Rivers State: Ceremonial Opening of 2017/2018 Legal Year
"HE LAW SOCIETY OF ENGLAND AND WALES, CONTEXTUALLY DESCRIBES THE CEREMONIAL OPENING OF THE LEGAL YEAR, AS AN EVENT THAT: “COMMEMORATES THE PRINCIPLES OF DEFENDING ACCESS TO JUSTICE AND THE RULE OF LAW. FURTHERMORE, IT REMINDS ALL OF THOSE ACTIVELY INVOLVED WITHIN THE LEGAL SYSTEM, OF THE NEED TO UPHOLD THESE PRINCIPLES INTERNATIONALLY, AS WELL AS AT HOME, FOR THE BENEFIT OF SOCIETY"
As Rivers State marked the beginning of the 2017/2018 Legal Year last Friday, Emmanuel Chinwenwo Aguma, SAN, the Honourable Attorney-General and Commissioner of Justice of the State, delivered his speech, which touched on several salient issues, including the importance of all stakeholders in the society, upholding the rule of law unfailingly
Igive God Almighty hearty thanks, for enabling us all, to gather here today, October 20, 2017, for the ceremonial opening of the 2017/2018 Legal Year. Some that were here with us last year, are not here today for reasons of ill- health or death. We should therefore, thank God for the special enablement to be present.
I know that, a lot of us are curious about the significance of this legal tradition that dates to antiquity. In fact, Wikipedia suggests that it dates back to the middle ages. The Law Society of England and Wales, contextually describes the ceremonial opening of the legal year as an event that: “commemorates the principles of defending access
to justice and the rule of law. Furthermore, it reminds all of those actively involved within the legal system, of the need to uphold these principles internationally, as well as at home, for the benefit of society”.
The Bar and the Bench immediately come to mind, as those that are actively involved within the legal system, and on whom the duty falls squarely, to defend access to justice and the rule of law. This is because the Bar and the Bench, are directly involved in the administration of justice.
However, when we ask the simple question, what are laws for, and accept the obvious answer, that laws are made for the orderly organisation of society, then we immediately realise that, every member of society ought to understand clearly the concept of the rule of law, and be involved in upholding and defending it. No wonder, as children we were taught civic education that has long disappeared from the school curriculum, and which we hope would soon be re-introduced. Adherence to the rule of law, is therefore, the fundamental yardstick by which the populace should assess government and government institutions.
Section1 (1) of our 1999 Constitution provides clearly that the “Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria.” Section 14 subsections (1) and (2) of the Constitution define the relationship between the Government and the people in clear terms. It provides:
“14. (1) The Federal Republic of Nigeria shall be a State based on the principles of democracy and social justice. (2) It is hereby, accordingly, declared that: (a) sovereignty belongs to the people of Nigeria from whom government through this Constitution derives all its powers and authority;
(b) the security and welfare of the people shall be the primary purpose of government: and
(c) the participation by the people in their government shall be ensured in accordance with the provisions of this Constitution.” These very notions of democracy, social justice and sovereignty of the people are given expression in Chapter IV of our Constitution. That is why we proclaim our fundamental right to: (1) Life; (2) The dignity of the human person; (3) Personal liberty; (4) Fair hearing; (5) Private and family life; (6) Freedom of expression and the press; (7) Peaceful assembly and association; (8) Freedom of movement; (9) Freedom from discrimination; (10) Acquire and own immoveable property anywhere in Nigeria; and
(11) Protection from compulsory acquisition of property without compensation.
It can therefore, be safely said that this ceremonial opening of the legal year, renews our collective commitment to these principles of democracy, social justice and sovereignty of the people, by reaffirming our defence of the right of access to justice and the rule of law,
for the benefit of society. This ceremony is also an official reminder to Government, that sovereignty rests with the people; that all its powers derive from the constitution; and that all its actions, must be directed at the security and welfare of the people. In particular, this ceremony reminds the Judiciary, that they remain gatekeepers in defence of access to justice and the rule of law.
Criteria for Measuring Adherence to the Principles of Democracy, Social Justice and People's Sovereignty
The first criterion by which adherence to these principles is measured, is by an assessment of the extent to which the agencies of government and persons in authority, conduct themselves within the dictates of the constitution and without undermining the constitution or derogating from the rights of the citizens as constitutionally enshrined. The Judiciary must always be prepared to ensure that all actions of government, government agencies and persons in authority, must be rooted in the constitution.
