We need anti-defection law to check party cross-carpeting, says Olatunji

Abiodun Adediran Olatunji (SAN) is a partner at Abdullahi Ibrahim & Co. In this interview with JOSEPH ONYEKWERE, he speaks on the need to enact law to check politicians decamping from one political party to another, the recent conflicting pronouncements by courts of co-ordinate jurisdiction, FBI investigation involving DCP Abba Kyari and other issues.

Kyari should voluntarily submit to U.S. authorities and clear his name

Do you think a law should be enacted to prohibit politicians defecting from one political party to another?
The rate at which elected political office holders defect from one political party to another without any consequence since the return of democratic rule in 1999 is not good for the development of strong democratic institutions in this country. Political parties are critical to democratic stability and national development. Political parties are the vehicles that political actors ride in to get to power. It is through political parties that the leaders of this country at all levels are recruited. Unfortunately, political parties in Nigeria do not have any clearly defined ideology rather, what we have as political parties are aggregate of interests and people united only at electioneering period for the sole purpose of capturing power and once that is achieved the various interests disintegrate. That is why you regularly see alignments and re-alignments of interest every time an election comes up in this country. In all of these, it is the people, the masses and the nation that suffer.

For me, the bill before the National Assembly seeking to mandate elected executives (president and vice president, Governors, and Deputy Governor) to step down from their office whenever they defect from the political party, which sponsored their election to another party, is a welcome effort that deserves commendation. I will also add that elected members of the National Assembly and members of the House of Assembly of the various states who defect from the political parties that sponsored their elections should also be required to vacate their seats. Section 144 (1) and 189 (1) of the Constitution, which make provisions for the circumstances under which the President, the Vice President, the Governor and the Deputy Governor of the State shall cease to hold office should be amended to include where the President, Vice President, Governor or Deputy Governor defects from the party that sponsored their election to another party.

Similarly, the proviso to Section 68 (1) (g) of the Constitution should be amended. We have seen over the years that members of the National Assembly and those of the various Houses of Assembly of the states are always quick to seek refuge in the proviso to Section 68 (1) (g) whenever they defect from the party that sponsored their election to another. They are always quick to say the division or the factions that have emerged in their former party occasioned their defection. In truth, however, we know that most of the defections both by elected executives and members of the legislative arm are usually orchestrated and induced by the party that is in power. The defections of the Governors of Zamfara, Ebonyi and Cross River Statse from the Peoples Democratic Party (PDP), the platform upon which they were elected, to the ruling APC were orchestrated by the ruling All Progressives Congress (APC). We cannot rule out the fact that most of these defections were arranged to provide political cover for the actors, who most likely have dipped their soiled hands in the public till. A former National Chairman of the ruling APC once infamously said that once you join them, you are safe. Defection encourages corruption and therefore should be discouraged legislatively.

What is your reaction to the recent conflicting decisions by courts of coordinate jurisdiction, particularly regarding Anambra governorship election?
We are at a point in time when the Bar and the Bench must, as a matter of urgency come together to redeem the image of the judiciary as well as restore Nigerian’s confidence in the administration of justice in this country. There is no gainsaying the fact that recent conflicting pronouncements by courts of co-ordinate jurisdiction in the country on the same subject matter at different times are quite disturbing and unsettling.

It is even more worrisome and portends grave danger for the survival of our democracy and even for the future of the legal profession when senior members of the bar, who have attained the highest professional rank in the profession and who are expected to lead by example and be the shining light for the young lawyers, are the ones who in desperate attempt to meet the demands of their clients, resort to forum shopping for the sole purpose of getting favourable court decision for their clients. Unfortunately, we have on the bench some judges who are ready to be complicit in these ignoble conducts.

The recommendations of my Lord, the Hon. Justice Chioma Nwosu Iheme that disciplinary proceedings be initiated against Justice Ubale Bernice Kudu of the Jigawa State High Court and Justice B.C. Ihaka of the Imo State High Court for assuming jurisdiction and even making pronouncements on matters that are solely concerned with the upcoming governorship election in Anambra State is a bold and unprecedented move by the appellate court that should be commended and supported by all concerned stakeholders. It is a statement that the courts are ready to make example of their own if that is what it takes to send a strong signal to all the bad eggs that are still within the system.

What role should the Nigerian Bar Association (NBA) play to check its members from embarking on this ignominy?  
The Nigerian Bar Association should follow the lead of the Court of Appeal. It should take the necessary steps to initiate disciplinary proceedings against the lawyers involved in these matters before the Legal Practitioners Disciplinary Committee (LPPC). Unless the big sticks are wielded, these bad eggs will infect the good ones and we may very soon not have a judiciary that will command the respect and confidence of the populace. Just while the Anambra saga was still been discussed, we had another unfortunate development when in less than a week, three High Courts of three different States (Rivers, Kebbi, and Cross River) granted three conflicting ex parte injunctions on the leadership crisis rocking the Peoples Democratic Party (PDP). The conflicting ex parte orders were issued in clear breach of Rule 3.5 of the Code of Conduct for Judicial Officers of the Federal Republic of Nigeria, which came into force on February 24, 2016. The rule states, “A judicial officer must avoid the abuse of the power of issuing interim injunctions ex parte”. The Code of Conduct applies to all categories of judicial officers throughout the federation and violation of any of the rules constitutes judicial misconduct and or misbehaviour that attracts disciplinary action. The Federal Judicial Service Commission (FJSC), the State Judicial Service Commission and the National Judicial Council (NJC) are the bodies constitutionally saddled with the responsibilities for the discipline of erring judicial officers. Lawyers have no role to play in the discipline of an aberrant judicial officer. The representatives of the bar in the NJC only sits in that council for the purpose of considering the names of persons for appointment to the bench. The bar plays no role in the removal of a Judge. What is salutary, however, is the intervention by the Chief Justice of Nigeria (CJN) to quickly arrest what is shaping out to be a dangerous slide in the administration of justice in Nigeria. 

