05 May, 2013

IMMUNITY CLAUSE CAN’T COVER CORRUPT PRACTICES BY PRESIDENT, GOVERNORS – JUSTICE MUSDAPHER


The immediate past Chief Justice of Nigeria (CJN), Justice Dahiru Musdapherretired having attained the mandatory 70 years for justices of the appellate courts. In this interview, he spoke on challenges facing judges, the award of Senior Advocate of Nigeria (SAN), his dream for Nigeria and sundry issues. Excerpts:

In the past, judges in Nigeria were respected. But now, it seems the Bench has not been able to live up to its challenge?
Long ago, I said it that since I became the CJN the perception of judges has waned from what it used to be due to certain things that cropped up, mostly the issue of politics, which has made judges to be misunderstood by most Nigerians. Take for instance, during an election, every Nigerian would tell you that there was this and there was that and would expect the court to come out with a decision that the election was rigged. 
The Court can only deal with the credible evidence that is brought before it and not the personal knowledge of the judges to arrive at any decision on any issue. It should be proved, at least, in a civil matter, on balance of probabilities. If you say that an election is rigged, you will have to bring evidence to the satisfaction of the court.
In the Electoral Act, an election can only be set aside when there is an irregularity, which affects the result of the elections, as contained in the law. If you say there is irregularity, does it affect the overall election? In one of the cases where the whole country was the constituency, the lawyer merely called three witnesses from only one state of the federation and he wanted to set aside the election only by bringing three witnesses out of all the States of the country. If you want to say the election was rigged, you have to get evidence on the majority of the polling booths all over the country so as to prove substantial non- compliance with the Electoral Act.
As a judge trying a political matter, you are only bound by the law setting up the election, so you can’t go outside it. So it says if there is substantial compliance with the provisions of the Act. Everybody expects that there should be irregularity here and there, but you should show also that it affects the majority of the elections. 
So everybody may say that the election is rigged but the Courts say the election is fine. That is one of the main things that brought about people not being happy with the judges. The other is, of course, delays in cases. There is no doubt that our laws are antiquated. We have not done much in that field.

Can Nigerian laws, as they stand today, stop corruption?
Yes, it can if it is vigorously applied. Judges sometimes ought to be pro-active. For example, the immunity granted the President, governors, deputy governors and what have you. In my view, the judge ought to say doctrine of immunity is inserted into the constitution to merely allow a governor or an elected officer to work without being distracted one way or the other, litigation here and there, but obviously if you steal public fund, that is not part and parcel of your work. 
Supposing a governor or deputy governor or President was caught shooting somebody, would you say he has immunity or is he allowed to commit crimes, when he is serving? So, perhaps, new thinking ought to come. The laws may not be adequate to cover these things, so judges ought to be proactive to ensure that they look at every case that come along and act accordingly. Look at the intendment of the constitution and act, not really the words of the constitution.

You have always insisted on substantial justice and not technical justice. What informed this? 
Rules of court and evidence are made to help the court at arriving at justice. There is no need for unnecessary technicalities, for what? The court should be there to say A is right and B is wrong, but not rely on technicalities. Also, these rules and regulations are archaic. They no longer serve the justice as demanded and there has always been amendment to these rules and regulations and laws.  
That is why courts should sit up and be proactive and ensure that there is substantial justice in whatever you do. If the law can be looked into to do justice, that is the reason for the whole law, but then it does not serve right to put technicalities in order not to achieve a just situation.

Is Nigeria ripe enough for the abolition of the death penalty?
All the religions of the world talk about life for life, an eye for an eye, although Jesus Christ (may God be pleased with him) came to say that if somebody slaps you on one cheek give the other cheek, but then considering what is happening in the country I think the death penalty should continue. 
Even all over the world, in America, the issue of plea bargaining, sometimes you have to get the consent of the victim before these things are done. If the law, especially the religious law, gives the victims certain rights, why deprive him? You just kill him and nothing is done? Sometimes they say that death penalty does not deter people from doing wrong, but then you have to pay the price. 
Sometimes I just think that we have reached the situation where such things can be done. Death penalty should not be abolished, but rather it should be increased. Even on the question of corruption, it should be imposed as in China, but that does not even stop people from being corrupt in China. But the situation that we have in the country is such that it is serious. We should take some extra measures to ensure that everything needs to be done to stop corrupt practices.

