There have been divergent views on the raid on judges by the DSS. What is your position on the DSS’s action?
Every commentator on this issue should be made to declare their interest first. If we declare our interests, we will know where we are coming from. There are those who are government apologists, who work through one agency or the other. There are those who have enjoyed patronage, whose comments don’t come to some of us as a surprise. There are those who are looking for patronage from the government. So, when they are making comments, people should take their comments with a pinch of salt.
There are those who are utterly objective, like us. We were in the trenches to see the emergence of this government and we naturally will not want it to fail. But there are those far away; we did not see them near the trenches and they are now forcing us to say things we have been keeping to ourselves. So, every one of us should be asked where our interest lies on this issue. In the first place, there are certain things that you must keep in perspective. One, there is no doubt that corruption is killing Nigeria. Two, there is no doubt that President Muhammadu Buhari is fit to fight corruption. There is also no dispute as to the fact that I am committed to the fight. Of course, there is also no dispute as to the fact that this is a democratically elected government and he (the president) took an oath to abide by the provision of the constitution of the Federal Republic of Nigeria.
Let me say that the reality staring us in the face is that to fight corruption, we need to employ some extra-constitutional tactics. But when you look at the scenario playing out now, you begin to wonder whether those advising the president or those around him are doing any serious thinking. About two and a half weeks ago, we were in Washington DC, United States of America and for six days, the issue of corruption in Nigeria came to the fore. It was not limited to Nigeria. Femi Falana and I stood up for our president and his modus operandi in faraway Washington. It is not that we love some of his tactics but we thought that a drastic problem requires a drastic solution. In fact, right there, I suggested that Nigeria should withdraw its signatures to all treaties that are hampering the fight against corruption – ICC treaties and what have you – and I gave the example of the United States of America.
My posture at the conference over that issue was necessitated by the World Bank representative who presented a paper and told us the difficulties we will be facing to get our money (looted funds) back. He went on to say that we must fight corruption with human face and I stood up and said, ‘Look, why play the ostrich? Here in Washington, you have established a place where you keep prisoners without following the rule of law. Nobody is questioning you for that for the fact that you are the father of democracy in the world. But you knew you could not do that within the four walls of United States and you moved them somewhere else and people are dying every day for 12 years running. Nobody is castigating you for that. In fact, the United States is not a signatory to the ICC convention so as to avoid being accused of war crimes’. I said, ‘Are you expecting Nigeria to comply with all these protocols limiting our efforts? You have just told us to our faces that we have got less than six per cent of our looted funds from Abacha alone. Abacha died in 1998, 18 years now, and our money is still lying in the World Bank’. I said, ‘If our president decides to employ the tactics of the Chinese and Singaporeans, we will back him’. All our president needs to do is to go to the National Assembly, call the state Houses of Assembly, more so now that governors are telling him to declare the state of emergency on the economy. He can bring in the issue of corruption and ask that we suspend the rule of law for one year because a drastic problem requires a drastic solution and Femi Falana supported me. We stood up for Nigeria and we said this thing is killing Nigeria. But having sworn to abide by the constitution, he (the president) cannot use extra-constitutional means.
You will remember that in a newspaper interview in March, I raised the alarm that the legal profession was under siege. I remember that my colleagues at the body of Senior Advocates set up a body over the issue. As a matter of fact, the interview was circulated; it was printed for members to see. I gave instances of the breach of the rule of law by Mr President. When people talk about using technicality and what have you, I am happy our leader, Chief Wole Olanipekun, has said that much to him; that we used that same technicality to get him there. When people speak about technicality in law, technicality is part of jurisprudence. If you don’t know your onions and you are careless and your opponent uses technicality to keep you out, too bad.
I told our colleagues three days ago that we know what we did to assist this man. When we saw that the nation was drifting under (former President Goodluck) Jonathan, leaders like Asiwaju Bola Tinubu, Rotimi Amaechi and Danjuma Goje took steps to stop the drift. At no cost to the APC, I manned the north-eastern part of the country for the All Progressives Congress (APC). My juniors are alive. Danuta Goji is alive. Apart from logistics, APC incurred no cost. My juniors then would wake up in the morning and go to court to check whether anything had been filed against Buhari. We did that for over seven weeks; monitoring the Peoples Democratic Party (PDP) lawyers, monitoring the PDP, who were so desperate to prevent him from contesting election. At any point, if they filed anything, we got to know within seconds. Our juniors were in the court registry from morning till 4:30 p.m., when the court would close and we were doing that religiously.
