Wole Olanipekun: Any government that cannot protect lives is deemed a failure

Former president of the Nigeria Bar Association (NBA), Chief Wole Olanipekun (SAN) is an erudite advocate and litigator. He chaired a special session with the Chief Justice of Nigeria on access to justice at the just-concluded yearly conference of the NBA in Abuja, where several interesting issues bordering on law, the judiciary and the Bar was raised. Assistant Editor, Law and Foreign Affairs, JOSEPH ONYEKWERE engaged him immediately after the session on some burning national issues.

What do you think needs to be done to revive the NBA and make it return to the days when it acted as the mouthpiece of the people, insisting on the rule of law and ensuring that ordinary Nigerians have access to justice?
When you look at the constitution of the NBA, it imposes a duty on the NBA to champion the enforcement and enthronement of the rule of law. That is the mandate that the NBA gives to itself by its own constitution. That was the mandate I met as the 20th President of the NBA. That was the mandate that the 19 Presidents before me held as their mantle, just like the mantle of Elijah. That was the mandate that some of the Presidents that succeeded me took very seriously. Even during draconian military rule, whenever odd things happened; ordinary Nigerians would ask, “what is the position of the NBA?” While one may say that the NBA is trying to widen its horizon, but at the same time, it is very important for us as an association of lawyers to defend the rule of law. If there is no rule of law, there can’t be rule of anything. Every other thing is predicated on rule of law – you talk of good governance, democracy, constitutionalism, budget, presidency, Governors or National Assembly. Everything is encapsulated in that phrase, “rule of law”.

That is why the preamble to our constitution mentions three key words, that is, freedom, liberty and justice. A core mandate given to the NBA by section 3 of its constitution is the protection and defence of the rule of law and enforcement of fundamental rights in Nigeria. I’m not comfortable with a situation whereby the NBA sees nothing, hears nothing or feels nothing. That means that the NBA is not feeling the pulse of the people. I have been there, and I keep on telling anybody who wants to be the President of the NBA, that yes, it is easy to say that you want to be President, but it is a very hot seat. You are going to step on toes, but in doing so, don’t be rude. Apply decent but firm language to address any situation and be firm in criticizing and counseling those in position of authority. There would not have been this present democracy, but for the NBA and other progressive forces who mounted pressure on the military. I worked with Alao Aka Bashorun. I know how he related with General Ibrahim Babangida. Nigerians should be reminded that it was the indomitable Alao Aka Bashorun, as President of the NBA, who first alerted Nigerians to the hidden agenda of the military government of General Babangida aimed at perpetuating itself in office and continuously queried the legitimacy of the military in government, demanding, on behalf of the NBA, that the military should go back to the barracks. Those were the days when the NBA President was marching where angels would tip-toe. I can recall the way and manner I politely related with President Olusegun Obasanjo. He declared me a persona non grata in Aso Rock. He called me names, but I thank God that we had an Attorney-General then, Kanu Agabi (SAN) who told President Obasanjo that Olanipekun is one of the finest practitioners you can get anywhere in the world, that he is not a rascal. When we paid a courtesy call to Obasanjo, we told him what he didn’t want to hear and he banged the table on me more than three times. I had to tell him, “Mr. President, do you want us to take our leave?” Agabi (SAN), Debo Akande (SAN), the late Philip Umeadi (SAN), Dele Adesina (SAN), Ogugua Ikpeze, Festus Okoye, Ibrahim Mark and Obasanjo’s Chief of Staff, Gen. Abdullahi Mohammed were all there. As NBA President, I led a crop of very senior and respected Nigerian lawyers to appear for the Nigeria Labour Congress (NLC) and its then agile President, Adams Oshiomhole, when the Obasanjo government was harassing them against the nationwide industrial action embarked on, by the NLC, in the wake of the astronomical hike in fuel price. The federal government went to court and got an injunction slammed against Oshiomhole and the NLC, prohibiting them from continuing with the strike. Oshiomhole wrote me as NBA President to come and lead the prosecution of the appeal against the High Court order. I accepted the brief as NBA President and led a team of very industrious NBA members, including Chief J.K Gadzama (SAN) and Femi Falana (SAN) to prosecute the appeal for the NLC and Oshiomhole, and we won, got the decision of the high court set aside. Falana handled the matter at the High Court. The judgment is reported in one of the Law Reports. I am not suggesting that NBA should be rude or antagonistic; it is not our culture, but NBA should always champion the enforcement of the rule of law because in the absence of the rule of law, anarchy would be the beneficiary. For example, after God created man in His own image, the next most important gift He bequeathed to His creation is the rule of law.

