A constitutional lawyer and human rights adtivist, Chief Mike Ozekhome (SAN) in this interview with TONY AMOKEODO AND AHURAKA ISAH, speaks on plea barganining, Evidence Act and the need to overhaul the country’s justice criminal system. Excerpts
The just concluded three-day Criminal Justice Reform Conference organised by the Nigerian Bar Association (NBA) made certain recommendations that could tackle the modern day economic and financial crimes in the country. But is the alleged ineffective anti-graft war in Nigeria a matter of law or operators of these laws?
It is both. It has to do with legal regime, the legal organogram which we are operating, but bequeathed to us by the British. I will regard it as artefacts, antiquity of British “Godfatherism.” We are operating archaic laws which even the countries where we imported them have since discarded them as outdated and pristine. We seem to live in the past, the other nations now have provisions for cybercafé crimes, provisions for different kinds of crimes that were not there when these laws we are still operating with were enacted. Do you know that until recently when President Goodluck Jonathan signed the new Law of Evidence bill into law, electronic evidence was inadmissible under our law? In this modern day of technological advancement and wizardry, under our Evidence Act, you still cannot admit electronic evidence.
That would tell you how backward we are. Some of these laws are carry over right from the time the Southern and Northern protectorates and Lagos Colony were amalgamated in 1914. We need to change them. That was why the Criminal Justice Reform Conferences hosted by the NBA was good. We need to take a holistic view of these our laws in order to reform them and bring them to modern day trend. So that we can meet the justice of every case we have in a new era of technology. For example, you look at the EFCC Act, 2004: it is even more up-to-date than the Criminal and Penal Codes. The ICPC Act is equally more modern in dealing with crimes than the extant laws in question. Even then, the EFCC and the ICPC Acts are already also out of date compared with current modern trend of criminal justice system-across the world.
But why are we having two types of criminal laws in Nigeria?
That is the penal code and criminal code for the 19 Northern states and 17 Southern states of the federation respectively. Yet we call ourselves one country, are you still wondering why at times when we are seeking for nationhood and we are not getting it? When we are having two different set of laws in one country, when we are having Northern Governors Forum, Southern Governors counterpart before we now have Nigeria Governors’ Forum. Yet we are still talking of one country. That is why we need to remember so that our system of justice which is accusatorial and not acquitorial should be tailored in such a way that there would be fast delivery of justice in the country. Right now some cases go for trial for 10 years and more.
The former CSO to the late Gen. Sani Abacha, Major Hamza Al-Mustapha’s case for the attempted murder of The Guardian publisher, Mr. Alex Ibru, has been going on for 12 years. If you try a person for 12 years, how many years are you going to jail him. Like late Chief M. K. O. Abiola would put it, in his most poetic elemental manner “if it takes a man 20 years to learn madness, how many years would he require to practice it? So, that is one side of the two-face coin.” The second side of the coin has to do with operators of this criminal justice system. The average Nigeria is a law breaker, as non-conformist. When you have a thoroughfare where people should walk across, an average Nigerian would prefer to walk on the green field and create his own path there. We believe in shortcut, we do not believe in law and order and due process.
Our constitution is one of the best in the world in terms of volume and provisions. The American Constitution with few amendments is a very slim document. But the United States has become a great democracy since they started in 1776. And we on the other hand have already started tinkering with our constitution; because we always want to address every issue that comes forward. It is because of the operators of the constitution. It is because of the operators of our criminal justice system that crime continues to soar. The judiciary, lawyers or legal practitioners, the prison system, the police system which is still a behemoth of militarily hierarchically structured organogram. Consider this situation where we have only one Inspector-General of Police (IG) at the top under sections 214 and 215 of our 1999 constitution, with commissioners holding sway in the states –who are responsible to IG, who in turn is answerable to the Minister of Police Affairs, and then to the President. Meanwhile, a governor is supposed to be the chief security officer of the state. When he gives instruction to the police commissioner, he would tell the governor he has to take orders from the IG.
In the US, you have the Federal Bureau of Investigation (FBI), and the Criminal Investigation Agency (CIA), yet every state has its own police force. Every county, what we call local government has its own police force, every city has its own police force as well. In fact, virtually every university has its own police force also. But in Nigeria we make do with one police structure. The police system is therefore not working. Look at the prison system, which is supposed to be reformatory. It is supposed to reform the inmates. The reverse is rather the case in our prison system. Unfortunately, most of the inmates get more hardened and become more criminality minded than before they got into the prison.
But critics have alleged that adjournments of cases are not helping matters?
The court system appears to be worse-off in our ineffective criminal justice system. The lawyers keep on filing applications for adjournment in a criminal case for trial. The preponderance of adjournments leave the criminal matter on trial to be mired with lack of purpose, loose taste and loose focus. The situation of our courts is a mockery of criminal justice system. Take for instance, one of the people tried with Al-Mustapha has just been discharged only last week on a ‘no case submission’. But they have been there for 12-years. How does a society make a restitution or compensation for that victim?
For those whose bread winner has been killed, even if you kill the murderer or kill the armed robber that killed him, how have that put bread and butter for the table of the victims, his dependents. At the end of the day you would find out that the court system in terms of crime is not working well. A situation where a lawyer goes to the court to file one flimsy motion or the other, ask for one adjournment or the other just to satisfy his client and pocket more money makes all of us guilty.
We are all guilty of the critical condition of criminal justice system in Nigeria. We are all guilty including me in the trepid of the criminal justice system. We all need to wake up. It is a clarion call to Nigerians, to wake up because of God, because of humanity and makes things better for all of us.
