‘The Rule of Law is the Fulcrum of Civilisation’

"GOVERNMENT MUST CREATE A STATE EMERGENCY IN THE JUSTICE-SECTOR. NOT ENOUGH TO TALK ABOUT CORRUPT IN THE JUDICIARY, WHEN THEY ARE POORLY PAID. SOME GOOD LAWYERS GOING TO THE BENCH OUT OF A SENSE A CALL TO SERVE BUT MANY MORE NOT GOING ON ACCOUNT OF THE VERY POOR EMOLUMENTS. SALARIES MUST REVIEWED UPWARDS IN A RADICAL IRRESPECTIVE OF THE ECONOMY"

President Buhari in his speech, delivered at the NBA Annual General Conference last year described corruption as the greatest human rights violation as it results in the suffering and the denial of basic amenities to the masses. However, the current administration’s campaign against corruption has been described as selective. May Agbamuche-Mbu, Jude Igbanoi and Tobi Soniyi sought the opinion of Mr. Ikeazor Akaraiwe, a foremost human rights lawyer and former Chairman of the NBA Human Rights Institute on this and other pertinent national issues.

There have been allegations that the fight against corruption by President Muhammadu Buhari is selective and the rule of law is being disregarded. Do you share this view? On selectivity in the fight against corruption, I do not see any yet. Perhaps, I should preface further comments with the following, that, firstly, that I did not vote for the APC in the last presidential elections; and secondly, that I am not a card-carrying member of any party. But I do not see how the president can be accused of selectiveness at the moment. Is it selectivity based on ethnicity or party affiliation? If it is geopolitical ethnicity, Col. Sambo Dasuki, Haliru Mohammed, Olisa Metuh have been arraigned before the courts. And Admiral Adesola Amosun, former Air-force Chief has just been arrested by the EFCC. And by the way, why is it only the Federal Government who is investigating corruption? What stops the state governments from investigating especially where power changed hands from one party to another? If it is party affiliation selectivity the president is accused of, I am not aware that any APC affiliates are being investigated or have been arrested by the Federal Government, and while conceding that the morning shows the day, I still want to suggest that it is a bit early to allege selectivity. And it does make sense to expect that many ethnic groups who were shut out of the power equation for years, and are now in power, will probably not have cases for corruption against them. For instance, the Yorubas were significantly out of the executive and legislative arms of government in Jonathan’s last four years 2011 -2015. Conversely, the old eastern region and the core north were in. It would thus be well-nigh impossible to find a sizeable number of Yorubas to investigate and arraign for significant amounts of corruption. And even for those who crossed over from the PDP into the APC just before the general elections, and had their hands in the pie during the PDP days, I say all those who have even circumstantial proof of corruption should hand in to the police, EFCC or ICPC.

But on disregard for the rule of law, I have two perhaps, contradictory views. Firstly, this government has done a poor job of respecting the orders of court. The rule of law is the fulcrum of civilisation. If law does not rule, man and his whims and caprices will rule, and return us to the Hobbesian age where might was right and life was nasty, brutish and short. Court orders must be respected, and it is no use blackmailing judges with the threat of punishment for corruption for giving orders which government finds unpalatable. Not every unfriendly order proceeds from corruption. If you do not like an order, appeal against it. The judiciary are the heroes of this 4th Republic. Their judgments are the reason Oshiomhole, Amaechi, Mimiko, to mention a sundry few came to office, some on the coattails of ‘opposition parties.’ Judgments of the judiciary however imperfect have kept Nigeria safer and more secure. My second view seems to contradict the first, and this is, that current jurisprudence is incapable of delivering up a significant reduction in corruption. We may

need to go the Guantanamo Bay route, or the sui generis road, by which I mean we make special provisions for corruption cases, which replaces the “innocent until proven guilty” doctrine with “guilty until proven innocent,” making it imperative for those accused of corruption to explain the sources of their fabulous wealth. To put it crudely, the current jurisprudence is subject to abuse, not because judges are corrupt but because this is our level of social evolution as a people.

Do you think the government should have handled the prosecution of the alleged misappropriation of funds meant for arms differently?

Within the current jurisprudence, and justice delivery architecture, I do not know what else the government could have done.

There is consensus that the rule of law protects human rights. And the judiciary safeguards the rule of law. In your view what role can the judiciary play in protecting human rights?

It has been said that until recently human rights cases do not come into consideration by the National Judicial Council when computing the output of judges. If true, it certainly contradicts the Fundamental Rights Enforcement Procedure Rules, 2009 which emphasises prioritisation of human right applications. Human rights applications should be given the same attention as every case.

