Mr. Sebastine Horn, SAN,  is a renowned author and legal practitioner. In this interview, he examines the constitution amendments being undertaken by the National Assembly among other issues.     Excerpts:

By Innocent Anaba

THE Nigerian constitution is currently undergoing amendments in the National Assembly. Which core areas do you think they must amend? We must first of all remember that the National Assembly, in conjunction with the various state Houses of Assembly, has power to amend the Nigerian constitution. This power is donated by the Constitution itself and cannot therefore, be wished away.

Horn- National Assembly has power to amend the Nigerian constitution

I totally agree that there are some core areas of the constitution that require tinkering with. The most prominent of these is the issue of autonomy for the local governments. The experience of having the local governments as appendages of the various state governments has been one of underdevelopment and sorrow.

It is axiomatic that every country crafts its constitution in a manner that suits its local conditions. The various state governments in Nigeria have shown, through brazen abuse of power, that they cannot be trusted with the power to oversee the affairs of the councils that fall within their domains, hence constitutional change aimed at granting autonomy to those councils has become very imperative at this stage.

Urgent intervention

The second area that needs the urgent intervention of the Legislature is in judiciary reforms. Our courts are not truly independent. For instance, even though section 6 of the Constitution has listed State High Courts, the various Sharia and Customary Courts of Appeal as “courts established for the Federation,” they are still reckoned with as courts ‘owned by the various state governments.’

This is clearly wrong and it has its negative implications. Each year, the heads of these courts submit their annual expenditure budgets to the various state governments, contrary to the spirit and intent of the constitution.

This also constricts the operations of these courts because by this singular unconstitutional practice, the said courts are subordinated to the ‘unholy’ powers of the State Chief Executives. This clearly is an affront on the sacred principle of the rule of law. I, therefore, suggest that there should be an express constitutional provision mandating the various federal courts set up to operate at the state level to submit their various capital expenditures to the National Assembly through the National Judicial Council.

By so doing, much will be achieved in terms of the rule of law in Nigeria – because these federal-state courts far outnumber all the other courts puts together.

One other area that requires urgent attention is in the 3rd Alteration Act to the constitution, which created the National Industrial Court but made its decisions final, except on issues of fundamental rights.

Fundamental rights

Being one of the superior courts of record in Nigeria, indeed as the latest of such courts, the National Industrial Court does not possess any extraordinary jurisdiction or nature as to be infallible in its decisions. By the way, before it was given a constitutional status under the 3rd Alteration Act, its decisions were subject to appeal, hence there is no fathomable or convincing reason why the framers of the 3rd Alteration Act made the decisions of this court final except on questions of fundamental.

Finally, the 2nd Alteration Act to the constitution deleted section 233(3)-(6) of the Constitution, which not only prescribed the right of appeal to the Supreme Court on issues of fact or mixed law and fact but also conferred right of appeal on a person who was not originally part of the suit/appeal but who was interested in appealing to the Supreme Court as a person aggrieved.

More importantly, section 233(6) made provision for the enactment/existence of the rules of the Supreme Court, but alas, it also fell under the hammer of the legislature. How can the apex Court not be functioning with Rules or with Rules that lack constitutional backing? I suggest strongly that section 233(3)-(6) of the constitution which was deleted by the 2nd Alteration Act be restored back, for effective working of the system.

The concept of Holden Charge has been fingered as one of the areas slowing the pace of justice administration in the country. What is your reaction to this?

The idea of holden charges, contrary to popular thinking, is not alien to our constitutional cum criminal law jurisprudence. It was affirmed by the Supreme Court in Lufadeju vs. Johnson, in 2007. So, all decisions of the Court of Appeal to the contrary are no more good law. There is nowhere in the world, to the best of knowledge, where detention upon commission of an indictable offence by an inferior court or on the orders of an inferior court pending arraignment before a superior or competent court for trial is impermissible. This is a criminal procedure intended to prevent an accused felon from escaping from justice or causing more damage to the society, if left to roam the streets.

