11 November 2012

Nigeria: Judiciary Can't Survive Multi-Billion Naira Election Petition Corruption - Agbakoba SAN


Olisa Agbakoba, SAN, a former President of the Nigerian Bar Association (NBA) and member of Presidential Committee on Flood Relief, in this interview, spoke on the proposal for regional Supreme Court, culture of impunity in the country and other sundry issues. Excerpts:

You recently proposed that states should have their Supreme Courts. Is this workable?

My proposal that there should be state Supreme Courts is embedded in the concept of Nigeria's failed democratic experience. There is no question that Nigeria is not doing well. We will all be kidding ourselves if we say that this country is doing well. On any of the indices that you care to use, so a lot of discussions are taking place as to why that is the case. Civil societies talk about sovereign national conference which I personally support because it is something generated from popular participation. Unfortunately Civil Society doesn't have the energy because we are being overwhelmed by the political might.

What is playing out is one of the most dangerous games we have seen in Nigeria. The elite that are very few and mostly Abuja-based are not about to lose power. These are the guys who dominate the trillions of naira that we generate and the poor are excluded. So talk about constitutional review frightens them, because what they did was to arrange some kind of limited process which is okay at least we accept it, which is now taking place at the National Assembly.

So what we have done in the civil society is to lash on to that process and say what is it that we need to do to make Nigeria robust? What we need to do is to deconstruct the power center in Abuja and begin to put it back at the basis and because Nigeria is a diverse country on three lines -ethnic, language and religion I simply located what Dr. Alex Ekweme said many years ago that there are six geo-political zones and that these six can form the bases of new regional arrangement. So if this is acceptable, then the six geo-political zones will be formed. When they are formed, they have to run as political entities. So you have to come to Abuja where power is located centrally - the legislature, national Assembly, the Presidency and the Supreme Court and take some of those powers away and put it in the six regional centers. That's when I talk about the Supreme Court. You will divest the Supreme Court of powers to decide matters that are purely regional based, such as land disputes which will be better decided at the regional levels where they understand the issues not in Abuja where they don't understand the issues.

That is the formula America has adopted where they have State Supreme Courts. The other advantage of this is that it makes things go faster. So don't just concentrate on the judicial but also on the legislative and the executive levels. On the executive side, I question why NASS will legislate on Drivers License, for a man who is driving a car in Nnewi, so you give it to the regional Assembly. Why will the FG and NASS legislate for a person who is marrying in Kano? So that is the only way we can free resources. It happens everywhere including the UK. So that is the model that am pushing. It is simply about devolution of power. When you do so there will be six centers of development and Abuja, So that all the roads will not be built here.

You have also proposed a "fly Nigeria Act" but which has been criticized. What are your reasons?

We need a business model, this model that recognizes that Nigeria cannot be open for all to come and chop, and this model that I propose, happily is the model adopted everywhere else. In the UK, the business model excludes non-British citizens, the America where they talk about free enterprise.

When I proposed Cabotage to exclude foreigners in our domestic waters I was criticized. Why do they have the Jones Act in America that excludes? So every country has to have protectionist policy, and give a right of first treatment to its own nationals, there is no question about that otherwise why am I carrying a Nigerian passport if I can compete with British citizen in Nigeria?

So clearly our economic model must give our own people some preferential treatment otherwise the next thing we find is that British Airways will not only be flying through Port Harcourt, Lagos and Abuja, but will soon start flying around the regions and kill all our domestic airlines. So there has to be an opportunity for Nigerian businesses to develop and that is done by creating a preferential treatment and the EU recognizes it.

How successful is the Cabotage Act?

It has been a failure because it is one thing to create policies that will generate Nigerian business; the more difficult one is the discipline of execution. In other words, implementation. Referring to the Cabotage Act is not the best example. The best example is that the FGN proposes a budget of trillion naira every year, but it does not even have the skills to implement it.

A country says we shall spend N5 trillion on our people, they set aside that money and the only problem is that those assigned the task of spending the money, let us assume even corruptly, cannot even do it. It is laughable, the country is downhill. You cannot even implement what you say that you have set aside for Nigerians. So when you talk about Cabotage, it is not working because we have very high levels of incompetence. People don't understand that corruption is less our problem than management. Our biggest problem is poor management, not corruption. How much time does a typical government official spend on his job?

In the case of Nigeria's developmental agenda, where it is not easy to measure on a daily bases, we don't know the damage public officers are doing to us by never being on seat. I want a study to be conducted, but from my general assessment, few public officials spend 10 per cent of their time in the office. If I spend 10 per cent of my time in my chambers it will be affected. That quality time, we are unable to understand the power to focus on our job. Discipline and execution and the sense of urgency. That is a bigger problem than corruption, because that is taking away a lot of investments that government could have passed to the people.

I spoke about the non-implementation of the Cabotage Act almost two years ago, nothing has changed, all that has happened is committee upon committee. Presidential committee on maritime reform, ministerial committee on Cabotage sector reform, various committees will meet and pass resolutions with various reports but nothing at the end. I wish that the president will see that as most urgent challenge- management.

Can we have a judicial reform without resolving the issue of Justice Ayo Salami?

We can. The reform agenda in the judicial system can go on, but it is simply not fair not to conclude the Salami process and, honestly, as a NJC member, I don't see why the NJC cannot simply tell him (Salami) to go and resume because we have the power. We have said that the removal was unjust because everybody who decides any case has a duty to act fairly and without prejudice to the merit of his case, which we did not deal with. The question whether or not he was an ACN judge, we never dealt with that. We simply reviewed the way in which he was removed and the reasons given and came to the view that they were wrong. So he ought to come back. I even think that the NJC, if the tenure of Justice Adamu Dalhatu expires, will simply ask him (Salami) to come and take his seat.

