‘Introducing e-voting in our electoral laws will not help until we are mature’

Following the criticisms that greeted the conduct of the 2019 general election as a result of the violence, alleged rigging and other irregularities, many Nigerians are now calling for the adoption of electronic voting. But in this interview with YETUNDE AYOBAMI OJO, a senior Lagos-based lawyer, Mr. Johnson Esezoobo believes that amending the electoral laws to accommodate electronic voting cannot provide the expected succur until politicians change their attitude of manipulating the process and winning by all means. The vocal lawyer also descended on his colleagues for what he described as “client-driven” practice, among other topical issues.  

What is your take on the call for immunity for the head of the judiciary?
We do not seem to know the meaning and purpose of immunity. That is why everyone wants immunity. Immunity is not meant to protect the person or status of the office holder as it is done in Nigeria but the office. 

Secondly, immunity has its presuppositions, for example, it presupposes that one is above board. I do not subscribe to the idea that anybody who is serving the people should enjoy immunity under our corrupt system such that he cannot be called to order as it obtains today in Nigeria. In another sense, immunity is not meant for impunity.

From the presuppositions, if the beneficiary behaves below the standard expected of his office, he loses it. It is only in Nigeria you see a man retaining and claiming immunity to cover stealing, money laundering, organised robbery and all manner of criminality associated with common criminals. 

From available statistics such as confessions from the Offa robbery and the imperial postures of our governors and others, immunity has promoted criminality at the highest level now in competition with the lower echelon of our society.

There are agitations to address judicial integrity, bribery and corruption. What is your take on this?
It is good to address the issues. Indeed, it is imperative. It is absurd for persons sitting in judgment to be involved in such mean and petty things as bribery and corruption.

Those who know the meaning of Judge and what it takes to be a judge, the aura around a judge will not like to be mentioned in connection with these vices. I think it has to do with perception of the person involved. It is not sufficient just to answer to that title of honourable justice. It goes far beyond that.

So, I am all for it, that the issue should be addressed. I remember sometime in 1991, I wrote that our judges should be well paid, given the best of cars and houses; and if after all these, a judge is still found meddling with such mean crime as bribery and corruption, he should be dismissed, prosecuted and sent to jail. Today, our judges cannot say they are not well paid. So, this is a good time to implement such a policy.

Few days ago, the police reportedly said 1,119 electoral offenders are in detention, they are yet to be charged or tried. They would definitely be charged in our regular courts. Do you support the call for special court for electoral offences?
I don’t believe that an ad-hoc process would solve problems. Right from the days of the military, I have always criticized the idea. And the evil result is still with us today. It creates its own problems.

For example, Justice Ibrahim Auta, erstwhile Chief Judge of the Federal High Court, made rules for proceedings in respect of AMCON cases. We know the underhand dealings going on among the unscrupulous among us through that process just like the days of Failed Banks Tribunals.

Therefore, rather than create a separate process through what is called electoral court, let us improve our regular courts.

Recent developments appear to show that the judiciary and the executive are not on good terms. What do you think about this?
I feel sad. Ordinarily, there is no reason for such a situation to arise if the functionaries are really serving the nation rather than their egos. These persons are elected or appointed to serve the people by providing security and welfare for them. They have a constitution that has a blueprint for how they serve.

From personal experience, it is because these people serve their personal interest rather than national interest that muscle flexing comes in. And that is the ego. If they serve national or public interest, there is no basis for sour relationship, which ultimately hampers good government. My advice is that they should be patriotic and mature. They should subordinate their personal ego to national interest.

President Mohammadu Buhari recently inaugurated a committee for the autonomy of judiciary and legislature. What suggestion do you have for the committee?
I should like to say that an average Nigerian does not like to be under authority. He considers it an affront to be placed under authority.

He wants to be in charge of and control everything but does not want to be under control. That is why for example, you hear of disobedience of orders of court.

That is how the idea of separation of powers has been abused in Nigeria by planting each arm of government as though they were parallel governments. And when one is doing something wrong, you hear.

With what happened during general election, do you think the country is ripe for e-voting system?
Nigeria is still years backward. Whatever innovations have been evolved to ease the process in advanced countries hardly work in Nigeria because everybody is desperate and is given to manipulation.

Nobody considers honour and feels he should be seen to be above certain things like rigging an election. They would rather recruit some young men to ‘dabaru’ (scatter) election and snatch ballot boxes. They are not comfortable with modern inventions that can aid a process but with such as will make manipulation easy. E-voting will not help us for now until we are mature. As for when that will be, no one knows.

It seems that activism at the bar has been a forgotten issue. Are there no strong activist lawyers that can challenge repressive government policies anymore?
Activism at the Bar, which Bar? We have no Bar! If we had one, Chief Judge of Lagos High Court would not reel off the kind of rules of court that lawyers are complaining about today. If we had a Bar where honour and integrity are respected, our President should not be allowed to be leading us from the dock.

The NBA that we have now is one that respects money, and once money is the goal, members are ready to compromise and kill themselves. That is why government does, as it likes, even judicial governance is conducted according to the whims of the judges. That is why you file a simple motion at the court of appeal and Supreme Court, you will not get a date until two or three years after, for a simple motion.

In Lagos State, the lawyers are easily compromised; call them to what they call ‘Bar and Bench Forum’ and give them packs of ‘Take-away’. They will concede to anything: increased filing fees, increased penalty for late filing of processes and all other anomalies.

The NBA was described recently as ‘useless’ following the outcome of the Onnoghen CCT trial. My short response to the ‘useless’ comment is that it is an understatement. 

