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Exclusive! NBA needs a courageous leader-Jiti Ogunye

Lagos lawyer and human rights crusader, Jiti Ogunye in this exclusive interview with Gavel International crew gave an insight on the state of the Nigerian Judiciary and the Bar. Excepts:

I hope this COVID-19 pandemic is not affecting you too much?

Well, it is affecting everyone and Nigerians are just trying to irk out an existence for themselves. The disruption is massive, but hopefully we’ll emerge from it stronger and better.

It appears that the lockdown due to this pandemic has actually affected the administration of justice system in the country. Courts are not sitting and now there is a push for virtual court proceedings. What is your take on this, since it is novel in our country?

My view is that generally for a long time, we have been talking about the need to bring technology into the dispensation of justice in the administration of justice sector. The Lagos State judiciary pioneered something commendable with verbatim recordings, but this initiative has not led to expeditious determination of cases, as was expected.

So in the courts now, we still see judges recording in longhand in spite of the fact that they have assistants who are supposed to be doing some of these verbatim recordings. So the initiative has not really led to speedy determination of causes and cases generally in our courts. Of course there are other problems including personnel problems, problem of inadequacy of the number of judges that we have in terms of judges-cases ratio in the state. 

Virtual proceedings just dawned by default so to speak, because it was COVID-19 that led to the improvisation, it wasn’t something we had consciously embraced even though we had been talking about how technology can impact positively on our administration of justice system. In spite of what has led to its emergence, my view is that it should be embraced and properly utilized for effective justice administration.

I have read a number of practice directions that have shunned the guidelines by the NJC, the Federal High Court, FCT High Court, the Lagos State judiciary and others. It is too early to assess how it is going to function because there is a larger neighbor. Our courts exist in the society, as good or as broken as it is…

Before we get to that, permit me to call our attention to the Lagos state test case judgment delivered by High Court judge, Mojisola Dada, sentencing a defendant to death for murder, using the virtual court proceeding. If you were the defendant’s lawyer, what would be your reaction to it?

Your question raises a larger problem that is afflicting our justice system. How our justice administration generally, and our criminal justice system still thrive on needless adherence to technicalities, thereby defeating the essence of justice.

We have seen what happened at the Supreme Court in FRN v Udeagu which is a notorious case, and that is when there was even a statutory provision that all stakeholders agreed with. Judges went before the National Assembly to persuade them to insert that provision, section 396(7) of the Administration of Criminal Justice Act.

In this particular case, there is a provision in the constitution and in the High Court laws that states that judgments, rulings and orders must be delivered or made in open court or in Chambers, not via Skype, Zoom or other virtual delivery processes so I imagine that the defense counsel in that case can exploit that loophole.

We just had the case of Udeagu v FRN and the Supreme Court decided that in spite of that provision, the court was not well constituted. Is it not possible therefore relying on that precedent, for the defense counsel to couch a Notice of Appeal to reflect that?

Yes, expediency requires that at this point, the court resorts to virtual delivery of judgments, and the constitution allows heads of courts subject to the Acts that may be made by the National Assembly or laws by the House of Assembly of a state, to make rules and practice directions for our courts. However, can the provision of those rules knock out constitutional provisions that require the delivery of a judgment in court and particularly in public where people can sit and listen?

 It may seem like shadow chasing to some people, but wait till the Supreme Court delivers a ruling because if the court were not to be constituted mainly by judicial activists, as we’ve seen in recent times, that kind of judgment can be overturned based on that technical point alone.

So it is important that as we introduce these things, we really have to get our act together. I know for example, based on the media report of yesterday which I also read on your news site, that in the Senate, there is a proposal to introduce a bill to amend the constitution in order to recognize virtual proceedings and my first reaction is that if we were a normal country, we would see that it is not necessary.

Why must every detail be in the constitution? Our constitution is too bulky already. The US constitution is like a pamphlet even with all its amendments but ours is like a code on its own because we keep inserting every little detail. A grundnorm is a basic law and a basic law need not be that voluminous but our judges and litigants would prefer exploiting loopholes in the law to make arguments. 