Would you say that the process of appointing SANs is transparent? How transparent is the process?

It can be better. We need the process to be enough to generate confidence. Transparency means open and so right now it is not. I feel that the Bar should participate fully. When I was the president of the NBA, I thought that the NBA President should be the fifth statutory NJC member after the CJN, President Court of Appeal, Chief Judge Federal High Court and AGF, because the SANs are from the Bar.

Then, why won't you take their views?

I couldn't reconcile the fact that here is an award for the Bar and you don't consult them so that there has to be a spirit of openness, transparency and accountability. When you appoint somebody sick people will say "that is it". To get national acceptability the process must be transparent. Also, everybody that is qualified should be awarded the rank and that will also reduce the tension. Today, we are just 200 SANs. Every year, about 80 would be qualified and we can take it. I recommend if you are qualified you are in as it is done in England.

Before now, we saw you protesting on the streets. Do we still have the culture of impunity that warranted such street protest?

Misgovernment, failure to implement the budget, the growing poverty, there is more poverty here now than under Abacha. The currency was more stable than the present time so the culture of impunity is there in a different way. People ask me why am I not as active as before? The reason for that is that the nature of impunity has changed. The impunity of military era throws up only one answer, using aggressive tools because the military has no ear to listen. That's what we did and we had all those street protests and demonstrations. The type of opposition and protest required under a pseudo-democracy like ours is different because there is, at least, a nominal parliament, so that if the parliament refuses to accept the notion of Sovereign National Conference, going on the streets makes no sense, you should use the opportunities that the constitution offers to engage. So it changes it. Then what makes you notorious is that you have a black eye, bruised and have been tear gassed, that was good but you can't keep doing that because you will not succeed.

Now the President can put you on various committees the fact that you are sitting there is something and in the various committees I have served there have been engagements but that is not enough, the most ideal is to have a strong political party that can present an alternative to PDP and I hope it will come. Because if you do not have alternative party the ruling party will always have the culture of impunity and there is nothing anybody can do as it becomes like a military rule. That is why I don't like staying in Abuja because you begin to think that everything is well but when you go away back to your base you will see the problem.

You talk about Nigerians being poorer now than they were under the Abacha regime?

Yes. What I have been thinking about of late is how Nigeria can get out of its poor condition. It worries me that we are such an endowed country in the world. Number six on oil, third on gas, yet we don't see it. It is disturbing that at my comfortable level I cannot share the same aspirations as 155 million Nigerians. The Nigerian experiment ought to be reviewed, that is the biggest challenge. How do we build an economic model that will save Nigerians from biting poverty? We have to do that. There are all sorts of committees but they do not deliver.

How far has the Presidential flood relief committee, of which you are a member, gone with its assignment?

It is essentially a post-impact committee, the short term palliatives have been delivered through the N17 billion fund released by government to the states and other agencies. Our work will really start when the water recedes. The first challenge now is that of internally displaced persons who have left their homes and need medication, water, food etc so all these government committees are looking at that ours will come fully when the waters go. What do you do to the collapsed roads and housing, how do we rebuild agriculture, that's our job, so we are looking at N100 Billion and we will conduct an assessment tour next week of the 21 most impacted states which will enable us have eye to eye engagement and in doing so we cannot go empty handed, we have to go with their needs even though that is not our immediate job. On 8 th November the President will host a fund raising dinner to which Alhaji Dangote and myself will chair and we hope to raise N100 Billion. When the money arrives, we will go into development challenges that our committee has been tasked with.

It has been suggested that only retired judges should sit on the panel of election tribunals, because they have nothing to expect from the government while serving judges may still expect something from the government. Do you agree?

There is an assumption that election disputes are legal in nature. They are not. Having taken part in a lot of election disputes in Nigeria, the political gladiators, understanding the vast resources that will come to them, have corrupted the court system and it has become a platform to extend the contestation. So it does not matter who you put there. If a retired judge, who has no house, is offered N300 million, he will be more susceptible to taking the money than a judge in practice. All we need to do is to control the problem. Politicians are ready to spend N5 billion, so what type of judicial system will survive such onslaught. It does not matter whether you put serving or retired judges; the problem is that the politicians are corrupt. Election petition process defies legal solution, it has broken up. If a man has N2 billion to corrupt the system, how do you stop him? And his party is behind him?

The only way you can stop him, and that is why we should give credit to late President Yar'adua. He was Nigeria's best president - humble, not developmental. He slowed things down, by now the madness would have gone to a point that if you deliver a judgment against me in Court, you can be shot as a judge. Yar'adua slowed it down by acknowledging that his election was flawed by setting up the Uwais panel on which I served that brought in this new process. Jonathan sustained it by bringing the Jega INEC. So, we can hope to keep building a fair electoral process. Once that is there, then the judges will be spared the chances of being corrupted by politicians.

Before now, our judges were respected. Have they been able to live up to that challenge?

We have to be fair to judges. It is not only judges (who are corrupt). It is everywhere; the system has decayed. When my old man was Chief Judge of Eastern state, he delivered a decision in which the authority of the day did not want to obey and he issued a bench warrant against everybody. You cannot have such brave judges anymore because the way you are appointed is corrupt. Nigerian system has declined. Judges are no longer who they are, lawyers are not, and journalists are not. If you stay here in Nigeria for medical treatment, you are on your own. Everything has been polluted and corrupted. We have declined so badly that it is a big shame and a cause for concern. Why is it that we have the assets and we are still where we are?Top of Form.

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