Those who are now shouting, the influence peddlers of today, were nowhere near what we did. Chief Olanipekun, Fagbemi, Kola Awodein, even the vice president, Emeka Ngige, we policed the courts in the entire six geopolitical zones. Mahmoud Mogaji was in Sokoto monitoring what was going on in the North-West. Chief Olanipekun led the team.
It is the same legal system that brought him [the president] to power that he wants to destroy. The first thing that he did was to go outside the country and start lambasting judges, the judiciary. I catalogued the scenes. This is not what we worked for. No doubt about it, the president has good intention but in running a country as complex as Nigeria, good intention is not enough.
Coming to the issue at hand, it is CAP 74 Law of Nigeria 1986 that created the security agencies that we have but there is none known as DSS. We don’t have such in our statutes. In fact, DSS is an illegal body. We have SSS. The provision of that Act is very clear. Three security agencies were established under that Act. There is nothing like DSS. DSS is an illegal body created out of the whims and caprices of some people. You will recall that under former President Olusegun Obasanjo, the door of the house of Chief Mike Adenuga was pulled down. The man had to run for his life to Ghana and he never returned to Nigeria until former President Jonathan came to power.
We don’t like a situation like that. Most of the people who are commenting today don’t even know the far-reaching implications. It is not about these judges. Let us not make a mistake about it. All is not well about the Nigerian judiciary as it is. There is no doubt about the fact that there is corruption in the system but people are generalising it. I don’t speak about the judiciary publicly but for the first time in my life, I came out to say, ‘look, stakeholders, senior lawyers, senior judges, speak out about what is happening at the Federal High Courts, about conflicting judgments’. What we saw then was bizarre, despicable. All is not well, there is no doubt about that but in killing a fly, we don’t use a sledgehammer. You don’t set the house on fire because you want to kill a snake and that is what is happening now.
Now we have an illegal body calling itself DSS. Do you know that if what happened had been done by the EFCC, ICPC or the police, nobody would be talking about illegality now? We would just be talking about the procedures. But here is an illegal body that also embarked on wrong procedures. So, two things are involved here. In other words, the foundation of the action itself is faulty. Assuming without conceding they took the position of SSS, that they have assumed the nomenclature of SSS, look at the provisions, powers and duties of SSS.
The DSS is empowered to embark on such raid…
They are not. You want me to read that section to you. CAP 74 Laws of the Federation 1986 and Section 2 Sub-section 3 establishes State Security Service and it says ‘shall be charged with responsibilities of the prevention and detection of any crime against internal security of Nigeria’. Two, protection and preservation of all known military classified matters. Three, such responsibilities affecting internal security within Nigeria as the National Assembly or President may deem necessary. There is nothing empowering SSS, assuming even if it is the DSS, to investigate corruption, and the National Assembly and Mr President have not prescribed any mode for them, apart from the fact that the body itself does not exist.
What if it turns out that the president sent them?
The president cannot even do it without the consent of the National Assembly.
How do you want the president to tackle corruption when you say it is assuming an alarming rate and at the same time you condemn the raid on judges?
I have made the suggestion. I have been very consistent about this. I delivered the alumni lecture in 2009, at the University of Ibadan. In my paper, which was widely circulated, even at the International Conference Centre, where the then chairmen of EFCC and ICPC were present. In fact, the title of my paper was ‘Corruption and Rule of Law in Nigeria’. I advocated a holistic approach. It is not rocket science to fight corruption and I said let us adopt the Singaporean method. I conceded that most of the suggestions I made were not originally mine; they were imported from Singapore. We were in Singapore as members of the Nigerian delegate to the IBA and the Prime Minister met us and gave us graphic details of how they had been able to tackle corruption to the extent that when government officials were caught, they committed suicide even before law enforcement agents got to them.
To tackle corruption, one, identify the fact that you have a problem on your hand. Two, make sure that people earn their living because what is happening in Nigeria is that people have been receiving their living. There is no genuine billionaire in Nigeria. Every billionaire in Nigeria has, at one time or the other, exploited the system. You cannot be operating this system and avoid corruption.
I said look at Nigerian elites, are we paying taxes that we should pay? Most public officers declare what they don’t have. No problem. If anybody declares that he has three trillion naira assets, ask him to produce his tax clearance certificate for the last three years. They know the implication; that most of our public officers will go to jail. When I advocated that at the national confab, somebody stood up and said I wanted to put all the Nigerian elites in jail.
