Anti-graft war: Lawyers in defence of judiciary

Contrary to the claim of the Chairman, Presidential Advisory Committee Against Corruption (PACAC), Prof. Itse Sagay (SAN) that the judiciary has failed the country in its anti-graft war, lawyers at the weekend rose in defence of judiciary, describing the third arm of government as second to none in the fight against corruption. AKEEM NAFIU reports

The nation’s judiciary last week came under attack from the Chairman of the Presidential Advisory Committee Against Corruption (PACAC), Prof. Itse Sagay (SAN). Sagay accused the third arm of government of being hostile to the anti-graft war of President Muhammadu Buhari’s administration.


This is not the first time such an allegation will be levied against the judiciary. President Muhammadu Buhari had equally in 2016 expressed his fears about judiciary’s ability to complement his effort at fighting corruption to a standstill in the country.


The president was reported to have told some Nigerians resident in Ethiopia, Addis Ababa, during a town hall meeting that judiciary was his major headache in his administration’s campaign against corruption.


On the occasion, Buhari tacitly indicted the judiciary for causing unnecessary delay in reference to his experience while contesting to be at the helm in the country.


He said corruption in the judiciary stalled his presidential ambition for years, describing corruption as pervasive in the country that it required the strong support of the judiciary to effectively fight.


His words: “On the fight against corruption vis-à-vis the judiciary, Nigerians will be right to say that is my main headache for now.


“If you reflect on what I went through for 12 years when I wanted to be the President, I attempted three times and on the fourth attempt through God and the use of technology, it was possible for Nigerians to elect an APC candidate as President.


“In my first attempt in 2003, I ended up at the Supreme Court and for 13 months, I was in court.


The second attempt in 2007, I was in court close to 20 months and in 2011, my third attempt, I was also in court for nine months.


“All these cases went up to the Supreme Court until the fourth time in 2015, when God agreed that I will be President of Nigeria”.


About four years on, the president’s fear was re-echoed again by one of his aides in a more direct manner. Sagay, an eminent professor of law, launched a violent verbal attack on the judiciary.


He accused the third arm of government of being hostile to the antigraft war.


Sagay bared his mind at a virtual forum organized by PACAC to mark the Fourth African Union (AU) Day of Anti-Corruption, with the theme: ‘Fighting corruption through effective and efficient judicial system’


. He said: “We have a very serious problem. Can we say that all the judges have integrity? I don’t think so, because in my view, missing in action in this fight against corruption is the Judiciary.


“I consider the Nigerian judiciary hostile to the anti-corruption war. They have been indulging and insisting on technical judgments contrary to the justice of the case. “Nigeria is a common law country.


Since 1873, the common law introduced the doctrine that where there is a clash between law and equity, meaning between technicality and justice, equity, that is justice, must prevail. This is a major aspect of our law.


“But in judgment after judgment after judgment, the Supreme Court, which is supposed to be providing leadership on the issue of the superiority of justice over technical law, has done the very opposite, not in error, but deliberately and willfully.


“The electorate vote to install a party in government, and the Supreme Court votes to set aside this exercise of a democratic right and then installs a party that had lost the election woefully, thereby completely turning our democracy upside down.


“Everything has been done to eliminate inefficiency and ineffectiveness in the administration of justice in this country through the Administration of Criminal Justice Act (ACJA) 2015. The problem is human – the judicial officers, not the system.


“If you change their orientation to justice, then, definitely, corruption will be dealt a deadly blow. So we need to beg the judiciary for a change of heart, otherwise, the war against corruption will continue to meet a brick wall when it gets to the very last stage – the judicial stage.


“A judiciary that is hostile will always find a technical excuse for setting aside justice to the detriment of the whole country in the fight against corruption.


“Let me emphasise that not all judges are playing this role, but there is a significant number doing that, and the Supreme Court has become notorious for this type of judgment. “I want all judges who are upright to forgive me if I have said anything that they feel unhappy about.


We acknowledge and support you and will promote your work. “But we must tackle those that are bringing down the administration of justice in this country, which is a major stumbling block to the fight against corruption”.

Lawyers speak


However, some senior lawyers have in the meantime expressed their oppositions to Sagay’s comments tagging judiciary’s as being hostile to the anti-graft war of Buhari’s administration.

The lawyers while baring their minds on the issue at the weekend questioned the rationale behind Sagay’s position. They said such statement is capable of ridiculing the judiciary and exposing it to cheap blackmail.


According to them, rather than blaming the judiciary for any flop in the anti-graft war, government should look inward and be more circumspect in its approach to the issue. In his comments, a Senior Advocate of Nigeria (SAN), Dr. Biodun Layonu, cautioned against unduly and unfairly maligning the judiciary.


He said: “The eminent Prof. and learned silk, who I am proud to say taught me Law of Contract in the 1978/79 session at University of Ife, I believe was not speaking as the eminent jurist and lawyer that we all know him to be.


“He must have been speaking perhaps of the seemingly frustrating circumstances he finds himself as chairman of a government committee or agency charged with a particular, though important assignment of an anticorruption agency.


“The eminent professor, with profound respect, must always remember that we practice an adversary system and a constitutional democracy whereby the burden is that of the state to prove its case without any assistance from the defence.


“It therefore follows that the judiciary acts only within the confines of the courtroom and delivers based on facts proven and evidence proferred and not on any public information or impression positive or negative of any one. I believe that when the legendary professor is done with his current assignment, his perspective will naturally adjust accordingly.


“The records are there of the high profile convictions achieved under the same judiciary. We must not unduly and unfairly malign the judiciary.


When we do it, invariably it comes back to haunt us all. We have seen the same judiciary deal with and correct itself in few cases of wrong doing by some of its members”.


