These are unusual times for the Bar and the Bench. Lawyers and judges have come under attack for alleged corruption. Economic and Financial Crimes Commission (EFCC) Chairman Ibrahim Magu is calling on the Nigerian Bar Association (NBA) to purge itself of those he called “vandals in the temple of justice”. Lawyers have challenged him to name such people. Chief Justice of Nigeria (CJN) Mahmud Mohammed and NBA President Augustine Alegeh are also not keeping quiet on the claim that the judiciary is corrupt. How can this perception be corrected? JOSEPH JIBUEZE reports. It was a turbulent week for the Bar and Bench. First, a Senior Advocate of Nigeria (SAN) Rickey Tarfa was arrested on a court premises and charged by the Economic and Financial Crimes Commission (EFCC) with alleged obstruction of justice. A few days later, it was reported that five SANs were under probe over the Halliburton scam. The judiciary is also under attack for its handling of corruption and election cases. President Muhammadu Buhari fired the first salvo about two weeks ago when he expressed doubt about the judiciary’s commitment to his administration’s anti-corruption war. EFCC Chairman Ibrahim Magu, at a meeting with the Nigerian Bar Association (NBA) executive members, urged the body to purge itself of those he called “vandals in the temple of justice”. He said: “We must tell ourselves the truth: there are lawyers within the fold of the NBA who ought not to be among your noble ranks. Those people are not fit to be called ministers; rather, they are vandals of the temple of justice… “Notwithstanding our hard-won successes, we are very worried that on a number of occasions, some members of the NBA have elected to side with those who do not want the good of Nigeria. I believe it is part of the professional ethical code of lawyers to ask questions as to the source of their clients’ wealth.” CJN, Alegeh kick Chief Justice of Nigeria (CJN), Mahmud Mohammed and NBA President Augustine Alegeh (SAN) decried the corrupt tag on the judiciary. Justice Mohammed said the barrage of criticisms against the judiciary is as a result of ignorance of its operations. Alegeh faulted the “total condemnation” of the third arm of government. They spoke in Abuja at a valedictory court session for retiring Justice Muhammad Saifullahi Muntaka-Coomassie of the Supreme Court. The CJN said: “The judiciary, though constantly striving to redress wrongs and tilt the balance in favour of that which is right, has recently had to face the backlash of misguided opinions fashioned without due consideration of the law and rationale for the system of government that we operate. The judiciary is duty bound to act in accordance with the dictates of the law as it stands and not as critics would like it to be.” Alegeh deplored what he described as the “generalisation and/or categorisation” of the judiciary as corrupt and a stumbling block to the Buhari administration’s war against corruption. Are graft allegations against lawyers misplaced? Are allegations of corruption against lawyers misplaced? Constitutional lawyer Prof Itse Sagay (SAN) believes there is substance in the claims. He said: “The most blameworthy are senior lawyers — a number of senior advocates who have made it a speciality; who have developed particular skills to kill corruption cases so that their clients, after many years of delays and frustrations of prosecution, end up going away with their loot. “And such lawyers, of course, share in the proceeds of crime. They get a part of the loot and that is why you see them buying private jets and so on. That amount of money from the proceeds of crime has completely blunted their consciences and they are as active as the accused persons — the looters — in trying to protect the loot because part of the loot now belongs to them by association.” To activist-lawyer Ahmed Adetola-Kazeem, senior lawyers are viewed as enemies of the common man. According to him, the feeling on the streets is that lawyers have teamed up with politically exposed persons to milk the state and by extension Nigerians dry. To him, the drum is beating louder and he hopes it does not get to a stage where lawyers will be mobbed on the streets. What lawyers should be In the book, Professional Conduct of Legal Practitioners in Nigeria, Prof J.O. Orojo, quoted the late Ghanaian president Kwame Nkrumah as saying: “In a developing country, the first priority is not for lawyers trained to conduct litigation between wealthy individuals … The lawyers needed in a developing state are, in the first place, those trained to assist the ordinary men and women in their everyday legal problems and particularly in the new problems likely to arise through industrialisation …” President Kenneth Kaunda, in an address to the Law Society of Zambia in 1970, was quoted as saying: “The lawyer in a developing society must be something more than a practising professional man; he must be more even than champion of the fundamental rights and freedoms of the individual… “ A former CJN, the late AdetokunboAdemola, said: “Nigerian legal practitioners must be able not only to perform their traditional functions of catering for the professional needs of the citizens, of administering justice and manning the various legal institutions of the state, but they must also