Prof. Olanrewaju Fagbohun was the Guest Lecturer at the recently concluded NBA Ikorodu Branch annual Law week, 2017. At the Asiwaju Babatunde Olusola Benson, SAN Annual Lecture which held on Tuesday April 4, 2017 during the law week, Prof Fagbohun presented an incisive paper on: Combating Corruption in a Recession: The Transformative Role of the Bar and the Bench’ . Retired Supreme Court Justice , Justice Adesola Oguntade was among dignatories at the Annual Lecture.
Read Full Text of the Lecture below:
COMBATING CORRUPTION IN A RECESSION: THE TRANSFORMATION ROLE OF THE BENCH AND THE BAR – Prof Lanre Fagbohun
Introduction and Context
It is a great privilege and honour to have been invited to address this distinguished audience of legal luminaries and share my thoughts on the very important issue of what role is expected of the Bench and the Bar in combating corruption, particularly in an economy that is in recession.
I must admit that when my brother and compatriot, Mr. Nurudeen Ogbara, a man of good and excellent reputation, noted the idea of this lecture to me, I was both thrilled and excited. First, the Chancellor of our great Institution (the Lagos State University) and Ambassador designate, My Lord, the Honourable Mr. Justice George Adesola Oguntade, JSC, FNIALS, CFR would be presiding. Mr. Justice Oguntade is a Jurist imbued with the best traditions of the Bench and furnishes a remarkable illustration of the inheritance of legal genius. Second, the event is being planned for a member of that generation of lawyers qualified to claim a pre-eminent position of reflecting the highest level of erudition and competence in legal practice. I certainly will have more to say in a short while about Chief Babatunde Olusola Benson, SAN. Thirdly, the event presents me a unique opportunity to signpost some of the strategic steps that must be taken if indeed we desire the Bench and the Bar to play a transformation role in combating corruption.
For the opportunity of this presentation, therefore, I must thank the Chairman, Mr. Adikwaone Levi and other Bench officers and members of the Nigerian Bar Associations, Ikorodu; and the Chairman of the Law Week Committee together with other members of his team.
The subject of my lecture is “Combating Corruption in a Recession: The Transformation Role of the Bench and Bar”. In a 2016 report prepared by Pricewater houseCoopers Limited (PwC) titled “Impact of Corruption on Nigeria’s Economy”, corruption is defined and perceived across a spectrum of illegal payments and transaction such as bribes, embezzlement, and money laundering among others. It connotes the illegitimate use of power to benefit a private interest; an impairment of integrity virtue or moral principle especially the impairment of a public official’s duty b bribery. As noted in Transparency International’s Corruption Perception Index, corruption can be categorized into three parts:
- Grand corruption: “Acts committed at a high level of government that distort policies or the central functioning of the state, enabling leaders to benefit at the expense of the public good”;
- Petty corruption: “Everyday abuse of entrusted power by low and mid-level public officials in their interactions with ordinary citizens… often trying to access basic public goods and services”;
- Political corruption: “Manipulation of policies, institutions and rules of procedures in the allocation of resources and financing by political decision makers, who abuse their position to sustain their power, status and wealth”.
Consistently, Nigeria has been ranked high by Transparency International as one of the most corrupt countries in the world. In 2014 for instance, Nigeria ranked 136 out of the 174 countries surveyed. Whatever misgivings one may have with this ranking, not many will argue that Nigeria indeed is not doing well. In the words of President Muhammadu Buhari, if we do not kill corruption in Nigeria, corruption will kill Nigeria.
I will not bore this distinguished audience with the daily announcement in the print and electronic media of brazen acts of corruption of elected leaders that characterized our recent past, and still ongoing in some quarters. I will similarly not afflict this distinguished gathering of how these pantheons of clueless leaders abashedly valorized a seeming competition of stealing public funds. This has been the sad saga of a nation brimming with abundance of natural and human resources. For majority of Nigerians, there are not even vestiges of hope. Their blank eyes and wasted frames poignantly sum up the fact that Nigeria has overwhelmingly retraced from early developmental steps. The truth is that inept political leadership of supposedly elected leaders stand behind the tragedies of our nation and the serious afflictions that have led to the degeneration of our once buoyant and vibrant economy. Sporadic announcement of woes, human suffering, brazen acts and a growing number of severally incapacitating conditions now confront us with darker side of optimism.
