23 April 2019

Nigeria: 'Courts Have Usurped Role of Electorate in Determining Who Becomes Public Office Holder'

interview

Prof. Akin Oyebode, an international lawyer, believes that the electoral system should be such that ensures that the electorate determine who governs them instead of the courts. In this interview with SUNDAY AIKULOLA, he lamented that with the myriads of electoral crises across the country, it does appear that the courts have usurped the role of determining who becomes a public office holder. He also spoke on other interesting and topical issues.

How can the nation's judiciary be free of corruption and bribery?

The Nigerian judiciary is part and parcel of the Nigerian society. Judges don't drop from the sky. They are recruited from amongst the rank and file of legal practitioners, but that is not to absolve them from the odious charge of corruption because judges are God's representatives on earth. Judges sentence people to death. So it is a lofty position and they pass judgment on their fellow humans.

As Caesars' wife said, judges should be above board, that is, once you go into that calling, you become a servant or minister in the temple of justice and justice has to be dispensed in furtherance of the judicial oath. That is without fear or affection to anybody. It is almost a sacred position and when you enter the courtroom, you see the architecture of the courtroom.

The judge sits at a high elevation compared to the rest of the court. Judges are not supposed to be contaminated or be influenced or compromised by litigants. They should look dispassionately at the point being canvassed by the litigants and apply the law to the circumstance of the case.

Before you enter a court house, you see a figurine of "Themis", that is the Greek goddess of justice, a woman with sword on one hand and scale on the other blindfolded to do justice to all manner of persons without ill will or favour. But these days, corruption has made people suspect that Themis tilts her scales in favour of one litigant or the other.

Critics also say that Themis removed the blindfold so that she can see the litigants coming before her. Like the old Romans used to say, 'Fiat Justicia Ruat Celum'! That is let justice be done even if the heavens fall.

So justice is the acid test of the legal process. Where justice cannot be dispensed, the legal process forfeits its rights to exist.

Justice is the glue that holds society together and those who apply judicial process to cases must ensure that justice is done such that there is an even-handed approach. No innocent person should be adjudged guilty and as the British say, it is better for nine litigants to go scot-free than for one innocent person be found guilty.

So there is a presumption of innocence in all persons. So if there is an accusation of infraction, then the judge should presume that the accused person is innocent.

The onus of proof of guilt lies on the prosecution. The notion of fair hearing is central to the judicial process unlike in France where the onus of proof is on the shoulders of the accused persons. So we always say that the practice in England that was imposed on us is adversarial, whereas the practice in France is inquisitorial in terms of the processes.

The EFCC Act provides that when you are accused of living beyond your means, you have a duty to show before the court that what you have, you duly got it. That is why we have to understand the Onnoghen's case. He forgot to declare his assets and what was later found in his assets was considerably more than his earnings, so he has a duty to absolve himself or clear his name by establishing that his assets were legitimately acquired.

Imagine the Chief Justice of Nigeria being arraigned at the dock and treated like a common felon? It was not a good day for the judiciary! If gold rusts, what do you expect iron to do? Judges are so lofty that we think they cannot be part of any travesty. They are the insurers of the integrity and sanctity of the judicial process. But judges themselves are not above the law so if they have been found to have infringed the law, then the law would apply.

The suspended CJN reportedly tendered his letter of resignation. What do you think of this?

Like you said, he was reported to have resigned, whether he tendered his letter of resignation or whether it was letter for retirement.

If it was for retirement, then of course the president has to accept or reject that letter and if the president does not accept his resignation, then he would continue to face the music. I noticed that his trial has not been stopped. Maybe the president might exercise sympathy by letting him to go and sin no more and allow him to retire, because if he allows the retirement, that means he would go with the full benefits. But if the president does not accept the letter of resignation, then the legal action might lead to his dismissal.

Now, if he is dismissed, that means he would forfeit his gratuity, pension and status but for government to do that, it means that they don't want to give him a soft landing. It is an indication of equality before the law and vitality of the judicial process so that every judicial officer would be put on notice as regards the necessity for probity, integrity and proper conduct and disapproval of what lawyers would call infamous conduct because the presumption is that judges are men and women of high probity.

Once that immunity or respect is stripped bare from the back of judges, then they are not better than you and I; and they will face the music for their infraction.

A High Court ruled that Osun PDP governorship candidate Ademola Adeleke was not qualified to run. Although Appeal Court has set aside that decision, what will happen if the Supreme Court upholds the decision of the High Court and also uphold his victory at the tribunal?

This is an ongoing matter and it will be prejudicial to pass judgment. The law is whatever the judges declare it to be and you can see two judgments now, a lower court saying he lacked the prerequisite to run.

The appeal court said no, all the law requires is that he should have been educated up to secondary school level.

Some lawyers may not be persuaded like that, but they might say what is the evidence that he went through secondary school. He has been in Senate after his brother died. I think the jury is still out on whether or not Senator Ademola Adeleke should be the next governor of Osun State.

As an international observer that monitors election, what do you think INEC can do to conduct hitch free polls in 2023?

INEC should conform to international best practices. The modalities for conducting elections in Nigeria are not the best in the world.

Electronic voting and transmission of results will cure many of the maladies that we experience in Nigeria. We should emulate the modern methods of electoral process like you have in Europe and North America where you conduct elections without any rancor. The people speak through their ballot.

Another thing we lack is exit polls and opinion polls. The opinion polls will be conducted to know electoral preferences. Our procedure in Nigeria is still a little bit backward. We have to encourage more Nigerians to come out and vote.