But permit me to broaden your question to include not only human rights but all rights including economic and social rights, on the premises of the well-worn trite platitude, Ubi Jus Ibi Remedium; “For every right the law provides a remedy” or ought to so provide. It is less of what role the judiciary can play as what a visionary presidency cum executive leadership with sensible legislative leadership and focused judiciary leadership can do to reposition the judiciary. Our justice delivery architecture needs emergency repair. For example, in my Enugu practice base, we had about 27 judges serving in the state high court as at year 2000. From year to year it fell till it came to about 14 last year after retirements, elevations and deaths. Four new justices have just been sworn in bringing them to 18. From suit numbers assigned to cases in the about seven judicial divisions, you find that no less than 2000 cases are filed yearly, excluding 2015 when the courts were mostly shut down due to industrial action by the judiciary staff union. To have 18 judges in an entire state with the number of cases being filed shows a lack of understanding of the criticality of the justice delivery sector. When we visited the courts of Vancouver, Canada during IBA 2010, we were astounded to see about 60 high courts in one building, and more than 60 magistrate courts in a high rise building opposite the equivalent of our high courts! We then enquired whether those courts were for the entire British Columbia state in Canada, and were informed that Victoria, the capital city of British Columbia had even more courts! The current situation of insufficient numbers of judges and poor working conditions of judges and magistrates contradicts the rule of law. If we built more courts, and appointed more judges and magistrates so that we have on average of one judge with a maximum of 50 cases in their docket at every point in time, almost all cases will finish in 12 months maximum; confidence in the judiciary will be restored; and many cases currently resolved outside justice delivery by thugs, hired assassins, and bribery to the police, will come into the court system, knowing that they will be done with in less than a year. Of course, the court of appeals needs its own tweaking. Create states courts of appeals, and move all land and property disputes there, with the federal court of appeals as final bus stop for all land disputes. The principle of five ways of proving title to land for example, has been enshrined in our jurisprudence for decades, and I see no point in appeals on that point unless in exceptional cases where the Supreme Court feels that certain factors merit a change in previous pronouncement. But people continue to appeal disputing with the five ways of proving title to land, and the Supreme Court entertains those appeals although it is clear what the judges are going to say at the end of the day. S. 233 of the 1999 Constitution providing for appeals to lie as of right to the Supreme Court needs urgent amending. At present the litigation rate, most states need no less than one hundred high court judges, and two hundred magistrates on average. And at the (federal) court of appeals, we need no fewer than 500 hundred justices to achieve the required goal of a just, efficient and speedy dispensation of justice. With a yearly call to Bar of no less than 5000 lawyers, why can the average litigious state not have an average of 100 judges and 200 magistrates? Tension in society will go down enormously if this happens, just as political tension dropped in Nigeria, when the courts declared in 1998 and 1999 that INEC could not limit the number of political parties. Appeals to the Supreme Court as of right will need to be for matters bordering on the economy or the constitution; or any other matter the Supreme Court deems necessary to pronounce upon, like assuming jurisdiction over the DINGYADI case under Katsina-Alu CJN. I believe that was consistent with its position as a court of public policy. Whereas every court is a court of law and justice, the Supreme Court wears three hats, law, justice and public policy. Dingyadi was public policy whether rightly or wrongly. The twelve two-thirds AWOLOWO v

SHAGARI judgment was public policy. The idea that the U.S. Supreme Court is a court of public policy was enshrined by the Supreme Court of the United States in BROWN v BOARD OF EDUCATION OF TOPEKA, 347 U.S. 483.

Human Rights activists are concerned about the increasing rate of human rights violations in Nigeria including the shameful treatment of awaiting trial inmates and politically exposed persons. You were the chairman of the NBA Human Rights Institute, how can lawyers, civil organisations and government protect human rights in Nigeria?

Education is key. Let me expatiate. The much reported extra-judicial killings of young men by the military in the North-East during the Boko Haram war has left a wound, which will take decades to heal. When I visited Maiduguri in 2013, a couple of lawyers observed that there would be no husbands for the young girls of the next generation because too many young men had been killed after indiscriminate arrests by the military. The philosophy seemed to be that every young male was a potential ‘Bokite’ so let us kill them before they transmute. Our current syllabus for protection of human rights is reactive. The proactive solution to entrench human rights in the psyche of Nigerians is introduce civic education in all primary, secondary, military and para-military schools in Nigeria with human rights as a vital subset of civic education. I would also add the Fundamental Obligations and Directive Principles of State Policy, that is, chapter two of the constitution for study in a civic education curriculum. For Universities, human rights as a general studies course should be introduced for all undergraduates, from medicine to engineering. When I represented the NBA on the board of the National Orientation Agency, that agency laudably began to push for civic education to become a compulsory course of study for all primary and secondary schools in Nigeria, a step taken by Ghana about thirty-five years ago, which I believe explains much of the edge that today”s Ghanaian has over us in patriotism at least. But I looked at the curriculum, and suggested that civic education was incomplete without educating about human rights. The NOA board disagreed with me. An elite problem towards human rights is thus revealed. The biggest problem human rights has in Nigeria today is the right to same-sex marriage. To introduce gay rights as human rights in a society which is yet to grasp the rights to life, dignity of the human person, personal liberty, fair hearing, private and family life, freedom of thought, conscience and religion, freedom of expression and the press, peaceful assembly and association, freedom of movement, freedom from discrimination, and to acquire and own immovable property anywhere in Nigeria; will deal a death blow to human rights education and enforcement as a deeply conservative populace and government will certainly throw away both baby and bath water.

There have been several attempts at amending the 1999 Constitution and only recently special ad-hoc committees were inaugurated in the National Assembly to review the Constitution? What is your considered view on this attempt to amend