Former Court of Appeal President Justice Ayo Isa Salami was unsparing of the bar, the bench and politicians in his dissection of the Buhari administration’s anti-corruption crusade. The war, he argued, can only be won if lawyers, judges and politicians mend their ways. He was delivering a paper at the National Democracy Day Anti-corruption Summit in Abuja.
THE pursuit of wealth is not a bad thing in itself because without the food and comforts which wealth provides, life will be penurious and drab. But always remember that any wealth accumulated on a selfish basis, at the expense of the State in defiance of social justice helps to create a disorganised society in which everybody will eat everybody and no one person can be safe.”
– Chief Obafemi Awolowo
The use of public funds in election litigation
The theme: “The use of public funds in election litigation and the integrity of the Judiciary” could not have come at a better time. Being an election year, it is a period in which we have the highest numbers of election matters in Court. I reliably gathered that there were about 639 pre -election cases that arose from the various primaries and 736 election petitions emanating from the just concluded elections. This clearly reveals the heated nature of electoral contest in Nigeria. Notwithstanding that our laws provide for resolution of disputes arising from electoral process through the Courts, the alarming number of election petitions in Court leaves much to be desired. The development calls for a review of our electoral process. This is a matter for another day.
Our focus, today, is on the use of public funds by political office holders to pursue election cases, for personal or private gains. This remains a major source of concern in Nigeria because of the negative impact it has on our socio-economic development. Over the years, public funds meant for developmental projects, aimed at improving the lives of the citizenry are diverted and embezzled by selfish individuals in government, through the awards of inflated or phony contracts. Funding of election petitions has become one of the ways through which public funds are mismanaged and wasted. It is an open secret that election matters have become a sort of windfall to the legal practitioners engaged in election matters. The humongous fees being charged by these lawyers in pre and post-election matters are mostly paid with public funds or taxpayers’ monies, especially where the client is a public office holder who has no right to use such monies to defend his election.
Lawyers have become complicit in this decadence; taking undue advantage by charging high fees in naira and foreign currencies. Most of the time, the senior lawyers insist on collecting their professional fees in cash, in order to avoid the funds being traced directly to them and also to evade payment of tax. It may be necessary for the Central Bank to flag cash withdrawals from government accounts that exceed a certain threshold and demand a purpose for the withdrawal.
A common trend now is having over 10 Senior Advocates appearing in a matter for just one of the parties and you wonder what value those numbers are adding to the legal representation in court. Unsurprisingly, the litigants with the highest number of Senior Advocates are invariably those that have unfettered access to public funds. Why this is the case, your guess is as good as mine.
Again and quite disheartening, I have it on good authority that public funds used by some State Governors to prosecute election matters concerning them individually is far more than the entire budget appropriated for the Ministry of Justice and the Judiciary in the respective States. By this, they are inadvertently weakening institutions and empowering a few individuals who probably have no stake in the affected States.
However, the ministries of justice across the nation need to be revamped and strengthened as they are now shadows of what they were in the past.
Sadly, most senior lawyers who should ordinarily be role models and persons of integrity in the society, display acts or conducts unbecoming of persons of the noble profession. They have become conduits to launder public funds. A case which readily comes to mind is a criminal charge by the EFCC against a Senior Advocate of Nigeria relating to converting to personal use, concealing the source of, disguising the origin of and retaining in his account huge amount of money to the tune of about a billion naira belonging to a State Government. The money was allegedly paid with State’s funds for legal services rendered in personal capacity to the Governor, who was then a governorship candidate. I understand trial is ongoing in respect of the matter and I do hope justice will be served at the end.
From the above, it clearly shows that lawyers handling election petition matters for political office holders charge excessive and arbitrary fees simply because they feel the politicians have access to public funds to service these fees. It goes without saying that these politicians are forced to tamper with public resources because they are under pressure to do everything possible to retain their seats.
Granted that lawyers enjoy a wide liberty charging for their services; the charges must be reasonable and not arbitrary. Charging and collecting fees for legal services in an opaque manner does the society no good; it stands to promote corruption, tax evasion and money laundering.