It is also meant to complement the constitution, which normally embargoes detention beyond a certain period of time – in which case, such detention order is supposedly a legal instrument issued by a Magistrate or a Judge of an inferior jurisdiction exercising some extraordinary or even statutory powers.

There is nothing specifically wrong with this procedure and this has, as stated above, been confirmed by our Supreme Court in Lufadeju’s case.

There have been calls for President Buhari to obey court orders. What is your reaction to the increasing incidents of disobedience to court orders by the President?

For sure, anybody or authority which disobeys court orders is standing our constitution on its head. Section 287 of the constitution has made the judgment of the various superior courts of record binding on all persons in Nigeria, who are given the additional responsibility of enforcing them.

Statutory powers

No matter how highly placed, therefore, no person in Nigeria, including the president, has any scintilla of power to disobey a court order, even if it is patently wrong. Having said that, I do not agree that Mr. President has been persistent in disobeying court orders.

I think what happened in all those high profile trials was that the accused persons had multiple criminal allegations hanging on their necks, and even if granted bail in one charge or offence, were liable to be arrested for another. Again, nowhere in the world is this practice prohibited.

In conclusion, however, the statement of Mr. President during the Presidential media chat where he suggested that he will be at pains releasing some of the detainees who were facing high profile offences was, as explained by his media team, Mr. President’s personal opinion which had no practical effect. But Mr. President knows he is ‘Mr. Nigeria,’ hence he should watch his words and action before his detractors will go to town early to accuse him of dictatorship and other undemocratic conducts.

Our Evidence Act has been amended to  create  room for the admissibility of electronic evidence by Nigerian courts. How has this amendment facilitated the expeditious dispensation of justice in the country?

The amendments introduced by the Legislature to the 1990/2004 Evidence Act, even though overdue, are a very welcome development.

I must add here quickly that the introduced provisions relating to the admissibility of electronic evidence, based largely, in my investigative opinion, on the provisions of the Indian Evidence Act, 2000 and the English Criminal Evidence Act, 1984 as amended, remains the highest and most salutary innovation of the Evidence Act, 2011.

Investigative opinion

Now, the procedure for the admissibility of computer-generated documents and documents bearing e-signatures has been clearly laid down, making the adjudicative process in this regard very easy. For instance, I would like to authoritatively state here that these provisions have assisted the courts qua counsel handling terrorism and bank fraud cases, wherein electronic evidence remains germane and central because the dramatis personae use electronic gadgets like GSMs and computers to commit crimes. I can go on and on, but there are several other innovations made in the Act which have so far been contributing to the overall administration of justice. I honestly commend the National Assembly for enacting this piece of crucial legislation.

It is now trite law that election matters and petitions  must be determined within 180 days and 60 days respectively from the day of the election by the courts, the Election Petition Tribunals on one hand and the Court of Appeal and Supreme Court on the other. How has this law affected the adjudication of election disputes?

There is no single doubt that the insertion of 180 and 60 days, respectively, in our constitution as the times within which election disputes should be completed by the Election Tribunals on the one hand and the Supreme Court and the Court of Appeal on the other hand has helped in quick dispensation of justice in this area.

Rigid interpretation

Beyond that, however, I have always maintained that the rigid interpretation by the Supreme Court of these provisions at times work and will continue to work grave injustice. For instance, the apex court has stuck to its resolve to remain aloof, even in the face of clear abuse or excess of jurisdiction. Judging from pre-1999 precedents, the stand of the Supreme Court is, with respect, faulty.

There existed, in the pre-1999 constitutional era, section 258 of the 1979 Constitution, as amended by Decree 107 of 1993 and the Constitution (Amendment and Suspension) Decree of 1984. Under this section, courts of law were to deliver their judgments within three months of the conclusion of final addresses.

In a good number of appeals, the Supreme Court whipped to order any court that flouted this provision, especially when a miscarriage of justice had arisen – by nullifying its decision and ordering a retrial or rehearing. There was no posturing on the part of the apex court that ‘since the three months’ limitation has passed, we have nothing to do,’ as is being done by that court in the 180 days’ regime of the 1999 Constitution. The law is based on precedents, which make for certainty of interpretation and application. I hereby strongly urge the Supreme Court to consider reversing itself on its rigid stance on the issue of 180 days.

