You Dont Break the Law in Order to Implement the Law -Professor Oyebode

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Akin Oyebode is a Professor of International Law and Jurisprudence and the Chairman of the Office of International Relations, Partnerships and Prospects, University of Lagos.

In this interview with Ben Ezeamalu, he spoke about the raids on the homes of some senior judges by the State Security Service, SSS (also called DSS), the implications of ECOWAS Court’s decision against the Nigerian government, and the state of Nigeria’s foreign policy.

The don spoke after the raids on the judges homes and several days before any of them was charged to court.

What are your thoughts on the SSS invasion of the homes of some judges over the weekend?

I think it’s a sad day for Nigeria, because you don’t break the law in order to implement the law. Which is what the DSS seem to be saying, that because of the inaction or lack of cooperation by the NJC they had to resort to self-help.

In fact, my gut reaction is that this might be the handiwork of a fifth columnist, those that want to do in the government of Buhari. I’m not sure a Buhari who has touted himself as a born-again democrat, welded to the notion of rule of law will authorize the outrageous act by the DSS.

I don’t believe breaking into homes at the dead of the night and arresting judges accused of corruption is part and parcel of the mandate of the DSS. The DSS is a security police to arrest attempts to overthrow the government of the day, treason, sedition, all those anti-government acts. Whereas corrupt practice is under the jurisdiction, in my view, of the ICPC or EFCC. By no stretch of the imagination can the DSS be said to have it within its jurisdiction.

So either some people…misguided…who wants to impress the powers that be by their work decided to go for broke in that respect. And I think it should be deprecated because there are so many rules of law that have been breached. And their subsequent comment, almost trying to try the accused in newspapers and what have you, because the accused have presumption of innocence and the onus of proof is on the state, and the onus is proved beyond reasonable doubt.

So you are giving impressions that you have basis and reasons for what you did and you have not ensured that the public hears the side of the arrested persons, which is unfair.

The SSS said it was due to the failure of the NJC to cooperate with their investigations that led to the raid. What do you think should have been the best way to have handled the situation? 

Under the Abdulsalam constitution, the NJC is charged with the task of discipline of the judiciary. So if any judicial officer is accused of acts of malfeasance, then that falls squarely within the province of the NJC who could take the matter up, investigate and separate such a person from the judiciary. Now having separated the judge who had been found wanting in terms of his calling and judicial oath – you know there’s a judicial oath that judges swear when they are appointed, to do justice to all manner of persons without fear, affection or ill-will to be very neutral, non-partisan, fair to everybody, and not bend the scales of justice in favour of any accused person. That’s the judicial oath.

So if any of them is found to have violated that oath, definitely he should be removed from the judiciary. The removal from the judiciary will lay the foundations for trial for any acts that are of a criminal act, say bribery and corruption and what have you.

But the way things turned out, the DSS is the accuser, the jury, and almost the executioner. It’s not done. Because in Ghana, last year when they had the problem with some judicial officers, there was no histrionics, there was no brouhaha, razzmatazz. They separated those judges from the judiciary without fanfare. But we seem in Nigeria to always put out foot in our mouth. And even if they had altruistic motives and patriotic feelings they should be reminded of the saying that the road to hell is paved with good intentions. So it’s not for them to say we are acting in defence of Nigeria’s national interest and breaking down all the rules of engagement. The police are the proper province not the DSS, because the judges were not accused of treason, sedition, or attempts to overthrow the government of the day.

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The presidency had said they were fighting corruption, and not the judges. Some have even argued that the end justifies the means when it comes to strategies to combat corruption and that focus should be on the result, not the method. Do you support that? 

I’ve just said it. That you don’t adopt a Machiavellian approach in the face of due process of law. This end justifies the means is untenable in a democracy. I mean, if we were living in Idi Amin’s Uganda, that’s acceptable. But in a country that is sworn to democratic praxis and respect for the law, due process, presumption of innocence, right to fair hearing… all sorts of things in terms of human rights,  it’s indefensible. It’s a cheap alibi. I think the presidency was hiding behind a finger, because that would be unacceptable not only to me but to the generality of Nigerians.

There are a few Nigerians, of course, who will hail any action whether it complies with the rule of law, who will say whatever government does is right. Father knows best. In this sense, we have to wash with cynical acid any claims that national interest overrides the rule of law because if you don’t have the law, you have chaos, anarchy. So I’m sorry, you either have the rule of law or arbitrariness. There’s nothing like a slightly pregnant woman. You just accept what the law prescribes or you don’t do it.

