27 November 2018

Nigeria: Ernest Maduauchi Ojukwu (SAN)

opinion

Forthright, bold and upright, Prof. Ernest Ojukwu (SAN), popularly known as 'teacher' by his numerous admirers is a man who does not like to mince words when it has to do with legal education. He pursues his goals with passion and vigour. In this interview with Assistant Editor, Law and Foreign Affairs, JOSEPH ONYEKWERE, he criticised successive leaderships of the Nigerian Bar Association (NBA) for not showing much interest in how law is taught at both the university level and law school as well as in the training of its members. He also harped on the need for transparency and accountability in the appointment of judges as well as in the finances of the largest body of lawyers in Africa among other issues.

A lot of stakeholders have always complained about the mode of appointing judicial officers in Nigeria, harping on the issue of transparency. Why are you raising eyebrows about the recent appointment of National Industrial Court judges?

It is for the same reason, which is transparency in the appointment of judges. The first step under the NJC Rules is for the Federal Judicial Service Commission to advertise a call for expression of interest stating the final date for submission and where to submit the expression of interest. That advert is required under the rules to be by way of notice on the website of the Federal Judicial Service Commission, Notice Board of Courts and NBA notice boards.

The Secretary of the Federal Judicial Service Commission is yet to comply with the rules on the appointment of 20 additional judges of the National Industrial Court of Nigeria. If we cannot get this simple process implemented correctly, then it would be difficult to convince a reasonable man that the appointment of judges follows transparency and open government principles. If you look at my campaign manifesto for NBA presidency I wrote that for the legitimate protection of the judiciary, we shall first drive the judiciary to self-cleanse by getting them to reset their governance mechanism and appointment of judges at all levels to be open, transparent, and accountable to the public. This is part of my own contribution in the public interest.

Do you think that the judiciary will respond to these issues?

I don't see why the judiciary should not. Good governance is not only about other arms of government. The judiciary is in fact the first arm that should be managed in open, transparent and accountable manner. It will be a tragedy if they don't run an open government. The rules made by the NJC on the process of appointment of judges are clear, simple and specifically made by members of the judiciary for a transparent process. There is a good example from Abia State that was published recently. In that of Abia- the State Judicial Service Commission advertised a call for expression of interest for the appointment of additional judges for Abia State High Court. The notice though not on any website was placed in the High Court boards. The notice fully complied with the NJC Rules in terms of contents.

Once you read the notice, you will immediately know what to do as a candidate. You are not left to speculations and you don't need to go sniffing around to know what to do. If the judiciary fails to comply with their own rules we are doomed.

To what extent, in your view, has the National Judicial Council (NJC) helped to enforce regulatory compliance on the appointment of state judicial officers because some states have been accused of infractions?

NJC only acts on the names of nominees submitted by State Judicial Service Committees/Commission. I will like to see NJC make rules that will make it mandatory that the proposed lists are published on websites and newspapers and courts/NBA notice boards and the general public allowed some time to comment. Judges are not ordinary people or ordinary politicians. The process of appointment must be made more open and transparent. Nigerians should have a say on each individual proposed. Once a wrong person is appointed, the possibility and probability of correcting the wrong is very limited. The process and the actual judges we appoint is key to the independence of the judiciary.

You recently wrote to the NBA, demanding accountability for incomes and expenditures of the association. You also asked for the breakdown of a whole lot of issues. What informed the decision?

Openness, transparency and accountability! For some years now, NBA has been run and managed badly. We have shown very bad examples to the nation on bad governance.

What is the outcome of your letter? Has there been any response?

I am yet to receive any reply or response. I sent ten letters that requested fifteen records on finances and accounts. Some past leaders misused our funds and kept improper records. We have to change that culture of not being accountable.

Some may be of the view that your request is as a result of the fallout of the last election in which you contested and complained of being rigged out?

There is no problem about such a view. It does not matter. I am focused on the goal. My campaign manifesto for NBA President had themes on NBA good governance and judiciary's accountability. If you look at my Setting a New Bar statement on governance I proposed managing an open, transparent, democratic and accountable leadership based on: (1) Prudent management of funds; (2) All expenditures must be based on the approved budget; (3) The budget must be published openly on our websites in advance of approval; (4) Maintenance of professional records of accounts; (5) Timely professional auditing of accounts; (6)Timely publication and wide circulation of statements of account on NBA website and through other media for every member to have access to it; (7) Publication (using website and other media) of all proposals and issues for decision making in advance for all members' attention; (8) Creating wide opportunities for consultations, robust discussions and debates of issues.