Can you please explain that?
God gave man the 10 Commandments through Moses in the Book of Exodus, while Joshua, who succeeded Moses, enjoined the Israelites not to depart from the Book of the law, but to meditate on it day and night. The rule of law differentiates man from animals. All the empires of the world, ranging from Egyptian civilization to the Roman empires have perished, but the rule of law endures. Following the series of emergency measures put in place by the US government on the aftermath of the dastardly September 9/11 bombings, US President, George Bush put in place harsh measures and presidential orders, aimed at combating terrorism, including the detention and trial of suspects at Guantanamo Bay. Yes, everybody appreciated that what happened to America deserves the world’s sympathy and empathy, but some of the measures put in place violated the doctrine of the rule of law and the US courts made this known to the Government in no unequivocal terms. In Raul v. Bush and Odah v. USA, the courts in the USA nullified the detention and trial of suspects kept at the Guantanamo Bay on the orders of President Bush. In like manner, in the celebrated case of A v. Secretary of State for the Home Department, popularly known as the Belmarsh Case, the House of Lords in Britain by a majority of 8 to 1, quashed the charge brought against foreign suspects, who were detained under the Anti-Terrorism Crime and Security Act 2001, holding that the charge was illegal. As far back as 1942, Lord Anderson made it clear in the leading case of Liversidge v Anderson that amid the clash of arms, laws can’t be silent, and can’t be changed, as the language remains the same both in war and peace times. For the rule of law to be secondary or subject to any other consideration whatsoever, we must then first set aside or abolish the
courts, the Constitution and send the legal profession into exile. The indomitable Justice Kayode Eso, JSC once suggested this to the military dictatorship in one of his most classical judgments. It is in the interest of both the government and governed to give an unalloyed pride of place to the rule of law and use it as the barometer of governance. God even ordained it for man as can be gleaned in several portions of both the Bible and Quran.

An issue came up at a session that attorneys-general are not doing their jobs; that they are not advising their governments well, such that suggestions are coming up for the separation of the office of the attorney-general from the minister of justice. What do you make out of that?
It is not a question of whether or not you separate the position of the attorney-general from that of the Minister of Justice. In many other jurisdictions, attorney-general is simply the attorney-general without the suffix, minister of justice. It is an ancient office rooted in common law. I simply don’t share the view that the minister of justice should be added to the title or office. To me, it is a surplusage or are you suggesting that if another person occupies the office of minister of justice, his main preoccupation would be to do justice? We dissipate a lot of energy on things that are not relevant. For me, it is sufficient to just be attorney-general. We don’t need to add minister of justice and in the states, commissioners for justice. In the US for example, that operates a similar Constitution to ours, you simply have an attorney-general who heads the Department of Justice.

There is a suggestion from some quarters that the offices should be separated and the minister of justice appointed from within the ruling party to protect its interest.
It is as good as saying that a judge in the temple of justice must also pander to the whims and caprices of the Executive at whatever level. I, as NBA President, told President Obasanjo that “whatever we do today, will be history tomorrow.” Whatever tyranny you inflict on people today would be visited on you tomorrow. He is still alive. I told him in frequent press statements and in vocal terms, without being rude. I am sure that in retrospect, Chief Obasanjo now out of office and a common citizen like every other Nigerian, would appreciate what discerning and patriotic Nigerians were telling him when he was in power.

In other words, the NBA has been docile?
I have not said so. Rather, I am suggesting that NBA should not be docile and that while we must respect all those who are in authority, we must not pander to the rule of man instead of the rule of law. If we pander to the rule of man, then we are in trouble. It is necessary to remind all lawyers in Nigeria about the prophesy made by the evergreen Kayode Eso, JSC, sometime in 1988 in the locus classicus case of Garba V Fed. Civil Service Commission to the effect that the rule of law knows no fear and can never be cowed down, but that it can only be silenced where and when people who should protect and defend it start clapping when it is about being threatened and silenced. May the prophesy of that most erudite justice never come to pass. It is incumbent on the NBA and lawyers to always apprise governments at all levels that there cannot be any government outside the rule of law.

How do you view that in relation to the presidential statement on national security?
The institutions responsible for national security are all creations of the Constitution, which is the grundnorm, and which right from its preamble to the end is rooted in the rule of law. When you talk of the police, army and the DSS, are they not created by the Constitution? The offices of Mr. President, Governors, Attorneys-General, Senate President, every member of the National Assembly, every member of State Assemblies are all created by the Constitution. What then is national security outside the ambit of the rule of law? Don’t forget that the Constitution is the supreme law. You cannot separate anything, whether in terms of national security or any other thing from the rule of law.