A former commander of the Inspector-General of Police Intelligence Response Team (IGP IRT), Abba Kyari is facing allegations of corruption leveled against him by the Federal Bureau of Investigation (FBI) in the United States. Do you think there is substance in these allegations to warrant his extradition?
When news of the indictment of Abba Kyari by the FBI broke, I was shocked because up till then, he was seen as an officer dedicated to fighting crime, criminals and their nefarious activities. As the head of the IGP IRT, he had power and unfettered access to the Inspector General. Criminals feared him. In recognition of what had always been believed to be a spotless and unblemished service to the country, the lower chamber of the National Assembly honoured him in June 2020. His indictment was therefore an anti-climax.

I have read the indictment as unsealed by the United States District Court for the Central District of Columbia, the graphic details of the scheme, the mobile phone numbers used to communicate between the DCP and Hushpuppi, the crisp pictures of the DCP that he sent to Hushpuppi, the various communications between them, Whatsapp messages, Voice notes, Video slide of the DCP pictures in UAE sent by the DCP to Hushpuppi and the specific instructions Hushpuppi handed down to the DCP to execute for him. Others were the response of the DCP and his feedback to Hushpuppi on how perfectly he executed the instruction. They are all contained in the indictment.

Further, the bank details and the specific sum paid into the account on the instruction of the DCP and what purpose it was meant to serve, are also captured in the indictment. These are weighty pieces of evidence gathered by the FBI against the DCP. If the DCP believes that he is innocent of the allegations, he should voluntarily submit himself to the United States authorities and clear his name and by extension the image of the Nigeria Police, which has been badly damaged by his indictment. He should not wait for the government to extradite him to the U.S.

As a crime fighter, the mere fact that he became so cozy with a known international fraudster, who he knew to be very active on social media, flaunting wealth without any known legitimate source of income, is itself evidence of his deep connection and involvement with criminal elements. I honestly believe that his records and previous assignments should be reviewed to ascertain whether or not innocent people have not been unjustly victimised.

Recently, only 10 media houses were accredited to cover the trial of the leader of the Indigenous People of Biafra (IPOB), Nnamdi Kanu, who is facing charges bordering terrorism, treasonable felony, illegal possession of arms, among others, before Binta Nyako of the Federal High Court, Abuja.  Does the security agencies have the authority to determine who covers court proceedings?
They have no authority to determine who covers court proceedings. Proceedings of courts are conducted in the open and not behind closed-doors, except the court itself, in permitted cases, directs that its proceedings will be closed to the public, where for instance, the evidence to be disclosed touches on matters of national security. It is the court that will give the order, not the police or SSS. Section 36 (4) of the Constitution is very clear on this. It provides that “whenever any person is charged with a criminal offence, he shall unless the charge is withdrawn, be entitled to a fair hearing in public within a reasonable time by a court or tribunal.”

The proviso to section 36 (4) is also very clear. It provides that it is the court or the tribunal that has the discretion to exclude the public from its proceedings where it determines that it is in the interest of defence, public safety, public order, public morality, the welfare of persons who have not attained the age of 18, protection of private lives of the parties, where publicity will be contrary to the interest of justice or where the Minister or the Commissioner satisfies the court that it will not be in the public interest for any matter to be publicly disclosed. It is still the court that will make arrangement that the evidence relating to the matter be received in private.

There is no role for the police or the SSS in any of these situations. The right to freedom of expression and of the press is a fundamental right enshrined in the Constitution. Section 39 (1) of the Constitution is very clear. It says that every person shall be entitled to freedom of expression, including the freedom to hold opinions and to receive and impact ideas and information without interference. Section 39 (2) further guarantees Nigerians the right to own, establish and operate any medium for the dissemination of information, ideas and opinions, provided that only the Federal Government, the government of a state, or any other person or body authorised by the President on the fulfillment of conditions laid down by an Act of the National Assembly can establish, own or operate a television or wireless broadcasting station for any purpose.

The right to freedom of expression and of the press, guaranteed by the Constitution is not absolute as the Constitution itself also provides that nothing in section 39 shall invalidate any law that is reasonably justifiable in a democratic society for the purpose of preventing the disclosure of information received in confidence, maintaining the authority and independence of the courts or regulating telephony, wireless broadcasting, television or the exhibition of a cinematograph film.

As of today I am not aware of any law made by the National Assembly, which empowers operatives of the States Security Services (SSS) and or the Police to accredit or determine the number of media houses that will cover the proceedings of courts. The Police and the SSS are creations of laws. Their functions are clearly spelt out in the laws that established them. They must therefore, conduct themselves within the limits of the law. What the SSS did was clearly to arrogate to itself powers that are not vested in it by any law. It was not only illegal and unconstitutional it was a very dangerous precedent and but must be condemned by all.