Interview with
Chief Wole Olanipekun (SAN)
President Nigerian Bar Association (NBA)

Has the regular refrain about the rule of law affected governance in Nigeria?

A: Yes, to some extent in the sense that the National Assembly is in place. At least the President if he does not act in accordance with the rule of law he knows that there is a document which describes separation of powers. He cannot amalgamate, appropriate the powers, duties and functions of the legislature and the judiciary. No, in the sense that the Constitution has not been obeyed to the letter. The Constitution itself in most cases has been brushed aside by the executive arm of government and even by the legislature. [Take] an example of the fuel tax, anybody knows or every leader should know that when you make budgetary proposal to the National Assembly, it is a mere proposal. It is the National Assembly under the Constitution that has the right to pass the proposal into law after dotting the I's and crossing the T's, making corrections here and there and even asking questions. The National Assembly also has the right to delete any part of the proposal and not until the proposal becomes an Act of Parliament, the President of the Federal Republic of Nigeria cannot implement them.

The fuel tax proposed by the President, although the National Assembly has not passed it into law is clearly unconstitutional. The President cannot just do that. He cannot force his will on Nigerians and the NBA has said it. We said it unequivocally that Nigerians have never witnessed this kind of suffering under which we have been subjected. It is so disturbing and so excruciating but the President is talking about reforms. NBA is not against any type of reform, but the President's reforms must have human face. It is the duty of the government to put its ears on the ground, know the plight of the people and appreciate where the shoes pinch. So we told Mr. President that this fuel tax will further compound the problems of Nigerians, that is even if it is constitutional. Secondly, that it is unconstitutional and thirdly that even implementing them before the National Assembly passes the proposal into law is also unconstitutional. But we are in a country where Nigerians do not appreciate their rights and this is because of long years of military dehydration. Our people have been robotized. We believe that whatever government does is right and government itself is under the erroneous view that it can do anything and nobody should ask questions. That is why in our country today an association like ours is seen as an enemy association simply because we advise, criticize and counsel government from time to time. We have gotten to a situation in this country whereby like you are doing, like the NBA is doing, we have to encourage our people. I want to draw a caveat -we are not saying let us topple the government, but let us build political awareness, let us educate our people regarding their rights vis-a-vis the government. We have to make our people realize that ultimate sovereignty belongs to them. A government should not be able to do whatever it likes and get away with it. In the fuel tax issue I am surprised that no State in the Federation has taken the Federal Government to court. The President woke up one day and said that all the tollgates erected with taxpayers' money all over the country of which millions of naira have been spent, the tollgates that have been there for over three decades and by a President's fiat said they should be demolished. We should weep for this country. We are getting vegetated and they can do whatever they like. We don't ask questions from them and the few people, very few, few associations like your organization, NBA, Nigerian Labour Congress, Nigerian Union of Journalists that do ask questions are called saboteurs whereas we are the most patriotic of all people.

We Nigerians are in the danger zone because those who criticize the government objectively, when they are silenced or when they are given names that do not belong to them then you know that we are in the danger zone. That is why the NBA is always cautioning. Abacha was not tolerating opposition and to some extent this government is also not tolerating contrary views … and this is bad enough. But it is only Nigerians that can change the System, … not the military. The people deserve the type of government they want. It is we Nigerians that can make them see reason and drum it into their ears every now and then that they are there by virtue of our votes. It is only in this country that a leader believes that he is doing us a favour.

That is very surprising. Have you ever read it on the pages of a newspaper where a group of people in the United States of America, Britain, Germany, France or even in South Africa will send emissaries to the President or Governor to say “thank you” for constructing a road by-passing our area, for giving us drinkable water, electricity, or GSM? And you say GSM is dividend of democracy? Something that is so common in nearby Benin Republic that peasants and everybody has and someone will tell us it is dividend of democracy as if we are not entitled to the good things of life! Even God in His Omnipotence believes that we are entitled to the good things of life.

NBA's concerns about judicial pronouncements that jolt the polity

A : The NBA is very much concerned about some of the pronouncements, orders and rulings of a few of our judges. One impression that must be corrected is whether the Judiciary in this country has been compromised. I do not agree that the Judiciary has been compromised. The Guardian last year voted the Supreme Court of Nigeria as its Man of the Year and I agree with them. When you look at the Judiciary from the top, the Supreme Court, the NBA and I have absolute confidence in the Supreme Court. So far they have been doing well. But then you might have instances, occasions whereby the Supreme Court, manned by men might make mistakes; human mistakes and you are entitled to criticize them. The Supreme Court also reverses itself when it is convinced that it made some mistakes in the past. The Court of Appeal is following in the footsteps of the Supreme Court and I dare say that majority of High Court judges are good, excellent and they are performing wonderfully well. Taking together - all the three Arms of Government - without any hesitation, I will say the Judiciary has performed best in terms of soberness, learning, patriotism, commitment, dedication. In terms of a corrupt- free institution, the Judiciary is still the best of them. And again, one thing you have to commend the legal profession for, and particularly the Judiciary is that it has an in-built mechanism through which it can correct some of its erring members who go astray or outside the Constitution or who take other things into consideration before reaching their judgment.

