Dele Adesina, A Senior Advocate Of Nigeria, Is A Former General Secretary Of The Nigerian Bar Association(NBA). In This Interview With AKEEM NAFIU, He Speaks On The Nation’s Judiciary, Security Votes, Immunity For Public Office Holders, Death Penalty For Treasury Looters, Inconclusive Elections And Sundry Issues
EFCC in recent time accused lawyers especially Senior Advocates of lacking the requisite knowledge of the workings of the commission’s modus operandi. What is your own view as a member of the Inner Bar?
Yes, SANs do not specialize in prosecution or defence alone and this may have been the reason for the assertion. But let’s go to the Ministry of Justice where there is a Director of Public Prosecution (DPP). However, we have to be sure that these DPPs have been thoroughly trained in the act of prosecution.
It should not be a case of someone who has just spent two years in civil litigation and was drafted to public prosecution. But if there is a system where for instance, someone was employed as a state counsel about fifteen years ago and today he has risen to the level of a Deputy Director of Public Prosecution, Director of Public Prosecution or Principal State Counsel, then, we can say such an individual should go ahead with prosecution because he has gone through the ranks.
But can we boast of that at the moment? The issue isn’t whether or not you are a SAN. Effective and efficient prosecution is a factor of a couple of things, one of which is the depth of investigation. If the investigation is thorough and the officers who are doing the investigation have the privileged of studying the elements of the offence and established those elements in their investigation, the prosecution will have an easy way through.
But, if the investigation does not reveal facts upon which the elements of an offence can be proved, then, there is nothing that can be achieved, even by the DPP. So, investigation must be thorough. Secondly, the counsel, whether SAN or not, must have a firm understanding of the law on that matter.
Prosecuting or even defending is not a game of trial and error. It is either you know it or not. If all these ingredients are present, I want to say that a Senior Advocate who knows what he is doing will go ahead and make a success of the prosecution of any case.
Judiciary has received several bashings especially since this administration was inaugurated, what is your assessment of the third arm of government?
Well, you don’t have to agree with me but I want to say that the Nigerian judiciary is a very strong judiciary. The workings of our courts are essentially based on precedents. We have had very articulate, highly intellectual and knowledgeable judges and we still have them.
You only need to sit down and read the quality of our judgements. It is because of the inherent problems which we are not frontally addressing that is making people to feel that the judiciary is not working. Some cases of monumental importance have been decided by our judiciary.
An instance is the tenure elongation issue. Ultimately, the Supreme Court will also have a say in the novel matter that arose in Kogi State with regards to our elections. Let me say here that the provisions of the Constitution are mere letters until they are interpreted by our courts.
It is these interpretations that give life to the Constitution. Now, as to whether we have a weak Bar, I want to say that in terms of advocacy of lawyers that constitute the membership of the Bar, we have strong and seasoned advocates.
These are people that have invested in the profession and are passionate about their court’s advocacy. But I will love to see a strong and more virile NBA that will be ready at all times to sanction any erring member of the Bar.
I also want to see an NBA that will speak out against any bad judgement. We use to have NBA journal in those days. This is where judgements and cases are addressed by outstanding lawyers, both in the classroom and in the courtroom; the Bar that will intervene in national issues promptly and that will offer constructive criticism and alternative suggestions.
I believe that if we address the inherent problems in the administration of justice system in the country, we will get exactly what we want. If we can just take the bull by the horn and amend the Constitution by allowing, for instance, an appeal from the High Court of Lagos State to go to the Appeal Court of Lagos State and ultimately to the Supreme Court of Lagos State, then, we will get over the hiccups.
Is there any comparison between today’s judiciary and the old?
I don’t see any difference. I operated under a principal for six years and with very profound respect to my principal, I knew the level of his legal practice. We also have icons in those days like F. R. A Williams, Chief G.O.K. Ajayi and so many others; we also have strong advocates today.
Like I said, having regard to the principles of judicial precedents that we operate, some of the judgements of these strong judges of the days of old are still directing the way our judgements should go nowadays. This is an essential part of the common law tradition. So, I do not see any difference between the judiciary of the past and at the moment
Do you think we need separate courts to handle corruption cases?