Another thing we notice in recent election is vote-buying, it is a mark of poverty and underdevelopment of the electorate. The peoples' will should not be procured or manipulated. According to Joseph de Maistre, a French philosopher, people get the government they deserve.

Democracy we claim to be operating does not reflect the true will of the people and the other thing that we have noticed recently is that the judges are now deciding who the elected officials are, either Senators, House of Representatives, or even governors. So the court seems to have usurped the role of the electorate in determining who becomes a public office holder.

The Electoral Act should reflect the modern democratic process and would ensure that the will of the people is upheld. The will of the people is sovereign, any other thing is anti-democratic and we should widen the democratic space.

The number of parties that INEC brought into the political space was horrendous and this notion of inconclusive elections and interminable re-runs is ridiculous. You had elections and a month after, you are still conducting re-runs, something definitely is wrong with our electoral process.

At a confab under former President Jonathan's administration, you suggested Nigeria should change her name to Songhai, what are the reasons for this?

It was in a bid to rebrand Nigeria, give us a new sense of nationhood and to depart from thinking of Lord Lugard, whose girlfriend suggested the name Nigeria to us.

She wrote an article in 1897 as a journalist of Times of London and suggested the name and I think we needed to have borrowed a leaf from Kwame Nkrumah, who on March 6, 1957 changed the name of Gold Coast to Ghana. The national flag that Nkrumah adopted was with the black star.

My suggestion at the confab was not original to me. We had one of our legislators in the post independent Nigeria, Dr. Kalu Ezera, a political scientist who suggested in the parliament in 1960 that we should jettison Nigeria and adopt Songhai and they laughed him to scorn just like they did to me at the confab.

If people are not aware of their historical antecedent, then we have to forgive their ignorance. The beginning of re-writing the history of this country would have been changing the name and the flag. T

he flag is a meaningless flag. It doesn't inspire, excite or inculcate the notion of Nigeria as the world's largest black nation. There is no evidence of blackness in the flag. Green, according to the white man means stupid. If you look at the Egyptian flag, you know what it represents. It is the same when you look at the South African flag. You will know what it symbolizes.

Songhai is an old West African empire just like Ghana and Guinea. It is close to Sokoto. So borrowing that name is to re-invent this country. It is the level of perception of the leadership that determines the policies they make.

Do you think President Buhari should convene another confab to pave the way for this reform?

Jonathan should be applauded for convening the confab though it was too late because he could not implement the confab recommendation. We don't need to convene another confab. I had thought president Buhari would appoint a blue ribbon panel to go through the proceedings and extract what should be done immediately. The ones that could not be done immediately should be passed to the national assembly to come by way of law.

History will be kind to Jonathan for convening that confab and I also want to pay tribute to Prof Bolaji Akinyemi who was the man who prepared the modalities. He was the Vice chairman of the confab. That confab was almost exhaustive in its approach to the problems of the country. That confab had distinguished people. So what they came up with should not be cast into limbo.

Do you agree that Nigeria must be restructured?

It is part of what we came down with at the confab. I remember when I spoke on restructuring, some delegates from the North wanted to shout me down and I refused to be cowed.

Restructuring was the main goal of the Southwestern delegation and we had allies from Borno, where there is a large number of minorities who wanted restructuring. Even members from the South South supported restructuring.

As a former Vice Chancellor, what can be done to improve the nation's education system?

Let me confess, I never studied in Nigerian university, so you might say that I am a diasporian person in terms of my education. Francis Bacon said knowledge is power and the universities are supposed to be the repository of high level knowledge and know how.

One of the universities I attended had 99 libraries. It is Harvard University and that was even more than four decades ago. The ambiance is remarkable.

A university is as good as the teachers and the library. What makes a great university is good library facilities and good teachers, state of the art journals and requisite books. Those are the things we lack. A few years ago I went to give a lecture at Oxford University and you see the diversity of students from all over the world.

In Nigeria, we don't have enough foreign students because our calendar is indeterminate. ASUU will go on strike and shut down the universities. I had a masters student from Romania who came on a UNDP scholarship to have the African experience and one day he told me he was going back to Romania because the hostel was shut down.

The teachers must also be given enough motivation to be committed to what they are doing. We must be able to research either in the laboratory or library and present papers in international conferences. It's also a reflection of our relative underdeveloped status because if you don't have the wherewithal for the sustenance of a nation, you can't spare a thought for the university.

Sometimes I think that Nigeria is not ready for the university because when you look at the places where we studied and come back home and see all these, you shake your head. You need a special commission to take a fresh look at Nigerian universities on what to do to refurbish them and make them competitive with the leading universities in Africa.

Not even the NUC, but the body of knowledgeable people that will look at the structure of the Nigerian universities and create a new beginning for us. As vice chancellor, I visited University of Cairo and you could see the facilities.

Nigeria has overtaken India as the world's poorest country, how can this narrative be changed?

It is not only in poverty that we have overtaken India; we have also overtaken India as the country with the largest number of people who defecate in public.

Even in football that we used to excel, other countries have overrun us. I think we need a cultural or mental revolution. We have to infuse and inculcate in the minds of Nigerians what it is to belong to the largest concentration of black people in the world. Like Azikwe said, we are the people to lead Africa, because Zik had this idea that we are born to lead the black race.

A government that wants to be reckoned with should do whatever it takes to revamp the country, reestablish the modes of operation especially economic development. We can't continue to be the wretched of the earth. We must do something to transform and transcend our circumstance. We need a core of people who are determined to move Nigeria up because Nigeria is in a state of stupor.

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