That is why since 1999 some judges have been dismissed from office; some have been compulsorily retired, suspended [or] reprimanded. I know very much about this by virtue of my position as the President of the NBA and I know that the Body of Benchers discusses the problems facing the Judiciary and the legal profession as a whole from time to time. How I wish the Executive arm of government as well as the Legislative arm of government could take a cue from the Judiciary! Having said that, the Judiciary is an institution that is administering justice and those who are Judges or those who sit in judgment over their fellow human beings must be above board. They must be innocent, learned, and brilliant. They must have robust, impartial mind. They should not be ordinary and those who have chosen to be there must unequivocally be above board.

Now coming to some of the decisions, the NBA has spoken several times. You mentioned the horrible episode of Justice Egbo-Egbo that has been resolved. The National Judicial Council (NJC) has taken a decision … so don't let us over flog a dead horse. When I read about ... [Justice Nnaji who sat in Enugu State and annulled the election of the Governor on Anambra State, the NBA said a lot of things [were] wrong with it]. These are some of the things that we believe overheat the polity. Fortunately the Judiciary for the first time in the annals of its establishment in this country has a Code of Conduct … and part of it is that a Judge must know his/her onions. A Judge must be learned in the true sense of it and brilliant. Therefore Justice Nnaji should have known better. But the NBA is not folding its arms. I remember in 1999 or thereabout when this gentleman was appointed as a Judge, one of our Bar leaders in Enugu State - if am not mistaken) - Dr. Asara, who was the then Chairman of Enugu branch of the NBA challenged his appointment. He said he (Nnaji) was not qualified because he was not yet up to ten years at the Bar. I don't know how far the case went but this is just to show you that the NBA is not folding its arms and keeping mute over these things. We hope that those who are at the helm of affairs in this country and in particular the Executive and the Legislature will listen to what the NBA has to say regarding the appointment of Judges. What the Constitution says now is that anybody who is ten years old at the Bar is qualified to be appointed a Judge of the High Court- we say this is too pedestrian. This is unfair. It means if someone is ten years old at the Bar and has not got the cognate experience, he has not handled any matter before in his life, has not prepared a Motion, has not settled any pleadings, has not settled any briefs in the Court of Appeal, has not appeared for any plaintiff or a defendant in any matter, he has not written a letter on behalf of his client and is just coming from somewhere you make him a Judge. We say this is not good enough; this is unfair to the administration of justice. When some of them get there, some I say, they don't improve. In any event there has to be a solid foundation and that is why we have a very robust Supreme Court because each of the Judges there learnt how to climb the ropes. They came out of the mill; they were properly grounded in law, properly educated. Those who are in the Supreme Court, Court of Appeal and some Chief Judges were invited. It was an honour for you to be invited to come and take up appointment as a Judge. Not just anybody should become a Judge of the High Court. It is a very serious business. So what the NBA is saying is that more than ever before (and I am happy that the Hon. Minister for Justice and Attorney General of the Federation Chief Akin Olujimi SAN is agreeing with us), before anybody is appointed a Judge of a High Court we must look into his antecedents. Let him even face an interview, a panel. They now have to apply unlike before where you will be invited. Some of our Judges lobby for the appointment, which is sad indeed. If you lobby for a position, then you should be ready to face an interview.

Then you must tell the panel of interviewers what you have contributed to the legal profession…. Then the panelists must ask questions … [about] his social background, his matrimonial background. All these things are very important. But all said and done, we are happy to note that we are correcting ourselves. In the legal profession, whether you are a judge or a lawyer, you are subjected to the discipline of the profession itself and to this extent we must congratulate ourselves. But again I must say ours is not a profession- particularly at the Judiciary level whereby if you score 98% you give yourself some kudos. No, the Judiciary must be clean in and out 100% because the mistake of one Judge might destabilize the entire system and it will make a dent on the entire Judiciary. All of us agree that right from the Chief Justice of Nigeria to all the judges of the Supreme Court and over 90% of the judges of Court of Appeal are good. More than 70% of the Judges of our High Court are good but the few ones that are not doing well are causing chaos here and there. We must avoid what we call juridical tyranny and one judge can cause it. One judge by his pronouncement can destabilize a whole society and bring an end to the democratic system and that's why care has to be taken.

