Practice direction on secret trial not well thought out, says Alliyu
Chief Yomi Alliyu, a Senior Advocate of Nigeria (SAN), is counsel to the Yoruba nation agitator, Chief Sunday Adeyemo popularly known as Sunday ‘Igboho’.
In this interview with ROTIMI AGBOLUAJE, he spoke about insecurity, the new practice direction of the Federal High Court, political defection, slow pace of justice delivery and judicial appointment, among others.
You are counsel to Sunday Igboho. Can you give us an update regarding the latest development on the matter?
As you would have known, Mr. Patrice Talon, the amiable President of the Republic of Benin, has graciously granted Igboho, who is the symbol of Yoruba self-determination, partial amnesty in the sense that he is free to go anywhere in the Republic of Benin. He is not to go or be allowed to go to Nigeria. Also, apart from the Almighty, we remain grateful to two eminent Yoruba professors, Banji Akintoye and Wale Adeniran for their role in his partial release.
There are two pending matters at present in courts concerning our client. The first is the Garnishee case asking the court to order the Central Bank of Nigeria (CBN) to hand over to him, the sum of N20.5 billion from the Federal Government’s account to defray the damages awarded by the High Court in favour of Igboho. The Garnishee application is pending before Justice Diran Akintola at the High Court.
Secondly, the Department of State Service (DSS) and the Federal Government have appealed against the decision of the High Court, stating that the High Court has no jurisdiction to entertain the case and that the case is not basically on fundamental human rights, but ancillary to it. We have filed respondents’ briefs in response to theirs. Thus, we are waiting for a date for the hearing of the appeal. They also filed motions for a stay of execution in both the High Court and Court of Appeal simultaneously.
All these show that accessing justice in Nigeria is cumbersome. What do you think about it?
There is no doubt that Nigeria ranks high in countries where justice is not only delayed unnecessarily but also costly. The delay is systemic in the sense that the law, especially the rules of court encourages delay. The law that gives 42 days to a defendant to respond to the claimant’s complaint and another 14 days to the claimant to file a reply celebrates delay. Judges are made to write in long hands too. Front-loading of witness statements and pre-trial conferences that are meant to fast-track hearing of cases have been turned to the engineering of delays, in that counsel are given latitude to amend as many times as they wish on a mere excuse that the infraction was that of counsel and should not be visited on the litigants.
Courts should be brave enough to jettison such archaic excuses as counsels are dominus litis (beneficiaries) and can filibuster and even compromise their client’s interest!
Remedies lie only in actions for damages in negligence and disciplinary action before the Legal Practitioners’ Disciplinary Committee (LPDC) of the Body of Benchers. Archaic method of taking notes ought to have become a thing of the past too. Some judges are so slow, due to age and diseases of the hands that it takes an eternity for them to write down simple evidence. You can always see the agony in their faces when they are writing. Woe betides a counsel who continues to make submissions without following their pens with his eyes. Some will not even write what you are submitting without you watching their pen leading to accusations of corruption. When you complain that some judges are not recording you, they offer you their pens to help them complete their record or tell you that they are judges and not stenographers, which is true anyway.
Some jurisdictions, especially the UK that we are copying have done away with this as far back as early 60’s. They use verbatim reporters with facilities for each counsel to apply for and be obliged with the record of proceedings of the day. A lawyer by motion may apply for correction of the same and the audio version will be played to vindicate the printed record. We have the wherewithal for these but some judges, for personal reasons, may not buy the idea. They believe their records should be in their writing.
There is a need to legislate on this. A judge should be allowed to pronounce his judgment orally via electronic means and be transcribed into writing later, on the condition that such recorded judgment should be given to counsel immediately. This is not far from the law that permits the Supreme Court to decide an appeal orally and give reasons later. For now, this is limited to the Supreme Court only but there is no reason this should not be extended to other courts for speedy administration of justice.
In criminal matters and as a matter of urgency, provisions of the Administration of Criminal Justice Act or Law should supersede any provisions in other laws save the Constitution. But it should definitely supersede provisions of the Evidence Act contrary to the current position of case law.
As an expert in arbitration and mediation, is it possible to use the mechanism to address terrorism in Nigeria?
Terrorism, according to the former Attorney General of the United States, is the act of forcing minority opinions on the majority by an act of force. Terrorism, over a defined territory, could be arbitrated upon but not the one on religion or how do you force Islam as preferred by Boko Haram, on Christians and vice versa? However, those of the Indigenous People of Biafra (IPOB) and Oodua Republics could be arbitrated with a view to reaching a compromise like full federalism as opposed to schism and/or secession.
One of the major challenges plaguing the country is insecurity. How can we tackle this menace?
Insecurity has taken over Nigeria. Neither land, sky nor sea is safe. Kidnapping has replaced armed robbery. Apart from equipping security forces, the latter should purge itself of enemies within. Tales from those kidnapped show that it is triangular, involving those in the Armed Forces, the communication network and the errand boys. Each of the angles in the triangle will have to be watched and dealt with ruthlessly with nothing less than the death penalty and seizure of the licence of any network used in collecting ransom.