be involved in social change; they must be committed to law reform to ensure the harmonisation of law with the culture of the people and they must strive to ensure a strict adherence to the rule of law and among other things, ensure that the newly acquired political power is carefully watched and controlled so that it is not used to protect or perpetuate the status quo or class domination. “As the watchdog of the people, they must, through their independence and total commitment to social justice, provide the necessary support to sustain equally independent and fearless judiciary, the last hope of man for law and order, peace and progress.” In the past, lawyers were viewed as emancipators of the common man because of the activities of the likes of the late human rights crusader Gani Fawehinmi (SAN), among others. According to Adetola-Kazeem, the court which used to be viewed as the last hope of the common man is now mockingly viewed as the “lost hope of the common man”. The NBA, he believes, must rise up from its slumber and assume its rightful place as the voice of the voiceless and the hope of the common man. “We must find our identity and remain determined to have an expression of who we are as lawyers – which is naturally and principally to serve the common good without allowing economic, social, political, ethnic, religious or any prejudice whatsoever, to dictate the performance of our professional duties for the good people of Nigeria. These are the obvious challenges stirring at us, but we must resolve to be who we ought to be,” he said. In judiciary’s defence A former Lagos State High Court judge, Justice Ebenezer Adebajo, does not agree with Magu’s views. “I wholly disagree with them. I totally disagree with the President. I think the President’s view is wrong,” he said, referring to claims that the judiciary delays corruption cases. To begin with, Justice Adebajo said the executive has not done enough to stamp out corruption by retaining immunity for public office holders. “There is nobody in Nigeria who has immunity, not even the President of Nigeria. It is only that there is a special procedure in bringing the President to court for any offence. The law does not grant 100 per cent immunity. The law only dictates that under certain circumstances, some persons, proceedings can only be initiated against some persons in a particular manner,” he said. He, however, believes that the Bar must do more to entrench ethics in the profession. “I believe that Mr. Magu might have been referring to the lack of ethics in the profession. I think that is where the focus should be – to find a way of re-establishing the absolute reign of ethics. “If there is ethics, nobody will be stalling proceedings in court just for the sake of stalling proceedings. I think that is where we should look at, not to say judiciary is corrupt. It is a meaningless statement. We are lucky to have the type of judges we have in Nigeria. “As far West as the Gambia and as far South as Luanda, Nigerian Law Reports are in use by the highest court in those countries. So, why should we be demeaning our judiciary? Why should we be demeaning persons who have given themselves to the serve the people of this country? “Let us start with professional ethics. That is where we should start from; that is where we should turn our focus, professional ethics,” Justice Adebajo said. Asked how the Bar and the Bench can assist in the fight against corruption, Justice Adebajo said: “If they say something is badly constituted, the court would not say it has been properly constituted. So it is a matter of getting sufficiently qualified person to prosecute cases in court and you would see that the judges are able to do what the law asked them to do. Judges are not afraid of doing what the law says.” A former NBA president Joseph Daudu (SAN) does not agree with Magu. “No. It is extremely impolite and scurrilous for the chairman of the EFCC to refer to lawyers as ‘vandals’ in the temple of justice,” he said. Daudu argued that lawyers are trained to offer legal services, which include prosecution and defence of persons alleged to have committed criminal offences. “It is absolutely corrupt for any person, no matter how highly placed, to say that lawyers should not defend people who have been branded as corrupt. This is how Hitler and other practitioners of totalitarianism started,” Daudu said. He believes anyone accused of committing an offence is entitled to be defended by a lawyer of his choice. “It is absolutely wrong and immoral for law enforcement agencies to view lawyers as the source of their troubles. I think the defence of accused persons would be more interesting if and when prosecuting agencies did their work well,” he said. The former NBA chief also does not agree that the judiciary suffers from a perception crises. “The so-called negative impression on the judiciary by no other arm of Government than the Executive is propaganda-driven. The function of the judiciary is not to prosecute for and on behalf of the executive but to adjudicate fairly and in accordance with the law and justice. “The problem with this executive (Buhari led) is that it either does not understand the foundation pillars of the Nigerian Constitution, which are; (a) the rule of law (b) separation of powers (c) independence