The concern of this paper is not so much that even now that we are in recession with must diminished resources for governance, several of our leaders have continued in their reckless lavish devotion to helping themselves to public funds. They spend the maximum on themselves, and never hesitate to squeeze those in need into further penury. The concern is more about the structures and institutions on ground for curbing abuse of power. Permit me to make myself clear: it is not the case that leaders in developed nations do not exhibit divergent interest from the greater interest of the people; far from it. The fundamental difference is that there are effective institutions serving as a check and balance on the formulation and implementation of laws and policies. The institutions consistently serve as catalyst for accountability, transparency and responsive governance. Therefore, the cliché that “nobody is above the law has a meaning in these systems.
In this paper, my point of reflection is that democratic deficit as grossly reflected in the divergence of performance of democracy from public aspirations is such that the Bench and the Bar have critical roles to play in grounding good governance in Nigeria. Regrettably, the perception of the majority of Nigeria’s justice system is that it has not shown itself to be sufficiently well placed to correct the vices in representative and electoral institutions. In particular, just as it occurs with the representative institutions, Nigeria’s system is immersed in the distrust syndrome. In the specific context of corruption, how do we ensure that the Bench and the Bar are able to play a transformation role?
I shall attempt to proffer some answers to the above poser. At this junction, and before I further into my paper, permit me to say some few words about the man in whose honour his lecture is being delivered. Not only can I deny the fact that Chief Babatunde Olusola Benson, SAN, is a man of high character, outstanding reputation, and leader of unquestionable integrity. A study of his personality, ideals and legacy reveals him as an icon committed to the law in the context of what the law can do to change the society, and beyond what it can provide him as a practitioner. Little wonder, this Lecture, which is the 10th in the series has always been an opportunity for the Ikorodu Branch of the Nigerian Ban Association to reflect on contemporary issues and the significance of a life of excellence. In this respect, I dare say that honour from professional colleagues is one of the greatest honours that can be bestowed on a man. Papa, we congratulate you sir for being one of the inspirational faces of the legal professional.
Corruption and Recession: Mutation in Governance
With respect to global competitiveness which is the desire of every nation, it has been defined as the set of institution, policies and factors that determines the level of productivity of an economy. The Global Competitive Index has also identified twelve distinct facts that are usually taken into account for the purpose of ranking countries in economic competitiveness: institutions, infrastructure, macro-economic stability, health and primary education, higher education and training, goods market efficiency, financial market sophistication, technological readiness market size, business sophistication, and innovation.
Put differently, the prosperity of a nations is dependent on its economic competitiveness as determined by the above identified factors. On the other hand, corruption according to Transparency International threatens sustainable economic and endangers the rules of law. It undermines the institutions and the values of democracy. In particular, it renders the poor more vulnerable to suffering because they benefit more from public policies and public resources.
Among others, the PwC Report identified the following as the macroeconomic outcomes from corruption: lower labour productivity, lower capital formation, inequity and poverty and lower economic growth. The Report further noted that corruption encourages the avoidance, resulting in a lower tax base for government revenue collection. This ultimately results in a lack of provision for public goods such as infrastructure for businesses; and education and healthcare for households. Corruption is also associated with an increase in barriers to doing business, and is associated with lower property rights and investment, and lower technology transfers.
In the context of what interface therefore exists between “corruption” and “recession”; the impact of corruption is what grossly undermines the factors that can enhance economic competitiveness, and ultimately enable a nation to surmount the challenge of recession. For as long as there is corruption bad governance with its attendant system and systematic degeneration will continue to prevail. A curb on corruption will on the other hand enthrone good governance, and it is this that will translate into respect for rule of law, respect for human rights, transparency in governance, purchasing power parity, effectiveness of institutions, ability of a nation to assure the security of its citizens and resident, provisions of basic necessities, societal appeal for foreign investments, and relative economic prosperity among others.