As a senior member of the bar, I'm sure you must have heard about the NBA audit report. What do you think about the revelations in the financial statements?

Some of us have always known that the NBA has been badly run. The last leadership was merely making speeches upon speeches about how bad our accounts were kept by their predecessors but sadly the financial audit speaks so badly of the immediate past regime. It is a shame.

You have repeatedly advocated the inclusion of ethics in the curriculum of the Nigerian law faculties. To what extent do you think such course of study would impact on today's lawyers?

Great outcomes will be realised. Ethical lawyers are not born, they are made. I also advocate the reactivation of the mandatory continuing legal education we started in 2007 and practically stopped in 2010. Under that programme continuing training on ethics is a compulsory part of the curriculum for qualified lawyers.

But you have been making calls for ethics teaching in the law faculties for many years in the past. Why are law faculties reluctant to introduce ethics as a course?

The first problem I can say is that for over 50 years we have taught law without any clear goal. So I have also been pushing that our programmes should identify clear goals that should include qualifying lawyers that are conscious of ethical issues and social justice. We must also agree that legal education at all levels must be taught in an integrated liberal art and vocational training to be able to have competent lawyers. If we do this, the law teachers and legal educators will then see the urgent need to integrate ethics and professional responsibility in the programme. As far as I am concerned, you cannot be a competent lawyer without being ethical. You cannot claim to be a competent driver yet you don't obey traffic rules. Law faculties must understand this goal of producing competent lawyers that will serve clients and our society in different spheres and they must be ethical lawyers.

Does the Bar have a role in ethics education?

The Bar has too much to do but we have had an inept bar for some years now. The leadership has abdicated its principal roles and has been chasing shadows and personal gains. The Bar has shown total disinterest in how lawyers that join them are trained in the universities and the law school. In the same way it failed to focus its energy on the continuing training of its members even though we established the Institute of Continuing Legal Education back in 2007. Any professional organisation or association that fails to deal with issues of education of its members is a failed organisation. The Nigerian Bar Association is one such failed organisation. In other places where we have living Bar Associations, they take the training of law students as their primary role. The American Bar Association for example has a blueprint on legal education at the LLB level and any Law Faculty that does not conform to that blue print is denied accreditation. Meanwhile the American Bar Association accreditation has no legal backing but because the Association has shown relevance, no Law Faculty in America toys with the American Bar Association accreditation. Here in Nigeria, NBA has no legal education blueprint even though the Association is represented at the Council of Legal Education by the top leadership as the President and Secretary. In fact in the last two years the NBA President has been acting as the Chairman of Council of Legal Education. If we get our legal training right we will get the profession right.

But you can teach something and yet the person will act in another way. Is that not true of ethics?

Yes talking and doing are not the same but talking goes a long way in shaping actions. Ethics is one challenge in the world that rests on a good percentage of continuing discussion as a first and major step in shaping orientation or re-orientations. When I was Head of Nigerian Law School Agbani Enugu, I made talking about littering a major programme. I have heard many testimonies from practicing lawyers that attended that Law School Campus that not littering any environment is one major life-long practice they imbibed as students under me. At the end of 2017 I conducted a survey among lawyers to name top ethics issues they want on the front burner for tackling by the Bar.

Lawyers named the following out of 45 ethical challenges: Bribery of judges by lawyers; delay tactics in court/using litigation as an instrument of delay/delayed trials/file frivolous applications to delay trials or executions or proceedings; Bribery of court personnel for processes; Lawyers' active role in disobeying court orders/blocking enforcement of orders and judgments; and rudeness to other colleagues/Impolite attitude. If we immediately begin having focused workshops on these issues, you will see in a few years how these challenges will decline, just by engaging each other in discussions over these issues.

If you are asked to propose a way forward on dealing with ethics challenges in the legal professional, what would you propose?

I will just reproduce my blueprint which includes: Pursue with vigour the enactment of the Legal Services Commission Bill pending in the National Assembly in order to give a stronger impetus to our disciplinary process. Under this bill, the disciplinary process has been taken away from the Association and placed in the hands of an independent organ whose tenure and autonomy shall not be affected by changes in the leadership of the NBA; Conduct very vigorous investigations relating to discipline; Pursue proactively the reform of our law to permit the establishment of ad-hoc multi-disciplinary committees sitting at different locations of the country at the same time; In the interim, reactivate NBA Zonal investigation committees populated by only persons of impeccable character and integrity those committed to helping to achieve the goal of setting a new Bar in the finest traditions; Get the Bar Council to enact new Rules of Professional Conduct as quickly as possible; Present an NBA ethics education blueprint and curriculum and insist that ethics education be made compulsory in our LLB education; Conduct ethics training workshops for Nigerian law teachers; Reactivate the Institute of Continuing Legal Education, which I set up for the Bar in 2007.

