Daily Independent (Lagos)
7 January 2009
interview
Chief Fassy Adetokunboh Yusuf is the Editor-In-Chief of Law News, he is a renowned academic, journalist and one time Commissioner for Information in Ogun State. In this interview with Dolapo Oseni, he spoke on the award of Senior Advocate of Nigeria, saying that it is neither mandatory nor automatic. He also spoke on the implication of the judiciary workers' strike on litigants, lawyers and the society. Excerpts:
As a lawyer, how do you feel when government defiles a court order?
Well, fundamentally I feel unsettled, I feel concerned, I feel there is a return to a state of calumny where might is said to be greater than the Constitution. It is paramount that the Constitution must be swayed or adhered to. It is akin to being a banana republic where any specie can decide to conduct itself in a manner that is bereft of any orderly biological sequence. Also as a legal practitioner, a minister in the temple of justice I see it as a bastardisation and desecration of that temple, which is and ought to be held sacrosanct and sacred. If we allow the desecration and bastardisation of that holy temple then we have said goodbye to orderliness, justice and fairness as well as equity in the society.
Well this is my belief, but I don't know the premise from which the question was asked from, was it at the premise of the present administration or from the premise of the past administration or from the premise of our past experiences or from the totality of what we are experiencing within the body polity or within the society? So I think an elucidation on the precinct or the premise from which this question came from would allow me to offer a more elaborate decision on the question.
The question emanates from the decision of the Supreme Court. If the decision had gone the other way, many are of the opinion that the present executive will not honour the verdict, do you agree with this?
That question is hypothetical and it is speculative. In the legal profession we don't deal with speculations. Speculations isn't one of the aspects or areas we were taught in the Law School and it is not one of the areas lawyers, jurists and others within the legal profession are taught to know or to believe in. Secondly, government must have got no choice than to obey the decision of the Supreme Court because it is the last hope of the common man, it is the highest court of the land. A violation, disobedience of the decision of the Supreme Court would have brought in anarchy and the resultant effect would have been very unpalatable and unbelievable and again we cannot forget in a hurry the events that led to the crisis that ensued in 1966 that is the January 15 1966, which crept up and consumed many of our worthy brilliant and irreplaceable leaders, so no government in its right senses would disobey the order of the Supreme Court.
In recent memory it has never been done, I don't think if the decision had gone the other way round and in any case without holding brief for President Yar'Adua, he had said even before the judgment of the Supreme Court was delivered that he would not even re-contest, which means he would have fully obeyed the order. Because not obeying the order of the Supreme Court would have had monumental and dire consequences to the country, of course, he would operate in a state of calumny, what will be the result? One, there will be economic dislocation; two, there will be political disequilibrium; three, there will be social calumny and four anything can happen. The military can even come in because if the whole place is in disarray, our lives are not safe, we cannot guarantee security of lives and properties what will be the next thing and I'm sure the military cannot wait in perpetuity for sanity to be reinstalled. So, there could not have been any alternative for the government than to obey the order of the Supreme Court. I cannot even imagine Federal Government disobeying the judgment of the Supreme Court in respect to an electoral matter, especially when some parts are aggrieved. It is only when you have a majority decision that the polity would be disstabilised, but if the decision had gone the other way round I believe government would have obeyed it otherwise government would not have had any basis to be in existence.
The award of SAN has been politicised, do you agree?
Well, I don't know your appreciation or understanding of politicisation. Is there any shred of evidence to that effect?
At a time when the list of those that applied were released to the public, we saw the name of Femi Falana, but nobody knows what happened afterwards, as he was denied the honour of the award. Is it right to say the award is for the favoured?