The second criterion, is by determining whether the citizen has an avenue or ways, through which he can effectively challenge any infringement of his rights by the government, agencies of government and persons in authority. To this end, the Judiciary must consistently watch-out to ensure that an aggrieved citizen, must have an avenue to vent his complaint and seek remedy. The fact that the particular kind of action has never been brought or there are no precedents, should ordinarily not hamstring the Judiciary. This is because, novel wrongs emerge each day. They must also have novel
remedies.
The third criterion, is by an assessment of the independence of the avenues for challenge of wrongful acts, particularly the Courts vested with judicial power by section 6 of the Constitution. It is instructive that, in inheriting our Judicial system, we inherited the Statue of Justice that adorns the entrance of our High Court Complex. It is the blindfolded statue of the Greek goddess
Themis, who in Roman mythology is called Justitia. The blindfolded goddess holds a sword in her right hand, and the scales of justice in her left hand.
The symbolism embodied in that statue, is clear even to the uninitiated.
The statue conveys with full effect, the responsibilities and the powers of the Bench. The Judge or Magistrate, is duty bound to be blind to the status or position of all who come before the Court. The high and the low should be treated equally, regardless of status. The conduct of any case, must be fair and balanced when put on the scale – the scale of justice. The sword represents the power of the Bench, to dispense binding decisions in legal disputes that must be obeyed.
This is why in the administration of justice, the Court’s role is paramount. Lord Denning (of blessed memory), confirmed this preeminence, when he relied on Greek mythology to state that “Cicero makes the distinction that it is the duty of the judge to pursue the truth, but it is permitted of an advocate to urge what has only the semblance of it”.
It is unfortunate that in Rivers State today, while the democratically elected Government seeks to enthrone social justice, uphold the rule of law, promote the security and welfare of the citizens as its cardinal guide in governance, an employee of the Federal Government is using the agency of the Federal Government which he heads, to terrorise the populace, undermine the welfare of citizens, instil fear and denigrate the rule of law.
From collated reports, the actions of this employee of the Federal Government and the agency that he heads, violates every norm of civilised society and derogates from the rights of the citizen/residents of Rivers State as enshrined in Chapter IV of the 1999 Constitution. This official of Government, unleashes terror on the very citizens he is armed to protect.
In reaffirming our commitment to the rule of law, we must leave here today and tell the citizens and residents of Rivers State, that the law shall protect them from this government official and his agency. The status of that official is irrelevant to Lady Justitia. It is for our colleagues at the Bar, who are aware of infractions of the rights of citizens by this public officer and his ilk, to approach the Courts, who blindfolded, holding the balanced scales and armed with the sword, will dispense justice.
For my part, there is the Department of Citizens Rights and the Office of the Public Defender in the Rivers State Ministry of Justice. They are ready to prosecute deserving cases, if any reports are lodged with them. Conduct Unbecoming of a Legal Practitioner
It is not only public officers, that offend civilised norms. Some of our colleagues at the Bar, have in aid of suspects whose trials are ongoing, devised means of assisting their clients to evade justice. One example is, some applications for Bail for persons lawfully remanded. These colleagues approach courts outside the judicial division in which trial has commenced, to ask for bail, by
concealing the fact of the ongoing trial. Such Courts unwittingly proceed to grant bail. This is out rightly dishonest, and also conduct unbecoming of a legal practitioner. Some Courts, have also been known to disregard information brought to their knowledge that the Applicant is already standing trial. This also is wrong. We all, as administrators of justice, must find the right balance to serve our community and society better.
Plea for Some Practice Directions
My Lord, the Chief Judge, may I respectfully plead that it would not be out of place for Your Lordship to consider making Practice Directions pursuant to section 500 sub-sections (3),(4), (5) and (6) the Rivers State Administration of
Criminal Justice Law [ACJL] No. 7 of 2015, to regulate originating motions for bail pending charge/trial. The Practice Direction may require some undertaking by the Applicant through his Counsel, that such an Applicant is not undergoing trial at the time of the application for bail. As a corollary, Your Lordship may wish to include in such Practice Directions, additional responsibilities on Counsel who recommend sureties, Court officials that verify the addresses of the bail sureties and the suspect. This is because, the Department of Public Prosecution has brought to the attention of my office, several cases in which an accused person has jumped bail and the address provided by both the accused and his surety or sureties, are not traceable.