You see, I have not been able to persuade myself to go along with those that are advocating for separate courts to handle corruption cases. This is because even as at today, there are specific judges for EFCC cases in our courts at different jurisdictions.
In Lagos State, we have a High Court comprising about 46 or 47 judges. But we have specific number of judges that are handling EFCC cases. A good number of them are no-nonsense judges. Even though they still handle some other cases, but when you appear before them, you will know that they still give special priorities to EFCC cases. So, that can continue.
If before, you have five separate judges handling EFCC cases and if you have more EFCC cases now, you can increase the judges’ number to ten. But if you say you are establishing separate courts for corruption cases, the question is, are you also going to establish separate appellate courts for corruption cases?
If the answer is no, then, of what benefit is the establishment of separate corruption courts which judgement will ultimately terminate at the Supreme Court? Besides, we know that appellate courts take cases as they come. This goes to the issue of structure.
The present structure of our judiciary is inherently built on delay. It is a triangular kind of structure. At the base of the triangle, we have the High, Federal, State, Industrial and so many other courts. At the appellate level, we have the Court of Appeal with about 16 divisions nationwide.
In most of the divisions, we have only one courtroom except Lagos, Abuja and probably Port Harcourt with more than one courtroom. Now, at the final level, you have the Supreme Court. We only have one apex court, even though, we have three courtrooms.
Going by the nature of Nigerians, not less than 80 and 85 per cent of our cases terminates at the Supreme Court. So, if you have about 3,000 judgements at the lower court, of this number, not less than 2,700 will go to the Court of Appeal. Out of the 2,700, about 2,600 will end up at the Supreme Court. It goes on like that. So, you will see that the delay is inherent.
What do you think is the way out of the problem?
Well, this is a federal system of government. A federal system of administration should be put in place. If each state of the federation has high courts in their domain, they should also have appellate courts. There should also be Supreme Court in each state. This means only matters of constitutional importance that has to do with the entire country will go to the Federal Supreme Court. This will address many problems.
The plan to re-open unresolved murder cases by the Federal Government is seen by many as being politically motivated and an exercise in futility considering the length of time these incidents have happened. What is your view on this assertion?
I don’t know why anyone will say that nothing will be achieved. First, there is no statute of limitations in criminal matters. Also, every single life is very important. Injustice to one is an injustice to many. If a whole Attorney-General of the Federation can be murdered in cold blood and we cannot say these are the people responsible, these are the people that have been prosecuted and whether they have been discharged or convicted, then, the whole system is in danger.
That in itself is an incentive to many more murders. The reason why people will not commit offence is when they have the fear that they will be caught and punished. But where you believe that if you commit an offence you will get away, people will continue to commit offence.
If only because of this understanding, I support the federal government’s position to review and re-investigate those cases with a view to getting the culprits and ensure they face the law. We can’t say that nothing will be achieved at the end of the day.
Let the government try first. I prefer to try and fail than not to try at all. I am not concern with what the government’s motives on this issue are. Rather, I am concern with the supremacy of the law, even if heaven will fall and the sanctity of life.
That is the only way to maintain a sane society and allow law and order to function. Where people can be killed anyhow and the killers will be working the street as free men is an indication that no one is safe. Let these killings be investigated and let us forget whether or not it will succeed. We have got to start from somewhere. I think we should even extend it to those murders under military regime.
Do you share the view that security votes and immunity for governors and the president be scrapped?
Well, with regards to security votes, I am in full support that it should be scrapped. I don’t know what purposes it is serving. There are rumours that some governors can get as much as N500million as security vote per month.
Security against who? Is it the duty of the governors to maintain security? Let there be specific budget that will go to the law enforcement agencies like the police and others that are saddled with the responsibility of maintaining security.
However, if governors are to continue to get the security votes, every Nigerians must know how much was given to each state governor and how it is spent. On the issue of immunity, I don’t subscribe to its removal. Even, in a more civilized society, immunity is still in place.
