|Thursday, January 3, 2019|
he undermining of the rule of law and corruption of the judiciary are two of the saddest results of corruption and bad government in Nigeria. In this article I will look at the contribution of the legal profession to the decay we endure in Nigeria.
I went to school in the 70s and 80s with some people who have become senior lawyers and judges in Nigeria today. One thing that was common with many of them, was that they were very bad in mathematics and showed very little interest in science
In fact, some of them did say that they did not need mathematics to become good lawyers. Seeing what they have achieved, they were right, but they seem to have done it at the expense of development of jurisprudence in Nigeria.
What my friends did not know, which I later discovered many years later was that it is difficult to make honest and logical legal arguments, without deep understanding of logic and that without good understanding of mathematics, it is more difficult to understand logic, which is the bed rock of legal arguments.
Contrast this with the pool from which countries like America and Britain get their top lawyers and judges. They simply take from the brightest.
When my son was about to choose a career, I found out that his friends who wanted to study law in the top universities were students who excelled in both mathematics, arts and science.
In fact, I was fascinated by a colleague of hisí who after making ten A stars in GCSE, studied five A level subjects, which included, Mathematics and physics who went to Cambridge to study law.
The result for Nigeria is that many Nigerian lawyers from my generation tend not to display grasp of logic in some arguments.
This may also be one of the reasons why it has been very easy for Nigerian political class to corrupt both the bar and the bench to a great extent.
The Nigerian corrupt political class appoints the judges and nominate those who become Senior Advocates (SANS). Then the SANs and judges abuse the law to acquit the politicians when they loot the treasury.
The farcical trial of Bukola Saraki, the senate president and those of many ex governors who looted their state treasury exposed the mockery they make of the law and the reason why Nigerian legal system needs root and Branch reorganisation.
This trial, if one can characterise it as such, exposes that the loyalty of the politicians , their lawyers and judges is to themselves and not to the country, and that they vigorously defend their interests, whatever the law says. This is the tragedy. Of Nigerian.
It is therefore easy to see, why any attempt to restore the rule of law and end impunity in Nigeria, which does not address the relationship of the political Class and the judiciary may not succeed.
What is often seen in Nigerian courts are lawyers trying either to undermine claims by putting forward all sorts of arguments to prove that somehow, there is something wrong with the claim.
When this fails, as it would before a good judge, they resort to obstruction of legal process, nitpicking legal procedures, making clever, but false arguments with intention to deceive the court and seeking long adjournments.
This is not law as I see it practiced. These are clever, but dishonest way to use legal knowledge. It is called sophistry.
In law, of the type I am acquainted. If a crime or offence is committed and there is evidence, the courts looks at the nature and quality of evidence and, if they stand scrutiny, no lawyer can persuade the court not to convict.
The court will reach opinion as to the quality of the evidence regarding the guilt of the accused. What a good trial does is establish the veracity of evidence so that the guilt of the accused will not be in doubt, and throw light on how the offence was committed, which would enable lessons to be learnt to prevent or reduce such crimes in the future.
The fact that lawyers in Nigeria persuade courts not to convict politicians, who have committed the types of crimes we see in Nigeria is evidence that there is something sinister and wrong with Nigeria bench and bar. It is not evidence of the brilliance of the lawyers, but an index of the state of evolution of criminal justice in the society.
As we have seen, particularly in the trial of corrupt politicians in Nigeria, without exception, many Nigerian lawyers( including those with the suffix SAN) representing corrupt Nigerian politicians are using sophistry and outright obstruction of judicial process to prevent subjecting the evidence of the crimes of their clients to scrutiny.
As a layman, I believe that the behaviour of the Nigerian bar and bench is a dishonourable way to practice the noble profession of law.
Take for another example the case of Aminu Tambuwal, when he decamped from PDP to APC. As the speaker of the House of Representatives, he knew that he should vacate his seat, if he decamps to another party, but he refused to resign and got a court order to perpetuate his term.
When a politician decamps, it is both the law and honourable that he vacates his seat or remain an independent until the next election.
Tambuwal's refusal to vacate his seat was an effrontery to the rule of law. He was a lawmaker breaking the law and subverting the very rule based society he was elected to build.
This is even more disheartening because Mr Tambawal claims to be a lawyer. He and his colleagues vandalised the Nigerian constitution in the name of amendment to enable people like him get away with this kind of behaviour and it is unfortunate.
The Nigerian bar and bench are in the pocket of politicians and that is the reason why the law is often interpreted to suit what the politicians want and why Ibori and his likes could not be prosecuted in Nigeria.
I did not understand why Nigerian courts, give injunctions that enable politicians subvert the rule of law and benefit from corruption and crime, until I learned the relationship between the Nigerian political class and the bar and bench.
It is only in the context of this incestrous relationship that the permanent injunction from prosecution for corruption granted to Peter Odili makes sense. I understand that Peter Odiliís wife sits in the Nigerian Supreme Court.
There is no democratic country in the world, where a court would give a judgement to enable a lawbreaker escape justice, except in Nigeria. It would seem that everything in Nigeria is now corrupted, including the administration of justice, which may be why it is expressing itself in ways that are objectionable and not acceptable in developed countries.
It is not uncommon in Nigeria for judges and lawyers to make mockery of justice and the rule of law. There have been instances when a lower court undermined and aided the frustration of the judgement of a superior court.
