Prof Bolaji Owasanoye is the Executive Secretary of the Presidential Advisory Committee Against Corruption (PACAC), a seven-man think-tank with the mandate to drive the anti-corruption crusade. A two-time Director of Research at the Nigerian Institute of Advanced Legal Studies (NIALS), he is the first person to be conferred with the institute’s Taslim Elias Distinguished Professor of Law. Owasanoye has taught at the Lagos State University (LASU), NIALS, University of London School of Oriental and African Studies (as professorial research associate) and University of Pretoria (as visiting professor). He has consulted for the World Bank, the United Nations Children’s Fund (UNICEF) and International Labour Organsation (ILO), among others. In this interview with JOSEPH JIBUEZE, he speaks on how Nigeria can win the war against corruption and sundry issues.
Are you disappointed that the judges accused of corruption have not stepped down?
Once they are arraigned, the proper thing to do is for them to stop sitting, because in the eyes of the public it’ll be as if they are in fact sitting as judges in their own courts even though the cases are not before them. It will not be in consonance with practices elsewhere. More importantly, it helps to safeguard the integrity of the institution. There’s nothing stopping the judges from saying: I want to clear my name. Until I have done so, I don’t want to sit. Unfortunately, that culture is lacking in our society. But we must also recognise that we’ve adopted a culture of dispute resolution that uses the courts and we’ve placed the judges on a high pedestal. Judges are called ‘My Lord’ because they’re next to God. We deify them virtually. No matter how young a judge is, we bow and show reverence to him. All of that culture needs to be preserved.
What about arguments that they are presumed innocent?
Once you have a situation whereby a judge is arraigned and is docked today, and tomorrow the judge sits and others bow before him – there’s something wrong with that. But if that judge clears his name, it reaffirms and reinforces the position that he has the integrity to continue to preside. This is just the principle behind it. It is not strange in the profession. It’s happened in other countries; there’s no reason it shouldn’t happen here. The fact that it happens in other areas and people don’t step down – we should not equate them to judges, because those people don’t have the power of life and death. Judges do. That’s why we fear and revere judges. Once they step out of that arena of integrity and respect, a different rule ought to apply.
What’s your take on calls for the reform of the NJC?
The composition of the National Judicial Council (NJC) is constitutional. However, having tried and used that mechanism for a while now, we can see the weaknesses. I think there’s a need to have an infusion of more members of the Bar in the NJC, and independents who are not judicial officers. Others have written that the NJC, as it is, is too pro-Chief Justice of Nigeria (CJN). In other words, the power of the CJN to identify and nominate almost 50 per cent of the members does not make for a very healthy institution. Going forward, this should be one of the areas of reflection towards strengthening the organisation.
How can this be done?
This will involve bringing in more representatives from the Bar, not nominated by the CJN and not just nominated by the leadership of the Bar, but people who are widely elected by the profession itself so that we don’t transfer what we regard as the wide powers of the NJC leadership to the Bar and then they put their friends and cronies and we still don’t achieve anything. If we must reform NJC, then the NBA must have a representation in the NJC that is very robust. The way they select members must also be democratic so that people don’t just put their friends there, which won’t serve any purpose.
What about NJC’s disciplinary powers?
Looking at the jurisdiction of the NJC, recent happenings have shown that its capacity to deal with everything affecting judges is somewhat limited. It’s easy for NJC to deal with things like petitions against judges, that they are not sitting, or that they engaged in misconduct, abused their powers or did not follow statutory or constitutional guidelines about certain things. But if it’s a much more serious allegation of criminality, the NJC does not have the power to investigate. The present approach involves inviting the petitioner and the judge and then asking: ‘Did you collect money from this guy?’ Naturally, nobody will say ‘yes’. They’ll deny it. And that’s the end of the power of the NJC to investigate.
What is the best solution?
