A Senior Advocate of Nigeria, Chief Robert Clarke, shares with TUNDE AJAJA his worries about the nation’s judicial system, the rise in the requests for Supreme Court to review its judgement, indiscipline in the bar and other issues
Prior to the Supreme Court judgement on the Bayelsa election, the apex court’s ruling on the Imo State governorship election was greeted by series of drama. Is it normal for Supreme Court judgement to elicit such outrage?
Let me start from the drama. You know politics now permeate everything we do in our political life in Nigeria. When that decision was given, definitely it was a shock to the then governor (Emeka Ihedioha) who realised he was no longer a governor and the shock would have been so great that his supporters decided to shout foul play. To anyone outside, that was a normal reaction, but having had the privilege of looking into the matter from the legal point of view; I mean the fact of the case, I discovered that the court was in order. So, the Supreme Court has said it is not god and so it could make mistake but it has also said if it made mistake, you could come back. That is the norm all over the world. Under the Nigerian law, however, the court said it would only listen to you on certain grounds: if you find that it had no jurisdiction; if you think there was fraud or if you think the judgement was mistakenly given. However, the court said if it did not fall within those parameters, it would not look into it because it could not open floodgates for judgements to be reviewed as if you are appealing against its own judgement. Else, that would destroy the judicial system. And that is why in the history of Nigerian jurisprudence, only three instances have come before the Supreme Court. Fortunately, I have been instrumental in two of the three.
When was that?
Thirteen years ago, I took one to them, which I lost. There were five sitting members of the Supreme Court and in all judgements of the Supreme Court, all judges must sign. In this particular case, in the Certified True Copies, only three judges signed, so I challenged the Supreme Court that their judgement was a nullity because three of them could not sign when the law stated five. However, they were able to convince me that how they sign in their inner chamber wasn’t known to me. Now, I have challenged the court’s ruling on Zamfara case (where the court sacked all the persons elected on the platform of the All Progressives Congress over irregularities in their primary). I said in my appeal that they have no jurisdiction. A constitutional court should be made of seven judges when dealing with constitutional matters, but in Zamfara case there were only five judges and it was not an appeal from the tribunal. It was a pre-election matter that had nothing to do with the election, so why should they declare the election a nullity? I believe I have a good case. So, in the case of Imo, the litigants also have a right.
In the past, cases on governorship elections used to terminate at the Court of Appeal, up till the time Justice Ayo Salami was the President of the Court of Appeal. Would you blame that on politicians’ desperation or you think it’s helpful?
I’m not blaming the politicians for that. That fault was solely by the Supreme Court then. The Chief Justice of Nigeria at that time (Late Justice Katsina Alu) was the brains behind that amendment because prior to that amendment, all governorship election matters terminated at the Court of Appeal and there was no problem. But then, Salami’s case came up. There was a governorship election in Sokoto and judgement was to be delivered and somebody wrote a petition to the CJN that money had changed hands. The CJN, thinking he had the power, ordered Salami not to give judgement, whereas he had no such power under the law. The CJN has no power under the law to give directive to the President of the Court of Appeal on any election matter, because it’s the prerogative of the President of the Court of Appeal to form election tribunals. So, Salami refused and history today knows what happened thereafter. As a result of that, Katsina Alu made the National Assembly to amend that provision. Now, Senatorial, House of Reps and governorship elections now get to the Supreme Court and that is why the Supreme Court judges are being overworked. I feel sorry for them for overworking themselves, but they are the architect of their own misfortune due to what their boss did and now they are faced with almost 300 cases from election petitions.
To create room for the judges to have time for civil and other matters before them, shouldn’t the National Assembly or the Supreme Court take steps to revert to the status quo ante?
They can do that. In the interest of the Supreme Court itself, it can initiate, through the National Assembly, a bill to return to what obtained before; that all election matters, except the presidential election, should terminate at the Court of Appeal. Also, if there are concurrent findings of facts by a lower court and the Court of Appeal, then the appeal should terminate there and I believe that now the Supreme Court has a policy that where there are concurrent findings by two lower courts, they don’t set it aside. But why should it even go to them? The law should be amended to allow the Supreme Court deal with constitutional matters of very serious nature.
In the midst of the challenges in the judiciary, which of them worries you most?
