Pedro: Corrupt judges not different from armed robbers
Lawal Pedro, a Senior Advocate of Nigeria (SAN), is a former Lagos Solicitor-General. In this interview, he speaks on independence of judiciary, judges’ arraignment, anti-graft agencies, corruption and sundry issues
The executive caters for the funding of the judiciary system, including the appointment of judges, how has this affected the independence of the third arm of government?
In my opinion, it doesn’t really affect the independence of the judiciary in the dispensation of justice. If you underscore the core functions of the judiciary in the Nigerian government, you will observe that its primary role is to dispense justice.
Hence, justice is simply dispatched through adjudication of cases brought before the court by either individual against the government or vice versa and also at the Supreme Court by government against government.
However, whether there is a funding or an appointment in the judiciary by one arm of government simply depicts a form of governance; a kind of governance that ordinarily connotes a separation of power.
For instance, the Nigerian president cannot swear in himself into the executive office as Mr. President. Since it cannot, do we then come to the conclusion that the Chief Justice of Nigeria (CJN), who solely carries out this role, limits or infringes the independence of the President?
This process plainly reveals the interrelationship that is evident within the arms of government. It is also applicable in situations where the president goes before the senate for confirmation, would we also conclude that the President is not independent for doing such?
The basic element that actually matters in the general sense of independence is the characters or actors involved in governance both in the judiciary, the executive and the legislature.
The rules are clearly written and it is not different from all other jurisdiction where one goes for confirmation by the other form of government. I believe it all depends on the individuals who function in these sectors.
In cases where most would want to do the biddings of others- going by the ideology where you don’t bite the fingers that feed you, they easily forget that immediately after appointment, especially in the case of the judiciary, the influence of the executive on its office ceases to bind. So, if a judge lashes out judgment against the executive, there is absolutely nothing the executive will do.
The worst it could do is to make petition to the National Judicial Council (NJC). It is pertinent to note that the president is not the one who heads the NJC but rather Judges do. And the Judges in the NJC would still conduct what is known as “fair hearing” among both parties.
What role does judicial precedent play in justice system? I mean, does the judiciary make law through judicial precedent?
The judiciary or judges do not make laws but rather they interpret. But during the course of their interpretation of the law, they invariably make a law.
This is because whatever they proffer during such interpretation represents the position of the law. There are diverse rules of interpretation which include; ordinary interpretation mode, golden rule interpretation, the mischief rule of interpretation and so on.
In most cases, there are laws if extracted and interpreted verbally as written by the legislature, might cause great hardship to the people. Hence, while interpreting, the judge might decide not to use the ordinary interpretation mode but the golden or even the mischief rule.
For instance, in the mischief rule of the interpretation, the judge tries to ponder on the specific mischief that the legislature hopes to cure, solve or protect.
However, when such laws are read, the inherent mischief might not be covered or identified directly. It is now within the discretion of the judge to ascertain such mischief using the rule.
And immediately the judge gives a ruling on that particular matter, it automatically becomes a law. Therefore, whenever anyone is interpreting that specific status, the person directly makes reference to that ruling by the court.
So, at this point, the court is making a law within the law. On the contrary, if the legislators are dissatisfied with such ruling, they go back to the Constitution and make a law that would override the decision made by the court.
This act is known as legislative judgement. Here, you would observe that the judiciary which is not meant to create laws would make a law, while the legislature which doesn’t pass judgement would give a legislative judgement on the ruling or judgement of the court.
This is strictly a repelling of the law. We have to understand that the law as it is, the exact way and manner in which the law is being written, differs from the law as it ought to be- the way and manner we presume or sought it to be.
And our major focus and keen interest is in the law as it is and not as it ought to be. However, every law is first and foremost interpreted as it is but a judge who is radical can now proffer his own opinion that a particular law ought to have been like this or that way, albeit knowing he is bound by that law. At this point, when the legislators find logic within the judge’s opinion, they would amend the law and then rewrite it as it ought to be.
At last all is set for the arraignment of some judges accused of corruption today. What do you think of the manner in which the Department of State Services (DSS) raided their homes in the midst of allegations that there were no warrants?
Regarding the raid, more facts are coming out daily and we can’t invariably say there were no search warrants in all cases. It could be in just one or two places, though I am not certain since I wasn’t present during the raid.
But in situations where there are no search warrants, then such act is totally uncalled for, unjustified and unconstitutional. More so, it is illegal professionally. But where there is an evidence of a warrant, if though such raids were conducted in the middle of the night, the law permits it. So, that alone makes it valid.
However, it is actually the style or mode of operation in which the raid was conducted that people are condemning and not the act in itself. Therefore, it could be argued leaving the substance because the Anti-Criminal Law Act says it can be executed at any given time.
Referring to the kind of personality involved, I must say that if the operation was conducted in a more decent way, then all these uproar would not have emanated.
Nobody is saying that corrupt judges shouldn’t be flushed out; they should in order for sanity to dwell in the entire country. But the modus operandi applied by the DSS forms the distaste of the people.
