Innocent Anaba
28 November 2008
interview
Mr Joseph Daudu, Senior Advocate of Nigeria, is our guest for the week.
In this interview, he berated federal government for its recent clampdown on the media, saying "no matter what the offence of a media house may be, no person or agency, no matter how high or well to do he may be, has any powers under the constitution to put an erring media agency under lock and key".
He added that "even if the charge against the media house is sedition, it does not under the present constitution invite a closure, the highest measure is to charge the offender to court and await the outcome of the court".
On the suspended Director of the National Finance Intelligence Unit of the Economic and Financial Crimes Commission, over failure to report to the chair of the commission,looted funds that are still leaving the country on a daily basis, he said "heads ought to roll in other security and investigative units. Government and indeed the leadership of this administration must be seen to be above board and to enforce the existing anti-corruption laws".
Daudu does not believe that the judiciary should be blamed for the length of time it takes to conclude election matter in the country, insisting that the source or solution to the problem is neither the tribunal nor the court, but the electoral process that needs to be overhauled. On the 31 missing files which contain the concluded investigation on past governors, he said that former chairman of the commission, Nuhu Ribadu and the present management of EFCC, Farida Waziri, to whom it is alleged the files were handed over to, should tell Nigerians what happened.
Chairman of the Economic and Financial Crimes Commission, Mrs Farida Waziri, was quoted as saying recently that looted funds in billions of naira are still leaving the country on a daily basis. The reports said that for failing to alert the commission, the Director in charge of the National Finance Intelligence Unit (NFIU) at the commission, had been placed on indefinite suspension. What does this portend for the country?
Your question symbolises the problem of Nigeria, which is official corruption. It is endemic. Mrs Waziri was only saying the obvious which is that billions of Naira was leaving the shores of Nigeria on a daily basis. With profound respect, that is not the issue, as it is obvious from the lack of any visible infrastructural development that the money duly budgeted and released, amounting to trillions of Naira so far in the life of this administration is going somewhere and Mrs Waziri has only identified where it is going.
I think Nigerians are in reality, more interested in knowing the beneficiaries of the transfers or remittances, the accounts from where they were removed and whether the culprits will be investigated and visited with the consequences or penalty of such a conduct. This is not beyond our security agencies to decipher but in a situation where such operatives also want to 'arrive' or 'make it' overnight, it is not difficult to see why and how such monies practically leave Nigeria undetected and unmolested.
The consequence for Nigeria is pathetic and leaves us in a predictably dangerous position.
At this point in time, we are left open to a variety of negative scenario that normally envelopes corrupt nations. Finally on this point, it is not enough to make a scapegoat of the Director of the National Finance Intelligence Unit, heads ought to roll in other security and investigative units. Government and indeed the leadership of this administration must be seen to be above board and to enforce the existing anti-corruption laws.
What does this portend for the country's fight against corruption, if some personnel in the anti-corruption agency either by omission or commission are abetting corruption?
It generally means that the country and particularly the leaders who are engaged in corruption are grossly insecure. The common denominator being money, the loyalty of these leaders can only be assured through the payment of extra payouts to these officials. What it means is that security officials and the leaders are partners in crime; this symbiotic relationship can only wax stronger because such conspiratorial relationship is on the rise without any check in sight. However, should anyone pay more, these security personnel may even jeopardise the safety of our high government officials.
What this means is that in the main, there is no longer any professionalism in these agencies. Everyone is out to make cheap money. In reality, what we have are not security agencies but a mercenary outfit. It is impossible to envisage a proper implementation of the 'Rule of Law' in the discharge by government of its programs and plans.
Former EFCC chairman, Malam Nuhu Ribadu, was on Saturday, prevented from passing out at the National Institute for Policy and Strategic Studies by the security operative, who forced him out of the venue of graduation ceremony. What is your reaction to this?
I do not have all the details, but there is indeed more than meets the eye. The question does not say which arm of security operatives forced him out of the ceremony, all I know is that the National Institute of Policy and Strategic Studies is a statutory institution which statutorily prescribes rules for the admission, discipline and graduation of students.