Today, we have the best personnel all over Africa. Nigeria is still the best in Africa and we have the best brains. The only problem is politics. Let me be bold enough to say that since the 1999 Constitution came into effect, the politicians have corrupted virtually every aspect of the Nigerian life, including the judiciary. In political matters today, before judgement is delivered, you would be hearing so many rumours as to what would be the outcome and that is politics playing out itself. These are the things we should be able to remove and help our judiciary so as not to be influenced by politicians. They (politicians) are a dangerous specie of people. But I don’t blame the judiciary alone; I blame lawyers also, because most of the top lawyers in Nigeria today are also in this with politicians.
There are instances where some lawyers, your colleagues, go ahead in such instances to lead their clients on even when they know the rules don’t allow it, is that part of the dynamics of being a lawyer?
That was why I said politics has infiltrated everywhere. There are instances where lawyers would know there is no reason to appeal, but because they know the politicians have the money they have stolen and they are ready to spend part of it, they (lawyers) would encourage them to go ahead. You won’t find lawyers doing such in a case involving breach of contract or land matters. It’s in political matters that you would find it and that is the problem. Lawyers give politicians hope when there is none; they tell them to appeal when they know there is no case. All these have to be corrected and we have to look inwards and see that most of the rot today come from us. If your client has a good case, let them know and tell them that you would try your best. If they have a bad case, tell them the truth and let them know that they have a marginal case but that you would see what you could do, maybe you would be able to convince the judge.
In the case of Heineken Lokpobiri vs David Lyon over the APC primary in Bayelsa State, the Supreme Court dismissed the case because it was filed outside the 14 days allowed by law. Could it be that some lawyers don’t pay attention to some of these things?
In election matters, time is of the essence. If you are filing an interlocutory appeal in a pre-election matter, it is 14 days. If you don’t do it within 14 days and you go to court, it will be thrown out. I just won a case in the Supreme Court on a pre-election matter from Delta State, in which time element was of the essence. With that single point, I won the case. So, time is so important and I’m so sorry, many of our lawyers would see it and close their eyes to it. At the end of the day, they would look so stupid at the Supreme Court.
Situations like this waste the time of the court, and it is disturbing especially in a system where there are thousands of cases before the court. Should there not be a sanction for lawyers who deliberately do this?
I have stated it many times that we need a review of the judicial system involving election matters. I believe we don’t need the Supreme Court except for presidential elections. From elections into the Senate downwards, we should have an intermediary Supreme Court, which would be a Constitutional Court, where appeals from the tribunal would go directly and it would be the final court for election matters. The case won’t go to the Court of Appeal or the Supreme Court, it would have a status higher than the Court of Appeal but lower than the Supreme Court and that would solve most of our problems.
Would you say the Nigerian Bar Association has done its best to ensure discipline in the bar?
Again, it goes back to the advent of partisan politics in 1999. The NBA has always stood for probity and discipline within the bar association and we have been able to produce within that period top lawyers who had prestige and good character. But again, we have politicised the bar association. We have done it in a way that in order to remove schism, we did rotation with insistence on getting the best. But since democracy came in, government itself would go and pick a lawyer to contest and they back them up with money. You will not believe it; to be a president of the NBA today, you could spend nothing less than N1.5bn. Why? And that is how they now allow government into the process. So, most of what is happening in the bar today has the influence of government and that is my only fear for the bar association.
In some other climes, lawyers sometimes advise their clients to plead guilty to their offence, perhaps not to incur the wrath of the judge or not to waste the time of the court, but in our clime, the situation is different. Should we not imbibe such a culture to save our justice system?
In the United States of America, to become a lawyer, you must have a first degree, then you must go to the Law School for four years. So, it takes about seven years to become a lawyer, and they are in demand and so there is affluence among them. Here, there are ‘cash and bail’ lawyers who have not got a brief for some time. Such lawyers would cling to any brief, whether it is factual or not. So, the problem is poverty. A young lawyer who has not got a brief before now gets a brief and you think he or she would tell his client he has no case? He wouldn’t want to do that. But things would change. I can see a good future for Nigeria.
Politicians, who are the ones behind constitution amendments, have put timelines in election cases while other matters could last for as long as possible. Is that fair?