A rights activist, Mr. Kabir Akingbolu, also faulted Sagay’s position, saying judiciary has never at any time been hostile to anti-graft war. “I quite disagree with the learned scholar’s position that the judiciary is hostile to anticorruption war.


The truth is that most of our colleagues are guiltier than anything you can think of. For crying out loud, how do you explain a situation where lawyers raise all sorts of untenable objections so as to stall or stifle proceedings, or put differently,


to frustrate the hearing of the case till the society would have lost interest in the matter or when all the key witnesses had died.


“The only guilt of the judiciary here is that some judges indulge lawyers unnecessarily in this regard. I am aware of a particular case when the delay tactics employed by the defence reached the nadir of utter frustration to the extent that the judge recommended sanctions against them to the Bar but nothing happened because the lawyers are some of those that call the shots in the profession.


“So, who do you blame in that circumstance or similar ones.


Although, there is little judicial activism this days in the interpretation of the law by our courts and the judges ought to up their game, especially in respect of corruption fighting election cases.


“The worst of all these is the tardiness or carefree attitude of our judges to the way some lawyers and their clients, especially the politicians, drag the integrity of the Bench in the mud by commenting or making presumptuous remarks or unnecessarily condemning the judgements of our courts when it does not favour them.


“Most atimes, people cast aspersions on judges and the judiciary as if they were above the law but our courts have refused to live up to expectations in tackling this menace which amounts, in law, to contempt ex facie, and punishable by imprisonment.


“Judges need to be firmer than the way they do now so as to maintain the sanctity of the judiciary as the bastion through which the hope of ordinary Nigerians can be realised. But speaking for myself, lawyers more than judges are the enemy of anti-corruption war,” he said.


Mr. Ige Asemudara also faulted Sagay’s position, saying the Judiciary is not a rubber stamp of the Executive. He said: “That statement from the learned professor is to say the least, unfortunate. How will he say the judiciary is hostile to the anti-corruption war? Does he want the judiciary to be a rubber stamp?


That won’t happen. “In my humble opinion, the learned professor is one of those persons whose conducts impede the anti-corruption war. His approach seems to me a blackmail of the judiciary.


He belongs to a team where Obono-Obla was fingered for corruption. He belongs to a team where Ibrahim Magu is having a serious allegation of corruption hanging on his neck. He belongs to a team where Godswill Akpabio is confronted with a huge scandal. I can go on to mention names. Is that a team fighting corruption?


“On the other hand, despite the fact that the judiciary has endured blackmail and undue interference, it has done greatly within the available resources. The judiciary has tried and is still trying not less than five superior court judges under this dispensation.


That organ closed its eyes to its members and officers in performing that task. I know of at least four Senior Advocates of Nigeria who has been tried or are being tried under this dispensation with at least one already convicted in a weird circumstance.


“As a Criminal Litigation practitioner, I know that in 80 percent of the cases that the accused persons have been convicted, the judiciary went out of its way to make convictions because of fear of being labeled. Most of those convictions should not be able to stand the test of appeal.


Yet, someone is saying the judiciary is hostile to the anti-corruption war. “In the executive arm, where Professor Sagay belongs, how many minister or top government officer has been turned in for prosecution?


Supreme Court and superior court judges have been turned in and tried by the judiciary, SANs and senior lawyers have been tried or are being tried.


“Where are the corrupt officials of this government? “The judiciary has fared well in fighting corruption. It is not a must that the government or prosecution must win all cases.


Even where proper investigations were not done or where charges were poorly drafted, or allegations were not proved, they expect to win cases.


“Let’s face it, is there anticorruption war under this government? What we have is anticorruption pretence. Maybe the war exists in the mind of some persons only. In reality, there is nothing to convince an unbiased Nigerian that there is an anticorruption war.”


A Lagos-based lawyer, Mr. Nathaniel Ngwu, also believed judiciary has done well in antigraft war. “I disagree with Prof. Itse Sagay that the judiciary is hostile to anti-graft war. The delay in litigation should not be ascribed as being hostile instead he should be worried as to how to improve proficiency of the court in order to be seen as the last hope of the poor.


“You will agree with me that even with several reforms being introduced in the judiciary, some judges and magistrates are still recording court proceedings in long hands. He should worry why some judges and magistrates are still using their hands to write.


“Disposition of cases are still lasting more than expected not just because it’s a matter of corruption. If the regular courts are not improved, how do you think that a special court will not go the same direction? Efforts should be geared as to how to improve effectiveness and proficiency of the courts. º


Mr. Wale Ogunade also said there was no basis to blame the judiciary for any flop in anti-graft war because the third arm of government operates in line with the law. He said: “I wouldn’t know how to put it, but obviously the judiciary is working with the law on ground.


The law gives room for a whole lot of minds to be pleased on the part of the judicial process, particularly as it relates to criminal proceedings, crime fighting and particularly, corruption.


“What is in vogue now is a situation where people stole and used part of the money to arrange for big time lawyers to ensure that the matter is stalled, delayed or destroyed.


At the end of the day, the prosecutor is not available, the witnesses are not available. The court itself does not sit on time.


“In as much as I will not look at the judiciary as being hostile to anti-graft war, it is the process and the law that should be looked at, may be, in terms of setting up of courts that will address the issues frontally. “Special courts with special jurisdiction to try matters can be set up.


Time-line can equally be assigned to criminal matters. This will assist in speedy dispensation of justice. But again, all these cannot be achieved except by a Practice Direction or an amendment of the law, particularly, the criminal law and specifically, the Administration of Criminal Law.


“If we have a very good amendment that goes to the root of all these challenges, then, we are home and dry. So, there’s no need for anyone to point accusing fingers.”


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