The Attorney General of the Federation and the Minister of Justice Mr. Mohammed Adoke (SAN), has proposed the merger of the ICPC and EFCC to strengthen the anti-graft agencies for effective tackling of corruption in the country. What is your take on this?
I do not agree on this, I disagree with the honourable AGF. Rather than merge them, we should even create more agencies. The EFCC and ICPC are not even equal to the task because corruption is getting more and more on the rise on a daily basis. In 10 years back, we were hearing that somebody has stolen N10 milion, N50 million but five years ago we started hearing of N100 million. The former Senate president was impeached and tried for alleged embezzlement of N45 million. What do we hear of nowadays, they say a permanent secretary stole N2.8 billion, they would say oh some people working in Electricity Commission stole N10.5 billion, they would say people working in Aviation sector have stolen N25 billion; so everything has gone billions. And very soon, we would go into trillion naira corruption. And you are saying we should even merge the two organs that are fledgingly and grudgingly scratching the surface of corruption in Nigeria. While the ICPC is concentrating on anti-graft war against people in the government and the EFCC is concentrating more on 419 and the rest, there is no basis for the merger whatsoever.
Moreso, Nigeria has carried the golden trophy in corruption by coming first for the corruption index assessment in the world. It has also won the silver and bronze medals by coming second and third respectively in the corruption index assessment in the world. What have we not won in corruption? Instead of seeking to merge, we should rather decentralise to fight this hydra-head monster called corruption which is threatening to consume all of us. It has given Nigeria a very bad image in the international scene. We need to even start creating some agencies specifically for banks, insurance and other financial institutions. Create one each for the three arms of government, I mean the judiciary, legislature and the executive. Create one strictly for the police, the military, civil defence, and road safety corps. Create one specifically for the religious organisation because many of the churches and mosques are mushrooming on the daily basis as business centres, and not as conduit pipes towards going to God. Let another agency beams its search light on old people, women, children who are messing up the society stealthily. So, somebody cannot be talking of merger under our situation. Of course, desperate diseases require desperate remedies. Corruption in Nigeria is so high that demand us to be creative by capping it up by creating more agencies.
Do you subscribe to the view that the office of the AGF should be separated from that of the minister of justice?
The Minister of Justice is a political appointee, whereas the AGF is the chief law officer of the federation. In advanced countries of the world, like the US and the United Kingdom, the AGF as a matter of fact, is a public defender who defends the interest of the people even against the government. He is not necessarily there as a government appointee meant to speak for the government alone. Such is the job of the minister of justice which is a political appointee and could as well be a politician. But for now, we have to make do as it is until we get to a serious democratic maturity. I believe the two offices should still be run by one person who should know when to stand on the side of the government and also when to pitch tent with the people.
Some lawyers have recently demanded for the abolition of Senior Advocate of Nigeria (SAN) award. As a senior advocate, are you not bothered about the demand?
I do not believe it should be abrogated. But I do believe that there is the need to sanitise the system and method of award. And this is being done methodically, systematically in the last few years. This is because a lot of people have always believed that to be a Senior Advocate of Nigeria (SAN) requires a godfather. Some of us never believed in godfathers, rather we believe that we have God, the father which takes one’s mind off the godfatherism concept. So the clamour for the abolition of SAN award is because of what some people who are also lawyers are perceiving to be part of injustices in the system.
Yet, we lawyers know ourselves and the judges who know us feel that some of us who are eminently competent and qualified to be made senior advocates were based on our style of forensic advocacy. Those not having it feel that others who are less deserving and may be much younger at the Bar are having it. So, they begin to ask questions, like the owl cries last night and the child died today, who killed the child. So it is a kind of situation whereby we can say that, it is the judiciary that brought the maggot infected piece of firewood into the house. So, when you see lizards and frogs around, one should not complain. That is why the clamour has been very loud for the abolition of SAN award. But I don’t believe in the abolition.
SAN award is good and credible to the extent that a lawyer aspires to something. In every profession, you aspire to become something. Engineers aspire to be fellows, the same with architect, surveyors. A medical doctor aspires to become a consultant. Academic wants to be a professor. So, there is nothing wrong for lawyers to aspire to the apex of his profession, which is to be made a Senior Advocates of Nigeria. When you remove it, then you kill the profession and be saying that everybody should be equal. No, in the real sense of it in the society, all people just like our fingers are not equal. Even God did not create us equal, and that is why you have tall, short, black, lighter skin, fat, thin and so on. It is making the world an interesting and beautiful place.
So, there is nothing wrong in a person been a judge, another one been a chief judge, one promoted to the Court of Appeal and another to the Supreme Court. It is all about working towards excellence and the best in every profession. Even in churches, you see a pastor who started as a deacon, then assistant pastor, pastor and later wants to become bishop.
Even in our homes, we want to grow up to get married, have children, grand children and so on. It is normal with human aspiration. SAN award is a good idea, and should be continued and with lot of modifications so as to make it believable and credible in the eyes not only of lawyers but to discerning members of the public. Because the legal profession looms larger moiré than any other professions in the world. So, what lawyers do, what judges do is the business of everybody. It is not like in medicine, where you can enter the hospital and come out quietly and nobody would hear. But when you come of the court there can be uproar.
Is plea bargaining good enough to serve as deterrent against errant public officials?
The plea bargain have its own good side or advantages. It also has its own ugly side or disadvantages. When properly and judiciously used, it saves the state unnecessary expenses in terms of investing more time, energies and more money in prosecuting some cases. It saves the accused person the ordeal of going through a trial.