I have told you that in law we don't deal with speculations and hearsays are hardly of any substance in the legal profession and, therefore, Femi Falana is my learned senior and friend, but I don't know the minds of those who screened him and others. I am not aware of the criteria adopted. Yes they would tell us there are certain things, but I was not in the panel, I didn't witness the proceedings, therefore, it will amount to legal rascality for me to be commenting on an issue I was not privy to. Yes, if I were to be a journalist that I was then I could speculate, but as a lawyer I cannot afford to speculate because my speculation may have profound effect on the society and it may be taken as the gospel truth. I need scientific evidence and proofs. I am supposed to say these are the criteria used and Femi Falana scaled through the criteria and because of politics or because of his involvement in social activism he was denied. Nobody told us why he was denied, so if they have not told us why he was denied nobody should speculate. Yes, journalists and the media may be excused for speculating, after all what makes news, it is when a man bites a dog that we have some news, but when a dog bites a man it's no news. So the media is in a position to market its products and what is its products - news, but being in the legal profession I am expected to market law, justice, equity and to do that I need evidence, verifiable evidence, evidence that I can defend, so I cannot be seen to be condemning the learned gentlemen that made up the panel, which screened them. Unless, it is made open. Don't forget they call it privilege, Legal Practitioners Privileges Committee, it is not a right. It is just like a national honour. You may be qualified, but for one reason or the other you may not be given. Unless it is said to be automatic, but now it is not automatic. The criteria may be subjective or objective depending on the perspective and the perception of those involved. So, unless we are saying let us make it automatic. Like, when you have clocked 10 years and you have maintained a high opinion about yourself, no adverse comment and you have not been taken before the disciplinary committee of the Nigeria Bar Association (NBA), but as long as it is called the Legal Practitioners Privileges Committee (LPPC), it is a privilege that may be given, withdrawn or may not be given. Just like the national honours, so many people are qualified, but how many people have been given national honour. So, let us be circumspect in our criticism. Let us not because we want to attract attention to ourselves embark on irrational, irresponsible and indefensible statements or arguments simply because one of us is involved. I as an individual wants to see Femi Falana like several others being made a SAN, but they call it LPPC, it is a privilege not a right, this simply means it is not mandatory that you are conferred. It has been on like that for ages, so why should we now be thinking of politicisation, is it because one of us is involved or one of the activists around. What about several others that are not activists but have been denied or have not got it? And I think we should help the man get the SAN status, but our comments, especially these adverse comments would not help him get it. In the legal profession, the more controversial you become, the more these gentlemen that are involved would run away from you.
The President is clamouring for the abrogation of immunity clause for public office holders, do you support his campaign?
Well, I think to a large extent I will endorse the clarion call for the removal of immunity clause, but it would be in so far as criminal prosecution, as the Supreme Court has made it clear that nobody is immune from investigation. The only thing is that some people, the president, vice-president, governor and deputy governor are immune from prosecution for acts done or undone while they remain in office. The operators of the system must be blamed for the present perilous, thievery or mafia state where people steal recklessly, irresponsibly and when people embark on an act of debauchery, stealing, act of kleptomania. That is stealing what you, children and grandchildren don't even need. It is because our law enforcement agencies have closed their eyes deliberately or without necessarily knowing because it could be deliberate or not deliberate. I don't know whether they are afraid of those in office or they are trying to justify their continual existence. Therefore, when they see our leaders committing act of debauchery and other vices they closed their eyes. What stopped them from thorough investigation even if these people cannot be prosecuted? What do we have, just making a mountain of a molehill? To the extent that we want a society that is free of corruption that is to a manageable extent. To the extent that we want an egalitarian and just society we should eliminate corruption. That wouldn't eliminate corruption. It is only when we have a government that is willing, that has a political will and the wherewithal to tackle corruption holistically not a government that will turn deaf ears. The issue of immunity clause came into the Constitution from 1979. It was not in the Constitution we operated between 1960 and January 14, 1966 when the military made its infamous incursion into the body polity. And ever since it has been a movement from one abyss to the other and to remove the kleptomaniac situation I endorse that call, but we must guarantee that our leaders, especially the executives are not distracted by frivolous suits or litigations. Therefore, civil litigations could wait until when they leave office, but criminal litigations should not be allowed to wait for one minute. Once there is any evidence that the President has corruptly enriched himself, he should be made to face the wrath of the law because democracy is all about subjecting ourselves to public scrutiny if it is government of the people with the people being involved, with them electing the officials then they must be accountable to the people, the day they stop accounting to people is that day that we can say goodbye to democracy. Therefore, the removal of immunity clause in so far as corrupt practices are concerned should be welcomed by all.
As a lawyer, how do you see the travails of the former EFCC boss?