Many state judiciary procedures have made it easy so that you don’t waste much time on litigation. There is something called pre-trial conference, so that before a case is heard in the open court, you would have cleared all the pleadings within a short time. However, the problem we have is the election petitions and that is why I keep referring to it. Every four years, virtually all the normal courts in Nigeria are at a standstill because most of the judges from the 36 states are pushed to 36 tribunals and they would be there for 180 days. That means all the cases they have are kept at a standstill. By the time they come back, there is a backlog.
What would you suggest as the way out?
Once we decide not to use present acting judges as chairmen of tribunals, things would get better. Let them engage retired magistrates and judges – and there are many of them who are still agile – to go to these tribunals rather than take from the mainstream of the judiciary, because already the judges have so much to do. That is why I keep saying we have many pending cases because we have allowed political matters to take control of our courts. Look at the Federal High Courts, when election is coming and nominations or primaries have begun, 60 per cent of Federal High Court cases would be pre-election matters because the FHC is the only court that can deal with INEC matters. We find that all other matters will be pending because all other political matters would be given expeditious hearing. So, our problem is not because the courts are congested, our problem is that we have allowed political matters to overwhelm the courts. Anybody that is not properly nominated would go to court; and if they lose an election, they would go back to court. Until we create a separate court for politics outside the normal courts, we will not enjoy the normal courts. It is the disruption every four years that causes the issues. We hope they would agree to this doctrine of constitutional court.
There have been arguments that we need a system where the appointment of the CJN should have nothing to do with the executive to avoid undue influences. Do you agree with that?
I have always criticised the way and manner judges are appointed. I believe it still has political connotation, which should not be, even though the governor would tell you he’s acting on the advice of the Judicial Service Commission. But why can’t the NJC or the Judicial Service Commission itself as a body appoint who should be the Chief Judge of a state or who should be a judge? For me, that would be better. The governor can tell you I want three names out of which he would pick one. So, invariably, he is the one appointing. Those are the things we have been asking that a review should be done about so that the prerogative of appointment and removal should be with them. Let us have a proper judicial service commission that is not concentrated by judges again.
Who do you advise should be the members?
Top Nigerians who have made good name in different fields can form the majority of the membership of the NJC. When you put all lawyers there, it doesn’t make sense. Those are the things I would recommend.
A renowned professor of international law and jurisprudence, Akin Oyebode, said recently that instead of amending our current constitution, we should come up with a new one. What’s your view on that?
I have said it over 100 times that the 1999 Constitution is a rotten egg. You cannot build anything on it. Once an egg is rotten, it cannot bear any good result. We have to restructure Nigeria and get a new type of constitution. We cannot afford to have 36 states in Nigeria. We don’t have the money to maintain it and that is why, today, 80 per cent of our earnings go into maintaining governance. Only 20 per cent of it goes into capital project. Within the past 20 years of this democracy, except for Buhari, who among the former presidents built infrastructure? They frittered away Nigeria’s money with nothing to show for it. Today, people say we are borrowing but we are borrowing money that we are seeing what we are using the money for. We are borrowing from the Chinese to build the railway system. Dangote has gone into a massive venture and he’s going to revolutionise that sector. So, we have seen something better. Let us change the system of governance. Let us reduce the number of states to an appreciable number that we can manage. Why do we need to have 36 states’ chief judges; 36 Attorney Generals and commissioners and so on?
How many states do you think we should have?
Between eight and 12 would be ideal so that we can manage it under a system where each state would be autonomous. The 1963 Constitution is the best constitution we have ever had in Nigeria. If we can go back to that constitution, which had the regionalization of the states; all states were self-governing and they were developing at their own pace until the military coup came and we moved from 12 states to 19 states, to 21 states, until (late Gen Sani) Abacha had a brainwave because he wanted to be Head of State and he wanted to please everybody, so he created 36 states. It’s all nonsense. Let us reduce our cost of governance.
Many people have canvassed this idea for years, how do we get started with the process especially when people feel the current set of political leaders – executive and legislature – like others before them, may not have the political will to set it in motion?
The 1999 constitution is being managed by the National Assembly and the Executive. These two arms of government are enjoying so many privileges in terms of financial considerations and emoluments and they would not want to leave it. So, if you leave the change to these people, nothing would come out of it. But if Buhari wants to leave a legacy before he leaves in 2023, he should set up a national conference, where he will get a bill passed first, not like the way Jonathan did it that it had no legal basis. Buhari should send a bill to the National Assembly that he intends to set up such an assembly and that at the end of the deliberations he would send whatever they decide to a referendum and once the referendum approves it, you pass it into law.