The Rules of Professional Conduct, 2007 (RPC) is a guide, containing the ways and manners lawyers must conduct themselves whilst relating with colleagues, clients and to the legal profession itself. Rules 48 – 54 of the RPC, 2007 clearly provide for specific guidelines to follow when charging clients. These rules unfortunately did not put a limit on the amount to be charged in respect of any transaction but only puts a guide on how to go about it.
However, Section 15 (3) Legal Practitioners Act (LPA) 2014 (as amended) gives a bit of a leeway and I believe this is a section the Hon. Attorney General of the Federation may wish to take a closer look at.
There shall be a Committee, to be called the Legal Practitioners Remuneration Committee, which shall consist of
the Attorney-General of the Federation, who shall be the chairman of the committee;
the Attorneys-General of the States; and
the President of the Association and three other members of the Association.
The quorum of the committee shall be three, of whom one shall be the Chairman of the committee or some other member of the committee nominated by him to act as chairman of the committee on the occasion in question.
The committee shall have power to make orders regulating generally the charges of legal practitioners and, without prejudice to the generality of that power, any such order may include provision as to all or any of the following matters, that is to say-
the maximum charges which may be made in respect of any transaction or activity of a description specified by the order;
the ascertainment of the charges appropriate for any transaction or activity by reference to such considerations as may be so specified;
the taking by practitioners of security for the payment of their charges and the allowance of interest with respect to the security; and
agreements between practitioners and clients with respect to charges.
The above in my considered opinion may be an opportunity for the Hon. AGF to use the instrumentality of his office through the Committee to regulate fees charged by lawyers particularly in election related matters. This power seems only to have been exercised in respect of Legal Practitioners remuneration for legal documentation and other land matters under the Legal Practitioners (Remuneration For Legal Documentation And Other Land Matters) Order S.I. 7 of 1991.
The Nigerian Bar Association also has a pivotal role to play in ensuring that lawyers abide by the provisions of the Rules of Professional Conduct. A review of the Rules has become necessary to guard against lawyers charging excessive fees and colluding with politicians to rob the State of its wealth.
Sometime in 2010, I recommended for a reduction of the involvement of the Judiciary in electoral matters. I wrote to the then President Goodluck Ebele Jonathan GCFR and also copied the Senate President and the Speaker of the House of Representatives wherein I stated inter alia that:
“By this singular act of involving the Supreme Court in election controversy, it seems to me with the greatest respect, that the political class is widening the frontier of judicial intervention in a matter that is principally or primarily a political issue. It is my respectful view that our efforts should be to find a permanent and enduring solution to extricate our Courts from election matters. To my little knowledge, it is only here in Nigeria that the outcome of an election is not known until it goes through the labyrinth of legal procedure. Rather than seek to reduce this anathema, if not completely eliminated, it is being promoted to a status of festivity, so much so that after an election to a political office there could be four or more petitions. I believe that purposeful efforts should be directed to discouraging such mindsets and means devised to reducing such petitions to the barest minimum.
There is nothing preventing a provision denying right of petitions to candidates or political parties whose candidates failed to score a certain percentage of the total vote cast. This may reduce multiplicity of petitions. There is no point allowing a candidate who cannot take the office even where his petition succeeds to petition against an election. Where the office enures to a candidate and political party other than the candidate or party that successfully petitioned, such latter candidate should not be allowed to bring an election petition.”
Though the above was written about a decade ago, I still adopt and make this passage my recommendation. If I have my way, I would even propose further that all election petitions including Presidential should terminate at the Court of Appeal. This, I believe, will insulate the apex court from undue and unnecessary interference of politicians and would thereby eliminate cost of litigation at that level.
Integrity of the judiciary
Judicial integrity is key in a society governed by rule of law, without which confidence in the judiciary cannot be reposed. When the judiciary is constrained by corrupt practices, the integrity becomes soiled. The biased interpretation and application of the laws impair one of the most potentially effective tools in the fight against corruption.
There are circumstances which affect the integrity of the judiciary; low remuneration, a high concentration on jurisdictional and administrative roles in the hand of Judges, combined with far-reaching discretionary powers and weak monitoring of the execution of those powers. This does not only generate extensive possibilities for the abuse of power but it also creates an environment where whistle-blowing becomes more unlikely because of the extensive powers of individual holding these powers.
