‘Senate’s refusal to confirm Magu as EFCC chairman smacks of vendetta’
The recent indictment of the acting chairman of the Economic and Financial Crime Commission (EFCC), Ibrahim Magu, by the Department of Security Service (DSS) and the subsequent refusal by the Senate to confirm him as the substantive head of the anti-graft agency have continued to raise controversy over the real motive behind the action of the parliament. A Lagos-based lawyer, Kunle Odufayo, in this interview with GODWIN DUNIA, spoke on this and many other national issues affecting the judiciary.
What do you think is the implication of the Senate’s position on the acting EFCC chairman and the Secretary to the Federal Government of the Federation, Mr. Babachir Lawal on the fight against corruption?
Quite sincerely the job of the EFCC acting chairman is not a very easy job. Fighting corruption involves stepping on many toes, some of which are very sensitive and powerful toes. And as it is often said, when you fight corruption, corruption tries to fight back. It is in this context that I am inclined to situate the case of Magu versus the Senate. I have had the opportunity of reading in the media the response of Mr. Magu to the query issued by the Attorney General sequel to the alleged DSS report on Magu. His answers to the query were very succinct and largely convincing. With Magu lucid response to the query, the Senate’s failure or refusal to confirm him as the EFCC Chairman smacks of vendetta and appears to be a case of corruption fighting back. In the midst of all these distractions, Magu has remained focused in the fight against corruption. This is borne out by what we read every day about the giant strides of the EFCC. To fight corruption is not a tea party at all. If the Senate has any evidence of corruption against Magu, let it be laid bare. He should also be given opportunity to defend himself. But so far, I am not convinced that the Senate is acting in the public interest as far as Magu’s issue is concerned. As for the Secretary to the Federal Government of the Federation, the allegations against him as I read revolves around conflict of interest in the award of contracts relating to Internally Displaced Persons (IDP). As a lawyer, I should expect that the allegation should be thoroughly investigated and if found culpable, he should be shown the way out. But opportunity must be given for him to defend himself.
Is plea-bargain part of Nigeria Legal System and how effective is it?
Certainly plea-bargain is part of our laws. There is no doubt about that. Section 270 of the (ACJA) Administration of Criminal Justice Act, 2015 makes extensive provision on plea-bargain with several subsection serving as operational guidelines. Similar provisions on plea-bargain are also to be found in Section 76 of the Criminal Justice Administration Law of Lagos State 2007. The essence of such provisions is to aid quick dispensation of criminal justice by allowing the prosecution and the defendant or his legal practitioners with the consent of the victim or his representative to enter into an agreement as to term of the plea, appropriate sentence and so on, particularly, where the defendant has agreed to return the proceeds of the crime and make restitution; and in a case of conspiracy where the defendant has fully cooperated by providing relevant information in the course of investigating and prosecuting the crime. Of course in all these, regard must be given to the nature and circumstances of the offence, the defendant and public interest which includes defendants’ crime history, defendants’ remorse or contrition and the desire for prompt disposition of the case. As to how effective. Yes, I think it has largely been effective particularly where the provisions have been sincerely applied in public interest to recover looted public funds. But there have also been cases where the provisions have been abused. As I said lately in another forum, the problem with our system is not so much of lack of or dearth of legal provisions or regulations but more of deliberate abuse and compromise by those charged with the responsibility of operating and applying those laws or regulations.
What do you think the Chief Justice of Nigeria (CJN) should do to restore independence of judiciary?
I think the judiciary in this country could be said to be largely independent comparatively. There are various constitutional provisions meant to safeguard the independence of the judiciary, which are closely and jealously guarded by the judiciary itself. However, there are many disturbing signals these days that tend to rob or militate against the independence of the judiciary.
Take for instance the invasion of judges’ homes at unholy hours through what the DSS called sting operations. Yes, humungous amounts of money in foreign currencies and other things were found in the home of some judges to the utter embarrassment and amazement of many well-meaning members of our profession. Yes, many of us believe that judicial corruption is the worst and most painful form of corruption and should not be tolerated in any guise. But when you look at the whole scenario dispassionately, you sense the danger that such acts of invasion on judges homes by agents of the executive arm of government, if allowed to continue can be abused and or even used to intimidate some upright and non-pliable judges who refused to dance to certain tunes. In other words, such method is like a double-edged sword also capable of circumscribing judicial independence.
The question is what should the CJN do in the circumstance as a way forward?
My answer to that is simple. The CJN should put the judicial house in order by ensuring that all mechanism put in place to check corruption within the system via the NJC are strictly and speedily applied, so that corrupt judges who indeed are embarrassment to the noble profession are shown the way out. This should be done immediately and with strong determination to rid the judiciary of bad eggs and also as a way of sending a strong message to all to sit up or check out. Furthermore, thorough investigation as to competence, character and integrity of judicial officers must be carried out before appointment. The issue of delay in the dispensation of justice should also be addressed by the CJN. Adequate investment in technology must be made to aid the works of judges. Writing in long hand by judges should become a thing of the past.