The ICLE Rules of 29th June 2008 makes ethics and professional responsibility, 4-credits CLE in a reporting period. We shall conduct free ethics workshops for members; Make our anti-corruption commission come alive; Organise ethics-based competitions for young lawyers and for law students; Actively and progressively focus on the corruption in court registries and on the bench and activate a strong and sustainable Court Monitoring Programmes. There is need to also encourage and support a network of lawyers and other civil society groups on anti-corruption and work for anti-corruption in the nation's life but we shall start vigorously with our profession.

You are an authority on civil procedure rule. What do you think of the controversy concerning the new Lagos rules, which seek to penalise lawyers for stalling proceedings?

I am a great supporter of the new rules especially the rules on penalties for delay tactics and default. We should stop shedding crocodile tears and honestly deal with the scourge and cancer of delayed trials and litigation process. Most of our challenges on delayed dispute process are based on unethical conducts of lawyers. Our process of dispute settlement is a measurement of whether we are a failed nation or not. The way the legal profession has failed to tackle this problem is a disgrace. Reasons for adjournments may be from the court but for adjournments that are not caused by the court, the clients are responsible for less than 10 percent. The rest are caused by the lawyers representing the clients either purposely to delay trials and processes or based on lack of preparedness or incompetence. Those opposing the new rules of Lagos State are retrogressive. The chief judge should be commended for her boldness with this the new rules.

Over 5000 new lawyers will be called to the Bar this week. Out of the number about 161 passed in first class division. Is the number of first class too high? Does it speak good or bad of our standards?

I surely applaud the Nigerian Law School and the new Director-General Prof Isa Chiroma (SAN) for this result. It portends good signs. The number looks too high based on our history of "hoarding" reward for our students in this country and making first class look like something you can only get from hell. But if you look critically at this result, the percentage of first class to the number that sat the examination is just about 2.7 percent. This has not even met the minimum curve for institutions that apply curve grading. I have been part of legal education as a teacher since I was 25 years. We have very bright and brilliant students in this country but our method of teaching has killed many potential bright students and stultified their growth and career. If you engage students in very active learning, they do better than inactive note learning. How do you expect students to do well when lessons are just note dictating and note writing exercises, which many law teachers embark upon? The Law School has improved its teaching methods to more active students centred training though there is still a lot of room for improving what they are doing especially with teaching in small groups away from the present stadium lessons. The Law School introduced for the first time a full-blown curriculum in 2008 and teachers teach all subjects with lesson plans that are published to students. Students know the lesson outcomes in advance and prepare pre-class activities to achieve those outcomes. The examinations test those same outcomes too. In any case you do not judge the standard of any training programme with the number of first class you produce. Most first class students are self-made. Our focus should be on the performance of the below average or average students, the curriculum that is not contents-driven and the introduction and management of active students centred experiential learning in both our LLB and Law School education. We should worry about the teaching of skills and values, the integrity of the process of learning and examination and the integrity and discipline of our law teachers all over the country.

What do you think will be the solution for the alleged brutalization of lawyers by security agencies, especially the police?

Again if you read my manifesto I stated that: the way forward is to begin with friendly engagements such as - meetings with the highest commands of all law enforcement and security agencies; agreeing and signing MOUs on Rules of Engagements of lawyers at police stations and other places where clients are held or questioned or detained; Insisting on strict adherence to the provisions of Administration of Criminal Justice Act (Irrespective of location - State or Federal Territory); Supporting the training and continuing training of law enforcement personnel on human rights, rule of law and ethics; Developing and advocating the use of modern model human rights curriculum and outcomes-based teaching methods in all security agencies' training institutions such as the Police College, Police University, Army College, Nigerian Defence Academy etc; Beyond friendly engagements, we shall if need be, pursue other legitimate processes such as massive litigation, and other strong public advocacy confrontation strategies.

What are your thoughts on the just flagged-off campaign of the two major political parties?

The parties are actually platforms for elections and not real parties. They are brothers of the same mother and father.

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