An honest criminal justice system, including the courts, is sine qua non to any comprehensive anti-corruption initiative. The lack of integrity within the judiciary will absolutely devastate legal and institutional mechanism designed to curb corruption, no matter how well targeted, efficient and honest. It will serve no purpose to design and implement anti-corruption programmes and laws if the law enforcement agencies do not seek to enforce the law, or a Judge finds it easy and without risk to be bribed. Judicial integrity should therefore be a cornerstone of any anti-corruption programme.
The integrity of the judiciary has recently become a topic for serious discussion considering the related events surrounding the judiciary and the conduct of its officers. The notorious issues of prolonged, delayed or hijacked adjudication of appropriate justice has made Nigerians and indeed, the international community, lose faith in the country’s judicial system’s ability and capacity to adequately fight corruption. The role of Judges and the Judiciary in the fight against corruption cannot be over emphasized. Importantly also, is the sacred duty of the judiciary to ensure that justice is not just done but seen to be done. The National Judicial Council (NJC) through the instrumentality of The Code of Conduct for Judicial Officers of the Federal Republic of Nigeria, 2016 (Revised) has put in place, some guidelines to regulate the conduct of Judicial Officers. Rule 10 of the statute clearly forbids Judicial Officers from giving or taking of any benefit, advantage, bribe however disguised in the discharge of their duties.
There are instances today where some Judges have been petitioned against and found guilty of receiving bribes to influence cases before them. Some serving and retired Judges have also become conduits in channelling bribes to judicial officers in order to pervert the course of justice. The Judges are often approached with huge sums of money they find difficult to resist. These actions are inimical to the judicial system.
Notwithstanding the above, I say with all sense of modesty and responsibility that majority of Judges or Justices in our Courts are not corrupt as it is being bandied about in some quarters. I am convinced we still do have in the majority great men and women of impeccable integrity in the judiciary.
Unfortunately, the conduct of a few corrupt elements gives the general impression that the entire judiciary is corrupt. These few bad eggs act with a lot of impunity once the price is right. We also do have Judges who are not necessarily corrupt but highly incompetent and lazy. A corrupt and an incompetent Judge are no doubt two sides of the same coin! A corrupt judicial officer can easily manipulate an incompetent or lazy Judge particularly in Courts that sit in panels, like the Court of Appeal and the Supreme Court.
Overall, both the bar and bench, have a pivotal role to play in the fight against corruption and uphold the integrity of the Judiciary. An effective and efficient Judiciary guarantees fairness in legal process, but a compromised and corrupt Judiciary cannot. I have a strong conviction that we can achieve a Nigeria of our dream if the bar and bench get it right.
It is pertinent to note that the National Judicial Council (NJC) needs to be more alive to its responsibilities. The last 10 years have been quite challenging for the Judiciary because fidelity in law is being rapidly eroded. The general perception in the public is that the Judiciary is riddled with corrupt elements. This should be of serious concern to the members of the Council.
The Chief Justice of Nigeria (CJN) in my opinion should not double as the Chairman of the NJC. The heads of both institutions should be independent of the other. For example, the Head of Service is not the Chairman of the Civil Service Commission etc. A corrupt CJN may be manipulative and exploitative and in doing so, the entire judiciary suffers. From experience, most members of Council defer to the CJN out of authority and not superior reasoning for fear of losing out on some privileges, such as, extension of tenure, appointment of protégés as judicial officers among other things. It is most disheartening that we still have members at the NJC today who are well above 80 years and you still find the tenure of the same sets of Justices being renewed. An appointment that should ordinarily have tenure of office has now been converted to life! I say no more on the productivity and state of health of these members.
Also of note, is the Council restricting its power to discipline judicial officers. It chooses to limit discipline of judicial officers to act(s) of misconduct that invariably translates to establishing a case of bribery and not of incompetence. It is, therefore, incumbent on the complainants to establish that the judgment being complained of was financially induced or procured. To succeed in corruption cases there must be corroboration and it is common knowledge that corruption, like adultery, is hardly committed in the glare of the public. Whereas elsewhere incompetence is a basis for removal of judicial officers.
