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We are in danger of over legislation in Nigeria, says Alabi

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Alabi

The former president of the Commonwealth Lawyers Association (CLA), Mrs. Boma Ayomide Alabi in this interview with SUNDAY AIKULOLA, talks about virtual court hearing, rising cases of sexual offences, criminal justice system and judicial corruption among others.

You once proposed five-year jail term for sexual offenders, but cases of rape and murder are on the increase in recent time. Would you propose stiffer punishment now?
My proposition was for a minimum sentence of five years with no upper limit. A recent rape case I prosecuted on behalf of the Oyo State Attorney General resulted in a conviction and the rapist was sentenced to 25 years in prison. I believe that a rapist does not belong in the society and should be locked away for the safety of others. And so-called provocation is not an excuse! That is why the Bible said ‘if your eyes cause you to sin, pluck them out!” No excuse! If you cannot control yourself, pluck out your eyes. Rape appears to be on the increase and it is heart breaking. It is the same with the regular killings and violence against the vulnerable all over the country. Something has to be done. Those entrusted with the responsibility of securing us have let us down. I hope the COVID -19 lockdown will serve as a wake-up call to remind them that when it comes to the crunch, they will also be affected, just like the rest of us.

How would you describe introduction of virtual court hearing and do you think it is practicable in Nigeria at this time?
Virtual hearing is the silver lining in the very, very dark COVID 19 cloud! And I will tell you why I say so. We have had a Judicial Information Technology Policy in place since 2012 or thereabouts but not much has been done to implement it. COVID-19 has brought it to the fore and everyone is now racing into the 21st century.

One might think, it is all very well for those of you in Lagos, but what about those in other parts of the country with less infrastructure and access to technology? Well, you may be surprised to know that the Borno State Judiciary is actually leading the charge on the virtual hearing front. And if Borno with all the challenges of insurgency and banditry can do it, no other state in Nigeria has any excuse.

And lawyers can help by testing the waters. I’ll give you an example. We were involved in a matter about four years ago where our witness was outside the country and unable to attend court in person. We applied to the court to have a video link set up in the court room to enable us take her examination in chief and for her to be cross examined by the other side. The court granted our application and she attended court virtually. This happened in Benue State, not Lagos, Abuja or Port Harcourt. In England and Wales, virtual hearings have been employed for a good number of years now particularly in the protection of vulnerable witnesses such as sexual assault victims or children. Before COVID-19, any suggestion in relation to technology could be shut down with, “this is Nigeria, we have challenges, no light, no infrastructure…’ Now, we know that even though we still have those challenges, we can rise above them and forge ahead if we really, really have to. So, it’s a horrible pandemic, but it has a silver lining, because it will cause us to think outside the box and find our own home-grown solutions to our peculiar problems.

Recently, Boko Haram killed scores of people in Katsina and Borno States. In Kogi State, policemen were killed in a bank robbery. Going by these spates of banditry, violence and insurgency, do you think state police is the answer?
I have always advocated community policing as opposed to State Police. This level of policing can be delegated to the State by simple restructuring without the requirement for an enabling legislation. The British Police are arguably the best there is when it comes to solving crimes and protecting citizens. And My Local Bobby in Britain does not carry firearms! You have to ask yourself why? Police need information, intelligence or leads from the people in order to solve any crime. Remember, the policeman is usually not present when the crime is committed. It is community policing that is the answer. Knowing your community and your community knowing you and trusting you enough to give you information. A policeman in Guildford will not be posted to the Met Police in London where he does not know the terrain and the people, and vice versa. In Nigeria, we post police officers around the country. So many of our criminal matters are delayed and some eventually are frustrated because the Investigation Police Officer (IPO) has been posted to a different state by the time the matter gets to court and it is a major production to produce him, pun intended! A signal has to be applied for, approved and then sent. Logistics have to be arranged and even at that, the officer may be sent on an urgent assignment to another state entirely, on the day he is supposed to appear in court. We can still end up without the witness on the day, having gone to all that trouble to attempt to bring him back for the court hearing. The court will adjourn in the interest of justice, and we start the entire process all over again! Now add to the mix, language barrier, cultural and religious differences. How on earth do we expect an efficient police service from the citizen’s perspective, which is, security of live and property and protection from violence whether domestic or elsewhere?