That’s why I cited the proverb: the road to hell is paved with good intentions. That’s what the presidency is saying. And for the life of me, I would never think I would live to hear a government cough out such a cheap indefensible alibi.

This government came into power promising to fight corruption. Thus far, are you impressed with how they have gone about it?

Well, corruption is hydra headed, and it’s a very difficult and tortuous thing to fight. Because corruption has its ways of fighting back. And then, maybe, the question that Juvenal posed in Ancient Rome: Quis custodiet ipsos custodes? Who will guard the guards themselves? is an issue here. Because many of the agencies you are trying to use to fight corruption are themselves not completely absolved of allegations of corrupt practices. So it’s a big dilemma. I think the government has done its best. But this time around the government seems to have shot itself in the foot because accused persons should have their day in court. That’s what we’ve been teaching. I’ve been teaching for over 40 years so I don’t want to live in a society where the law is removed. It’s the last bastion of defence for our civil liberties. Once you disparage due process of law, what else is left? You are back in the Court of Star Chamber in England in the 15th century or you are back, as I said, in a dictator’s gulag.

If Nigeria wants to be respected as a fitting member of the international community, it should observe the canons, the rule of law, democracy and fair hearing. Corruption definitely is an odium. People even call it a canker worm that has eaten deep into the social fabric.

I gave a lecture to the Lagos branch of the NBA last December. It was on human rights and corruption. Corruption itself is a violation of the rights of the community, so we should stop at nothing to fight corruption to the hilt. But then, except and unless and only to the extent that we reorder and, in fact, reconfigure our criminal justice jurisprudence, it becomes a restraint on the anti-corruption struggle. What do I mean by this? Presumption of innocence is one of the bastions of the rule of law, at least as we inherited it from our colonial conquerors. So if you want to do what we need to do you have to modify, we have to reorder that criminal justice jurisprudence by, maybe, borrowing a leaf from France, where what you have is a presumption of guilt of the accused, and then the accused will have to prove his innocence.

But right now, you can’t ignore court orders because you are fighting corruption. Somebody is granted bail you don’t give him the bail and that person now jumps to the Community Court of Justice of ECOWAS to get a judgment against you. When even your lawyers ought to know something called exhaustion of local remedies. I’m not sure they argued that the case was not ripe to be considered by that court, because the appellant or the applicant had not gone to the Supreme Court. You just move from the High Court to the Community Court…

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So there are all sorts of things, like the errors we made in the Bakassi. You know we had no choice than to surrender the Bakassi to Cameroon. The ICJ is an international tribunal. The Community Court of Justice is another international tribunal. And since we are signatories to the ECOWAS Treaty, the Lagos Treaty of 1975 and the Cotonou Treaty of 1980, there’s something called pacta sunt servanda. Except Nigeria wants to start misbehaving like (Yahya) Jammeh of The Gambia who flouted the decision of the ECOWAS Court in respect of the journalist he kidnapped. So if Nigeria wants to be seen as a respectable member of the international community, it must abide by international law as we understand it. But that’s a talk for another day.

In terms of what transpired… well, I don’t know, I’m surprised that Nigeria has not even resurrected the Doctrine of Necessity to justify what they did because we are ingenuous in invoking jurisprudential concepts to justify inanities. You know it was used when Jonathan was made acting president, whereas technically, the Doctrine of Necessity is a doctrine that is applicable in revolutionary situations. I’m talking jurisprudence now. But because the Senate then did not have full grasp of jurisprudence they allowed themselves to be won over or swayed by the arguments of people like the last leader of the seventh Assembly, Ndoma Egba, about the Doctrine of Necessity.

So in this case if the DSS is now going to premise its activities in the past week on necessity, we’d ask has a revolution occurred in Nigeria? To the extent that revolution has not occurred, the government is bound to abide by all the aspects of rule of law, democracy, presumption of innocence and all that. It’s when there’s revolutionary situation that you can even suspend provisions of the International Covenant on Civil and Political Rights which Nigeria had signed. So there are all sorts of rules which, maybe the government is not properly serviced by knowledgeable lawyers… I know there are about six lawyers in the cabinet who can really make opinions known, maybe they are afraid to talk. Because people might want to keep to their jobs, they don’t want to forfeit the perks of minister. And so they will keep quiet, which is not good enough.

