The story of Chief James Onanefe Ibori,the immediate former Governor of the oil rich Delta State, is still very fresh in our minds. A federal high court judge in Asaba, Delta State found Ibori, strangely though, not guilty in a 171-count charge of misappropriation of public funds, outright embezzlement of State’s funds and other grievous offences which can be likened to crime against humanity. In what later appeared like an “outsource” of criminal justice, he was found guilty by a United Kingdom court. Ibori’s case exposed the rot in the judicial process in the country as he was found guilty in London court. A man who through his Nigerian lawyers pleaded not guilty in Nigeria later pleaded guilty in the UK and has since been jailed alongside his collaborators, his wife – Theresa Ibori, sister, Christine Ibori-Idie, mistress, Udoamaka Okonkwo and his London-based lawyer Bhadresh Gohil.
Delivering his address on March 9, 2011 in a landmark judgment, Justice Christopher Hardy sitting at a packed Southwark Crown Court in London told Bhadresh Gohil, a partner at Arlington Sharma Solicitors and James Ibori’s lawyer; “you have brought shame on your family, your profession and your country. You were a solicitor of the Supreme Court and holding out as a man of integrity. It’s sad the real villains are in Nigeria, but this fraud required special expertise and you lent yourself to it”, Justice Hardy concluded. Gohil was sentenced to seven years imprisonment for conspiracy to defraud and money laundering as well as sharing in the proceeds of Crime. Lawyers being sanctioned by the courts in other jurisdictions in cases like this are a common scenario, but lawyers in Nigeria who commit worse offences in form of unethical practice, more than Gohil are walking freely. In fact, some of them are paraded as leaders of the Bar in this country!
Not until Nigerian lawyers do what is right, not until Nigerian judges act responsibly, our quest for a better society, rule of law, good governance and justice may be a mirage. The situation requires that the bodies put in place to sanitize the bench and bar become alive to their responsibilities so as to restore the peoples’ confidence in our judicial system. Many cases are taken out of this country because the people no longer trust that our courts are capable of administering justice. Companies and businesses are moving to other African countries that appear to guarantee justice in their system and that should be a concern for any citizen that desires national growth.
We cry of lack of jobs, lack of economic opportunities and general apathy, what the lawyers can do to make the situation better is just to stick to the rules of their profession. Lawyers need to uphold the ethics of the legal profession because that is the only way the justice system can earn the trust that has evaded it. We have become a laughing stock in the comity of nations due to the precarious situation of the legal system and if we do not arrest the situation now, the country may collapse due to impunity. This has led to situation whereby most commercial agreements that contain arbitration clauses insist on having disputes resolved outside Nigeria. Owing to lack of confidence in the legal profession Nigerian lawyers and judges are no longer given serious consideration in international appointments. This is particularly embarrassing as many Nigerian lawyers and judges distinguished themselves in a number of countries where they had served in the past.
I am not unaware that some lawyers have made suggestions on how to curb the menace of corruption in the country. For instance, two senior counsel: Yussuf Ali (SAN) and Niyi Akintola (SAN) are curiously involved in the campaign for the amendment of the anti-graft laws to prescribe the death penalty for offences relating to official corruption. With respect, the proponents of the death penalty should be made to appreciate that the death penalty has failed to serve as a deterrent in curbing violent crimes in any society. In the case of Nigeria, the death penalty was prescribed for armed robbery in 1970. That was 43 years ago. Today, armed robbery is on the ascendancy due to mass unemployment, poverty in the midst of plenty, corruption and moral decadence. I have always maintained that there are enough legislations to deal with corrupt practices, drug trafficking, human trafficking, terrorism and other dangerous offences. It is the lack of political will on the part of the ruling class coupled with the manipulation of the legal system by powerful litigants and senior lawyers which have continued to frustrate the investigation and prosecution of corruption cases. No society can successfully challenge criminality where impunity is the order of the day.
