‘Legal Aid Should be Elevated to the Level of a Fundamental Right’

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Access to justice, especially by indigent litigants has remained one of the most debilitating challenges of the Nigerian justice delivery system. Apart from the seemingly interminable delays in the system, litigation in Nigeria is expensive, this informed the setting up of the Legal Aid Council of Nigeria over three decades ago to provide legal services to the less privileged members of the society. Chief Bolaji Ayorinde SAN is the immediate past Chairman of the Council. In his discourse with May Agbamuche-Mbu, Jude Igbanoi and Tobi Soniyi, he gave an account of his four-year stewardship of the Council and how he managed to rebrand the nation’s premier legal aid institution. He also spoke on a myriad of other national issues.

In spite of the establishment of the Legal Aid Council, the poor and indigent in society still find access to justice quite challenging. Could you recommend a national strategy to improve access to justice for the poor and vulnerable members of society?
It is all about political will and allocation of resources. Politically, we must have a strong policy direction from the Attorney General of the Federation. The Attorneys General of the states will naturally take a cue from this direction. The policy direction must elevate Legal Aid to the level of a fundamental right of deserving citizens. It must not be seen as charity for the poor but a fundamental right. We will then see a situation whereby Legal Aid becomes a must have. Unfortunately the issue of Legal Aid was not even a campaign issue at the last elections. However the Government can still develop a National Strategy that elevates the provision of Legal Aid to its rightful place. You cannot imagine the mileage that the Government and Nigerians will acquire from the Legal Progression. As for resources, even in this austere times, resources could be better allocated. Once the structure is supported, more than half of the funding needed can be provided outside Government and Government will still get the credit. At this point the A.G.F will do well to set up a high powered committee comprising of all stakeholders to put together a National Strategy to improve on the current system. Such a committee will take advantage of both local and international contributions. I had the advantage of looking at the existing system in England and Wales. I was also privileged to be exposed to what some other African countries have been able to achieve. A comprehensive National Strategy must include all Legal Aid service providers who may not even be lawyers, such as paralegals but who have sufficient training to assist indigent people with direction as to access to the justice system. It can only be achieved with a determined leadership from the Ministry of Justice.

As Chairman of the Legal Aid Council of Nigeria, you embarked on the uphill task of rebranding the Council. What is your assessment of the council? What challenges does the council face in carrying out its pro-bono work?
I knew from the onset that the tenure was short and with the help of a very diligent management team led by the Director General, we decided to raise the profile of the Legal Aid Council. Our yearly lectures and Seminars touched on topics that exposed the all-important functions of the Council and its usefulness to the society at large. We embarked on a programme in collaboration with the Bar to make pro bono work attractive to lawyers not only for the purpose of meeting set targets for qualification for the award of the rank of Senior Advocate of Nigeria.

We created Legal Aid Council Partner Firms. This work begun all during my tenure as Chairman. The LAC Partner Firms were to assist the Council with pro bono work. Being a Legal Aid Council Partner Firm was to be like a badge of honour for any law firm or establishment. They were to be allowed to use our crest in their offices and even on their stationaries. This is in line with international best practices.

It would therefore be a great advantage for any law firm or organisation to have a relationship with the Council. Local and International clients hold such firms in very high esteem because of this status. However this innovation needs to be properly or adequately captured in a national strategy. This innovation and many others need to be institutionalised. For continuity Pro-bono work must be regulated so it is not abused. The Legal Aid Council is well placed to do this but it must be backed up by deliberate political support. It must also be supported by stakeholders outside the Council. Regulation and thereafter monitoring of Pro-bono work is very important. Constant review and improvement of the system is also important.

Many prisons across the nation are congested and filled with Awaiting Trial Persons, based on your role as former Chairman of the Oyo State Committee on the Decongestion of Prisons, what solutions would you proffer to the problem of prison congestion in Nigeria?
Our Prisons are overcrowded and underfunded. This makes nonsense of rehabilitation of offenders by the Penal System. There are so many forms of custodial sentencing that we have not exploited. We have suggested in the past, daytime custody for certain lesser offenders who can report at detention centres during the period of the sentence. They could be made to do community work during the period. The consequences of absconding will be made grave. We need to produce sentencing guidelines for both the lower Courts and the Superior Courts of Record. We need to look at the fundamentals of our plea bargain regime and rules so that everyone understands the parameters. The inability to access legal aid and support is the main cause of prison congestion by awaiting trial persons. We suggested many reforms. No police station should keep any arrested person for 24 hours without access to a lawyer. Where an arrested or detained person does not have a lawyer, it should be the additional duty of the police to ensure that contact is made with the nearest Legal Aid Service provider. This duty must be documented as the Courts must enquire before any trial commences whether such persons were given access to counsel or whether counsel from a Legal Aid provider such as the LAC or Public Defender office was invited. In fact the failure to do this ought to constitute a strong ground for a dismissal of the charges. This is how you elevate Legal Aid to the status of a fundamental right.

The Buhari administration has resolved to deal decisively with corruption. However for this campaign to be successful we need to effectively root out corruption from our consciousness as a nation. What role should lawyers play in the fight against corruption in Nigeria?
Lawyers have always played a significant role in the fight against corruption. Now, there is a difference in fighting corrupt persons and fighting institutionalised corruption.

