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‘Good governance, transparency, incorruptibility, can’t be enthroned without empowering judiciary’

By Oludare Richards
12 July 2016   |   3:04 am
Justice Peter Affen of the High Court of the FCT is always quick to say in many of the matters before him that the judiciary is always on trial. However, it may seem now that it is the three arms of government that are on trial.
Adegboyega Awomolo

Adegboyega Awomolo

At a town hall meeting with Nigerians living in Ethiopia, February this year, President Muhammadu Buhari expressed concern about the role of the judiciary in his administration’s fight against corruption. In fact, he insisted that the fight could only be effectively tackled with the strong support of the judiciary.

Underscoring the importance of the judiciary in the war against corruption, he however expressed optimism that with the support of the Chief Justice of Nigeria (CJN), Justice Mahmud Mohammed, he would continue to do his best in battling graft and enhancing justice administration.

Unfortunately, the three arms of government have been tinted with allegations of corruption, which includes the forgery case against the leadership of the senate, alleged bribery involving judicial officers and the certificate saga against President Buhari himself.

As a result, The Guardian sought the views of senior lawyers on the issues, the administration of rule of law and the role of the judiciary in representative democracy. OLUDARE RICHARDS reports.

Justice Peter Affen of the High Court of the FCT is always quick to say in many of the matters before him that the judiciary is always on trial. However, it may seem now that it is the three arms of government that are on trial.

Also, a constitutional lawyer, Sebastine Hon (SAN), said the three arms of government are equal in the eyes of the law and all of them act as checks and balances against each other.

“The judiciary, however, seems to be the last bus stop because when there is a dispute that cannot be settled between two other arms, the judiciary weighs in to settle the matter one way or the other”, he stated.

Hon, also lamented that the judiciary is not well funded. According to him, the judiciary is trying its best but several factors are slowing it down and frustrating the fight against corruption. “I have been saying that, crying on rooftops for a long time that a hungry man cannot do his job well. Apart from that, the prosecution needs to be well trained.

“It is one thing to be a lawyer and it is another thing to be a specialist prosecutor like with the Economic and Financial Crimes Commission (EFCC) and the Independent Corrupt Practices and other related offences Commission (ICPC).

“The judiciary occupies an important role in the war against corruption because it is the final bus stop in terms of conviction and acquittal of an accused person. Having said that, there are other major players including the prosecution, defense and the accused persons.

“If the prosecution is not ready or the prosecution has not done a very good investigation, the judge sitting will not be able to hand down the conviction. At the same time, if the accused has a very strong defense counsel, who punctures the case of the prosecution no matter how well prepared, the judge will have no option than to discharge and acquit the accused.

“There are also factors like deliberate delay tactics employed by defense lawyers and several other factors that are apparently hampering the war against corruption. The judiciary is trying its best but several factors are slowing it down and frustrating the fight”, he declared .

Adegboyega Awomolo (SAN) however believes the Federal Government has a duty to ensure that the fundamental objective principle of state policy in the constitution is obeyed.

He said laws and institutions aimed at fighting corruption needs to be created, while those in existence needs to be strengthened. “We must understand that the Judiciary is a creation of the Constitution and the Law, it is bound by the laws that are made by the National Assembly, Evidence Act, Administration of Criminal Justice Act (ACJA), Penal Code and Criminal Code in some states.

“The court cannot act capriciously; they cannot act on the prompt of the executive and the legislature. They cannot act on the noise in the market. They must act in accordance with the law. Yes, EFCC can say whatever they like on television, in newspapers, but the court is not bound by what they read in the papers and on television. They act on concrete facts which are called concrete evidence .

“We need to appreciate that the Judiciary is not an arm of the Executive and the Legislature and we also need to appreciate that the Executive and the Legislature have no right to interfere. What we hear from some public functionaries concerning the Judiciary is intimidation and interference. It shouldn’t be! The Executive and Legislature must respect Judiciary and the Judiciary must also respect the Executive and Legislature”, Awomolo said.

Awomolo regreted that people who are not sufficiently informed believe that judiciary is responsible or is not responding appropriately towards the war against corruption. This, he said, is not correct .

He explained that there are three people in any true proceeding: the Prosecutor, who leads the Investigator to establish his case; the defense counsel who has a duty and right to defend accused persons until the contrary is proved. He has his moral duty, his obligation to the court, the society and to his clients and then we have the judge .

He further explained that Nigeria operates on what is called the accusatorial system. ‘You accuse and prove’. The judge, he said is an umpire and the constitution requires that his impartiality and independence must be guaranteed .

“If the judge has no independence and if his impartiality cannot be guaranteed, then he is not a judge. He must listen patiently; he must consider passionately and decide in accordance with the law. That is his duty .

“The judge cannot on his own, as politicians would do, accuse somebody of corruption and take it as proved. If not for Judiciary, our democracy would have gone to tatters, would have failed and the military would have come again. Every point in time, when there is a threat to the stability of our democracy, judiciary comes up, particularly in electoral matters”, he said, adding that the Nigerian judiciary over the years has become matured.

He said: “Wherever I go, for example in conferences in South Africa, Australia, Japan, America, India, judgments of Nigerian Judges were always featured and commended. In fact, many of them would ask, ‘did you bring the Nigerian Law Report?”

He lamented that jurisdictions all over the commonwealth and other parts of the world seek after the judgments of Nigerian courts, but Nigerians don’t respect the judgments. “I have heard a situation where government choose to respect certain orders and judgments that favour them and ignore those that do not favour them. The same with political parties and politicians. They have little regard for judgments of the court that does not favour their position

“When the judgment is in their favour, the judiciary is the best but when it is against them, they would call the justices names, they would make allegations that are so scandalous that you would want to think of stoning them in the streets .

“We have reached a stage in this country where we must respect ourselves, fight corruption as a joint battle. Take for example, if the Army, Navy Air force have no equipment to fight Boko Haram, would they have won? The judiciary lacks the implement to conduct its work”, Awomolo declared.

He disclosed that in the last four to five years, the National Assembly has consistently cut down the budget of the judiciary while the budget of the National Assembly has been on upward swing .

Awomolo also alleged a deliberate ‘put-down’ of the Judiciary because, according to him, they cannot talk. He stated that democracy, good governance, transparency, incorruptibility, cannot be enthroned without empowering the Judiciary.

Chief Mike Ozekhome (SAN) in his contribution also commended the judiciary in it efforts but pointed out some lopeholes in the system .

In his words: “They have done very well. The executive has been trying to downbeat and intimidate the judiciary but the judiciary has said no. Some of the judges have behaved like they have been down beaten and intimidated but most of the judges have still said no to rule of the tongue, rather than rule of law.

“Many of them have been courageous, many of them have been very brief, and many of them have been conscientious without losing their heads to the blaring sirens of power. Many of them have refused to be eroded into EFCC’s so-called anti corruption war where they go to people’s houses, break the doors open, carry away any property they want even in the absence of the owner .

“How many of them have awarded damages against EFCC again and again. In fact most of the judges have described EFCC as behaving like illiterates and the Army behaving like tyrants in a military dictatorship.”

Ozekhome stated that without the efforts of the judiciary, the rule of law, human rights and democratic tenets would have taken flight.

“Thank God for the judiciary that has so far served to defend the people’s rights and serve as a sentinel and guardian to the rights of the people. That is why we do not have full blown dictatorship.

“By now we would have had serious absolutism or totalitarianism or dictatorship like the France of Louis XIV, where the king could beat his chest and say ‘Le étape c’est moi!’, ‘I am the stage!’He said .