Another indiscretion in the performance of the Council is its fixation for retirement of culprits. In its existence of almost 20 years, it is very doubtful whether up to five judicial officers have been dismissed for corruption. Most of the time, what you have are retirements with full benefits, even in circumstances where the culprits were found guilty of receiving bribe. In an instance, a judicial officer was found liable to have received the sum of N200, 000, 000 (two Hundred Million Naira). He was merely retired apparently without an order of refund. Clearly, this could not have served as a deterrent; no lesson taught and no lesson learned. Any judicial officer found guilty must be made to face the full wrath of the law to ensure that the ugly trend is arrested.
The issue of integrity does not solely revolve around the judicial officers. A case well investigated could be lost if it is not efficiently and diligently prosecuted in Court. A case that is inefficiently prosecuted is bound to fail and be thrown out by the Court for lack of diligent prosecution, which in the circumstance may not be the fault of the trial Judge as he is expected to be an impartial arbiter.
The antecedent and neutrality of the prosecutor must also be taken into account. It is note worthy, that during the tenure of President Muhammadu Buhari as a Military Head of State, the neutrality of the prosecutors were ensured by bringing together state counsel from the various State and Federal Ministries of Justice to a pool. It was from this pool that counsel were selected or drawn to prosecute cases, in a manner that no counsel is allowed to handle a case emanating from his State or a State within his geographical area. It was this arrangement that made the likes of Shoremi, JCA from Ogun State to become a prosecutor in Kano State.
It should be noted that adverse Judgment of a Court may not always be influenced by corruption or incompetence of a Judge but could be a product of inadequacies of the prosecution or poor investigation.
Provision of accomodation for justices and judges on retirement
It is important to state that in addressing the issue of integrity within the Judiciary, the Government must ensure a fair and equitable retirement plan for Justices and Judges across the Federal and State Courts.
The idea of providing accommodation for only the Chief Justices of Nigeria on retirement, no matter how brief their tenure deserves a closer look. From the grapevine, I gathered that it costs the Judiciary above a billion naira to construct and furnish the retirement home of a retiring Chief Justice of Nigeria and unfortunately all the other Justices of the Supreme Court, not even the next most senior Justice is accorded the same privilege. Also, a sum equal to the monthly pension of a retired Supreme Court Justice is again paid to the retiring CJN in addition to pension benefits on monthly basis to maintain the retirement home.
I honestly do not see the need to spend such humongous amount of money to build such large edifice as retirement home for a person, let alone a Judge retiring at 70 years of age. I believe such huge funds could be used more productively to provide accommodation for all the Justices of the Supreme Court and not just the Chief Justice of Nigeria. This courtesy, in my opinion, should also be extended to all the Justices and Judges of the various Courts who have served the country diligently and meritoriously. If this act of discrimination against other judicial officers is allowed to persist, it is capable of inducing corruption based on anxiety to provide for the future.
Another common occurrence is the improper monetization of houses to some judicial officers. It is relevant to state that when the policy was being introduced, the Judiciary opposed it vehemently mainly because of the Justices of the Court of Appeal and Judges of the Federal High Court, for the simple reason that if the policy is permitted in the Judiciary, judicial officers on transfer or posted to new divisions might have accommodation problems and may be compelled to seek accommodation in environments that may not be conducive for a judicial officer.
As a result of this consideration, the monetization policy was dropped and not applied by the government to the Judiciary. I recently gathered that judicial officers and other staff of the judiciary are now acquiring houses belonging to the judiciary under the guise of the monetization exercise, which is not applicable to the Judiciary.
I do not think this is right and proper in the circumstance and I suggest that the Government stops this unfortunate trend and reverse it where necessary. It is important to note that the main purpose of providing residential accommodation for Judges or Justices is to, among other things ensure that they reside in secure and conducive environment. Any attempt to monetize these properties will defeat the purpose and also lead to needless and avoidable expenditure.
These are manifest inequalities that must be addressed. In a similar situation in the past, Hon. Justice Muhammed Bello, former Chief Justice of Nigeria of blessed memory reversed the purchase of a property by one of his predecessors as a retirement home insisting that it was inappropriate to sell the property to the retiring judicial officer. The said property is presently being used by the Court of Appeal as official residence of one of its Justices in Ikoyi, Lagos.
I thank you for listening.