and impartiality of the judiciary. The judiciary does not take orders from the executive,” Daudu said. Daudu, however, agrees that the bad eggs within the judiciary must be ridden of. “The level of corruption in the executive is both historical and legendry. However, the judiciary has some bad eggs but it is not such that can be characterised as institutional corruption,” he said. On whether he thinks the Bar and Bench need to do more in the fight against corruption, Daudu said: “We have consistently maintained that that there is a need to find solution to the menace of corruption but this scourge can only be fought in accordance with the tenets of the rule of law and due process. “The simple truth is that corruption cannot be fought in a day. The structures for anti-corruption are deliberately laid down over a while. They are not impulsive or selective or actuated by bad faith. The present anti-corruption crusade is headed for failure if not implemented property or faithfully.” For Chief Felix Fagbohungbe (SAN), one of the elders of the Bar, allegations of corruption without proof are designed to scandalise the judiciary. He said there is no society anywhere in the world where there are no bad eggs; yet, there are also good men. Where there is evidence of corruption against anyone, including lawyers, they should be charged. “But for EFCC chairman to say that, they have all the records of the people under investigation. They can do same on all the judges if they want to. They don’t need to go to the press and be stating all these things to the press. To the outside world, it would mean that the entire judiciary of Nigeria is corrupt. “So, all I would suggest is that if there are specific issues or isolated cases or individuals that have been identified, then of course they can deal with those people. But to bring the entire judiciary, to scandalise them and say that the entire judiciary is corrupt, I don’t agree with that. “So, it is not for the chairman of the EFCC to say that they corrupt or that they are this way or that way. If he has any report on any one of them, he should bring it out and prosecute those people. It is not for you to speak to the press and be making allegations. It is too general,” Fagbohungbe said. The senior advocate said the heads of the three arms of government could come together to find a common solution; but one arm, he said, should not run down others. “It is not for the executive to run down the judiciary,” he said. Fagbohungbe said EFCC should not blame the judiciary when it does shoddy investigations that gets thrown out by the courts. “Many of these things are just sensational. We read them in the newspaper and at the end of the day, you will just discover that it has died down all because either they didn’t do thorough investigation or because they don’t have evidence to even prove the allegation. “In the meantime, they would have destroyed the name of the people alleged to have committed such offences. Trial in the public or newspaper or other news media is not proper here. Proper investigation and proper prosecution is what I support here,” he said. On how the Bar and the Bench can help fight corruption, Fagbohungbe said: “They are partners in the fight against corruption. The bar will always support the bench, the bench will take the cooperation of the bar and they would work together. “If they want to set up any specific panel, when Kayode Eso’s panel was set up, some lawyers were part of the panel at every level, the state and the national level. So, if they set up any panel, NBA will support and cooperate with them. There is no doubt about that.” Another SAN, George Oguntade, said it was not fair to characterise the judiciary as corrupt. On Magu’s statement, he said: “I will say that this is a most unfair generalisation and that it was most likely made out of frustration as regards the lack of progress in the numerous corruption cases being prosecuted by the EFCC.” Oguntade said the “Cab-rank rule” requires a lawyer to take any case upon which he is instructed, including representing even “vilest offender.” “A lawyer who takes a brief has the duty to defend same to the best of his ability and in so doing, employ and exploit legitimate means to the benefit of his client. I believe that the EFCC chairman is not aware of this lawyer’s duty and obligation and that this is why he is unable to comprehend why a lawyer will accept a brief to defend an allegedly corrupt person or ‘looters’ as he put it,” he said. According to Oguntade, as it is with many professions, there are lawyers who have engaged in unethical conduct and who deserve to be appropriately sanctioned, and that the Bar needs to do more as regards the regulation of its members. “The Rules of Professional Conduct for Legal Practitioners 2007 makes copious provisions regarding the sanction of erring lawyers but the problem has been with implementation and enforcement. This is an area that definitely needs some urgent attention to stem the increasing flow of criticism against lawyers generally,” he said. On the judiciary’s commitment to the anti-corruption crusade, Oguntade said it must be examined in the context of constitutional and statutory provisions, many of which occasion delay in the administration of criminal justice. “The