A federal commissioner of police in Ondo state allegedly at the orders of the governor detained the deputy governor just to prevent him from defecting to the Peoples Democratic Party (PDP). How do you allay the fears of those who believe the governors will misuse state police against their political opponents?
On the Ondo State situation specifically, since you ask, the Governor of Ondo State is a senior advocate of Nigeria and a former President of the Nigerian Bar Association (NBA). He is well known to us. I would take any report that he is acting outside of the rule of law with a large pinch of salt. In his career at the Bar, he was principled and always upheld the rule of law. A leopard does not change its spots. What most Nigerians do not remember is that when the Yar’Ardua situation was critical and the politicians were silent, it was Akeredolu as the President of the NBA who spoke up on the doctrine of necessity, which eventually led to the vice president rightly stepping up in an acting capacity. Having said that, I agree that generally speaking, politicians have been known to abuse their executive powers and manipulate the police for their political purposes. My response to those who are afraid of State Police for this reason, is this, it already happens with the Federal Police. We have not disbanded the Federal Police because of this. And at least, where it really matters to the citizen, which is in protecting the lives and property of the common man, the politicians are frankly not interested and therefore unlikely to interfere! More importantly, the pros far outweigh the cons. The reason the local Bobby is able to solve the crimes that affect the people, the citizens, is trust. The proverbial old lady behind the net curtain, who saw the burglary and can identify the burglar as the son of Mr. Brown of No.52 Elm Street, can confidently call the police and inform them of what she saw without fear. And she is prepared to go to court and testify because she knows the police will protect and keep her safe from any retaliation and intimidation by the suspect. The experience of most of us with our police is the opposite. There is a complete breakdown of communication between the citizens and the police. Not many Nigerians will willingly go to a police station to report a crime that does not directly affect them and we have to ask ourselves why?

The answer is there for us all to see. Look at the COVID-19 lock down situation. The police were out in force, using force on people rather than educating and persuading people to protect themselves. The likelihood of such brutality from a policeman who went to primary school with you, whose father was the local tailor that your mother patronised to sew your uniform, whose uncle is the Imam or Pastor of your Church or Mosque is low, you’ll agree with me. And if it did happen, you know who he is. You know his father. You know where to find him. You can hold him to account! This lack of accountability to the society, to the citizens they serve, is the genesis of impunity! They know that we cannot hold them to account and they take advantage of this to bully and extort money from the citizens. Community policing will reduce this culture and possibly put a stop to it. I am not indicting the Nigerian Police by the way; they are equally victims of the system. They are under paid. We have seen the schools where they are trained. You cannot give what you don’t have.

Justice Monica has just been sworn in as the new president of Appeal Court. What are your expectations?
My Lord Dongban – Mensem will be building on the well-laid foundation of the previous Presidents of the Court of Appeal. Don’t forget that the administration of justice is a continuum particularly in our common law jurisdictions where we rely so heavily on precedents both in deciding the law and also in our processes.

For a second time, Justice Akon Ikpeme of Cross Rivers was rejected as the substantial Chief Judge of the state. As the former President of Commonwealth Lawyers Association, how do you view this development?
It really is a dreadful turn of events, when an otherwise competent jurist is denied a rightfully earned promotion because of her State of Origin in 2020! When and how do we hope to ever have a united and peaceful Nigeria if the politicians are allowed to get away with such a travesty? We have to decide if we are building a nation or simply floating a notion where Nigeria is concerned.

Incidents like this are truly disheartening for those of us who are firm believers in Nigeria. State of origin, ethnicity, religion and other such personal attributes should play no part in judicial appointments once there is a level playing field and we as a nation ought to focus our attention on creating that level playing field so we can jettison these divisive yardsticks, and quickly too!

How can corruption in the judiciary be addressed?
This question pre-supposes that there is corruption in the Judiciary in the first place and makes me very sad indeed. It means that my colleagues and I, in this jurisdiction have failed in our duty to the judiciary. They cannot defend themselves, and we, the Bar, whose job it is to defend the judiciary are doing an abysmal job! Let me tell you my experience since I have been in Nigeria. My team and I must have concluded at least 300 cases in various courts across the country. Similar to my practice in England, I always give a prognosis so that the client can make an informed decision whether to settle the matter, defend, or pursue the claim as the case may be. In more or less 90 percent of these matters, the outcome has been as predicted. That does not indicate a corrupt judiciary. In many of the cases, the clients ask me once the matter is assigned, if I know the Judge. My response is usually, “No I don’t, but it is of no consequence.” And they are delighted when at the end of the day, it turns out that I am right.