Another area it is suggested, we take a holistic look at, is the application of sections 300, 302 and 303 of the ACJL. The raison d’être of the ACJL, is speedy and efficient dispensation of justice, based on the twin principles of “justice delayed is justice denied” and “innocent until proven guilty”. However, in the practical administration of justice, we always find situations wherein the investigating authorities are forced to charge a suspect to a Magistrate Court, before the conclusion of investigation or the filing of the information in the High Court. Most times, the Magistrate Court before whom the suspect is brought, does not have the jurisdictional competence to try the matter. In the past, what is pejoratively called a “holding charge”, was used to retain the suspect in lawful custody. Of course, we know that holding charges have been struck down by the Supreme Court. This did not remove the mischief. The ACJL at section 300 sub-section (1) addressed this issue, by making provision for remand proceedings and detention time limits premised on timely actions. The section permits a suspect to be brought before a Magistrate Court that has no jurisdiction to try the offence, for the purpose of the remand of the suspect not later than 48 hours from the time of his arrest for an offence. Section 301 gives the Magistrate Court, the discretion to remand. However, section 302 also gives the Magistrate Court, the discretion to grant bail in remand proceedings.
The reports my office continuously receives from the office of the DPP, is that many dangerous offenders have been granted bail pursuant to section 302. It is my conviction that, the primary purpose of the law, is to ensure public confidence in the security of our community. The legal system does this, through the protection of the collective right of the populace to a peaceful and secure existence. In this regard, our collective rights supersede the perceived rights of any individual. Consequently, and in my humble opinion, it behoves of the Magistrate Courts to interprete section 302 purposefully, by protecting the collective right of the society to peaceful and secure existence.
We therefore, respectfully suggest the issuance of clear guidelines by way of Practice Directions on how, and when, Magistrates should grant bail in remand proceedings pursuant to section 302 of the ACJL. After all, sections 303 and 304 of the ACJL, provide rigorous conditions for continued remand, including the fact that a suspect held in custody pursuant to a remand order, cannot remain in lawful custody for a cumulative period that exceeds 23 days from the date of the remand order, without arraignment for trial.
It is therefore, necessary for the Bar and the Bench, to put heads together to develop appropriate mechanisms to serve the society better, by keeping dangerous persons off the streets.
Withdrawal of Complaints by “Born Again” Complainants
May I use this opportunity to comment on a new disturbing trend.
Everyday, we are confronted in my office, with written applications by complainants withdrawing criminal complaints that have been charged to court. The standard reason, is that the complainant is now “born-again” and has forgiven the suspect/accused person. The offences for which such applications are made are not limited to petty offences, but include serious offences such as defilement, rape, kidnapping, cult related activities, robbery and even murder. These applications, are usually accompanied with affidavits verifying the facts contained in the written application. The affidavits demonstrate that, lawyers are involved in the preparation of such applications. It is my hope that we all discourage this practice, as it undermines the very foundation of our criminal justice system.
Jurisprudential Issue
My Lords, forgive me for using this occasion to think aloud on a legal issue, which, with respect, I believe we should all give some thought to. There is this common notion that the Governor of a State, is the Chief Security Officer of the State. The 1999 Constitution promotes this notion. However, the same very Constitution at section 215 subsection (5), precludes the Commissioner of Police of in-charge of a State, from taking instructions from the Governor without the concurrence of the President or such Minister of the Government of the Federation, as may be authorised in that behalf by the President. In practice, it is usually the Inspector-General of Police that the Commissioners of Police in the States, take directives from.
Section 215 subsection (5) of the Constitution, creates a jurisprudential issue. In most applications for the enforcement of fundamental rights, the Applicant while suing the Police joins the Attorney-General of the State. We know that by virtue of the provisions of our State Proceedings
Law, actions against the State are initiated by suing the Attorney-General. The implication is that, when the Attorney-General is joined in such suits against the Police, the Applicant is suing both the Police and the State. The infraction is usually unlawful detention by the Police, which the State cannot control. Judgement, when given, is given against the State and the Police, jointly and severally. The question then is: how can the State be held liable for the actions of the Police, when the State has no control over the conduct of the Police? It is not an issue, which I expect resolution here and now. It is food for thought.
Consents and In-House Lawyers
We have continued to ensure that Rivers State, is a jurisdiction that all bureaucratic impediments to the effective practice of law, are eliminated for the benefit of clients and lawyers. We are using law as a tool for economic development, by ensuring that are signed once they are received in the Ministry of Justice. Between November 11, 2016 when we held the last legal year and today, 138 Consents have been signed by me. A total of 6 were not signed, due to various queries raised. Once again, I seize this opportunity to remind financial institutions and other corporate organisations, that in-house Counsel are not permitted by the Rules of Professional Conduct, specifically Rule 8(2), to frank any instrument or process or file same for his employer. We have maintained the policy of refusing to give consent to land instruments, if the land instrument that requires consent is prepared by in-house Counsel. Going forward, we may be forced to invoke the appropriate disciplinary procedure, if this unwholesome practice is not stopped.