This brings me to the next question, because the utterances coming forth from our courts, particularly the Supreme Court, have left one confused in recent times. You just mentioned the decision in the FRN v Ukeagu case involving the former Abia state governor, Orji Uzor Kalu and it makes you wonder, is it that our judges lack the intellectual capacity or they just participated in the ploy to free one of the supposed big men in our society?

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I will answer by quoting a Yoruba proverb that states that you only wake up a person who is asleep and not someone pretending to be sleeping. The Justices of our courts are very knowledgeable persons. The process of acquiring legal education and skill is tough and demanding. It requires a lot from those who go through it. Not to talk of engaging in legal practice either privately or otherwise, and then getting appointed, to writing judgments in the high court the going through that process to the Court of Appeal before eventual elevation to the Supreme Court. So it is not just an assumption of law, it is a reality that they are knowledgeable. When judgments that come out of the court then leave other people and lawyers themselves perplexed, then something must be wrong. When those judgments are not in accordance with the popular notion of justice, there is a problem. It is either that their lordships just decided deliberately in those cases to ride the hobby horse of technicality thereby abandoning the need to do substantial justice, or that there is a contamination of the justice delivery process. 

Also, the Supreme Court of Nigeria is an institution that has a cherished pedigree and first class heritage. The Justices that sat in that court are world class Justices. From that court, people have gone on to head International Court of Justice at The Hague and even elsewhere. Udo Udoma for instance, while on sabbatical, served as a Chief Justice of Uganda.

So these are justices that have seen it all, if it is about falling on their past records, looking at what that court has shun out on the issue of technicality, all these things are there. And if they were in any doubt as it used to be the practice, the court suo moto can invite ‘amicus curea’. Other renowned lawyers like Dele Adesina, Femi Falana and many other senior lawyers could take the place of judges who may be too old since many of them are even senior to those on the Supreme Court.

 So it is all about division of labor so that their judgments can be enriched and the legal profession would not be blindsided. When lawyers get shocked about court judgments there is a problem because the court is right at the heart of what is called certainty of law. The law must be certain and predictable because decisions are rendered on the basis of precedents, except you have judicial activists who may want to wiggle out of those precedents and like Lord Denning said that if there is no precedent you can create one, all in the name of justice but it remains a problem that is really giving people a lot of concern.

Jiti Ogunye

Arising from that problem you just enunciated, can the NJC or the Chief Justice of Nigeria make practice directions for other courts in a Federation? 

My concern in recent times is that the NJC is increasingly usurping the powers of all the strata of courts in the federation. In reference to the constitution, section 153 establishes the NJC, sections 156-159 grant executive bodies also exercising administrative functions, powers including independence of action.

Now, Part 2 of the third schedule in paragraph 20 again establishes the NJC and paragraph 21 lists out its powers. The body has the power to regulate the judiciary, broadly on policy and other directions. People may say that there is the need for uniformity since we’re talking about the Nigerian jurisdiction but all our courts are established by several laws, made by the Houses of Assembly of the different states. 

We also have the Court of Appeal Act and Supreme Court Act and under these various acts, it is the duty of the Heads of those Courts to make rules of court subject to the Act that may be made by the National Assembly or the law of the state concerned.

That is their constitutional duty and when the NJC then purports to make a Practice Direction or rules for the entire nation, there is a problem. I agree that the NJC can set broad guidelines for example with the COVID-19 pandemic; they may decide that there should be a model and then set up an advisory which individual Heads of Court can then adapt. Not for the NJC to directly shun out and then expect compliance across board, that would be unconstitutional. 

