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‘We are recovering loots not fighting corruption’

By Joseph Onyekwere
31 May 2016   |   1:53 am
Former president of the Nigerian Bar Association (NBA), Chief Wole Olanipekun (SAN) is of the opinion that the president as a person has not interfered with the functions of the judiciary....
Chief Justice of Nigeria Mahmud Mohammed

Chief Justice of Nigeria Mahmud Mohammed

Joseph Onyekwere presents the views of some lawyers on their appraisal of the government with regard to the Judiciary, due process and respect for human rights in the last one year. 
Chief Wole Olanipekun (SAN)
Former president of the Nigerian Bar Association (NBA), Chief Wole Olanipekun (SAN) is of the opinion that the president as a person has not interfered with the functions of the judiciary. He also holds same opinion about the vice president, Prof Yemi Osinbajo (SAN) who happened to be a seasoned lawyer as well.

He however expressed worry about the conduct and dispositions of those working for the president. According to him, they attack and ridicule the judiciary once a decision of the court does not tally with their expectations.
He said: “In fairness to the president as a person, he does not appear to disrespect the independence of the judiciary. The vice president who is a lawyer, a seasoned one at that; a senior advocate cannot, does not and has not as well.

“But I am a bit worried by the posture of some members of the cabinet. When I talk about the cabinet, by extension people who are speaking for the government. They accuse and attack and ridicule the judiciary whenever they see that the judgment of a particular court, even the Supreme Court does not go according to their own mindset.

“When you have a situation whereby a Supreme Court after hearing arguments of counsels say that judgment is reserved or reasons for decision will be given but appeal allowed or appeal dismissed, then you have not heard the Supreme Court, you start criticizing.

“Or when the Supreme Court gives a decision, you start calling individual judges names. My position has always been that you can critique judgments and not to call names. In the celebrated case of Al Gore and George Bush Jr., after the decision, Al Gore said, ‘I don’t agree with the judgment of the Supreme Court, but I will abide with it’, that is how it is done in civilized climes.”

He pointed out that in any country that keys into rule of law like ours; you cannot just say to any judge, to hell with any judgment. “And we are also getting to a situation whereby some of his aides are becoming very intolerant. To me, it is an invitation to anarchy. By doing that, you are pulling Nigeria into the state of anomie, which is a prelude to complete anarchy.

“You attack lawyers because they defend a particular client, which you think they should not defend. I don’t agree with the notion that because you have accused somebody of crime, no matter how heinous, a lawyer should not represent that person. It doesn’t tally.

Olanipekun noted that Nigeria is still running adversarial system whereby the Constitution says in section 35 that anybody accused of crime shall be presumed innocent until proven guilty.

“At the same time, the Evidence Act says that if the commission of any crime is in dispute in any civil or criminal trial, prosecution can prove beyond every reasonable doubt. Ours is not inquisitorial as it is in Spain, Italy, France and others. Even at that, they still have what is called judge’s institutions, whereby the judges determine that for anybody that is arraigned, the prosecution must have concrete evidence.

“So I will want to plead with government, let us respect that institution. By and large, what we need in this country is to build institutions. If we want to fight corruption, let us fight corruption in all its ramifications. What we are doing now is that we are recovering loots. There is what is called causes and effects. We should go to the causes and then treat the effects.

“Do you know that nepotism, ethnicity, tribalism are corruption? Do you know that the political parties are corrupt? What is the difference between APC and PDP? Just like six and half a dozen; a difference without distinction. So, do they have internal democracy? That is where corruption starts. We have to look at corruption from every angle. Your driver or houseboy wants to cheat you. Fuel attendant wants to cheat you. So it has eaten so much as cankerworm into the Nigerian psyche. We are only treating one aspect of it.

There is no way the president can do away with the judiciary because democracy stands on a tripod. So, take one off and that will be the end of democracy. In any country, take away the rule of law and it will no longer be democracy. And rule of law must not be construed as according to whims and caprices of a person. It must be according to the universally accepted and acclaimed”, he declared.

Prof. Akin Oyebode
Professor of International law and Jurisprudence, Akin Oyebode said President Muhammadu Buhari promised change and “we thought that it would be a hurricane that would sweep out all the issues that disorganized Nigeria”.

Oyebode however noted that the President met some obstacles as he assumed leadership. “There is a contradiction between the rule of law and judicial cleansing. Judiciary itself must abide by the rule of law. Buhari promised a lot much more than he could ever have delivered. He knew that people were yearning for change, but he did not reckon with sufficiently, the judicial obstacles in the way of his promise for change.

“The persons he is working with such as the vice president who is a law professor is versed. I think that he would do better if he allows him (Osinbajo) to handle the legal problems confronting him.

“His admission that the judiciary was the problem against his crusade against corruption made some of us laugh because he ought to have known. You either have a revolution, which involves thorough cleansing of the judicial system, or your fight against corruption will be incremental or gradual.

“That I think is the problem – the problem of perception and devising the way and means of confronting corruption. He is lucky to have set up the presidential advisory committee on corruption. Prof Itse Sagay and the other members of the committee have to some extent helped him to focus on fight against corruption”, he said.

According to Oyebode, the President by and large, has set the whole country focused on the need to cleanse the judicial system. He said: “The problem with Nigeria is that we adopted the British judicial system. In England, there is what is called the presumption of innocence, meaning that an accused is presumed innocent until proven guilty beyond every reasonable doubt.

“In France, the approach is different. You are presumed guilty until you prove your innocence. So what Buhari might do may require a wholesale revolution of the judicial system since the British system is accusatorial and the French system inquisitorial. So if you are talking about the judicial process, one has to look at the framework one can adopt.”

Prof. Fidelis Oditah QC, SAN
Professor Fidelis Oditah QC, SAN is of the view that the President has not done anything in the judicial sector in the last one year. According to him, it is not the responsibility of the President to fix the challenges in the sector.

“Has he tried to reform the judiciary? Is there any reform in the judiciary that you want me to evaluate? There is nothing to evaluate in Buhari’s government about the judiciary because he has not built more courts or appointed more judges. Have we convicted any judge for corruption?”

He noted that he is the head of the executive and not the head of the judiciary. “There is the concept of separation of powers. The question is whether he has supported human rights movement, whether he has abused human rights of citizens. I know that it is quite difficult for people to govern this country. I know that there have been accusations that he did not obey court orders. One has to put all those things in perspective, in Nigerian culture; it could be a little funny.

“Of course we all support the fact that a valid court orders should be obeyed and strengthened. But that is only part of the story. As far as I know, he has not really disobeyed openly any court order. I know that it is reported that he did not obey that of Dasuki. That may well be one instance. I don’t know if that would be enough to judge his performance. I think on the whole, he has done well for the country.