No doubt, Nigerians were justifiably angry over the light sentence awarded Mr. John Yussuf by the Federal Capital Territory High Court after admitting his role in the N23 billion police pension scam. As far as I am concerned the attack of the trial judge is rather misdirected. Hence, in a recent interview on the criminal justice system I was compelled to observe that: “The light sentence which has angered Nigerians merely followed a consistent pattern. Ex-governor Lucky Igbinedion was charged with stealing N4 billion. He pleaded guilty and was fined N3 million. He paid and went home. Ex governor James Ibori was acquitted as the trial judge dismissed the 170-counter charge. The EFCC and the Delta State government are currently embroiled in a controversy over the ownership of the $15 million with which he bribed the then EFCC Chairman, Nuhu Ribadu. In a deliberate move to free Mr. Ibori, the judge refused to order that the $15 million bribe be forfeited to the Delta State Government which has now come up to lay claim to the money. In her own case Mrs. Cecilia Ibru was convicted of N190 billion fraud and jailed for 6 months. The trial judge even went outside the law to direct that she should spend her prison term in a highbrow hospital in Victoria Island, Lagos. Frankly speaking, I wonder why Nigerians are surprised at the turn of events.”
It was my further observation that a few of our judges who have, in spite of pressures and temptations, continued to discharge their duties in line with their oath of office have been subjected to undue harrassment by the system. Hence I stated that: “I only pity the EFCC and the judges who might have been led to think that the system is committed to the fight against corruption. Justice Olubunmi Oyewole who had the courage to sentence Chief Bode George to a 2-year jail term was posted from the Criminal Division to the Probate Division in Lagos State. The reassignment was designed to stop him from jailing more members of the ruling class. There wasn’t much problem when the judge jailed 419 people like Ade Bende, Mrs. Anajemba, Nwude etc. But he was called to order when he jailed Chief George. Did the Federal Government not roll out the drums for the ex convict? Was he not given a triumphant entry to Lagos from the Kirikiri prisons when he completed his jail term? What the trial judge, Justice Abubakar Talba did in Yussuf’s pension scam case is an act of class of solidarity.”
While Nigerians are critical of the mockery of the criminal justice system exhibited in corruption cases it is sad to note that the handling of drug related cases is by far worse. I am in possession of the report of a Committee set up in 1985 by the Federal Government on the reform of the National Drug Law Enforcement Agency (NDLEA). The Committee found and confirmed that several offenders who were convicted and sentenced to prison terms by the Federal High Court never saw the four walls of the prison as they were illegally freed by a criminal syndicate of NDLEA prosecutors, defence counsel and prison officials. Thus, the Committee found that “out of the 143 drug convicts for the year 2006, 96 of them were never brought to prison. Similarly, another 101 drug convicts for the year 2005 were never brought to the prison, bringing the total convicts evading jail to 197 within this period.”
For some inexplicable reasons the Federal Government has refused to implement the aforementioned recommendations of the Committee which would have repositioned the NDLEA to fight the menace of drug trafficking and consumption in Nigeria. Thus, the unpatriotic officials who were found to have engaged in recycling of confiscated hard drugs, prison evasion by drug convicts, corrupt practice and other vices have been treated like sacred cows. Consequently, the menace of drug trafficking has been on the increase in Nigeria.
It may also interest Nigerians to know that persons convicted of illegal possession or use of hard drugs or narcotics are freed after paying meagre fines through questionable bargaining plea arranged by the Directorate of Prosecutions contrary to section 11 of the National Drug Law Enforcement Act (CAP N30) Laws of the Federation of Nigeria, 2004 which has prescribed imprisonment of not less than 15 years but not exceeding 25 years. I am of the humble view that the NBA ought to set up a Committee Against Impunity to ensure that all indictable offences are prosecuted to a logical conclusion. The Committee should also be tasked with the responsibility to hold a watching brief in certain cases pertaining to corruption, drug trafficking, terrorism etc. This is the only way to stop the government from wasting scare resources and energies on cases that are deliberately programmed to fail.
It is worthy to observe that the judiciary has responded positively to the concern of Nigerians. In the past one week, the courts have committed Mr. John Yussuf, Messrs. Farouk Lawan and Boniface Emenalo as well as Aminu Sule Lamido, the son of the Jigawa State governor to prison custody before ruling on their applications for bail. This has sent a clear message to Nigerians that the treatment of influential criminal suspects with kid gloves has stopped. In the circumstances, Nigerians should keep up the pressure on the judiciary.