Some lawyers have criticized the process of awarding the title: Senior Advocate of Nigeria (SAN), claiming that many who don’t deserve the title are conferred while many who are qualified are left out. What is your take on this?
Quite frankly, many of those who have been conferred with the rank are eminently qualified but there are many too whose conferment’s have set tongues wagging, having regard to the array of lawyers deemed to be more qualified. As you know, there is always Nigerian factor in everything we do in this country. As far as I am concerned, there is nothing wrong in opening the space and confer the honour on several qualified lawyers who are kept on the waiting list every year. We should stop creating a tiny club of SANS. What is wrong if one quarter of all the lawyers in the country are Senior Advocates? What is wrong if 10,000 deserving lawyers are conferred with the rank at a go? To me that would not disturb anything in the profession except the selfish interest of some who wants to see a tiny cult of SANS. I think in this regard, we need to study the pattern of our fellow professional bodies like the Accountants on how they graduate from the level of ACA to FCA after ten years of practice or so. My position has nothing to do with the fact that I am still awaiting my own conferment. That, I am certain, will come in due course because I am qualified to have it. Look I don’t think we should be unduly stingy with this things.
My opinion is that once a lawyer is up to 25 years post call, the conferment should be automatic unless such lawyers has disciplinary issues or other glaring reasons why he or she should not be given. If you are above ten at the bar but less than 25 and you desire to have it badly, then you can be made to go through the present procedure for the award. November 20, 2016 during the valedictory service held in honour of late Sir Olaniwun Ajayi, as the programme was going on I was reflecting deeply on the issue again. Here was a man who was called to the English Bar in 1962 and same year he got enrolled as Solicitor and Advocate of the Supreme Court of Nigeria and founded his law firm same year. As at the time of his death last year, the law firm he founded was and still is one of the leading law firms in Nigeria. At that time the firm had produced two Senior Advocate of Nigeria who are still part and parcel of the firm one being his son, Prof. Koyinsola Ajayi (SAN) managing, and the other, my good friend Mr. Oluseye Opasanya (SAN); not to talk of judges who passed through the chamber.The question is: how and why such a legal colossus should escape being honoured with the rank of SAN, despite his inestimable contribution to the profession. That is just one example. I sincerely believe that it is the rank of SAN that is losing honour by not having it conferred on such a legal luminary and not otherwise. Are we expecting such a man to have gone to Abuja cap in hand to seek such honour? In African culture, honour is conferred on deserving people without much ado. It takes something away from the honour itself when you subject a deserving person to a rigorous procedure of applying, payments et cetera, after which you now place the person on your waiting list as if some harm will be done by giving to all that deserve same at a go. I think we need to revisit the procedure for the award in line with my suggestion above. That will surely reduce the present level of desperation, lobby and all manners of negative ‘Nigerian factor’.
What is your opinion about the move to appoint Senior Lawyers directly to higher courts? Some say it will not encourage diligence in the Appeal Court and may eventually breed political judges?
No doubt opinions are divided on this. On one side is the argument that we already have enough numbers of capable Justices of the Court of Appeal who could be elevated to the Supreme Court when the need arises. Furthermore, it is argued that to go outside the Court of Appeal for appointment of justices to the Supreme Court will discourage or dampen the spirit of some diligent Justices of the Court of Appeal who are putting in extra efforts to excel with the hope of eventual elevation to the Supreme Court. On the other hand it has been argued that there is nothing wrong looking far and wide and appointing interested brilliant senior legal practitioners or academic lawyers to the Supreme Court. The ready example is Hon. Justice (Dr.) Teslim Elias who was appointed directly to the Supreme Court from outside the bench. In my humble opinion the vacancy in the Supreme Court, if any, should be filled largely by deserving and outstanding Court of Appeal Justices who have proved their mettle. However, if I see a lawyer today with the credentials of Dr. Teslim O. Elias, willing to take such appointment, I will wholeheartedly support him. Such extra ordinary, hardworking personalities will add value to the system any day. The question is how many of such people are available who are also willing to take up such appointment? I see no harm to the system if such appointments are made once in a while from outside the bench provided the person is truly outstanding and extra ordinary and the appointment is based on the recommendation of the National Judicial Council.
Do you have any comment on the dismissal of graft charges against Justice Ademola and his wife?
What that has demonstrated to us is that there is a world of difference between newspapers trials with all the sensational entertainment and judicial trial which is based on the rule of law.The law is that a defendant or accused person is presumed innocent until proved guilty. The burden of proof is on the prosecution to prove the guilt of the accused and not for the accused or defendant to prove his innocence. I believe that the more the public appreciate this basic and elementary principle of our law, the less interest people will have in newspaper mob justice and sensationalism, which many atimes merely serve entertainment purpose. Emphasis of public concern will then shift to proper investigation of cases with a view to obtaining credible and water-tight evidence necessary to prove the guilt of the accused beyond reasonable doubt.