You will recall that Ribadu was admitted as an Assistant Inspector General of Police, the minimum requirement for a police officer to study at Kuru. In the course of his studies, he was reportedly demoted to the rank of Deputy Commissioner of Police on the ground that his earlier promotion was irregular and not in line with existing police Rules.
The new rank of DCP is a rank far below the prescribed qualifying rank for admission to NIPPS. At this point Ribadu adamantly chose to continue to study at Kuru, when he knew that DCP's do not study at Kuru and are not admitted there. It seems to me that he should have withdrawn from Kuru at that point and with humility gone back to his police duties.
It appears to me that his resistance to his 'demotion', although it cannot be called a demotion as he was never lawfully an Assistant Inspector General of Police, is borne out of his inability to reconcile his fall from the exalted office of Chairman of the EFCC where he was acting as an alternate Inspector General of Police, arresting and prosecuting Tafa Balogun etc, to the not so exalted rank of Deputy Commissioner of Police.
Hence he sued his employers, the Police, on a matter in respect of which he had not finished exhausting the internal dispute resolution mechanism which process is not limited to but includes the possibility of an appeal to the President of the Federal Republic of Nigeria before heading straight for the courts to challenge the actions of his employers.
One thinks that the press should be more incisive in their inquiries and less sentimental or judgmental in their opinions. All that glitters is really not gold.
Is forcing Ribadu out of the venue of the graduation the best way to handle the situation, even if for any reason, government or NIPSS did not want him to graduate, should they not have contacted him, some days to the event, instead of forcing him out of the venue in the full glare of all and does this not negate the principles of the so-called due process and rule of law of the federal government?
If you were holding a lavish party and an uninvited ragamuffin were to appear uninvited, what would you do? Would you file an action in court before ejecting him from your premises? There are two things the press should do. First, hear the official version of NIPPS and second, compare NIPPS version with the already established facts. The issue of due process and rule of law are principles of justice used or employed in clearly defined situations. They are not to be employed in petty instances where a person is denied admission to a graduation party.
Some have argued that Ribadu was used during his tenure as EFCC chairman, while some also argue that even though he was used, that all those the commission prosecuted during his tenure had cases to answer. But with what Ribadu is going through now, do we expect the present chair of the EFCC be encouraged to take the fight against corruption serious, since tomorrow, if there is a change in government, those she prosecuted may also call for her head?
If people have forgotten, some of us have not. We recollect it as if it was a few hours ago when Ribadu in the discharge of his brief hounded so many people down in the most violent manner. This was a man who against the principles and letter of the constitution used the EFCC to unseat democratically elected Governors and disbanded State Assemblies on the ground that He (Ribadu) had adjudged them as being corrupt. He caused so many people including serving elected Governors to be arrested and detained at length contrary to the stipulations of the Fundamental Rights chapter of the Constitution.
He singlehandedly compiled a list of politicians whom he banned allegedly for corruption even though they had not been found guilty of any criminal offence. His master so thoroughly enjoyed his work that his favourite threat to his opponents and people he did not like is that; 'I will send the EFCC after you'. You cannot have cut the image of and indeed conducted yourself as a vicious attack dog that carries out his master's orders unquestionly and expect any sympathy when poetic justice catches up with you. Ribadu did not believe that there was a presumption of innocence in favour of any person alleged to have committed a criminal offence.
He began this ungodly act of trying an accused person in places far removed from where the facilities for that person's defence were situated. Thus if you lived in Maiduguri and the papers and witnesses for your defence were located there, Ribadu will initiate your trial in Yenagoa or in Abeokuta.
If your evidence is in Lagos, he will try you in Kaduna, and so on and so forth. So this is not a matter of inferring whether the same treatment will be visited on Mrs Waziri once she is out of office. Nemesis only catches up with the wicked. So far, she has proved to be a remarkable and thorough law enforcement officer. She has not trampled on people's rights and no one has alleged that she is being used by the present Commander -in- Chief to hound his perceived enemies.
I think that it would take some time before the mess she met in the EFCC can be cleaned up and for any meaningful anti-corruption crusade can be engaged in. One thing that however, baffles me is why the usually credible human rights community is siding with Ribadu, is it that they do not see what we see or do they justify his gross breaches of human rights on the ground that the victims are persons accused of official corruption?