The way forward
I believe that Nigerian lawyers are in a vantage position to ensure that the country is operated under the rule of law. To achieve the objective the NBA has to be re-organized to take over the management of the legal profession in the overall interest of its members and the society at large. This can only be done if the NBA is truly independent. To ensure such autonomy the natural officers of the NBA should nominate independent minded lawyers to represent Nigerian lawyers in statutory bodies. A situation whereby the national officers appoint themselves and some of the secretariat staff to represent the NBA in statutory bodies should stop. The decision to ban the elected officers of the NBA from accepting any post from the Government was aimed at preserving the independence of the Bar. The ban should be extended to all statutory bodies including the National Judicial Council as the membership of elected national officers in such bodies has compromised the independence of the NBA in recent time.
Over the years, it has been agreed on all hands that the disciplinary machinery of the legal profession is weak and ineffective. To arrest the anomalous situation the NBA should urgently take concrete measures to re-organize and reform the disciplinary committee to deal with cases of professional misconduct without fear or favour. In this regard i have just requested the NBA leadership to reconstitute the Body of Benchers’ Disciplinary Committee to reflect the decision of the Supreme Court in the case of Legal Practitioners Disciplinary Committee v. Chief Gani Fawehinmi (1985) 2 NWLR (PT 7) 300. Unless the Disciplinary Committee is reconstituted and peopled with members who are prepared to rid the legal profession of bad eggs the impunity that has been associated with lawyers will continue unabated. The NBA should equally demand the reconstitution of the National Judicial Council with a view to removing serving judges from the body. The Katsina Alu\Ayo Salami imbroglio has made a strong case for a judicial disciplinary body that is detached from the undue influence of serving judges.
Both the disciplinary committees of the bench and bar should collaborate and synergies to restore confidence in the legal profession. Individual judges should take control of courts manned by them and refer cases of professional misconduct by lawyers to the National Disciplinary Committee. Lawyers who run foul of the Rules of Professional Ethics should also be reported by their colleagues and members of the public.
Finally, Nigerian lawyers should go beyond the defence of political and civil rights or fundamental rights which are meaningless to the majority of economically disadvantaged citizens. Nigerian lawyers should team up with the human rights community in the enforcement of all welfare laws made pursuant to the Fundamental Objectives and Directive Principles of State Policy. Unless the socio-economic rights of the people are recognized and enforced, law and order cannot be guaranteed in the society.
Conclusion
In William Shakespeare’s Henry VI, Part 2, there was a rebellion. Dick the butcher was a leading member of the rebellion. Convinced that lawyers would invoke the law to oppose and put down the rebellion Dick said:
“The first thing we do, let’s kill all the lawyers.”
Many Nigerians share the view of Dick that all lawyers ought to be killed to prevent them from standing in the way of the “Nigerian revolution” which they believe is imminent. As far as such Nigerians are concerned lawyers have committed unpardonable crimes against the Nigerian people. In particular, they are accused of resorting to technicalities to perpetrate injustice colluding with judges to justify the rigging of elections, and setting corrupt public officers free while jailing petty criminals.
Although the general perception of lawyers and their role in the society may be erroneous it cannot be denied that Nigerian lawyers have contributed to the imminent collapse of the country. However, I believe that the dangerous situation can be reversed if the Body of Benchers’ Disciplinary Committee and the National Judicial Council are re-positioned to monitor lawyers and judges who subvert the legal system. Unless the Nigerian Bar Association is democratized and freed from the tiny grip of Senior Advocates of Nigeria it cannot discharge the duty of defending the rule of law in the interest of the country. In my study of the crisis of the justice sector I have discovered, rather painfully, that most of the cases relating to election petition and corruption cases which have brought the judiciary to ridicule were handled by Senior Advocates.
Finally, the lack of internal democracy in the Bar has had adverse impact on discipline among lawyers. If the current trend continues the legal profession is doomed. She rule of law is endangered if the practitioners of the law continue to operate in an atmosphere of impunity. Professor Yemi Osinbajo, one of those who believe that the situation can still be remedied has called for “a serious commitment to implementing well thought out, practical and measurable solutions”. As I am not as optimistic as the learned Professor permit me to conclude this lecture with the parting words of Brutus to Cassius in Julius Caesar when he said:
“There is a tide in the affairs of men’
Which taken at the flood, leads on to fortune;
Omitted, all the voyage of their life
Is bound in shallows, and in miseries;
On such a full sea are we now afloat;
And we must take the current when it serve, or lose our ventures.”