This thing is so fundamental to our federation because it seems like the lines between our federalism and the unitary system we practiced under the military, are getting thinner day by day…

You are right and unfortunately, there is not much that has been done since 1999 for a judicial or justice sector reform. All the amendments we’ve had over the years have largely been electoral reforms; the judiciary has not really had any reforms in terms of powers, jurisdiction and structure of the Nigerian judiciary which I have continually opined should be re-federalized, because what we have is a unitary judiciary masquerading as a federal one. What I mean by this is that in the constitution and under our laws, apart from ordinary civil claims, there are state causes and offences; and federal causes and offences. Offences relating to poison, firearms, currency etc. are federal while manslaughter, stealing and others are state offences under the respective criminal code laws of each of the states and the Penal code in northern states.

Now however, what we see is that the Lagos State Judiciary determines a matter and it goes up to the Federal Court of Appeal and from there to the Supreme Court, in case of a further appeal. 

This is not the same in the United States because each of the fifty states has its own Court of Appeal and Supreme Court, and then there is the Federal Supreme Court of the United States which functions mainly as a Constitutional Court with their nine Justices sitting together to deliver justice, unlike here.

All the opinions of the judges on every case matters but here, we have just 5 out of the maximum number of 21 provided for by the constitution which we’ve not had since 1999 and that is why Chief Gani Fawehinmi of blessed memory argued against that, saying that what happens in every case is that if we must have 21 justices and 5 are deciding for the court, or 7 in constitutional cases, then it is always the minority deciding for the entire Supreme Court and that becomes its judgment!

So we need to have reforms, the Supreme Court needs to function as a constitutional court more and we need to re-federalize the Nigerian judiciary to avoid all these issues.

 I agree with you that by and by, particularly because of the combination of judicial powers with executive administrative powers in the judiciary, take the NJC for instance being an executive body under the constitution. What that means is that the Head of the Supreme Court is the Head of the NJC and they can easily make what they want to see happen in the courts, happen in the NJC. This is why many people have called for the independence of the NJC because serving judges cannot be regulating themselves and that it must be a body totally separated from those sitting, whose conduct their supposed to supervise.

You find out that it is so easy for the NJC to come out and approve a ridiculous list making unqualified people judges, because their children are there. So if we really want the NJC to be independent, it must be separated totally such that the sitting judges would then really be answerable to the NJC at all levels including the Supreme Court.

Unfortunately, jurists at the apex level who ought to be leading the charge for judicial reform are reluctant to do so because it is human nature to create absolutist powers which they do not want to share. They resist the diffusion or decentralization of those powers; they just want to be there. 

A similar thing is seen at the executive level where in 2015, modesty in government was being preached but the politicians got there and started putting their children in the same offices. It is human nature but it requires what Awolowo in one of his books refer to as ‘Mental Magnitude’ for a leader to move ahead of the society and then do what is right as a visionary, even if he is losing power but because he knows that it is the right thing for society, he does it.

George Washington being the first president of the U.S had the opportunity to re-contest but he did one term and left. Likewise Mandela didn’t play Mugabe; he did one term and left. That is statesmanship and ethical correctness; sacrificing self-interest for the larger good of the society but those who should even be leading this judicial reform are not even altruists and cannot even be called reformers at the bar. 

Judges should be the ones leading it but what do we see? The Supreme Court in the Orji Uzor Kalu case, had one of the preliminary objections being that Kalu had the effrontery to say that the money he allegedly stole belonged to Abia state and was not the federal government’s money, therefore the EFCC should not be prosecuting him. He brought that matter for 10 years and Supreme Court said he should go back and he did this for years. As the Yoruba would say, if it takes 20 years to practice how to be mad, how many years would you spend being mad? So it is really a problem and we hope that these reforms that we envisioned would come in our lifetime.

As you mentioned, one of the challenges is that our judicial authorities have been accused of trying to bring in their own children or relatives to become judges even when they lack the competence, just like the politicians do at the executive level and in the National Assembly. What does this portend for our nation?