Confidentiality of NJC investigation of erring judges and ‘godfatherism' in the judiciary

A: I would not subscribe to the view or the conclusion that the NJC is biased. No, there is the need for us to appreciate the system and the circumstances under which the NJC even came into being. There were reasonable arguments that you cannot write off, whether in a Federation we need the NJC. Does the NJC need to meet to decide on who becomes the Judge of a particular State within the Federal set up? One cannot say those who support it are not making any point. I support the NJC because of the peculiar environment of Nigeria. We are still evolving even after 43 years of attaining independence, which is unfortunate. Now the NJC does not have a final say in dismissal of judges. The best that theinstitution can do is to investigate the allegations made against a particular individual, then recommend to the head of government.

The best the NJC can do in the interim, pending the outcome of the Executive arm of government is to place the judge on suspension as in the Egbo-Egbo case. The ball now shifts to the President ... Let me give you [an] example. The other time the NJC in its wisdom decided to compulsorily retire the Hon. Justice Saleh, the former Chief Judge of the Federal Capital Territory and some other judges, they (NJC) sent their recommendation to the Presidency. The Presidency in turn sent its own recommendation to the National Assembly. The National Assembly invited me as the President of the NBA and I remember on the day I appeared before the Senate, Hon. Justice Babalakin was there because he headed the panel that reviewed Justice Eso's recommendation. We advised them that the recommendation of the NJC as approved by the Presidency are okay, in fact, very liberal, and that they should let the judges leave the judiciary and the National Assembly approved of it and the President gave the final authority. …. NJC is not a court of law. Not every Nigerian can know what is going on there until their findings are [publicised]. All said and done we must appreciate the kind of environment we are in. A lot of things are wrong with our nation. It is a nation that has lost all the virtues. So the Judges themselves are products of the environment and it might be too difficult for them to rise above the environment. But we are saying that since they have decided to be Judges, they must rise above [the] environment…. So let me assure you that the NJC so far is doing well.

I am not saying there are no rooms for improvement but the NJC has limited jurisdiction to the overriding effect of whoever is the Chief Executive of the Judge who is being disciplined or investigated by the NJC. For the time being, the NJC should be empowered to take final decisions against judges who pervert the cause of justice. If the NJC has the final say on Egbo-Egbo perhaps they would not have suspended him but that was the best they could do in the circumstances.

On rising court fees that impede access to justice for the indigent.

A : The NBA is worried about the upward review of court fees all over the country. We are taking steps in respect of some States particularly Lagos State. You would remember that the other time when fees were reviewed upwards the branches of the NBA particularly the Ikeja and the Ikorodu branches decided to [picket] the court. I was informed, and some senior members of the Bar did not like it. As the President I have to weigh this delicate balance [viz a viz a lawyer's contractual obligation to prosecute his client's case] to resolve things. I persuaded the NBA branches in Ikeja and Lagos to call off their boycott and they did. I also decided to get in touch with the Executive arm of government here in Lagos and they listened to me and the fees are being reviewed but frankly speaking, there must be unimpaired access to justice. It is a right, which should be guaranteed to every Nigerian. It is part of social service that a government must fundamentally provide for its people. Access to courts should be a matter of course. It should not be hindered by any considerations, particularly money. The Judiciary is the last hope of the common man. You should know the common man is perhaps one of the poorest in the society, perhaps one of the dregs of the society, then how about the common man's approach to the last hope? This (high fees) will put a barrier between him and the last hope. The Constitution should provide that Nigerians will have unmitigated right of access to court whatever might be the financial status or incapacity of that citizen. In cases of breach of fundamental human rights, if the litigant should pay at all it should be minimal fees. The time has come where the rules of our courts should be reviewed and different considerations given to frivolous and genuine cases in terms of assessment of fees. But all said and done, the Judiciary in this country is not free. Unfortunately, some of our Chief Judges believe that heavy returns must be rendered to the Executive and the Executive also believes that the Judiciary must make some money. It is wrong, in my own humble assessment. All over this country, none of our judicial formations is independent financially. The Judiciary is not as independent as the Executive or the Legislature. They don't take part in budgeting, they don't sanction the Budget of the Executive or the Legislative but their own Budgets are sanctioned and scrutinised and amended arbitrarily. If the Judiciary is independent, they will know how to augment and balance these delicate issues. In Britain for example, there are times people go to court and don't file any paper, you just go there, relay your problems to the Registrar of Court and he will reduce everything into writing and ask you to go. Then a hearing date will be given to you. … There is a very erroneous and unconstitutional belief that you have to pay before you get justice in this country. … You don't pay to get justice from any judge, you don't pay before your processes are filed. Even if you are going to pay it should be minimal. I would share the view that there should be no uniformity in the assessment of and attachment of fees to some cases. All said and done, once you allow people access to justice then you are enhancing the promotion of democracy and democratic norms and culture because democracy should be rooted and anchored on the rule of law.