid development as the country will be investors friendly.

There is no reason why a case should last more than 18 months in a High court and six months at the Magistrate Court level.

It is only then that investment will be drawn to the country.

When people engage in any type of business, there is bound to be dispute or breach of contract but we must have an effective justice system that will inspire confidence that such dispute would be fairly and timely resolved.

To deal with corruption cases, if a suspect is prosecuted and convicted within six months, most people who want to engage in similar crime will caution themselves.

What is happening now is that even a suspect arrested at a scene of crime is more bold to urge the law enforcement agency to charge him to court because he knows that the matter will remain there forever until witnesses or evidence are lost and he will eventually be freed for lack of diligent prosecution or evidence

How can we improve the judiciary and curb delay in justice delivery?

We don’t have to copy other countries blindly in the reform of our judiciary.

We must look at our own peculiar situation and find a workable arrangement or model that will reduce if not eliminate delay in justice delivery.

However, in as much as the Constitution of Nigeria remains the way it is presently, not much improvement in the justice delivery is expected.

Lagos State should have not less than 100 judges but even if the state wants that number of judges, the challenge is that the appointment has to go through National Judicial Council, NJC, which is an absurd situation in a federal system.

Why should the Federal Government be paying the salary of a judge of the High Court of a state?

A state government should take care of its judges and determine how many the state requires and can fund.

If I have my way, every Local Government in Lagos must have at least one High Court complex with not less than four courts.

Today, if the Chief Judge requests for appointment of 10 judges for Lagos, FG will look at its budget and say they cannot afford to fund more than six and that is the end of story.

Is that ideal in a federal system? In some jurisdictions outside Lagos, the total cases before the judges in the entire week is not up to the list of cases before one judge in Lagos.

But the judge will collect the same salary as his counterpart in Lagos. My suggestion is that the constitution should be amended to allow states to appoint their own judges.

There could be some form of coordination by a federal agency such as the NJC but appointment, management and payment of salary should be rested with the states.

The jurisdiction of the Magistrate Courts should also be increased to free the High Court of some cases.

There should be a Mediation Unit annexed to a Magistrate.

Here,  the first hearing of such case there should go to the Mediation Unit for resolution which shall be taken before a Magistrate in chambers to be endorsed as consent judgment of court

How achievable is judiciary independence in Nigeria?

As far as I am concerned, our judiciary is independent and autonomous in respect of the core function of the judiciary which is dispensation of justice.

Is anyone telling the judiciary not to or how to dispense justice?

So, I believe the area we have issues is financial autonomy for the judiciary. In my view, unless the Constitution of Nigeria is amended, the judiciary cannot be as independent as it should really be.

According to the Constitution, the High Court of a state is treated as an appendage of the Federal Government because the recurrent and capital expenditures of the High Court of a state reside with the NJC.

It means if a state government spends money on the State High Court, it is being magnanimous.

By the Constitution, the state government responsibility is for the Magistracy and other State Courts like Customary Courts.

But when you talk about financial autonomy for the judiciary, my question is; in which respect?

If you look at our Constitution on the issue of funding of the judiciary, it provides that money standing to the credit of the judiciary in the Consolidated Revenue Fund shall be paid directly to the Head of the judiciary.

The question is when is any amount deemed to be standing to the credit of the judiciary?

Is it when the budget is prepared as agreed to by the governor or his Budget Ministry or when it is passed into law by Appropriation Act or law?

Or when money is available from revenue generated? These questions are apt because the judiciary is funded through the government budget which is an estimate.

My suggestion is that stakeholders should be asking for an increase in the percentage of the judiciary’s budget envelope.

In my view, it is the percentage of the total budget of the federation or a state government allocated to the judiciary that we should focus on and demand for increase.

We should fight for an increase in the budget envelope of the judiciary instead. If for instance the judiciary has four percent of the total budget of a state, then it should be asking for 10 per cent,  so that it can have more money to carry out its constitutional duties.

Its one year since we witnessed the #EndSARS protests. What would you advise the government to do differently to avoid such a reoccurrence?

To me, the EndSARS protest is now history and we must always learn from history to fashion our future.

All the issues that made the #EndSARS protest come to fore, have been with us for quite some time.

It is just that few people could not take them any longer and decided to stage a protest to hold the government to account.

I believe that the government is trying to address some of the issues raised by the protesters through the various panels that were set up.

We should allow the panels to conclude their work and come up with recommendations, after that we can analyze them and also make suggestions.

The #EndSARS protest is just a tip of the iceberg of the larger problem that is facing us in the country.

The challenges in the country are many; poverty, unemployment, insecurity and many others that led to the protests.

When you have graduates who cannot find jobs, then what do you expect from such an idle youth? It’s a big problem and we must all join hands to solve them. 

I think the banking system or policy in the country has not done much to assist the low income earners and small and medium businesses in the country, which are engine rooms for economic development and growth of any nation. Whether the banks cooked up their books, I don’t know but every year, they declare huge profits after tax.

After payment of dividends, how is the balance utilized to build more structures and branches which they don’t need now that most people do online banking? 

Such funds should be given out as loans for small and medium enterprises for investment and development purposes.

I, therefore, believe the banking industry and the legislature; particularly the National Assembly is better placed to save this country from total collapse. But are they ready to make the sacrifice? I doubt it.

What is your take on the current battle between the Federal and State Governments on who should collect VAT?

It is a misconception of the law and constitutionally to state that the Federal Government has no power to enact the VAT Act and collect the tax.

The true position is that FG has limited scope of area it can impose and collect VAT and that is in international trade and commerce as well as inter-states trade and commerce.

If we check the Exclusive Legislative List in the 1999 Constitution as amended, we will find Trade and Commerce. What is ultra vires the National Assembly and the FG is to impose tax on domestic trade and commerce reserved for the states.

I recall while in office as Solicitor General, a dispute arose between Federal and Lagos State on control of Tourism and Hotel .

In the consolidated cases, the Supreme Court upheld the constitutionality of the Lagos State law on  Hotel Occupancy and Restaurant Consumption Laws,  which sought to regulate, register, classify and grade all Hotels, Motels, Guest-Inn and other Tourist Related Establishments and collect consumption tax, which law was directly in conflict with the provisions of the Nigerian Tourism Development Corporation, NTDC, Act.

And recently in a case before the Federal High Court, where the issue of whether VAT Act has covered the field of consumption tax in Nigeria arose between the Hoteliers Association of Nigeria, Federal Inland Revenue Service and Lagos State Government, I represented the state government in the case and filed a counter claim to challenge the constitutionality and validity of specific sections of the VAT Act but not the entire Act and the court agreed with me and delivered judgment to declare the sections invalid in favour of Lagos State.

That was the first case to the best of my knowledge which nullified some provisions of the VAT Act as being unconstitutional.

So, the Federal Government has no constitutional power to impose and collect tax on consumption of goods and services within a state in respect of domestic trade and commerce such as purchase of items in stores or supermarkets or a bottle of coke in a hotel.

Therefore, any state government that enacts a VAT Law will be doing so rightly within the power conferred on it by the Constitution.

But if I am to advise, a state government should simply title is law a consumption or sales tax law which will achieve the same purpose as VAT Law and avoid the confusion of double taxation or doctrine of covering the field which most people, particularly public commentators, do not understand the legal meaning.

I say this because of the general principles that where the federal and a state government enact a statute on the same subject and there is conflict, the federal law shall prevail.

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