The issue of Justice Salami is still reverberating. Some persons are saying that the letter of his recall by the National Judicial Council (NJC) ought to have been sent to him and not the President?
I wasn’t around when Justice Salami was suspended. I was a member of the NJC and during the court vacation I was away in Saudi Arabia and I know there was a letter to the President to retire Justice Salami. NJC cannot retire him without the input of the President and the National Assembly. He was suspended by the NJC, no doubt, and the letter went to the President to continue the other aspect of relieving him of his position. 
When I was there, we looked into the matter, and we found that he need not be retired.  He ought to come back, and we wrote a letter to the President intimating him of the new position of the NJC. So the President wrote back and then, of course, we discussed that in the NJC and some of us in the committee were of the view that the matter is in court, let us not foreclose the court. That was what happened. 

On the issue of the award of the rank of Senior Advocate of Nigeria (SAN) at a point it was open but at another point nobody knows the criteria because even many  lawyers who think they merit it are not awarded?
There is always a limit to the number of people to be called. Nigeria is a very big country; there are so many qualified lawyers. The conditions and qualifications are there, nothing has changed in the award of SAN. You have to have a number of appearances in the Supreme Court, Court of Appeal and in the High Court, not necessarily to win the case, but appearances to argue a case fully and, of course, there is the issue of character and what have you, and then the issue of investigation by the NBA and members of the committee to see your offices and library, nothing has changed. 
Only the members of the LPPC meet and decide who to call. The sheer number of the people is really what happens and then, of course, sometimes we try to do it by federal character as we are enjoined to do by the constitution, not to allow taking very many from this place and none from that place. Everybody wants to become a SAN and so many people qualify for it and then there is always a limited number. In England, sometimes a junior lawyer who is qualified, seeks the permission of all his seniors before he applies to the Queens Council. 

Would you support calls to unbundle the NJC?
I have said so. It was I who first made the statement on the issue of appointment and discipline of judges, and I said that it should be separated like it is happening all over the world. In England, there is an independent body where complaint would go against judges. Imagine the situation we had during Justice Salami and the Chief Justice of Nigeria problem.  
Some of the petitions were written to me, I was not the CJN, I was then the number two judge and a member of the NJC. It was I who wrote a letter to the CJN and Chairman of the NJC, and Justice Salami was the number three at the NJC.  It said petitions had been written against you, could you please react to the petitions, the copies have been enclosed. This was what was happening, which I saw as a little awkward that the CJN will be accused, the President Court of Appeal will be accused and they are also to decide for themselves. I think it should be unbundled. 

Should the office of the Attorney General of the Federation (AGF) and Minister of Justice also be separated?
Well, it used to be so during the colonial period. I have been saying it in court that the duty of the AGF to prosecute matters in court is not higher than his duty to seek the protection of citizens against the failure of the state. He is wearing two caps; that should be the attitude. But, today, some of them are even politicians and they sit down and do politics. Broadly speaking, it is to allow the civil servant to rise to become the AGF and make the Minister of Justice the politician, then divide the authority. In the past, you have the director of public prosecution.

The finality that was taken away from the Court of Appeal in the governorship election cases, did the Supreme Court lobby for it?
No. There were general complaints; that was why government thought it wise to do it. The Supreme Court did not lobby for it. Why should it when it has got so much. Mind you, for the Supreme Court to sit everyday to do five, six cases every day, it will take it up to the year 2025 for everything to stabilize. That is why I call for the amendment to the laws to ensure that there is speedy trial of matters. 
Why should a case take 20 years to finalize from the High Court? Nigerians will go through to Appeal and Supreme Court? Why should cases drag to the Supreme Court in Nigeria? Again, the constitution is faulty in the sense that anybody can go to the Supreme Court for anything; stay of execution, when a judgment is given against you and you don’t want to pay immediately, you appeal to Appeal Court, it is refused, you also go to Supreme Court. In some places, the Supreme Court chooses the cases it will do; most of the cases that come to the Supreme Court are only with leave of the court. But we are the only apex court where people appeal as of right, almost on everything.  That is why the place is congested. 

In view of what you said, would you suggest that states should have their own appellate courts because it takes a minimum of 10 years to get a matter to the Supreme Court?
It is the question of expenses, etc, but if they can afford it why not? If the laws are corrected to cater for making things simpler and easier, these problems may not arise.