If your tax clearance certificate is not reflective of what you claimed you have, you go to jail. In the western world, it is a very serious offence. If you commit murder, it is not as serious as you avoid to pay your tax and I said let us use tax system to checkmate corruption.
In fact, when this administration came on board, it was the first paper I gave to them. They don’t know that some of us have been working behind the scene but the influence peddlers who now want to be heard, who have decided to be the friends of the government or the president, were nowhere to be found when we were in the trenches doing all these things.
Professor Itse Sagay is your colleague and he is defending the raid on judges…
I don’t want to comment on Professor Sagay because he taught me in the university. I don’t speak ill of my teacher; I respect him so much. In fact, many of us have been avoiding talking about it because one, we are practising; we are in court every day. We talk about what ought to be and we don’t generalise. It will be wrong of you to say that the problem of Nigeria was caused by Nigerian journalists. That will be fallacy of hasty generalisation. I don’t want to fall into that. He taught me. I respect him, and it will end there. Most of us the students have refrained from talking about him. And of course, he is serving a government committee so, we don’t expect anything. So, I don’t want to comment on it because if we are to subject what he said to empirical analysis, we will be seen to be rude to our teacher, which is not good enough.
One of your colleagues, Femi Falana (SAN), blamed the judiciary and NJC for the rot in the judiciary…
Femi was right. For instance, when I raised the alarm in March, it was meant to galvanize us into action but we treated it by setting up a committee and it ended there. Maybe if we had taken proactive steps, we would not have found ourselves in this state of quagmire. Yes, Femi was right. We saw it coming. We knew the implication of dancing to public opinion over a legal issue. The principle of law is that let justice be done according to the law of the land, even if the heavens will fall. But the Nigerian judiciary started moving away from the position of the law to dance to public sentiments. Again, the NBA itself, I concede, has not done enough to sanitise the system.
It is not that we don’t know these despicable characters but it will be wrong to generalise that all judges are corrupt. We have over 1,500 judges across the country. The people involved in this are not up to 30 and somebody will be grandstanding that in the judiciary they are all corrupt and if you ask them to name one, they cannot. That is where the problem lies.
I agree that Femi Falana was right that we have left those things that we should be doing. To that extent, I concede that both the Bar and the Bench have not been doing enough and don’t forget that the judiciary, through the NJC, can only recommend; the final decision over any judicial officer still rests with the governor or the president. We have seen situations in this country where the NJC recommended the dismissal of some judges and governors refused to implement such recommendations. The NJC is not the appointing authority, it is a recommending authority. In other words, the president or the governor reserves the right to accept the recommendation or to reject it. People must know the fact that the NJC and the judiciary are operating within the ambits of the laws of the land.
Do you suspect any conspiracy theories around this issue?
The issue is that I am a lawyer; I don’t speculate. I speak on the facts before me. For instance, if the allegations levelled against these judges are found to be true, no reasonable person will stand on the way of their prosecution. But you cannot be using corruption or illegality to fight corruption. If we have all agreed that we are to be governed by the constitution and extant laws thereto, we must abide by them. That is where I part ways with the administration of Buhari. I agree that we have a problem on our hands and that it is a drastic problem and we need a drastic solution and we have provided for him an escape route. Go to the National Assembly, let them get two-third from the state Houses of Assembly – fortunately, his party is controlling most of these Houses of Assembly – suspend the rule of law for one year. That will enable us to clear the table, pick anybody. But you have refused to do that. You will still be hampered by the provisions of the constitution which you have sworn to uphold anyway. You knew you were coming to govern under that constitution, so you should be able to navigate your way through and that is what we are saying. The NBA’s stand is zero tolerance for corruption. We have always emphasised that and members of the NBA have reported some of these judges in the past. We have said, ‘spread the dragnet to cover the spouses and relations of these judges’. A judge who owns a house in Ikoyi or Asokoro is a rogue. How does he come about it? Not to talk of Dubai or South Africa. The lifestyles of some of the judges are enough for security agencies to go after them but if this sting operation had been carried out by the EFCC or ICPC or the police, it would have been different. The DSS wanted to claim the credit and now it has backfired. Even after finding out that the alleged monies are being kept by the suspects, what stopped them from calling the EFCC, ICPC or the Police through the SFU? Nigerians are now aware that DSS is even an illegal body. We have always stressed this, even at our various seminars, that the DSS is not recognised under the statues.
Your complaint really is about the procedures they adopted. How do you see the development affecting morale in the judiciary?