Justice Kayode Eso made the point that even under military tyranny, what they normally do is that they abolish the National Assembly and the State Assemblies. They never abolish the Judiciary. No government all over the world will recognize any government that operates without the Judiciary. Who swears in the President? Is it not the Chief Justice of the Federation? Who swears in the Governors? Is it not the Chief Judges of the States? And in the absence of the Chief Judge, the law says, any other judge. It doesn’t say, any other person. You cannot circumvent it. I will not blame the President because he is a soldier by training, but he has speech writers. I don’t know who among them wrote that statement for him. If the President were to be a lawyer like me, I would have said something else. Let me put up a defence for the President that he doesn’t understand the nuances of law. As a trained lawyer, I will define rule of law under different categories, quoting jurists upon jurists, philosophers upon philosophers and my own idea of rule of law. But I won’t contest with Mr. President when it comes to soldiering! However, without any disrespect to Mr. President or his speech writers, the Supreme Court did not decide in terms of the context of the President’s speech. Although, the President did not reference any specific decision of the Supreme Court, it would appear as if his speech writers were wrongly alluding to the Asari Dokubo decision of the Supreme Court, and in that decision, the Supreme Court gave a comprehensive exposition of what the rule of law entails. The speech writers also ought to have advised the President on what the same Supreme Court said in the celebrated case of Governor of Lagos State v. Ojukwu, even during military tyranny, when the apex court came down heavily upon the military government for refusing to obey and comply with court orders, describing the action as executive lawlessness. My position on the rule of law should not be mischievously interpreted, as if Wole Olanipekun is aiding, abetting or supporting lawlessness or corruption, particularly wanting to defend the alleged corrupt elements in the legal profession, both at the Bar and on the Bench. Far from it. My position has always been that any lawyer who is found to have compromised or is compromising the administration of justice or the Bench should be dealt with, but in accordance with the rule of law.

You have been an attorney-general before. What does the job of an attorney-general entail when it comes to interfacing with the Executive?
I was an attorney-general under a diarchy, when Ibrahim Babangida was a military president at the federal level and Bamidele Olumilua was the civilian state governor. I told the governor that my primary duty was to protect the rule of law in the interest of both the government and the citizens of the state. Nobody disputed that with me. I further educated them on the difference between the courts and the Ministry of Justice that I headed, and counseled on the principle of separation of powers between the Executive, Legislature and the Judiciary. With all respect, I cannot remember a situation where anybody tried to interfere in my work throughout the two years I was attorney-general. I was already a Senior Advocate of Nigeria then. I remember, when I got to Ondo State, some people were being prosecuted by the military government for challenging the sale of some refurbished boats, which the military bought and presented to the people of Ondo State as new. So, the first time the boats were to sail during an elaborate ceremony, they developed major faults and almost capsized. Rescuers and divers were brought in to rescue the passengers. Some indigenes of the riverine area complained about the fraud and castigated the government. They were arrested and charged for sedition. When I resumed office, I was perturbed by the charge and I immediately entered a nolle prosequi. The governor agreed with me. I also remember entering a nolle prosequi against the prosecution by the police of some indigenes of the state, who were demonstrating against the annulment of the June 12, 1993, presidential election. The police charged them to court without my consent, and in my own estimation, none of the counts against them could reasonably succeed. I must admit that the job of an attorney-general is not an easy one, as he serves two masters, the executive and the law, but it remains the only office amongst national and state executives created by the Constitution. The occupier of the office is also answerable to his profession, both during and after his tenure. My suggestion is that whether at the state or federal levels, no political consideration should be given or relied on, in the appointment of an attorney-general.

What you are saying is that it has nothing to do with the office, but the person occupying the office?
I am not saying that! What I am saying is that over the ages, everybody knows the duties of an attorney-general, and that the position or office is as old as humanity itself.

You can say that about lawyers. What of ordinary Nigerians who may want to know exactly what the job of the Chief Law Officer of the Federation is?
The job of the Chief Law Officer is very clear in the Constitution. I believe an attorney-general should also spare sufficient time to attend to cases personally, whether civil or criminal, and this I did several times within the two years that I served. I remember the Abacha coup was announced to me, while I was representing the Ondo State Government before a Lagos High Court on November 17, 1993, in respect of the Owena Towers in Lagos.

Prof. A.B. Kasunmu, SAN, was counsel of the other party, and I was of the opinion that I should not send any state counsel to court in respect of such an important matter. I can still remember that on that day, a senior state counsel, Gboyega Adebusoye, now Justice Adebusoye appeared with me. An attorney-general must be able to walk the talk.

There is this debate about what national security is. In your own simple explanation, what is national security?
In law, it is the duty of every government to protect lives and property of its citizens. I must admit that the Constitution makes it the primary duty of government and any government that cannot do that is deemed a failure. In doing that, the government must act within the precincts of the rule of law and not arbitrarily. For example, in Nigeria, and for the past ten years or thereabout, the North East Zone has been under the Boko Haram insurgency. Can we, therefore, on the arrest or capture of any Boko Haramist straightaway tie him to the stake and shoot him without charging him to court and let the court of law pronounce his guilt? Two wrongs do not make a right. Under our Constitution, it is only the courts of law that have the jurisdiction to pronounce anybody guilty of terrorism, murder, treasury looting, rape, cheating and the likes. Neither the president nor vice-president at the federal level nor the governor or deputy-governor at the state level, is vested with the power to pronounce anybody guilty or fine, reprimand or sentence him. I repeat that we should not consign the rule of law to the marines.