The Nigerian Bar Association (NBA), recently called on the EFCC to aside rhetoric and bring all those who have looted the country's resources to justice. But giving that the EFCC recently said that the files on 31 former governors are missing, how feasible can the commission prosecute alleged looters?
The NBA is right and that is a call every right thinking Nigerian should or ought to make in ensuring that sanity and accountability are restored to Nigeria. About 31 missing files which contain the concluded investigation on past Governors, I am afraid that you may have to ask Ribadu who was said to have investigated them and the present management to whom it is alleged they were handed over to. I have no evidence or insight in either direction. But as you are no doubt aware, Nigeria is a complicated country.
Recently, there has been a clampdown on the media by the government. Channels was closed down for the story on President Yar'Adua's health and two journalists were arrested, while Leadership newspaper was ransacked by State Security Service (SSS) operatives, who carted away computers and detained three journalists, though have been released. The NBA had warned that government cannot determine the type of news the media should carry and when it should do so. How you do you see attack on the media affecting the country?
Once again the NBA is right, it is inexcusable to attack the media and close it down in such a vicious fashion as was done in the 'Channels' and 'Leadership' debacles. No matter what the offence of a media house may be, no person or agency, no matter how high or well to do he may be has any powers under the constitution to put an erring media agency under lock and key. The presumption of innocence under our constitution is considered sacrosanct.
Even if the charge against the media house is sedition, it does not under the present constitution invite a closure, the highest measure is to charge the offender to court and await the outcome of the court. The court may very well decide that the matter was not seditious or where an action of defamation is initiated, not defamatory, what happens at this point where the Press is absolved, yet interim measures such as closure or confiscation have been effected? Injustice at the highest level would have been perpetrated. I think that Government should have outgrown this military solution to media intrusion.
The ministerial nominees recently announced by the federal government, have evoked strong reaction from Nigerians, who had thought that what we needed at this point in time are people with proven record, who will help Nigeria attain its economic goal. Rather, what we have seen so far, are the same old faces that have been in government.
Also, after the list was released, the National Assembly promised that the screening will be rigorous, which is a far cry from what we saw during the screening. What is your comment on the ministerial nominees? Did the National Assembly live up to their duty with the way they screen the nominees?
I have very fixed position about the political process and how it operates in this country. I am yet to be persuaded that we are not running a one-party state. Even those parties that have managed to win seats or States were once off-shoots of PDP. They are now been manned by dissentients from the PDP.
Even the PDP is not run the way a political party should be. In strictly business terms, it is operated like a family business, a limited liability company, when it should be run like a public liability company, a PLC, this peculiarity leave it open to people who feel that they are majority shareholders and by extension owners of Nigeria.
This state of affairs discourages merit and rather encourages primordial or crude parameters, like 'loyalty', 'good boy' and 'godson' etc in the selection, nomination and appointment of political office holders. That is why spent forces, non-entities and downright unqualified persons make their way to ministerial lists. In most cases, persons' made ministers had at the time of nomination no visible means of livelihood.
This state of affairs encourages criminality and sycophancy. As for the National Assembly, so long as the President refuses to attach portfolio to each nominee, the resulting screening exercise will continue to be a farce and a breach of the principles of the constitution requiring that a ministerial nominee must be screened. The truth is that from the calibre of the nominees, it is not possible for them to answer technical questions about such portfolios.
Another point is that the President by the present mode of selecting ministerial nominees i.e. by nominations from State Governments run by the PDP, by privileged party bigwigs and by the President himself, is handicapped and can run the risk of national embarrassment in assigning portfolios before screening as in most cases he does not know these persons well and cannot vouch for their CV's. At any rate, it is the nation that suffers at the expense of patronage.
As a way of ensuring that cases are resolved faster, some courts have introduced front loading and even at that, some lawyers still come to court and take up to 30 minutes to adopt their briefs and repeat everything they have in their written addresses. How can we ensure that apart from the obvious institutional problems in administration of justice in the country, that lawyers are not allowed to circumvent efforts to make the system move faster?