As a matter of fact, that is one challenge that we have to confront as members of the Bar. Judges are demoralised across the country because they have been convicted by public opinion. An average judge now is not encouraged to their duty. You will recall that one judge was sanctioned for exercising his discretion in Abuja. Up to today, the judge is yet to regain his composure. That is the danger of the action of the DSS to us. Reports reaching me from across the country indicate that about 12 judges have said enough of this disgrace; they are turning in their papers.
I repeat: to fight corruption in Nigeria, we don’t need this glove we are applying now. There is the need for us to jettison the rule of law and whatever. The United States of America sidetracks the rule of law in the fight against terrorism. And in the paper he presented at one of our sessions, the World Bank representative said ‘corruption is deadlier than terrorism’, because corruption itself breeds terrorism, militancy, kidnapping, all sorts of evils. So, if we see corruption as being deadlier than terrorism, we will appreciate the point I am making; that we need to go the Singaporean way and the Chinese way: anybody who is caught and found guilty of corruption should be killed. I have said this before. The people who are robbing us blind in Nigeria are not up to 5,000. We can afford to get rid of them.
Can the government help itself at this stage as far as the issue of procedure is concerned?
Of course, they have made a mistake but they can retrace their step and apologise to the legal profession and do the needful.
What is the needful?
The needful is to ensure that DSS is properly established since it is an illegal body. Two, adopt one or two of the suggestions I have made. Find a way of treating the issue of corruption as much more serious than all these media hypes. Address the issue of the structure of the country because over centralization itself breeds corruption. Nigeria itself is too centralized as a nation. Allow Judicial Service Commission of every State to discipline the judges within its jurisdiction. The idea of having one body in Abuja to discipline the judges across the country, in other words, NJC itself is an aberration in the federal set up. The NJC must share its disciplinary powers to the State Judicial Service Commission. People will talk about the abuse of it by the governors. If we have the JSC as it is today that the president cannot control members of the NJC because of the calibre of people there, so, the governors too should be made to do the same if you have seasoned people there who cannot be pushed around.
Your learned colleague, the Attorney-General of the Federation, is in the front of the line of those who support for the raid on the judges…
Malami is one of us and he is humble enough to admit mistake when he knows he has made one. A lawyer should know all the laws but a lawyer should know where to find the laws. Maybe he is not aware and that is why it is not good for any public officer to be quick in speaking. He should be sure of his facts. Let everybody here confess his interest. If you are a land speculator, you cannot be speaking objectively over land issue. If you are a corrupt man, you will not be able to speak objectively on the issue of corruption. If you are a near-do-well who is jealous of your colleagues, you will see every one of them as a rogue. So, let us know where he or she is coming from before making comments. And that is why those of us on this side of the divide are very objective about this thing. We recognise that the issue of corruption is there. We recognise that it is a drastic problem that requires a drastic solution, but we are going to identify the position of the law and we are going to tell the public that we need to amend the law and change the structure that we are operating so as to tackle the issue. That is the way to go about it, not to just raise issues off the air and be flippant with what you know little or nothing about. The tissue of lies now being dished out to the public is that they are using technicality. What is law itself if it is not technical? You must have the technical know-how of the law. So, the law is 90 percent common sense and 10 percent technical. You must appreciate that. If Chief Olanipekun did not make that oral application he made before Justice Kolawole, the president (Buhari) wouldn’t have contested the election; it is technical. If we had not employed that extra-legal method by monitoring each of the courts in the geopolitical zones because we felt that the country was drifting and as lawyers, we needed a change. In fact, we had a group of young men at the Bar who formed an organisation called Lawyers for Change in Lagos, headed by Shina Ogunlana. We founded it. They did a wonderful job. That was not to the knowledge of these people who are in government today except a few of them at the apex who knew what we were doing. But the near-do-wells who we never saw, who never participated, who never lifted a finger, are now the ones surrounding the government and advising him [the president]. It is quite unfortunate and, of course, they have nothing to do. They add neither legal nor political value to the government. They will just lead the government to a state of quagmire, because by the time the government is discredited, the few gains made will be wiped off. That is the danger they don’t know and that is why the government must be careful of such newfound friends.
I love the way The Bible puts it, what led to the breakup of the kingdom of Israel. The Bible said: ‘And Rehobam listened to worthless young men.’ So, anyone in power – government or business – who listens to worthless young men, especially those who have no value to add to your leadership, politically, legally or morally, is doomed to failure.
Curled from Nigerian Tribune