If NBA were useful, it would tell the CJ of Lagos High Court like every other court that justice is the only commodity that the State sells to the citizenry a very low price. At such, you should not allow commercialisation of justice. 

If we had a Bar, rules should be made to check improper comments and other attitudes that encourage government or state functionaries to run government as private enterprises to the detriment of the people for whom government is. 

A Bar that is the character of what we have today where corruption is a common allegation has no place for activism. But let me say this; lawyers have misled this nation enough directly or indirectly. And the time has come for us to have a rethink, re-orientate ourselves and see what contribution we can make to help our society.

In the absence of this, we will remain useless if we cannot have something to bequeath to coming generations. The nature of legal practice we do cannot move Nigeria forward. It is client-driven. As some proudly put it, “he who pays the piper dictates the tune”.

Then what makes me a professional if I have to just take instructions and implement without more? I think a lawyer is expected to investigate and verify his instructions and advise his client.

Our rules don’t permit such. And one incident of this is congestion in our courts. More than 75 percent of cases in our courts have no business being there if we practice as enjoined by the rules. But because we are not practising as prescribed by the rules, we inundate the courts with junk cases such that our appeal courts are so full that by 2018, the courts were already giving dates in 2020/21 and by now 2021/2022. We don’t know what we are doing. Any lawyer or Judge who is proud of this does not know what he is doing.

Why are you so hard on lawyers? 
Because I consider that we are unique. It seems that activism at the bar has been a forgotten issue.

The simple logic is this: the adoption of law by the constitution as instrument of governance makes the practitioners of law unique, it places us at leadership level. But because we play cheap by not distinguishing ourselves, we have lost our role and reduced ourselves to a position of irrelevance.

So, when you talk of lawyers today, you only think in terms of the wrong things we are used for; lying even at the Bar before a judge, forging documents to help a client’s cause and so on. It is indeed a shame!

What do you mean that you don’t know what you are doing?
Simple, the constitution says any person who goes to court must be heard ‘within a reasonable time’. And in our Supreme Court, your case is not called earlier than six to seven years. In other words, we are operating below the constitutionally prescribed standard, implying that we are not able to manage our cases to meet the mandatory constitutional standard. 

I think the appeal process is not being properly managed to meet the expected standard. It is a bit pardonable at the high court where trials involving taking of evidence occur. But it is inconceivable that appeal process that does not involve taking of evidence should take more than a year or two. 

Protracted proceedings at our appellate courts do not help good governance and are destructive of investment prospects, both local and foreign.

I think the appeal process needs to be examined and properly regulated to ensure that the process is not abused, as is actually the situation today and engaged to perpetrate oppression and injustice.
 
Lots of people are clamouring for the amendment of the Electoral Act. Do you think the amendment will check irregularities?
Ordinarily, an amendment is a process engaged to introduce innovation and eliminate mischief.

An amendment is not something you engage every now and then as it’s done in Nigeria. Here it is our character that is the problem. We are always desperate to win elections; so much that many politicians recruit boys they train and arm to truncate elections.

So, legislative intervention by way of an amendment is hardly able to meet the challenges of the times particularly as they are organised by those who sponsor the irregularity. 

The regularity with which our electoral laws are amended and yet without any change or significant change tells me that the problem is not with the law but with the people.

Thus, rather than talk of amendment of the Electoral Act, let us examine and mend our ways. Let us embrace the spirit of true sportsmanship and help our democracy.

There were lots of videos on social media depicting alleged election rigging, disruption and disenfranchisement. Could those kinds of videos be tendered at an Election Tribunal? 
Obviously, this type of piece of evidence will pose some challenge. The first problem is the real or actual source or origin of the video.

Ultimately, if such videos meet or satisfy the requirements of electronically generated or internet evidence and can be verified by the maker(s), who would say they saw or did or heard what has been recorded, they may go in.

You are a strong critic of Nigeria’s democracy. What do you think of it now that the elections are over?
Nigerian democracy is a special one, it is non-functional. It neither restrains evil nor brings government to account. It is one in which the people are not mature enough to determine the fate of the government through the electoral process but would even vote ex-governors standing trial on corruption charges or other politicians in detention for alleged serious crimes like murder into the Senate.

A democracy where the institutions are weak and even the people’s National Assembly cannot restrain the Executive and the court that is resorted to for restraint resolves issues on technicality that suppresses the truth and promotes injustice.

The appointment of Ibrahim Magu as Acting Chairman of Economic and Financial Crimes Commission (EFCC) by the President and condonation by the National Assembly is not in line with our constitutional democracy.

The same goes for the appointment of retired Col. Hamid Ali as Comptroller General of Customs; it is illegal and undemocratic.

Similarly, the failure to investigate the Senate President, Bukola Saraki and Fatai Ahmed, Governor of Kwara State, in the Offa robbery is not in line with democracy.

With this and many others, I can say democracy is a way of life that is alien to Nigeria. The impunity that looting of State treasuries allows under immunity is not democracy. But whatever it is, what we have today in 2019 is quite different from what we had in 2015. There was general discontent in 2015 and almost everyone wanted a change.

So, people voted for a change. But in 2019, the same people who voted for change in 2015 had become disenchanted. But the level of desperation among the various political groupings this time around took some frightening dimension and made the rivalry unhealthy.

For example, the manner the Supreme Court was suddenly ‘overhauled’ by the removal of the CJN and appointment of the Acting CJN cannot be said to be in line with the tenets of democracy.