The lawyers are solving their own part of the problem with the introduction of the MCLE i.e. Mandatory Continuing Legal Education. It is being made part of the proposed amendment to the Legal Practitioners Act 1975 and when implemented will ensure that all legal practitioners understand new developments in the law and can implement or apply it properly before being allowed to practice law.
The pilot program is currently being implemented and the Bar is not waiting until the law is changed before it trains its members. Now it is not possible to read out the contents of a written address in 30 minutes, such addresses take days or even weeks to write. What happens in the 30 minutes is an elaboration or emphasis of the written material and it is an exercise of great skill and ability for a lawyer to compress between 40-400 pages of argument into 30 minutes of oral submission. Because of the technical depth required some less gifted lawyers may not get it right, that is why an astute bench must come in to properly guide such counsel. But the truth is that it is wrong to place the success or failure of the electoral process on the judiciary.
They are not a part of the electoral process. It starts and ends with the people and the electoral body charged with the conduct of the election. The judiciary is merely an arbiter between persons who participated in the disputed election. Their judgment does not improve or diminish the quality of the electoral process.
Consequently once the electoral process has been adjudged flawed ab initio, nothing the Tribunal or courts say that will improve the process. Even if one of the candidates in a deficient election is preferred to the other, it does not clothe the preferred candidate with legitimacy as the process is transparently flawed.
The solution is to overhaul the electoral process starting with the people who sell their votes for money to the politicians and political parties who bastardise the system so as to lay foundation for looting and lack of accountability when they are eventually handed the reins of power. By and large, the judiciary has been denied in the past three years of serving the general populace because of the precedence election cases take above regular matters. The repercussion will be seen in the long term as this neglect will be regretted; people may increasingly resort to self help.
Aside the Practice Direction issued by the President of the Court of Appeal to make the resolution of election cases faster, which seems not to be working, as we still have election petitions on trial or appeal level, a year after the election, what should the authorities do, I mean both the Supreme Court/Court of Appeal by way of Practice Direction; the review/amendment of the Electoral Act or fixing a time limit for the conclusion of election cases to address the issue of time it takes to finish election cases.
Like I said earlier, the source or solution to the problem is neither the Tribunal nor the Court, it is the electoral process that needs to be overhauled and the judiciary is not a part of it. For those who are not familiar with the judicial process, they should know that justice is hinged on the principles of fair hearing.
This means that apart from the adjudicating body being unbiased, it is bound to afford the contending parties adequate opportunity to present their respective cases. In doing so, the court is not permitted to unjustly shut parties out under the guise that it is working on a time cap. Let me give you an example, a presidential election petition has as its constituency the whole nation, i.e. 36 states, 774 LGA's, 1 FCT, 6 Area councils, thousands of wards and tens of thousands of polling stations.
Because of the scrutiny presidential candidates go through, it is difficult to sustain a petition on grounds of qualification or unlawful exclusion of a validly nominated candidate. The only plausible grounds are those of corrupt practices, non compliance with the provisions of the Electoral Act and or petitioner alleging that he won the election by a majority of lawful votes. In respect of the first two, it is a standard requirement that the corrupt practice or non compliance was such that substantially affected the result of the election.
To meet these standards, a host of witnesses have to be called from virtually all the States. Tons of documents will have to be examined, admitted in evidence and read. The trial proper will entail numerous interlocutory applications, hearing proper and counsels' written submissions.
All in all, hundreds of thousands of pages have to be read. Judicial authorities and legal treatises must be examined, read, digested and applied and at the end of the day, a judgment written. All this in the middle of other assignments judges and lawyers have. Let us be serious, members of the legal profession involved in this process are also human. They do not absorb the contents of the materials before them by telepathy, they read them and it is time consuming. Consequently, politicians and their sympathisers cannot be heard to request for an overhaul of the judicial system in election cases without first of all calling for the conduct of sincere elections. If that were to be done or achieved, then it would be unnecessary to call on the judiciary to adjudicate on election disputes in the first place.
There is this concern that the re-run elections ordered by the tribunals/ Court of Appeal were even worse than the first elections. Do you agree?
That is exactly the point I have made above, the re-run and main elections are characterised by the same problems.
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