In situations where a judge is accused of committing a criminal act, my humble view, with recent happenings, is for the NJC to allow a statutory agency to investigate. The NJC could refer the case to a law enforcement agency if it’s something the NJC doesn’t have the capacity to deal with. If a judge is accused of amassing wealth, where’s the NJC’s capacity to investigate it? If a judge is accused of having assets all over the world, the NJC does not have the capacity to investigate that. It ought not to be writing to law enforcement agencies all over the world asking them to give it intelligence reports about a certain person. This is the job of other anti-corruption agencies through which Nigeria operates mutual legal assistance provisions. So, the clear, obvious, rational, logical thing to do is for the NJC to refer such issues to the relevant agencies. The majority of judges are honest and hard working; working against the grain of poor infrastructure and poor remuneration and they bear it with equanimity. The few not acting in accordance to their oath are the ones who denigrate the system. So, clearly, what has come out in recent times shows that the capacity of the NJC to deal with this thing is obviously limited and it needs to work with other agencies of government to solve that problem.
Do you agree with suggestions that the CJN should not be the chairman of the NJC, to avoid conflict of interest?
There are arguments for and against. Personally I don’t see anything wrong with the CJN being chairman of the NJC. He or she would be the leader of the judiciary in the country. But what we need to do is to balance the composition. There’s nothing wrong in having an NJC that has representations from the three arms of government. If we have a situation where the CJN is accused of impropriety and the matter is sent before the NJC, then the CJN should not preside over that meeting. That body should appoint somebody to act as chairman so that the CJN won’t be a judge in his own case. There is need for a lot of independents who won’t rubber-stamp the CJN’s views.
Do you think the judiciary should account to Nigerians how it spends its funds, and can failure to do this lead to corruption?
Certainly it can. We support improving the welfare of judges and increasing the judiciary’s financial allocation based on verifiable needs. But it is also important that all the arms of government, including the legislature, must account for the money they collect. It’s public funds. If the executive can account for its expenditure, why can’t the judiciary and the legislature? It will simply help the advocacy for more funding, because if there are gaps in the resourcing, it is easier to make the case. Accountability does not remove from the independence of the judiciary. They develop their budget and decide how it’s going to be spent, but they should account to the public as to how the money was spent. This also applies to the legislature. The Auditor-General of the Federation has constitutional responsibility to audit the accounts of all arms of government. This should be encouraged. There’s nothing wrong with the judiciary publishing a detailed annual account that shows how much was spent on remuneration of judicial officers, the number of judicial officers, how much it spent on infrastructure, how much it has spent on resourcing the courts. It’s then easier to scrutinise such reports. It’s helpful to the image and integrity of the judiciary for it to, on its own volition, audit itself and publish the report so that it can be interrogated.
How does the plea bargain manual that PACAC has produced address public concerns?
Plea bargain is not an initiative of PACAC. It’s statutory. What we have done is to create a framework for anti-corruption agencies and the government to take advantage of what is in the law. The lawmakers put plea bargaining in the laws after debates because they found merit in it. The plea bargain framework that we have recommended creates safeguards at every level. It does not say there will be no prosecution. It does not say you will return a little and keep the rest. In fact, it’s the other way round. If you’re about to enter a plea bargain, you have an obligation to put everything on the table. So, if the government finds that somebody who opted for a plea bargain agreement had withheld information, the agreement becomes inoperative.
What’s the court’s role in a plea bargain?
Under the law, the judge has the final say. Plea bargain does not exclude the oversight of the court. And it must be in the public interest, which the framework we designed ensures. We have also said that certain categories of cases are regarded as high profile. If it’s a case involving theft of public funds, a politically exposed person, affects the economy or has international dimension even if by a private person, it is regarded as high profile. The standard of plea bargaining for them is higher and stricter. It is not a closet arrangement between the defence and prosecution. First, the agreement will be in writing and it must go before the court. If the court is dissatisfied or feels it is not in the interest of the state, the court can reject it. Plea bargain does not cut off judicial review of some sort. It also requires the approval of the Attorney-General. So, these different levels of scrutiny ensure the state is not shortchanged. The misconception that plea bargain is designed to help the rich escape justice is not true at all.