There has been several sides to all these, some are saying these travails are staged managed, some are saying they are media hypes and some are saying they are real. I have not had the benefit of being involved in any of these things. I have not witnessed any but let us even base our discourse on what we hear from the media, could it be real? The man has not spoken, therefore, how do we know the issues at hand? How do we know that it is not the handiwork of the fourth columnist that somebody is being sponsored to do all those things, I don't know because I am lost. A time was they said Ribadu has fled the country and all of a sudden he surfaced and the same media is saying he was within the country, so what are we to believe. I read the other time that his name was asterisked, they put AIG against his name, which was the rank he was wearing when he went to Kuru, but before graduation he was demoted to the rank of Deputy Commissioner of Police (DCP) and his name was asterisked. Well, there has not been a confirmation or denial of some of these things, so they are media speculations. As I said as a legal practitioner, it will not augur well for my profession to start speculating based on what was being said by the media. The media cannot be 100 per cent accurate, it is for us analyst to chronicle the events and be able to read in between the lines, but assuming it is not true, it is also unfortunate whichever way you look at it, it is unfortunate because if it is mere media hype then somebody somewhere is being mischievous and if it is true somebody somewhere is trying to be unkind and unjust not only to Nuhu Ribadu but to Nigeria and the society at large. If it is true that he is being victimised and harassed then people will not want to serve this country, I mean those that mean well. Again, those people that he had to deal with or he had to arrest and prosecute wouldn't have any sense of remorse rather the society would be the worst for it because they would decide to now believe that after all what happened to those people at the end of the day the man that was sent after them became a victim, villain, the man that was now being harassed, hounded and treated with disdain. It is my submission that government is not managing its information machinery properly. Otherwise, all these things should have been well clarified. With absolute modesty, I have been opportune to serve this country and my state, Ogun State, as a commissioner in charge of information. Information is not being properly managed, I don't know if the problem is with the information managers or those in authority that are supposed to be given information, but I will blame those managing the information. So, I think it is necessary that we know what the issue about Nuhu Ribadu is all about. But if you talk from the premise that he was unjustly promoted, is it right to now demote him after three years? Have we not had instances where people are promoted over and above their contemporaries? Was Yakubu Gowon not promoted from the rank of Lieutenant Colonel to Major General, was he not promoted from Major General to the rank of General skipping Lieutenant General, Brigadier General and Colonel? Was Shehu Musa Yar'Adua not promoted from the rank of Lieutenant Colonel to Major General and several others like my good friend the IG, Mike Okiro, was also promoted from the rank of Commissioner of Police to Deputy Inspector General of police and there has been several instances. It is the prerogative of the President to promote top echelons and Nuhu Ribadu was sent to the EFCC to do a job there and that job is over and above the rank of an Assistant Commissioner of Police (ACP) that he was wearing at that time, therefore, if the Police High Command thought him good for that job at that time and he was duly promoted, why should that create a crisis now? To me what we are witnessing now is a diversion and distraction from the issues at hand. The police have onerous responsibilities to secure lives and property. Now life and property are no longer secure in this country. The police should put on its thinking cap. They should be more creative, strategic in crime prevention, control and management rather than getting itself involved in individuals. What they have succeeded in doing is to make Nuhu Ribadu a hero. He may be deserving of being a hero or he may not. We should allow history or posterity to take of that, but right now they are making that man a hero. I bet you today if Ribadu drops the police uniform, go to contest an election, he will win. And the other argument to me is balderdash that his treatment of criminals was lopsided and unevenly skilled in favour of those against the government of the day. In my own opinion, does that remove the fact that somebody committed a wrong or criminal act? Why should you in the first instance commit a criminal act? All those people prosecuted so far by Ribadu were found guilty and convicted, that in itself was a pointer to the fact that these people committed acts against the laws of the land. So, I don't buy the idea that he was selective with his haunts of corrupt public officers. Well, if he was then Federal Government should equally be selective in treating criminals, then another government will come and be selective in treating criminals and at the end of the day we will get criminals out of our system. They should not make individuals heroes that they don't deserve to be. If I were Ribadu, I would be quite happy with myself because he is setting agenda in this country today and he is just an individual. Even if he were to be an AIG, how many AIGs do we have in this country? We have about 20 or more, so why one AIG should be made a hero in this country.
The review of the 1999 Constitution is ongoing, what specific area would you, as a lawyer, want amended?
In my opinion, the Constitution is perfect, the operators are making nonsense out of the Constitution just as we did in the past. What is wrong with the Constitution? The only aspect that I see is self-determination, which should be made more flexible, if people are clamouring for more states, let them have it. For example, if they want to amend the Constitution, they need two-thirds endorsements of the National Assembly and the state houses of assembly. That is 24 states will have to endorse the amendments. To me, unless we have some fundamental issues because issues on creation of local government should be a function for the states. The Federal Government or the Constitution has no business with local governments. Let the states if they like make every street a local government, it is their business, but then they should think about development rather than giving jobs to the boys. So, in my opinion and to the extent that we are saying that the people who are not involved in the 1999 Constitution, we may now decide to get a Constitution of our own, but then we are talking about Constitution amendment not review. If you are reviewing the Constitution, it is different from amending the Constitution. If we are amending, let us amend holistically, that is to take care of all the lapses observed and the imperfection, especially in its creation, conception and its delivery because it was conceived and delivered by the military so it cannot be a Constitution for the people, by the people. So, we the people or rather we members of the armed forces, ruling elite, top echelon, ruling junta or we the kitchen cabinet have decided to give unto Nigeria the following Constitution. We may change that and treat it holistically. Yes, it is the Constitution adopted by the people and for the people.