Understanding the Role of the Bench and the Bar
In his reflection and appraisal of the role that the Bench and the Bar has played in corruption cases Femi Falana, SAN, in an article titled, “Prosecution of Corruption Cases: The Judiciary as an Arbiter”, noted:
In line with their statutory duties the anti-graft agencies have charged many high-profile cases involving former governors, serving and former ministers, legislators and other politically exposed persons to court for serious corruption charges. But as soon as the suspects are arraigned in court they are ordered to be remanded in either EFF or prison custody for a few days. Once they are granted bail their passports are released to enable them to travel abroad either to visit their family members or to honour medical appointments.
Therefore, interlocutory applications challenging the competence of the charge or the jurisdiction of the court are filed: if the decision of the trial court is unfavourable, it is challenged on appeal. In the interim applications for stay of proceedings are filed and taken by the trial court or the ultimate court. Indeed, the interlocutory ruling may ultimately end up in the Supreme court. Through such dilatory tactics employed by defence counsel cases involving rich and powerful people in the society are allowed to drag on in courts for several years.
By the time the interlocutory appeals are concluded which may range from 5-10 years the complainant has lost interest in the case, the witnesses may no longer be around while the trial judge may have retired or elevated to the Court of Appeal. That means the trial may have to commence de novo. This has been the terrible experience of the ICPC since it was established in 2000. Those who do not understand the legal manipulation of the criminal justice system have continued to blame the ICPC for lack of performance.
However, ordinary Nigerians who are charged with fraud, stealing, obtaining money by false pretenses and other economic and financial crimes are promptly tried, convicted or acquitted as the case may be… The accused persons are hardly granted bail. Even when bail is granted to them they are hardly able to meet the conditions… In the process, such defendants remain behind bar while awaiting trial.
Blunt and discomforting as the above appraisal is, we must have the candour to admit of same as common features in the prosecution of corruption cases in Nigeria. We can begin our analysis with the agelong doctrine of separation of powers. The doctrine emphasizes that the three branches of government, namely, executives, legislature and judiciary should be separate and distinct to guard against the corrupting nature of power. If the same body is to make laws, enforce them and adjudicate disputes, it would lead to a situation where rule of law is undermined while basic fairness is compromised. Do not ask me how well the different branches have effectively performed their roles in Nigeria because we all know what our answers will be.
A step back to the electoral process that produced a number of those occupying executive and legislative positions, and we are confronted with unhealthy traditions such as materialization of policies, violent and polarizing elections, ghost and underage voting, intimidation and harassment of voters, stuffing of ballot boxes, stealing and buying of votes, divisive ethnic politics and other ugly vices. All of these do not just hemorrhage electoral freedom, the voter apathy and depressed representative democracy arising therefrom profoundly rub these branches of the legitimacy that should ordinarily ensure their authority. The way a number of the representative and electoral institutions have further conducted their affairs over the years have resulted in scandals and a consistent perception of ineffectiveness and insensitivity to the citizens.
The citizen’s discontent and distrust towards these institutions is what would have presented the judiciary as a normative and moral resource grounded on legality and legitimacy. Regrettably, the capacity of Nigeria’s judiciary to promote and its ability to correct the vices in political representation has in recent year also been under severe criticism. Just as it with representative institutions, the Nigerian judiciary is immersed in the distrust syndrome. In another piece titled, “Femi Falana: Why I Salute Chief Justice Aloma Mukhtar,” the learned silk while rightly acknowledged that majority of Nigerians judges are not corrupt, he chronicled how some heads of the judiciary have recklessly subverted judicial independence and how highly-replaced judged have betrayed their oath of office by engaging in wanton corruption. The result of these is the crisis of confidence that has deprived the Bench of the ability to effectively play role in combating corruption, and also led to an increasingly stronger presence of institutions grounded on what one can call indirect representation, but, offering surveillance and vigilance services in the democratic political scene. In this category is the media and non-governmental organizations.