Why do some corruption cases still drag despite the ACJA’s provisions for day-to-day trial and no stay of proceedings?
We think that the judges and lawyers, especially defence lawyers, have not been giving effect to the spirit and letter of the Administration of Criminal Justice Law (2015). As a revolutionary legislation it was designed to diminish all of the anomalies in criminal justice administration. But, judges are still tolerant of dilatory tactics of defence counsel. One good example is a judge accepting that different lawyers in a defence team would cross-examine one witness for close to a month. It’s unacceptable and intolerable. It completely undermines the principle behind the enactment of the ACJA.
What’s the way out of this problem?
One of the things that must be done is for us to track cases to see whether or not there is compliance with the provisions of the Act. The Act provides for a fixed number of adjournments. There must be reasonable timing. More importantly, it encourages that when a case starts, there’s a case management procedure in which the court would ask the prosecution and the defence how many witnesses they have, how much time they need, and the judge then specifies how many days would be given each team. This eliminates the possibility of cross-examining for three months. Once the case management framework is agreed upon, the judge then looks at his diary and a time-table is drawn and the public has an idea of when a case starts and when it’ll finish. This is what happens elsewhere. But that is not happening. Hardly do we have case management at the beginning, which leaves room for lawyers to continue to use dilatory tactics. This needs to change.
There was a controversy when the NBA president suggested that the EFCC be stripped of its prosecutorial powers. Do you agree with him?
Certainly, we do not agree with the NBA because the basis of that recommendation has not been proven or justified. There are many agencies that have prosecutorial powers. The Economic and Financial Crimes Commission (EFCC) is not the only one. The NBA did not explain to anyone why it singled out the EFCC. The Independent Corrupt Practices and Other Related Offences Commission (ICPC), the National Drug Law Enforcement Agency (NDLEA), the Police, Customs and National Agency for Food and Drug Administration and Control (NAFDAC) all have prosecutorial powers. Why the EFCC alone? Second, whatever the mischief NBA thought would be cured by recommending the stripping of EFCC of its prosecutorial powers, will it be solved by creating a single agency and giving it prosecutorial powers? Third, in most democracies, you have multiple agencies that have powers and you don’t want to saddle one agency. All of them are specialised and people who prosecute from those perspectives have special skills.
Is there anything wrong with having a single agency to prosecute?
With one prosecutorial agency, you’ll have a jack of all trade, master of none. I think that the NBA did not fully come out with why it made this awkward and surprising recommendation. It needs to justify that recommendation with facts and very credible evidence that takes us forward and not backward. If there are issues with the EFCC, I don’t think we should throw away the baby with the bathwater. It is for the NBA to come up with other solid recommendations towards reforming the EFCC. It’s been found that, because that model of having a separate agency investigating and another prosecuting was not working, it is better to house both investigative and prosecutorial capacities in one agency where they can work together in synergy.
Speaking of NBA, are you satisfied with its disciplinary capacity?
The NBA itself has admitted that there are weaknesses in its disciplinary mechanism. There’s no doubt it needs to be improved.
Who makes up the National Prosecutions Team?
In the past, the Ministry of Justice farmed out cases to private lawyers. The result is that many of the cases were never concluded and are still not concluded. It denied the state counsel of any opportunity to gain experience and to learn. In many cases the fees were paid, but government did not get any value for money. So there was need for a paradigm shift, for the state as much as possible to reduce the farming out of cases to private counsel because it was a cesspool of corruption where cases were farmed out to friends. What needs to be done is to build the capacity of in-house counsel. We could have a mixed approach whereby experienced private counsel team up with in-house counsel to prosecute cases. This is what we recommended and that is the model now being used in the national prosecutions team made up of experienced external counsel who will work with in-house counsel so that if for any reason the external counsel decides to go, they don’t go away with the files and there’ll be some institutional memory about the case within the government circle. We’re happy the Attorney-General of the Federation (AGF) is taking this forward in establishing the national prosecutions team.