judiciary do not make laws but interpret and enforce laws enacted by Parliament. They cannot go outside them. Where the Constitution or the laws are inadequate to meet the reality on ground, it will be unfair to heap the blame on the Judiciary. Rather, the Constitution and the laws will need to be reviewed and reformed such that the judiciary are able to perform effectively,” he said. The SAN said judiciary cannot be expected to perform magic when it is not even adequately funded. “It is indubitable that a judiciary that lacks financial autonomy can never be truly independent and will always be prone to interference.” The way forward Alegeh said the judiciary will not close its eyes to cases of corruption by its members where there is proof. “The NBA, however, wishes to sound a note of warning to the few bad eggs in the system to desist from further causing untoward embarrassment to the judicial arm of government and will henceforth petition any judicial officer involved in or suspected to be involved in any corrupt or fraudulent transaction to the appropriate quarters for action. “We believe that a word is enough for the wise and that wise counsel will prevail in this regard,” the NBA president said. Oguntade admits the judiciary’s image has nosedived in the public’s eyes. More, therefore, needs to be done. “The image of the judiciary and indeed that of lawyers is clearly at a very low ebb and it is necessary that for both to survive, they urgently need to work together. “Judges must perforce turn to whistle blowers against colleagues involved in graft and also refrain from granting orders that are difficult for the reasonable man on the street to understand or justify. “Lawyers and, indeed, judges also need to expose lawyers who try to interfere in or pervert the course of justice, and where cases are identified, the Disciplinary Committee of the Bar should be swift and firm in dealing with such cases,” Oguntade said. Constitutional lawyer Ike Ofuokwu said the Bar and the Bench need to look inward to purge themselves of corrupt elements in their midst. “It is a shame and a reproach to the Bar when you see very senior members struggling among themselves to represent accused persons in corruption cases and doing everything whether lawful or otherwise to extricate corrupt persons from the law. “If a proper code of representation of counsels is not put in place, all that could be achieved as we have today, is to produce billionaire lawyers and judges out of the proceeds of corruption. “Nevertheless, the bulk of the job still lies with the agencies of government saddled with the responsibilities of investigating and prosecuting these cases. “The EFCC, for instance, needs to put its acts together. They need to conduct thorough investigation and put their facts and evidence in order even before arresting the suspects. It is often ridiculous and preposterous that after arrest are made they go shopping for evidence. This is an anachronistic approach. “We are no longer interested in trial by media. Parading them before the press will not get them a conviction rather it sometimes yields sympathy in favour of the accused. Nigerians want a result and that is to see corrupt persons behind the bars,” Ofuokwu said. A group, the Socio-Economic Rights and Accountability Project’s (SERAP’s) Executive Director Adetokunbo Mumuni, said it does not only amount to professional misconduct but also a crime for a lawyer to knowingly assist another to break the law. “Lawyers are officers in the temple of justice but improperly influencing a public official to achieve results by means that violate lawyers’ rules of professional conduct or knowingly assisting a judge or judicial officer in conduct that violates applicable rules of judicial conduct or other laws is a clear negation of this sacred duty. “Yet, corrupt lawyers and judges often get away with their misconduct and crime. This impunity has contributed to the sporadic and lax prosecution and punishment of officials responsible for large-scale corruption, while, conversely, imposing severe sanctions for petty corruption and criminals, so as to give the impression of justice. This situation violates the underlying legal and moral assumptions that all persons will be treated equally, fairly, and with respect. “Any lawyer who acts in such a way as to be directly responsible for the act of corruption or acts as part of a conspiracy to corrupt should face liability as a ‘principal” offender.’ Even where a lawyer is not directly responsible for the act of corruption but facilitates or otherwise provides assistance to a principal offender, he/she should be liable as an accessory or accomplice. This accountability mechanism for lawyers and judges must follow due process of law. “The obligation on lawyers not to engage in illegal activities is vital in upholding professional standards and obviously extends to the activities of bribery and corruption, as lawyers must not themselves breach, or facilitate a breach, of the law. “For the sake of the legal profession, the cause of justice and effective remedies for victims of large scale corruption such as the arms procurement scandal, appropriate authorities particularly the NBA has to speak out strongly against corruption in the legal profession,” SERAP said. Source: Nation ]]>