What are the challenges posed by this seemingly new law?

One of the greatest challenges facing the Tribunals and the courts is the compulsion instituted by section 285(6), (7) and (8), requiring completion of election matters within either 180 days or 60 days, respectively.

Defence lawyers utilise these provisions to raise all manners of dilatory tactics to defeat the cause of justice. Related to this is the fact that in any election petition complaining of widespread electoral malfeasances, the petitioner, as per settled case law, is under obligation to call at least one witness from each polling unit complained of.

If there are 4000 polling units, can such a petitioner call 4000 witnesses within the 180 days’ framework – given the deliberate frustrating gimmicks of defence lawyers? Even if such tactics are not applied, can a defence team also call its corresponding 4000 witnesses to counter what the petitioner’s witnesses have said – all within 180 days?

There are several other institutional challenges. One area that has the most conflicting decisions of superior courts of record is in electoral disputes. It is most difficult for the bar and the bench to situate the applicable interpretative law, given the several conflicting judgments handed down by our appellate courts.

Non-formal challenges include attempts by politicians, backed by their counsel, to corrupt the system. Again, I hereby state most authoritatively that in no set of cases does the Judiciary face greater pressure for compromise as in electoral disputes. And it is common knowledge, to the collective shame of us all, that lawyers are involved in this criminal practice. That is why some of us are with Mr. President in his avowed resolve to confront headlong corruption in all facets of our national life. I fully support that the Judiciary should not be left out.

The first point, which I forgot to mention while answering your question on the areas of the Constitution that need amendment, and which is important here, is amendment of the Constitution to incorporate a provision prohibiting stay of proceedings in corruption trials. Defence lawyers file frivolous interlocutory applications in such trials and when refused, they appeal and ask for stay of proceedings.

Interlocutory applications

Such appeals take at times 10 years to complete, thereby deliberately frustrating those trials. It is not enough to incorporate such provisions in the EFCC Act or any other Act of the National Assembly, because defence lawyers always insist they are unconstitutional. So, if included in the constitution, nobody will have the temerity to say it is unconstitutional.

The pay of our Judges and Justices is also embarrassingly very low. A couple of years ago, I did an expo on how much our Judges and Justices are earning vis-à-vis what their counterparts are earning in places like the USA and even Ghana. For instance, a Magistrate in the USA earns more than a Justice of the Supreme Court in Nigeria. Is that not most humiliating. Meanwhile, the Supreme Court of Nigeria is more than 50 times busier than the US Supreme Court. Why are we then punishing members of the Bench this way, when members of the political class pocket hundreds of millions?

Akin to the above is the steady decline in the annual budget of the judiciary, vis-à-vis the astronomical rise in the budget of the two other arms of government. Is this deliberate or what? How can one explain this development?

Your question also touches on the need to strengthen the anti-corruption agencies. Again, going memory lane, I did another expo on the institutional limitations placed on the way of these agencies. I will here try to recall as much as I can on what I said a couple of years ago. The EFCC was established to perform similar functions as the US Federal Bureau of Investigations, the FBI.

Corruption index

The US population, hovering between 310-320 million, is about twice the population of Nigeria. The corruption index of Nigeria is far higher than that of the USA. However, the annual budget of the FBI is 10 times more than that of the EFCC and ICPC put together.

The FBI has a staff strength of more than 50,000, while the EFCC and ICPC combined cannot boast of more than 5,000. The FBI has a stringent and consistent training regime for its staff, but this is lacking in Nigeria. What else can I say?

The issue of creating specialised courts for anti-corruption has also been on the table for some time. I fully endorse this, because it will not only result in quick dispensation of justice but also lead to specialisation and knowhow on the part of the Judges and the lawyers directly involved.

If third world countries such as Bangladesh and Uganda have anti-graft courts working for them, what stops Nigeria from also having theirs? Even Burkina Faso is in the process of establishing these courts.