Most judges write down everything during trial, which contributes to delays. Any plan to equip the courts with electronic recorders?
In the Anti-Corruption Action Plan that we have developed, we have very robust chapters or sections on not only improving infrastructure for the judiciary, but also welfare. We recognise that hardworking judges need to be well remunerated. The work environment must be conducive. The introduction of electronic recorders is just one of the things that have been suggested. In today’s world, we don’t think it is salutary for judges to be taking record of proceedings in long hand. It delays the trial, and it has a deleterious impact on the health of the judge. It’s been said that some judges suffer arthritis due to a long career of writing in long hand. We have recommended significant improvement in the infrastructure that supports the work of judges.
How can inter-agency rivalries be avoided in the prosecution of corruption cases?
It must be recognised that as the Chief Law Officer, the AGF has a supervisory role over all prosecutions. We recognise that there are statutes that give powers to other agencies to prosecute, but the AGF has constitutional powers to take over proceedings so that inter-agency rivalries and clashes in court really should not occur. If an agency initiates a case, the AGF has the right to take over. Under the present dispensation the AGF is providing some direction to ensure this sort of thing doesn’t occur.
Some have said only a revolution can cure this country of corruption. Can the battle be won?
I think it’s a battle that can be won, but it’s not that we’ll eliminate corruption 100 per cent. I think that you can significantly diminish corruption. There’s no country where there’s no corruption, even some countries that top Transparency International index, but it’s very, very low. Granted, the progress and pace are very slow and extremely frustrating. The people are disenchanted. But if we stay the course, if the government remains focused, and there’s buy-in from the public, it’s not impossible. It’s in our interest. The alternative is chaos and anarchy. Corruption has brought us this low. It’s responsible for Nigeria’s low economic development, low level of our GDP, for us being rated as a third-world country; it affects the growth of our democracy and our reputation. Even for accomplished Nigerians who are internationally recognised, once you identify yourself as a Nigerian, people may sigh and wonder how such brilliant people emerged from such a dysfunctional society. So it’s really in our own interest to fight corruption. I have hope that it can be diminished if we have the stamina, the consistency, the focus, the political will. And if we don’t shift, I think that ultimately Nigeria will win the war against corruption.
What is the role of citizens?
The battle against corruption cannot be won except the people buy into it. If the people buy into it, they’re not doing so for President Buhari. We’re certainly not doing what we’re doing because the President wills it. PACAC believes that corruption has a deleterious effect on our economy and wellbeing. Corruption has killed people in their prime from minor ailments that could be treated free elsewhere. Corruption is responsible for high level of unemployment and the almost virtual collapse of the educational sector. It’s responsible for bad roads because people steal the money meant to fix them. It’s responsible for the escalation of kidnapping. We should not assume that kidnappers are happy in that vocation. It’s corruption that led to the stealing of pension funds so that our retirees cannot retire in peace. It’s corruption that is diminishing the capacity of children to take care of their elderly parents. We’ve got to recognise that corruption is a push factor for so many other social vices. If Nigerian citizens join the fight, they’re not necessarily doing the government a favour. We’re actually doing ourselves a favour. We’re creating an environment that is conducive for our own future and for the future of our children. If we’ll take a broader view of what corruption is doing to us, I don’t think that anybody needs to be preached to. We have seen progressively more primitive and prebendal ways of committing impunity. Before, people would make effort to legitimise corruption; these days they don’t even bother. We need to really do a U-turn and recognise that corruption affects all of us in very negative ways. We’re all victims – both the rich and the poor, both those working hard for their money or not – we all have a collective duty to stand together to fight corruption.