How do you feel about the proposed establishment of the Lagos Court of Arbitration?
Well, arbitration as you know is a sort of intervention and it is to reduce the time that one uses to secure justice. We have always been saying that there must be an end to litigation. If we want quick dispensation of justice, arbitration and reconciliation are faster means of achieving justice and equity. It is a sort of a win-win situation because most of our people when they go court, they come back being enemies, but if it is arbitration both parties would leave the place with smile. It is less cumbersome, technical, demanding, time consuming, financially tasking and it allows for a better appreciation and better understanding of the situation and to that extent for other reasons that are akin to justice, equity, fairness one would support any issue that has to do or seeks to promote arbitration and reconciliation in the society.
What is the implication of the ongoing strike of judiciary workers across the country on the society?
It is quite unfortunate, but then we live in a society that is difficult to understand. The society is devoid of thorough comprehension. I cannot comprehend because when it pleases our people they talk about federalism and unitary system. Now what the judiciary workers are talking about is unitary system of government, they are saying that they want uniformed payment that is whether you are in Sokoto, Abuja, Port Harcourt, Kebbi or Lagos. For example, the standard of living in Birnin Kebbi is different from that of Lagos and some other states. In some other places you can get a flat for N30, 000, but in a place like Lagos or Abuja you cannot get a flat for less than N600, 000 and they are out there looking for the same pay structure. Is that in tandem with federalism? I think we must sit down as a country and educate ourselves on the right thing at the right time because in America we always have wage discrepancy, there is no uniform pay in U.S. What you get in a state like New York is different from what you get in a state of Alaska, this because the standard of living in Alaska is different from New York. So, if a state has no power to pay, what happens? By the time they finish this strike now, they will have a clause - 'nobody should be victimised on the account of his/her participation in this strike. They will now get paid for two months without doing anything. Who is the loser, the society is and that is why we are not making progress. If people are ready to withdraw their services then employers should be ready to withdraw their pay. This is part of the dislocation we have in the society, I don't support the strike, apart from the aspect that litigants are suffering and lawyers are not able to earn a living. The strike is further destroying federalism and with their actions federalism will be eroded. It is a constitutional matter and since government said it is not within the budget, how do they expect to be paid and we are not operating a military system of government where the rule of the tongue would be the order of the day. I don't see why my tax should be used to pay those that didn't work. The society should be more circumspect, especially the government in handling this issue.
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As part of their requirements to qualify for a SAN status should be a set number of billable hours dedicated to Pro-Bono representation, as our new heroes - Chief Gani Faweihinmi, Chief Femi Falana, Chief Dosunmu and 37 other lawyers have dedicated themselves to represent Mr. Ribadu, free of charge. Other SANs could emulate this worthy service by devoting time to represent our poor indigenes who have legitimate case of abuse and oppression but lacking the financial wherewithal to afford good attorneys that only represent the rich and powerful - a habit that Aondoaakaa has gotten so used to that he turned the carriage of justice in Nigeria on its head. For instance, pro-bono work could be dedicated to class action lawsuit for People versus FGN on gas & oil pipeline explosions that have killed thousands of our poor. Or pro-bono representation of the poor People of the Niger Delta versus MNE-Oil Companies that pollute our waters when their Oil Tankers leak like a faucet or refused to cap their wells to avoid gas-flaring that pollute our air. If a democratically elected civilian govt could do to a lawyer what Yar did to Mr. Ribadu, can one imagine what a “Ruler” would and could do and get away with murder of a poor man/woman. Therefore, Pro-bono work is also needed in representing the poor souls jailed without trial or without any charges proffered, but based on unproven allegations. I am sure that there are millions of our poor people that are been oppressed daily by the rich & powerful but for their lack of money to afford a good attorney that could successfully demand justice for those too weak to speak for themselves. Justice is supposed to be blind and he who comes b4 the Equity court must do so with clean hands. Aondoaakaa's hands are so dirty it pollutes our justice system which makes me sick to my tummy. One SAN that deserves to lose his SAN status is Richard Akinjide - perhaps old age has robbed him of his faculties.