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It signposts that increasingly, nepotism is becoming the order of the day and the business of our society generally at all levels will continue to suffer. It indicates that mediocrity is being institutionalized as a way of life; as a culture in our country and so we need to consciously combat it. Unfortunately, it is the people that lose at the end of the day because they would not be properly served and they deserve to be served by the best. And to the children of the poor, it further exacerbates and accentuates the class character of our society; the politically powerful, the wealthy class and then the rest of us. So it becomes us against them and that is not what egalitarianism means. Our constitution doesn’t even allow it because it talks about social justice and those lofty principles, the educational, political, economic objectives and others which are said not to be justiciable and even our motto calls for social justice. So where is social justice when a class of people in the highest or apex levels starts thinking of how their children will succeed them? Is it an estate succession?

Jiti Ogunye

 If it were even to be the case that their aptitude or competence had been examined and deteand their children have emerged as the best then that would be fine, since they have the money and connections to send their children to the best of schools but no, it is not the case. So they couldn’t even trust the education and exposure they’ve given to their children to emerge the best in a competitive process, they do not allow them go through the rigorous processes and decide instead to lobby such that if the CBN or NNPC is recruiting, they don’t publish it, they plant their children there and this has even extended to the judiciary. That is not the judiciary Eso, Oputa, Elias, Aguda and even Mohammed Bello left for us but their successors have already changed the process such that as some of them are still serving in the Supreme Court, their children are already judges in the Court of Appeal. 

What we are seeing now is an accident waiting to happen because for a long time, it had been the norm at the bar with SANship so we had known that it was going to happen but now that the chicken has come to roost, we have a duty because the judiciary does not belong to practitioners alone, it is an arm of government. The people own it! So lawyers and non-lawyers therefore have a collective duty to ensure that favoritism, nepotism, politicization and all these vices do not determine the fate of the Nigerian judiciary because the quality of justice in society is largely dependent on the quality of operators in the administration of justice system. 

 In another couple of months, the Nigerian Bar Association (NBA) would be electing new officers. From what you have seen about your association, what are your expectations for a new bar in Nigeria? 

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The truth is that the bar has been at the back in Nigeria for some time now but it used to be in the front. Lawyers and their body used to be agenda setters for Nigeria. We used to be those that can check the excesses of wielders of power; we used to be crusaders for fidelity to the rule of law. Our voices were strident in the past, they weren’t muffled but that is no longer the case. Unfortunately, those who have led the bar recently have behaved more or less like the typical scammers, and I’m using my words advisably. What do typical scammers do? They promise heaven and earth but when they get there, nothing happens. So if they start talking about a great bar and all sorts but for two years nothing gets done, then the bar has also become a pedestal for self-aggrandizement for people to put their friends in committees including the NJC when it is time to nominate, without thinking about the larger good of the society. It’s like we are not conscious of the need to have an island of decency even in an ocean of indecency. 

So my expectation is that this time, despite the challenges, the bar would renew and regenerate itself. And that lawyers and judges would no longer be the butt of jokes for ordinary Nigerians because their own notion of justice is so far apart from the justice that oozes out of our courts. The bar has that responsibility and it is time for house cleaning, for conscience pricking and a renewal because without this renewal, there can be no sustenance or consolidation. You don’t consolidate a rot or collapsed morality, you can only consolidate when you have renewed and rediscovered yourself. My expectation is that in this coming election, the bar would rediscover itself and that people who are courageous and of good conscience would come to the fore and rescue the dwindling image of the legal profession in Nigeria.

Is there any of the candidates that you think can fit into that agenda?

I do know one that with God helping him and with good people supporting him, would deliver. His name is Dele Adesina SAN. The problem we have as I said earlier, is structural. There is an extent to which an individual no matter how forceful in character he is can do but my view is that leadership is as important as programs. If you bring the best program for a weakling to execute, it would flounder but by the sheer force of character, even an imperfect program can yield good results. Dele Adesina possesses qualities of good leadership. I was his Assistant Secretary when he was the Secretary of Ikeja NBA, so I know that from that time, he had not faltered. I know that some of these problems are structural but with sound leadership, we would then start the process of this renewal.

 

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