With respect to the Bar, the role of the lawyer (whether in practice before the courts or in offering legal advice) has always been to jealousy defend the law and to use his or her courage, passion and integrity to push for necessary law reforms for the purpose of improvements in various spheres of law on occasions where he or she is opportune to serve on law reform or law revision committees. The reference to lawyers as “officers of the court” and also to “traditions of the Bar in its relations which the Bench” are to remind us that lawyers are not users of the legal system, but, are an integral part of it and indispensable to its operation.
Rule 30 of the Rules of Professional Conduct for Legal Practitioners 2007 states clearly that a lawyer shall not do any act or conduct himself in any manner that may obstruct, delay or adversely affect the administration of justice. Rule 32 (1)(2) and (3) further emphasize that in appearing in his professional capacity before a Court or Tribunal, a lawyer shall not deal with the court otherwise than candidly and fairly. In representing a matter to the Court, the lawyer is expected to disclose any legal authority in the jurisdiction known to him to be directly adverse to the position of his client. Further, he shall not do or perform any act which may obviously amount to an abuse of the process of the court or which is dishonourable and unworthy of an officer of the law, charged with the duty of aiding in the administration of justice.
It is of course easy to assert a desire to play a transformational role, but, how many of us can vouch that we do not seek to deliberately or ignorantly mislead the court, or mislead others by expressions of purported opinions? How many of us can boldly assert that we do not engage in the kind of dilatory tactics that Mr. Femi Falana, SAN, made reference to? Do we not falsely render “fit for specific purpose” opinions to clients in ways that betray clear provisions of the law? When we are called upon to advise on matters of law with serious political implications, do we not engage our skills in political trade-offs premised on the expedience of the personalities that are involved, rather than concern ourselves with balances of legality?
When people tell me that Government is not acting right in relation to “Due Process” and “Rule of Law”, my response always is that the ranks of Attorney-General is not populated by non-lawyers, but, by lawyers from the Bar.
I had the good fortune of reading the Nigerian Merit Award Winners Lecture presented by the Honourable Dr. Timothy Akiola Aguda in 1988. He made a statement that caused me to reflect then and till date on his mood, memorize, emotions and frustrations. The learned jurist of distinguished noted:
As you know the subject of this Lecture is: The Challenge for Nigeria Law and the Nigerian Lawyer in the Twenty-First Century”. The question which you will be entitled to ask is why the 21st Century? Why must I ‘hop and jump|’ over the remaining twelve years of this Century? My answer is simple: in the period of over year since I have a student of law and practice of law, I have come to the sad but incontrovertible conclusion, that neither the law nor those of us who administer it have attained the goal that I had hoped was attainable and that would be obtained. What I believed is left for me at the moment is to put in a few words; may be – and I emphasize the words “may be” – they will fall on fertile lands in the minds of this and the coming generations of the law givers and those who administer the law in the hope of the law givers and those who administer the law in the hope that both the Nigeria Legal System and its practice will be able to catch up with the rest of mankind, and very importantly create a united, free and happy society. There can be no greater unifying force in this as in any other human society than the law, and the system for the administration of that law.
The lofty aspirations of the exemplary Aguda was a wake-up call that was made twenty-eight year ago. Sadly, an honest reflection on where Nigeria is today, and an appraisal of the several conflicting structures that are in place for moving her forward will give an impassionate observer muted enthusiasm. Perhaps, the only thing we can effectively say that Nigerians have been awake to is the profound gap between what the Honourable Dr. Aguda envisaged and prayed for, and the reality of today.
It was in the same vein that Oguntade JSC admonished in Nkuma v. Odili (2006) 2-3 SC 18 at lines 39 – 43 that:
It is necessary to say here that Counsel appearing in matters before the Court should see themselves first and foremost as officers of the court and refrain from imposing on the Court the tedium of sending it on a wild goose chase.