However, the law is no respecter of any persons. For instance, if a fraudster, who has never robbed anyone at gun point, could be raided in like manner, then there isn’t much to disregard in this case.
Although men are equal before the law but others are more equal before the same law. I am not saying that many are more equal in the face of the law.
For instance, if a judge is found guilty of having committed an offence bothering on corruption or stealing, he would be served with the same penalty or punishment like every other offender as stipulated by the law.
If it involves a jail term, he also will get the same jail term like everyone in that category. No preferential treatment would be admitted. This is the plain equality before the law.
But on the contrary, as human beings, all fingers are not equal because there are certain individuals who by virtue of the kind of offices they occupy are different from others and thereby are attuned to certain privileges.
For if all men are presumed to be equal, why would the governors or the president be subject to immunity powers? After all, they were all mere citizens before we elected them into those offices.
Also, where is it written in the law that the president must go with armed security men? So, you realise that some of these procedures were created by convention and attached as privilege to such an office.
Same privileges are not exempted from the judiciary. Since I don’t refute the objective for the raid, I still maintain that the judges should have been treated with a certain level of decorum.
But I plead that we should thread with caution regarding matters such as these, since it involves one of the three arms of government, so, it doesn’t back fires on us all.
This is because we only have one government that has three arms and we cannot assume that the entire judiciary is corrupt simply because a few judges are being probe for corruption.
We run a system in this country that encourages corruption. We are all attacking the outcome or results of corruption while neglecting the actual causes of corruption.
The whole system is bad and we must re-orientate ourselves not just only governance. I think, the right question we need to ask ourselves is: what really causes or prompts judges to collect bribe?
Some of the causes may trend from not being paid salary as at when due, being badly remunerated and having a very low or shabby standard of living especially where houses and offices are in bad shape and poorly taken care of.
Prominent Nigerians are facing corruption charges or being investigated by the antigraft agencies especially the opposition. Would you share the view that President Buhari’s war against graft is selective?
My answer to that question is ‘No’. In the sense that we are all Nigerians and the anti-graft agencies consist of morally free individuals who are just like everyone else.
Nobody in the country can authoritatively say that he or she has not practiced corruption at one level or the other. There are several ways corruption can be practiced; it must not necessarily involve money.
For instance, the high level of favouritism by citizens, inordinate ways of treating people based on their social status especially between the rich and the poor , and so on.
I had once raised this question during a conference, where I asked; since the anti-graft agencies are the ones investigating criminal charges and offences, who will in turn probe them if they go contrary to the law?
There are a few cases I’ve had cause to write the EFCC regarding the procedure or manner in which the agency handle cases which sometimes are so uncalled for especially in civil cases involving contractual agreement between parties.
It is what I call an extreme abuse of prosecutorial powers. In some cases, the agency would use the court as avenue to stall proceedings. A situation where it makes unnecessary charges against a defendant and the prosecution would then abandon trial on several occasions.
At times, when the prosecution is present, will seek for an adjournment, either claiming not to bring its witness or would give a frivolous excuse why proceedings won’t go on.
This will make a matter lingers for years and would drastically affect the life and social wellbeing of the defendant. I still maintain that no agency is devoid of corruption but corruption within the anti-graft agencies could be minimised if certain necessary elements are put in place.
But when they are deficient on the basic amenities they require to function effectively, it’s enough grounds for them to even get annoyed and might deliberately act otherwise.
For instance, if the officials in the agencies are not well paid, they will lack the zeal and enthusiasm to function. This might give rise to all kinds of behaviours and illegal actions against accused persons.
Imagine if a man is accused of stealing, maybe N115m, in a situation where the agencies are not well paid, it might anger them to take drastic measures and sometimes go against the rule of law just to even victimise the accused person.
EFCC boss, Ibrahim Magu seeks a review of the laws to enable the agency and other anti-graft agencies to run their operations independently without government’s interference. What is your evaluation of this advocacy in view of the benefit of the recovered sum to the entire country?
If you ask me I’ll say not just a share but be given the entire recovered loot to function effectively. But they cannot just take the sum directly rather the total recovered sum will go back to the National Treasury, which will in turn finance the agencies with it.
These were loots that nobody expected to be in existence and even if it was expected, a substantial amount should be given to the agencies to enable them upgrade on the level of technological equipment in their possession.
The judiciary should not also be left out in terms of proper funding. Though the recovered loot can be channeled to other sectors in the country, but it depends on the amount recovered.
The reason for my advocacy on these two sectors is because they are oftentimes underrated and ignored as though they play no vital role within the system.
The government should pump more money to the investigative bodies like the anti-graft agencies to aid the fight against corruption. Since the recovered loot was not part of the government’s budget, all of it should be channeled to the agencies to fight more corruption.
Once the case regarding the loot has been closed and judgement has been given to the accused person, then the money should first be forfeited to the government which will in turn wire it down to the agencies.
As long as there are no more litigants or appeals at the Supreme Court in respect to such property, then the property should be made available for use by the antigraft agencies.
The agencies need to be funded properly including their lawyers. When this is achieved simultaneously with the judiciary, then the fight against corruption would be more efficient and effective.