The essence is to prevent those in charge of governance; the president, vice-president, governors and their deputies from distractions. As Chief Executives, they are looking after our lives and every single minute matters in their time. So, any distraction will not be in the interest of the governed. The business of the state will also suffer. This is the way I look at it and I don’t think we need to remove it.
Some lawyers believe that only death penalty for looters of public funds will deter others, do you agree?
I do not subscribe to death penalty for looters of public fund. This may be due to my religious background. If somebody has not given life, he has no right to take it. It is God that gives life and no society has the right to take it. Instead of taking people’s lives, the problem should be addressed chronically.
Looters that are jailed must be made to know why they ought not to steal. By the time you kill somebody that is the end of everything. He or she might not even know the enormity of the offence. Let the person be alive to suffer the pains. The laws are there to take care of everything.
The looted funds can be recovered and looters jailed. The courts are there to try them. Even, if looters are to be killed, they still have to pass through the court. Assuming we even support death penalty, who will sanction it? Is it not the court?
What is your appraisal of President Muhammadu Buhari’s graft war as it is believed to be one-sided?
There is no way there will be no noise. I have heard arguments that the fight against corruption is one-sided. But I think the fight is a process and I don’t think the process has ended yet. I believe the authorities will respond to issues as they come.
I don’t think it is a war that can be started and ended in a day, month or year. Once it is embraced by the entire country, it does not matter how long it last. That is why all Nigerians must see it as our war and not Mr. President’s war.
If we see it as our war, then, even if Buhari’s tenure ends, whosoever succeeds him will continue from where he stopped. So, it is a process of sanitation and it can’t start and finish in a day. For me, I believe that the law, in all ramifications, must be followed in the antigraft war.
Nigerians are worried over what appears as ‘inconclusive’ elections under Prof. Mahmud Yakubu’s INEC leadership. Do you also have cause to worry?
I am very worried about it. This is because we did not have this experience under the immediate past INEC Chairman, Prof. Attahiru Jega. He conducted several elections and we did not have this recurrent scenario. I think we have to look at this in all perspective.
Both INEC and the politicians have to take things easy. It is also the duty of the government to provide security for INEC for the commission to perform its job satisfactorily. The law is there because of non-conformists who are mostly seen among the politicians.
The law must be able to deal with them. So, if INEC continues to hold violence responsible for the inconclusiveness of elections, we are then saying that we are being overwhelmed by violence and that the law is not able to deal with the situation.
This is a dangerous trend. So, INEC must put its house in order and ensure that the job is done at all cost. Politics is a do or die affair in Nigeria. This is because of very many benefits attached to it. We should make it unattractive to every Dick, Tom and Harry. I am one of those who have been saying that the Constitution does not envisage a situation where we have full-time parliamentarians at the National Assembly.
The Constitution says once they sit for 182 days in a year, they are okay. If I worked for only 182 days in my office, I have worked for only half a year. There was a time, I think between 1979 and 1983 when some legislators who were lawyers will be seen in court anytime the house is not sitting. Chief Debo Akande of blessed memory was a member of the House of Representatives. Anytime the house was not sitting, you will see him in his wig and gown. So, legislative business should be part-time. Let it only be attractive to those who have accomplished and are successful in their business career and are genuinely ready to serve.
It should not be for those who want to make money. That is why it is becoming a do or die affair. There are Nigerians today who believe that the best way to make it is to be in politics and they will do everything possible to be there. That is the problem. If it is no longer financially attractive, you will see that only genuine servants will go there.
What is your view on President Buhari’s contention that lawyers and judges are clog in the wheel of the fight against corruption?
Well, there are three arms of government. You have the Executive, the Legislature and the Judiciary. Each of these arms has got their own responsibilities under the Constitution. These responsibilities are founded on a system. Unlike the executive and the legislative arms of government, the judiciary operates under a strict system of practice and procedures, either civil or criminal.
The judiciary operates under provisions of the law, that apart from generalised principles, there are specific provisions of the law that must either be applied or that must be specifically followed. Otherwise, a whole trial may amount to a nullity.
With some of these provisions of the law, it may be difficult to short-circuit a trial to attain a quick dispensation of justice. Everybody is fully aware of the statement that justice delayed is justice denied. Just like you are also aware of the corresponding statement that justice hastened is justice denied.