Once he can get a commitment from them, then he puts it in motion. Get a correct representative of the people and let them go through the process like they did during Jonathan’s time and let them draw their resolutions. But, rather than sending it to the National Assembly, send it to a referendum. That is the voice of the people. We have never had a constitution except the 1963 Constitution that represented the voice of the people. Every other constitution in Nigeria has been military-inspired. Therefore, for once in our lifetime, let us send it to referendum. With that, the Senate President and Speaker of the House of Representatives would have no choice but to accept it because they would have expressed commitment that they would be bound by it.
Instead of 21 judges at the Supreme Court, as stated in the constitution, the number dropped to 13 about three weeks ago. Why have we never had a full complement of judges in the Supreme Court?
In all my years of practice I have never seen the full complement of judges in the Supreme Court. In Nigeria, ethnicity, tribalism and religion find their ways into everything. For some time now, we have grouped Nigeria into six geographical zones. When they want to appoint a judge now and there is a slot for Yoruba extraction, there are six states and so to pick from them, tribalism would creep in. But, I believe that at no time should the Supreme Court be less than 17 because there are about three or four panels in the Supreme Court and each panel is made up of five judges. When only 13 persons are handling all the cases in that court, why won’t they be overworked, even though it is a self-inflicted injury, as far as I’m concerned.
The Court of Appeal also doesn’t have its full complement and down the line to the High Courts it is the same story. Is it that there are no right persons to be elevated to the bench?
It’s all these rubbish political matters that have disrupted the judicial system in Nigeria; they are not allowing the courts to carry out their normal duties. Until a drastic situation creates a constitutional court and we deploy renowned judges from the Court of Appeal to serve there, things won’t change.
Given the level of stealing in our country, do you think it’s high time we considered capital punishment for corruption?
Whether it is capital punishment or not, a crook would always be a crook. Most of these things are in the blood. Somebody who wants to steal has it in the blood and some Nigerians have imbibed the custom of believing that when they are working for government, they are there to steal. If you are made a commissioner tomorrow, all your relations are looking forward to getting contracts from you. So, we believe it’s a money-spinning venture. Sentencing people to death will not stop people from stealing. it’s in the blood of Nigerians to steal.
Does it mean we can’t do anything about it?
Once there is good governance, the propensity to steal would reduce. When a mechanic has power supply to work in his workshop and a tyre repairer has electricity to do his job, when will he have the time to dupe others? Nigeria is so great, with about 200 million people. Can you imagine if we have one singlet and briefs factory in Nigeria? Do you know the market it would have? We import everything. Whereas if most of our politicians who are stealing money can set up singlet and pants factories in every geo-political zone, the market is there, but we all just believe in stealing.
In our current constitution, when someone is sentenced to death, the governor needs to sign and because of religious beliefs and political considerations, there are over 2,000 persons awaiting their execution since governors have refused to sign. Should we not at this time eliminate the provision of the governor signing?
My answer to this question is that we should abolish death sentence and make it a minimum of 20 years’ imprisonment. I believe somebody who killed at the age of 36 and is sentenced to 20 years and comes back at the age of 56 should have learnt a lesson, rather than keep them there. Some are afraid to sign a death warrant or they have religious phobia that you shouldn’t take life when you don’t make one. Then, let us agree to cancel death penalty in our books and make it 20 years’ imprisonment.
We hear judges are poorly paid, is that also a disincentive?
I’m aware that in Lagos State, judges are well paid, but I don’t know what happens in other states. However, I believe a judge must be well paid to enable them look away from temptation. But again, the lifestyle of some of the judges is questionable. I know of a young judge in the Federal High Court in Lagos that has over 26 children. How does he pay the school fees of his children? Some people just breed children, and corruption may not be far from such a judge. There are singular cases of corrupt judges that we know of. By their acts you would know they are corrupt.
Have you ever wished to be a judge?
Advocacy is an intrinsic act; you need to have it in your blood. I love advocacy; it’s in my blood and I do many cases pro bono. Many people would wonder why I still go to court. I love to be in court; I pray that the day I would die, maybe I would die in the courtroom, because that is my life.