Fiats
We also do not hesitate to issue fiats, when there is good reason to do so. Consequently, in the period since November 11, 2016 we have issued 43 fiats to private legal practitioners, to prosecute matters on behalf of the State. We shall continue to be liberal, in our consideration of applications for the issuance of fiats. We however, note that over 90% of Lawyers to whom fiats are issued, do not turn in reports updating the office of the Director of Public Prosecutions (DPP) on the progress of the matters they are prosecuting. I have therefore directed the DPP to ensure that we receive monthly reports from Private Counsel prosecuting criminal matters with the fiat of the Honourable Attorney-General. Failure of such Counsel to comply with this directive may result in the fiat being cancelled.
Elections
We are fast approaching electioneering. Already, the jury is out on whether free and fair elections will hold in 2019. A lot of the shadow boxing, to ensure free and fair elections, will be done on the pages of the newspaper and electronic media. We have seen the abuses to the electoral system, that manifested in the series of re-run elections here in Rivers State. At the forefront of these abuses, were the security agencies. Much of the battles shall be fought in the courtroom. We must therefore, remind ourselves continuously of section 14 subsection (3) of the 1999 Constitution, which mandates that “the participation by the people in their government shall be ensured in accordance with the provisions of this Constitution”.
Periodic elections, are the means of securing this participation.
It is therefore, hoped that the Bar and the Bench shall work in unison, to ensure that the mandate of our people is not stolen. Any political party or candidate that loses during the elections, should lose fairly. The Courts must be prepared to intervene within the spheres of their jurisdiction, to ensure a level playing field. Each agency of State, must be restricted to its constitutional role. No agency of State, should act as a proxy or agent of the political actors – and this includes the Courts. These are the democratic principles, on which the rule of law and political choice hinge. The harsh judgement of posterity, awaits us all if we are derelict in our duty to society.
Appreciation
I seize this opportunity, to thank the National leadership of the Nigerian Bar Association, for giving us a veritable opportunity to tell the world during the last Annual Bar Conference in Lagos, that Rivers State is safe. I thank members of the Bar in Rivers State, for
their effective communication of that message. My dear colleagues, brothers silk and learned friends, you were the greatest disseminators of the message that RIVERS STATE IS SAFE
FOR INVESTMENT. Jim Ovia, assisted by His Excellency, Donald Duke, and his lovely wife, merely confirmed your narrative. Of course, the number of conferences that regularly take place in Rivers State, is proof of the fact that RIVERS STATE IS SAFE. The doomsayers, have exited with their tails in between their legs.
I commend the Chief Judge and His Lordship’s Brother Judges, for the manner in which they have effectively administered justice in the State. The renewed confidence of society in our justice system, is palpable. I pray that Your Lordships, continue to dispense justice fairly and speedily. I also congratulate My Lord the Chief Judge, for successfully executing the construction of the new edifice that houses the Family Court and the Alternative Dispute Resolution Centre/Multi-Door Court House, that is being commissioned today by His Excellency, the Governor.
His Excellency, Nyesom Ezenwo Wike CON GSSRS, the Governor of Rivers State, deserves special commendation. The testimonies of His Excellency’s hard work, abound. You can see the visible progress being made in the construction of the National Industrial Court Complex. Work at the Court of Appeal, is also progressing. His Excellency’s commitment to the Rule of Law, is palpable. Vacancies in the Higher Bench, are continuously being filled. It only behoves of us all, to join hands with him to etch Rivers State as a legal services hub, east of the Niger. This would be good for us, good for business, and ultimately, good for our general well-being.
Finally, I wish us all well in the days, months and year ahead.
God bless us! God bless Rivers State! God bless Nigeria!
"THERE IS THIS COMMON NOTION THAT THE GOVERNOR OF A STATE, IS THE CHIEF SECURITY OFFICER OF THE STATE....IN PRACTICE, IT IS USUALLY THE INSPECTORGENERAL OF POLICE THAT THE COMMISSIONERS OF POLICE IN THE STATES, TAKE DIRECTIVES FROM....THE QUESTION THEN IS: HOW CAN THE STATE BE HELD LIABLE FOR THE ACTIONS OF THE POLICE, WHEN THE STATE HAS NO CONTROL OVER THE CONDUCT OF THE POLICE?"