I said the government has shot itself in the foot by what it did. There has to be an apology of some sort, I mean the speed with which the DSS released the judges, what they called administrative bail, I don’t know what they mean by that, tell me that they are being contrite a bit. They are taking the full blast of the discomfiture expressed by the general public, because if it happens to the judges and nothing is said then all our freedoms are gone. Judges are supposed to be the last frontier, the last bastion, the last sentinel for defence of human rights. But if their own rights are insecure then what happens to you and I who don’t have any high pedestal that we stand on within the judicial system. So there is all sorts of complications arising from the arbitrariness and capriciousness of the DSS.

You spoke about our criminal justice system. The last administration gave us the Administration of Criminal Justice Act 2015 aimed at fast-tracking corruption trials. But it seems cases still get stalled in courts. What’s happening?

Well, the ACJA is a new enactment which is supposed to be an improvement on both the Criminal Procedure Act and the Civil Procedure Act. The adjectival law, procedure of doing justice in terms of stopping interminable applications for interim orders, interlocutory injunctions so that once a case starts, maximum five adjournments you have to proceed, and all sorts of things to cut down the waste and the red tape. It’s barely one year old, so I will say we should make haste slowly, festina lente, and hoping that that revolutionary Act will come of age and speed up.

In Lagos State you have front-loading of cases to bypass strictures of procedural law so that you can speedily file your briefs and the judges will just look at what you file and rule. So definitely, a convoluted judicial system is inimical to the interest of justice generally and more efforts should be put into and fast-tracking and cutting away the room for innumerable applications that will delay justice. Justice delayed, they say, is justice denied. So I agree with you that the Administration of Criminal Justice Act should really be seen to be functioning and in an optimal fashion.

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In terms of this government’s fight against corruption and those currently facing trial, do you think it has been selective?

Well, it has to start from somewhere, you can’t arrest everybody. Once you get your investigation consummated and you think the matter is ripe for hearing, you proceed with the arrests. Are we sure that they are not doing investigation on all the others? Because you just don’t arraign people, put them away and be doing investigation. You finish your investigation, you have a cast iron case before you go to court, otherwise you’ll be losing the cases because the lawyers on the other side are searching for loopholes where you made mistakes, they’ll just enter a ‘no case submission’ and that’s the end of your prosecution.

So that’s why Nigerians… we are in a hurry, I agree. Nigerians have complained that we’ve not seen so many instances. But I’ve had it said that EFCC has had a lot of convictions. I chaired a discussion by the EFCC chairman in this campus about two weeks ago and the paper of the EFCC chairman narrated their successes in court. Although the EFCC Act allows for all sorts of things like confiscation of property even without hearing and then some form of plea bargaining, if you look at Article 14, where the EFCC can allow a lesser charge for a guilty plea and then surrender of some of the property or the funds stolen and what have you.

But I think, you know the EFCC Act and ICPC Act were 2002/2003, so it’s a work in progress. The anti-corruption struggle is not a 100 metre dash, it should be seen as a marathon. It’s a long, arduous process of cleansing the Aegean stables using the instrumentality of the law. Once you bring the law into it, then all the presumptions and procedural safeguards for accused persons will come to play. That’s why you can’t be too much in a haste and trample under, the rights of the accused persons or throw them under a moving bus, no. You can’t do that. Except you want a dictatorship. In order words, cause a revolution in Nigeria to declare an emergency and suspend civil rights and liberties. The sort of thing the military did many years back when they were trying politicians and they were sentenced to 200 years, 300 years, you know all those trials under the regime of Buhari then.

There are all sorts of things you have to factor into the anti-corruption struggle. It’s not a zero-sum game or one line thing, it has complications.

But when you look at recent events, do you not worry that it might be 1984 all over again?

Well, that’s what I was saying about the antecedents of Buhari. People argue that a leopard cannot change its spots. That even though Buhari told us he was a born again democrat, he was prepared to succumb or surrender himself to the rule of law. But look at his statement in Addis Ababa, to the Nigerians in Ethiopia where he said judges were his headache, that they were frustrating his war against corruption. At that time all the judges ought to have smelt a rat, that he was going to get them. Okay? And you either shape up or ship out. But now it will difficult for the presidency to now claim to have authorised what DSS did. That’s why I’m suspecting there are evil forces at play here, who might want to give a dog a bad name in order to hang it. I don’t have any evidence that the government authorised the DSS. If you listen to the vice president on air a few hours ago, he said he’s yet to be briefed. The vice president of Nigeria is a professor of Law, a senior advocate of Nigeria. It will be most improbable that he will have been part of the decision approving of what the DSS did. So there are all sorts of imponderables in terms of the actions of the DSS.

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