Enter Olusola Saraki, who seems to have gone a step further. He got a judge to permanently adjourn his case. Again in the hope that the court will give him the same protection from prosecution it accorded Peter Odili.
Who could think of an adjournment being indefinite and a permanent protection from lawful prosecution? Except of course evil genius Nigerian lawyer and Judge.
I find the idea of a indefinite adjournment in the way it is understood and applied in Nigeria difficult to conceptualise. It is feature of a corrupt and perverted criminal justice system.
Sine Die adjournment granted Saraki is simply adjournment without a return date. It can be a way to outrightly dismiss very difficult cases. In a way, it denies finality to litigation and was not meant and should never be used in the circumstance some Nigerian lawyers have used it.
Using it in a criminal case is worrisome. It is generally discouraged because it calls the integrity of the court into question. It is often the first sign that the court has other interests apart from that of justice to serve.
I hope that the intention of the judge is not to ensure that the case against Saraki permanently remain in the Cooler, like that of Peter Odili. I want to believe that the EFCC, will quickly restart the case and get right the procedure the Judge relied on in his judgement to ensure that the case is brought back to court as this is only option available to it, if indeed, it has honest intention to bring Saraki to justice.
Even though the court has both an inherent power and statutory to adjourn the hearing of any matter in appropriate circumstance, I cannot imagine a British judge granting permanent adjournment under the circumstance they have been granted in Nigeria courts.
It would seem perverse for a judge to think of adjournment as something thing that can be made permanent in a criminal cases in the dispensation of justice. Not with their understanding that justice delayed is justified denied.
This is because the word, adjournment signifies an unfinished business, which needs to be concluded at a later date. Learned and honest Judges would struggle with the idea of permanently suspending the wheel of justice. In their minds it would mean the murder of justice, something they would never contemplate. Not so with Nigeria evil genius judges, who seem to believe that if they can think it, they can do it.
An honest Judge would find it difficult to adjourn a criminal matter indefinitely and making the prosecution of a suspect in a criminal case more difficult. Why would a judge act to supplant the aim of court to attain justice?
How does granting indefinite injunction to the accused aid the justice under the circumstance? Why would an honest judge frustrate the trial of an accused in a criminal case because of a procedural error?, if he has no other interest apart from ensuring justice.
How can an honest judge who understands justice as fairness ever think that indefinite adjournment will further course of justice?
These are questions the Nigerian judiciary should provide reasonable answers, if it will recover from the damage the pronouncements it is making in recent time is doing it its reputation.
The indefinite adjournment of the case against Saraki is an audacious and shameless abuse of position to frustrate a judicial process and must be condemned and not allowed to stand, if Nigeria is serious with the war against corruption.
The phrases Indefinite adjournment and permanent injunction should have no place in Nigerian judicial lexicon and the judges who use them in the circumstance they have been used so far, should have no place in Nigerian judiciary.
They are not from great legal minds, but emanate from corrupt and perverse minds without moral compass. Such judges have no moral authority to sit at the bench. They are a disgrace to the judiciary and should be expelled to clear the good name of the judiciary.
Thereafter, the Supreme Court must sit and set aside both judgements to restor faith in Nigetian judiciary. Nigeria cannot have a judiciary that sentences petty thieves to long prison terms, and at the same time, aids corrupt politicians to evade justice.
There is an urgent need to begin the modernisation and reformation of the Nigerian justice system to ensure that legal technicalities would no longer hamper trial of corruption cases.
If the Nigeria government is sincere about fighting corruption, it should start by looking at the relationship between the judiciary and the executive. At the moment, judicial appointments and recommendation for Senior Advocate of Nigeria are at the pleasure of politicians.
Politicians recommend lawyers for SAN and have undue influence in the appointment and dismissal of judges. We can start by making judicial appointment independent by looking at how it is done in countries like France and Britain, America etc., simply allowing the Nigerian judicial appointment commission to discharge its statutory functions without executive interference.
It would seem that judges are not minded to subject the executive to the same rule and SANs are too loyal to their benefactors to have interest in upholding the rule of law.
This incestrous relationship must be sorted out. No nation can allow unscrupulous judges and lawyers to continue to pervert the law to enable criminals escape justice and benefit from crime in the name of practicing law.
Another example of the depth of decay of Nigerian judiciary is judgment of Nigerian judge, Binta Nyako, on 25 April 2017, at Abuja High court, when she set an unusual condition for the bail of Nnamdi Kanu, who had been in detention because of his activities with Radio Biafra.
Justice Binta Nyako set an unusual condition for bail, including that Mr. Nnamdi Kanu should provide a Jewish leader, as one of sureties with the sum of £200,000 two hundred thousand pounds.
She was not acting as a judge who was upholding the law with justice and mercy before her; but as agent of the government, aiding government injustice and making a mockery of due process by setting an impossible bail condition. There are many more examples, but I think the above would suffice.
We cannot allow Nigerian to see judges the way we see politicians. Once the faith in the judiciary is completely lost, there is no hope for Nigeria. Nigerian must redefine justice and judicial process for its corrupt judiciary and beleaguered lawyers.
We must now end the charade called criminal trial of politicians in Nigeria. This is another reason why Nigeria must be restructured under a new constitution. The judiciary is too important to be left in the hands off the bar and bench.