Corruption and its distressing impact is not at first a glance a legal problem. But, when we probe deeper, we increasingly find that we must turn to law and those who administrator it for solutions. For as long as the Bench and the Bar continue to come up short in their response, the crisis of corruption will become more pervasive. Permit me at this point to briefly address what solutions I see in sight if the Bench and the Bar are to be able to perform a transformational role.
Sequencing a Transformation Role
The role of the judiciary and of lawyers have always been regarded as a matter of great legal constitutional significance. Sadly, unlike the case in a number of developed jurisdictions where the courts are among the most trusted government institutions what preceding miscellany observations have demonstrated is that there is so much of public dissatisfaction with Nigeria’s judicial system. Beyond the challenge of delayed justice (which itself is justice denied), the judiciary is enmeshed in controversies of corruption. Both the Bench and the Bar have been fingered. The implication of this is that both the Bench and the Bar must manifest ongoing interest for an efficient judiciary if the status quo is not the persist.
For the judiciary, irrespective of what legal realists contend that law is simply what the judges say it is, in contrast with the position of formalists that law is a system of rules, the substance of their convergence is that the judiciary is the space for achievement of justice and the impartial determination of the truth about individual conduct. For members of the Bar, a key consideration of their special training is to enable them serve as defenders of justice. In this regard the real test of professional commitment is independence and integrity.
The key problem here is when a lawyer states innocently and with all sense responsibility that he is bound by lawyer – client privilege. Where do we go from here? Of course, the spirit of times is clearly not accepting the lawyers-client privilege. Since the adoption of UNCAC in 2003, he global community has begun to take a broader view that lawyers have a duty to report suspicious activity and also let a client know that relevant authorities have duly informed.
If we are all agreed that we can no longer be insensitive to the negative impact of corruption, then, it behoves of the Bench and the Bar in Nigeria to embrace global best practices. This approach is what will also give meaning to Rules of Professional Conduct such as those: which require a lawyer to uphold and observe the rule of law, promote and foster the cause of justice and maintain a high standard of professional conduct (Rule 1); refuse to aid or participate in conduct that he believes to be unlawful in his representation of his client, and give service of advice to the client when he knows or ought reasonably to know is capable of causing disloyalty to, or breach of the law, or bringing disrespect to the holder of a judicial office or involving corruption of holders of any public office (Rules 14 and 15).
The above Rules certainly affords our courts the opportunity of judicial creativity. Monitoring and enforcement are also critical to effectiveness. In this respect, the Nigerian Bar Association must independently strategically, and also cooperatively with the National Judicial Council to protect well-established legal principles. These include: respect for rule of law and due process; independence and impartiality of the judiciary; right to a fair and public trial without undue delay; equality of all before the law; exercise of discretion honestly and for the purpose for which it is given; a strong and independent legal profession, a national and proportionate approach to punishment; no one should be a judge in his own cause; freedom of contract must not be unconscionable; interpretation of word should be with care and precision and in clear observance of the intent of the law; and that judges must give reasons for their decision according to the fact and the law.
I have in the few proceeding pages attempted to discuss what role the Bench and the Bar can play in combating corruption in Nigeria. If the Bench and the Bar are indeed responsive, they can effectively serve to keep corrupt activities, particularly as it concerns public officers and public institutions in check. This piece is not suggesting that Nigeria should rely only on the Bench and the Bar. Far from it. Other institutions also have a role to play. The fact remains, however, that decisions from the Bench and activities of member of the Bar can have a strategic impact on not just the current, but, also the future behaviour of other powers of government.
I commend the Nigerian Bar Association, Ikorodu Branch for giving it focus to an issue that is so contemporary and of importance to the present and future of Nigeria. You must remember, however, that talk is not action. What we have thrown up today should, thus, be viewed more as a basis for action. I also salute Chief Babatunde Olusola Benson, SAN. Your inspirational life is what has provided us this platform for critical engagement.
Prof. Fagbohun is the Vice Chancellor of Lagos State University.
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