So, the concern of the president is well known because he is looking at some of these issues from his background as a military officer who believes in quick recording of achievements. Secondly, the president has a goal which he has set for himself to achieve and he is looking at the period it is taking for him to achieve this goal which appears to be uncomfortable for him.
One must give him his due that having regards to the level of what he met and the heights that he has set for himself, it is not his fault that the system is not moving as fast as he desires. It is because it is not moving as fast as he wants that has given rise to that statement.
Now, I believe that so many issues are involved. For example, in order to fast track our criminal dispensation of justice, the National Assembly has enacted the Administration of Criminal Justice Law. The law has specific provisions that have tried to help in limiting the delays being experienced in our criminal justice system.
For instance, there is a specific provision in the law that applications for stay of proceedings should not be granted under any guise. Therefore, where a counsel applies for a stay of proceedings, it is totally out of the law and the application should be thrown out by the judge.
But there is a little to which the law can address a situation if the attitude of the practitioners are also not addressed. We need to address the attitude of practitioners. We also need to address the infrastructural decay in the system.
This has largely contributed to the delay we have in our justice delivery system. The number of judges is certainly not enough. We need to appoint much more judges. The number of courts is not even enough. You enter into a court today in Lagos and you will see the cause list of a judge running into 32 in one day.
How will the judge do it? What miracle will the judge perform? Secondly, there are instances where a number of judges in our various courts are still recording proceedings in long hands. At times, when counsel are making submissions, judges do ask them to slow down because they were recording.
All these have a cumulative effect on the period it takes from arraignment to judgement in a criminal matter or from filing the case to judgement in a civil matter. So, I believe the time has come to also introduce technology into our system and make it functional. Secondly, we need to build more courts and appoint more judges.
We also need to look at the remuneration of these judges. People will not feel tired when they love what they are doing. Somebody cannot be fulfilled if he believes he is not adequately being compensated. On the attitude of practitioners, I want to say that where frivolous applications are made, the judges must exercise their powers.
We see more of these frivolous applications nowadays in some of the cases.So, there is a need to re-invigorate the disciplinary mechanism of the legal profession. The last administration of the leadership of the NBA under Austin Allegeh, had even expanded the scope of what constitutes misconduct over which a counsel can be punished.
This, I think should be extended to the way we handle our cases in court. Also, as regards the Bench, the judge must be able to assert his position. Where a lawyer brings an application which the judge knows is a calculated attempt to delay the matter, the judge must exercise his powers by striking it out.
In the days of old, law of contempt was one of the areas that controls the way things were done. Where a counsel exceeds a legitimate limit, run foul of the law and there is every reason to believe that he is in contempt of the court, the law of contempt must be applied to sanction such erring lawyer. It is sad that nowadays, many judges don’t employ such coercive powers anymore. I believe these are some of the things we need to do.
The issue of conflicting court judgements has been a major problem for the judiciary. How do you think it can be tackled?
Yes, I agree with you that it is a major problem. This has also been the concern of the body of Senior Advocates. But it is a problem that has a solution. The judgement of any court is a product of the issues of law and facts submitted to it.
So, if a particular law is not cited before a judge or a case before the judge is not predicated on a particular law, the judge is bound to decide the case within the ambit of the law and facts presented before him. This means the judgement of another judge with the benefit of better facts will be different.
However, the Supreme Court is always available to resolve issues like that. The position of the apex court will remain the position of the law on the matter. I think the problem we have is that these cases are not determined by the Supreme Court early enough owing to mountain of cases at the apex court.
I think the best we can do to address this problem is for legal practitioners to be more detailed and ensure that every fact that has to do with a particular matter are put before the court. Also, there has to be some creativity in administrative positions with regards to the filing of cases through which filing of similar cases before two or more courts of co-ordinate jurisdictions by lawyers are discouraged. This will however involve technology.
We need to move from manual to technology in the operations of our judicial system so that once a case is filed, similar once are brought to the screen. Ultimately, this will help in reducing incidents of conflicting judgements.