Secondly, at one time Nigeria celebrated the launching of a satellite into orbit. Is it an ornamental satellite that cannot monitor our landscape? What did America use to rescue its citizens from kidnappers in the Nigerian forest? Why is it that the American government refused to assist Nigeria in the fight against terrorism? Is it true that American servicemen sent to Nigeria were sold to terrorists by Nigerian officers? Apart from being among security forces as alleged, are there Boko Haram or kidnappers’ godfathers in government? Why will National Security Adviser, as alleged, or even Federal Government prevent State Governments from buying armed drones to trace and/or eliminate terrorists and kidnappers in their cloves? Questions upon questions!
Some countries will not mind invading kidnappers’ dens, not minding that some victims, who in any way would be killed by the terrorists, would be affected. If a terrorist knows that government will not respect human shields, he would think twice before embarking on the venture. The plan is to save some of the victims but eliminate the kidnappers. This will definitely go a long way to curbing kidnapping.
Finally, various networks should immediately deactivate the mobile phones of the victims to make demands for ransom impossible. These are tough measures, but they are necessary sacrifices to put an end to this menace, otherwise, the terrorists in government and the bush will kill this country.
The new Practice Direction on terrorism trials issued by the Chief Judge of the Federal High Court, Justice John Tsoho, empowers judges to bar journalists and the public from covering and witnessing terrorism trials. How constitutional is this?
The practice direction on secret trials is not well thought out. The Judiciary is turning itself into an appendage of the executive. What evidence will affect the national security that could come from the trial of Nnamdi Kanu that had not been on social media? Will masking the witnesses or making them give evidence virtually and in a mask with voice changing apps on Google or Amazon not do the trick? Those at the helms of affairs are just displaying their analogue background as opposed to modernisation. Rumours that would emanate from such trials will wreck more evil on the society than what they seek to prevent.
Children of some serving or retired judicial officers get appointed as judges and justices regardless of other competent candidates who have no godfathers and parental influence. What is the implication of this on the judicial sector?
Law runs in families throughout the world. It’s only that in Nigeria, we abuse everything. There is hardly any judge that was appointed in the last 10 years that can beat his chest that he was appointed on merit, especially at the federal level. Some of those appointed as judges have never worn wig and gown after their call to Bar but found their ways to the bench through godfatherism.
NJC, Federal Judicial Service Commission (FJSC) and Judicial Service Commission (JSC) would have to be rejigged and taken out of the hands of CJN and CJs. Lawyers know themselves. A practising lawyer should head the committees with the President of the Nigerian Bar Association (NBA) and local branches as members. Judges should merely be observers but will recommend candidates. A judge must have appeared at the appellate courts, if he ever wants to go to the Supreme Court or Court of Appeal how morally justifiable is it for a judge who has never written an appellant brief to preside over an appeal as a justice? Let those who had had appellate practice populate our appellate courts and the efforts would become glaring in the type of judgments that will be coming out of their stables.
In the light of the presidential pardon for convicted politicians, how would you react to it?
The purpose of criminal punishment is to reform and not an eternal condemnation of the convict. Most of those condemning those pardoned would have committed the same crime, if not more if given the same opportunity. They have been shamed and pardoned. I don’t see any of them coming up for any political office in the future. I believe that they had already made restitution for what they stole. Yes, the pardon should operate as if they had never committed the offence, but that is just on paper. They carry the shame forever. I congratulate the Council of State for showing proper understanding of criminal punishment, not minding the cacophonous symphonies of those whose “sins” are not yet revealed.
There has been a call for a special court to try oil theft. What is your take on this?
We have enough courts to deal with all crimes, including oil theft. Let’s reform the courts by attracting core litigators and academia to the Bench. I don’t want to mention names of judges and justices from Supreme Court to the High Court that were practitioners either in the Ministry of Justice for years or private legal practitioners or law lecturers that are causing waves in the legal firmament. Search for experienced litigators and invite them to the bench rather than organising bogus exams, which were shown to “children and girlfriends beforehand”. I once took my junior to collect the form for judicial appointment of one of the Federal Courts with a CV that showed that she had four Supreme Court cases, four Court of Appeal and 10 High Court cases.
The then head of that Court now retired asked his personal assistant to collect her phone number. She gave him mine as ladies do in my chambers. By 11.30 pm, the PA called my line, saying the head of that Court would like to talk to her. I was furious and I asked him if he was cursed to sleep with all of them before making them, judges? It is as bad as that. The man is retired now. Female Chief Judges will tell you how confirming authorities were joggling names submitted for their friends’ wards. A 58- year-old applicant is preferred over a 36-year old! I was invited in 1995 when I was 36-year-old and just 10 years old to the Bar. Until recently, some people in FJSC and NJC have become institutions.
Should there be a law expressly barring the defection of political office holders?
I don’t know why people are making issues out of defections when there is no distinct ideological division among parties. It didn’t start today. Rumours have it that Uncle Bola Ige wrote the Constitution of the Peoples Democratic Party (PDP) before forming the Alliance for Democracy (AD). As of today, parties are only different in names. Ideologically, the difference is between six and half a dozen! The only thing Ibrahim Babangida did was legislate two parties, thereby making it difficult for National Republic Convention (NRC) members to defect to the Social Democratic Party (SDP). Save for freedom of association in the Constitution, one would have campaigned for a two-party system and legislation against defection. This would have been the best in an emerging democracy like Nigeria, but the Constitution will have to be amended.