What is your reaction to President Buhari’s executive order granting financial autonomy to legislature and judiciary at the state level?
The three arms of government should most certainly be as independent of each other as possible to maintain the balance required in a democracy. So, I welcome the president’s intention. It clearly indicates that he wants to do the right thing. The governors are right in saying that he cannot do this at sub-national level by way of an executive order. I am delighted that they have also said they will co-operate to ensure that the three arms of government are independent at all levels.

Since the Control of Infectious Diseases Bill 2020 was conceptualized, it has attracted all manner of criticism and conspiracy theory. What do you think about the bill?
We are in danger of over legislation. Perhaps, it would have been best to review the existing laws and identify the gaps using the experience of this pandemic before launching into this bill. It might have been better received and possibly achieved a better outcome.

How do you see the legal profession in post COVID-19?
The legal profession as with every other service provider and industry will definitely define practice from the pre-COVID, during COVID and post COVID eras. We are using technology as never before and even I am amazed at how well we are all adapting. The Nigeria Bar Association Section on Legal Practice for instance has held about four webinars with up to 1000 registering and most participating online. It has opened up access to the international space also, as we have participants from Cameroun and further afield and we are sharing knowledge and exchanging information without the expense of traveling for conferences. The virtual court hearings will also improve our efficiency and ensure that we adhere more rigidly to our courtroom etiquette, which is another silver lining, thank God! In the course of practising our profession, we are on the road a lot, and you know how hazardous that can be. We face bad roads, armed robbers, kidnappers and sometimes, villains in uniform. The changes coming into place will reduce the need for travel as we can attend court virtually for the most part. Naturally, there will be occasions when we still have to travel, not everything can be done virtually with the best will in the world but it will reduce our time on the road, which will impact positively on our quality of life.

How has the COVID-19 pandemic impacted on the criminal justice system?
It has been an unmitigated disaster for the criminal justice system. The system was already overburdened and plagued with delays. We all know the saying, justice delayed is justice denied. In Nigeria, justice is inordinately delayed and we are all victims of the injustice of the system. The judges are victims; the litigants and their advocates are victims too. Let me give you a real life scenario so you understand what happened with COVID-19. I am prosecuting a number of cases on behalf of the Attorney General of one of the states. We were in mid–trial and should have been concluding by now, if COVID didn’t interrupt the process.

All the defendants are in custody because of the serious nature of the crimes they’ve been charged with. Now remember, everyone is innocent until proven guilty.

If at the end of the process, they are adjudged innocent, they are not compensated for the 3 to 4 or more years they have spent in prison, they are simply released and left to pick up their lives as best they can. The already bad situation has been compounded by COVID-19 because we have been unable to proceed with their trials for a variety of COVID-19 related reasons. You cannot maintain social distance in a Black Maria. If you have seen these awaiting trial detainees being transported to Court, you will understand. It is standing room only. Thus, putting both the detainees and the correctional service officers at risk of contracting COVID-19. Germany just had a spike with 1,300 workers in a meat factory testing positive for the virus. It only takes one infected person in this kind of situation. So, they cannot be brought to court because the State does not have the resources to ensure they are transported safely to the court premises.

Similarly, the courts could not conduct trials even if they were safely transported to court because the governments at both Federal and State levels instructed their staff to stay home during the lockdown. Most people when they think about the courts, seem to think it is only a judge, lawyers and litigants that the court requires to get on with the business of the day. There is a whole battalion of civil servants working in the registry, the sheriff’s office and so on.

These are the Federal and State workers that were instructed to stay home by their employers. I applied for copies of records in a number of cases since early March. Normally, it takes between a week to three weeks to get this information depending on the length of the trial and the pressure of work in the Registry. I have not got one, to date. That’s three months. We are now approaching vacation period. What that means is that if you are one of the unfortunate persons who is in detention and hoping to know your fate either way before the year runs out, realistically, you really just have to resign yourself to the fact that 2020 is gone and you will have to wait until 2021 to either reunite with your family or begin your sentence. We hope that the lessons learnt would be properly applied to ensure that we have an improved criminal justice system that truly delivers justice.


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