Talking about cost of governance, you recently advocated a return to parliamentary system of government?
Not only for cost of governance, but also transparency. Look at it this way: What is the relative importance of the legislations made by the legislature since the return to democracy? What have they done that affect the lives of the ordinary citizens of the country? Is it because it is a matter of constitutional law or the western world is saying there are three arms of government: the legislature, the executive, the judiciary? Sometimes I have to say we are paying so high a price for our democracy. Let us look into ourselves and check the requirements according to our aspirations, not what others are saying to us. As far as I am concerned, most of the state legislatures and other agencies are just giving jobs to the boys. I know there are problems of jobs in the country, but that is not the only way to do it. In England they have the loan, when you are not working, you get funds to do your own business. That is what should be done if our economy will rise. But everybody is relying on the government.

A committee has been inaugurated for amnesty to the Boko Haram sect.  What is your take?
The government is entitled to put everything in place to ensure that the insecurity is stopped. I think whatever it will take to do away with it should be welcomed by everybody. But it is only when they conclude their work and make available approaches and strategies for the implementation of the amnesty that one can comment fully. 

What about suggestions that government should go beyond an adhoc committee for a standing committee for amnesty to address agitations from other zones in the country?
Yes, there should be. The issue of security is very paramount. Without it we cannot go anywhere. Whatever it takes to bring security should be done. But we have to look at the causes of these things? What happened? We were living in peace most of the time before. Take Plateau State,  it was one of the very peaceful places before. I was the presiding Justice of the Court of Appeal there for two years. I never had any trouble with any one, we didn’t hear any violence. What happened to us? Why? Are persons in the civil service not thinking? Are they not producing ideas? Is it the politics of the country?

Some legal minds have interrogated your erudite judgment in Fawehinmi Vs Abacha, and some of them have wondered how, coming from your background you were able to challenge the General Sani Abacha regime by upholding the African Charter on human rights. What is the inspiration?
I was just doing my work as it ought to be done. Or is it because Abacha was from the same school with me and he was the Head of State, and he did something wrong and the matter would come before me, I would be thinking of how to take care of my friend? No. As a judge, I swore to an oath to do what is right by the ability God has given me. I have to do things in accordance with the law. And that is how it should be at any time. Nothing more, nothing less. There was nothing like inspiration. That did not change anything in our relationship. Just after writing that judgment, I left Lagos and came to Abuja here and he accommodated me in his house in the villa. There was no problem.

Can you recall the happiest and saddest days in your life?
I always try to be happy as it were. I did my work as I am supposed to. Either the way I write my judgments, even if I lose a case I just live with that; it doesn’t make me unhappy or whatever. I have witnessed several sad days like the death of my father and my brothers. These things do come as a mere mortal.

At retirement, how do you spend most of your days? 
I have been reading a lot of books and listening to Arabic tapes and my Koran.

Would it be safe to say that your elderly aunt and Alhaji Ibrahim, former DG NTA played major role in the young Dahiru’s life?
Yes. I have been lucky throughout my life. Things came about and God, in His own wisdom gave me little intelligence. I spent less than two years in the old elementary school before I went to the ‘middle school’ and there I was not a dunce; I was one of the best students. And I have been lucky to meet friends who have come to my aide one way or the other. So I thank God.

You are from a lineage of Islamic law scholars. Two of your children towed the line of law, while one opted to be a pilot. What advice do you have for parents concerning their children’s career?
God, in His own wisdom, makes anybody whatever he wants to. Some of my children’s choice of Law has nothing to do with me; they picked it by themselves. My first son was already admitted to study Medicine but came back to read Law without my prompting. So I don’t think parents should have any hand in the choice of their children’s career. All they have to do is to encourage them.

Judges are still writing in long hand in Nigeria. What dreams do you have for Nigerian judiciary?
We have been talking about computerization of all the processes and matters are in completion stage. The current CJN has said she is working to implement that.

What is happening to the bills you sent to National Assembly on judicial reforms?
It is a collective bill by all the judges of Supreme Court; we took it together to the legislature. I think they are working with the current Supreme Court. May be they want to do everything together and not in piecemeal. I think the judges should work with the Law Reform Commission and the National Assembly.

As an elder, can you share your thoughts about Nigeria’s future?
If all of us change our ways, I think we have a great country. There is nothing that can stop us from being one of the best economies of the world. There are lots of brains in this country. I don’t know why they are not utilized. Or is it that there are no motivation for them to come and contribute to sort our multifaceted and multi dimensional problems. I think the government ought to encourage everybody who has got something to offer to come forward. That is why I can’t see why political differences must arise. You can do politics before or during election. But after election, every Nigerian ought to come together and work for the advancement of the country. This is my belief. Not the way we play politics where A is waiting for B to fail and vice versa as if it is not our country.
Source: Daily Trust

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