In the fight against corrupt persons, you must ensure due process is strictly followed. As the state brings down its full might on the Defendants, the Defendants must be allowed to also vigorously defend themselves. This is good for the integrity of the process. It is not the job of any lawyer to aid corruption but it is the duty of a retained counsel to put forward all legitimate defences. The system should be allowed to work properly and we should have less trials by the media. These could even lead to a distraction from the main work of the prosecutors.
With regards to institutionalised corruption, we need a total restructuring of the polity. There must be fairness and equity in the system. A perception of unfairness weakens the system. Where the law does not apply equally to all, then the people raise all manner of excuses for their prosecution. They scream about persecution and we all get distracted. Corruption in the structure of our polity stems from the absence of checks in the system of governance. No executive office holder should have control over disbursements of favour or money. What we run now is governments of contracts. It should never be so. We marvel when we see in other climes how government officials even though respected, never have scores of people hanging around them like we do here. The answer is simple. Those leaders do not have the powers to dispense favour or public money. Once campaigns and elections are over, promises should become policies and the process of contracting, implementation, monitoring and remuneration must never be under the control of government officials. There are independent procurement agencies to do this worldwide. They will have a professional reputation to maintain. Ministers and Governors will not be under pressure to satisfy their hangers-on because they will not have the capacity to disburse funds and favours. You will see that if we achieve this, only people with competing ideas will move near elective offices. There should never be unaccounted funds. Nothing like security votes. It amazes me how our leaders have so much control over public funds. It should never be so. This affects the systemic fight against corruption. We are too busy looking for and dreaming about Messiahs and Saints to rule us. Take access to public funds away from governors and you will find the right people. Water will find its level as they say. When it is so hard to take public funds then anyone who dares will be severely punished by the law.

You published a book titled “Boko Haram, Terrorism and Fundamental Human Rights; the Challenges that concern us”. Could you enlighten us on the human rights issues arising from the war against insurgency? How can government effectively handle these issues?
Terrorism is a worldwide scourge. No one is safe from the menace. It is borderless and its dimensions are limitless. I advocated for due process in the prosecution of captured and arrested persons charged with terrorism offences not because I condone terrorism but because I am an ardent believer in the rule of law and due process. I conducted a detailed research on the September 11 twin towers attack in New York and the consequent moves by the United State Government prosecuting terrorists. Deep emotions can derail due process. Allegations of torture were prevalent and the procedure for interrogation in detention facilities like Guantanamo Bay led to questions by the International Society. One of the major objectives of terrorists is to dehumanise the rest of the society and in this, everyone behaves in the exact way the terrorist would have us behave. That is why I suggested due process in prosecuting even these heinous crimes. Following due process and transparent processes will prevent a situation where we have to be reacting to statements by groups like Transparency International.

Ghana recently tackled judicial corruption aggressively by removing over 20 judges in one day. Kenya has also achieved a measure of success in that direction. How do you advice we tackle judicial corruption in Nigeria?
Nigeria has had and still has many great men and women of impeccable character and integrity serving in our Courts. They toil day and night sometimes in unbelievable conditions to adjudicate on cases everyday. Like every endeavour of life there will be bad eggs and when this happens, naturally they are over blown in the press. There is a well- oiled system under the National Judicial Council that deals with discipline of justice. That Council is performing well.

Sometimes there is ignorance about how decisions are reached by the Courts and such decisions become unpopular and people call for the heads of the Judges. This should not be so. Even in the United Kingdom or the United States, the Supreme Court and other Courts in those Countries sometimes hand down unpopular decisions. This is however not an excuse for corruption. Where this is found, it must be addressed and dealt with. Again we must revisit the working conditions of the Judiciary.
How do you justify the jumbo remuneration of political office holders who come into office for 4 to 8 years while Judges are not properly remunerated. Sometimes their salaries are unpaid for months. We should address all these issues.

Stakeholders in the judiciary have expressed concerns over the poor infrastructure of the nation’s courts blaming it on dwindling allocations from both the Federal and state governments. In your opinion what immediate steps can be taken by the government to improve the state of the nation’s judiciary?
Again this is about not applying resources properly by Government. Law and order is most paramount in any civilised society. Everything revolves around law and order. The economy, social behaviour, everything you can think of. The physical structures in most Courts are crumbling. This is a minus for litigants and lawyers. The Judicial system must not only be free of corruption, it must encourage confidence in the end users including foreign investors. In England, courts are structured to give users confidence. It is a deliberate system. Justice must be visible, it must be respected. This cannot be so where Court halls are of a poor standard. A lot of work needs to be done in the construction and maintenance of our Court buildings.

The Justices of the Supreme Court have been criticised by certain members of the Bar with regards to the judgments they delivered in some electoral appeals. What does it portend for our democracy when the apex court comes openly under criticism?
The Supreme Court is the highest Court in the land. Lawyers rarely agree as to interpretation of the law. Criticism may come by way of intellectual discourse of decisions and this can even be documented in journals for continuing education.

However it is wrong for any lawyer to be disrespectful of the Supreme Court or indeed any Court. I have read one or two comments and I must say that they were in bad taste. Lawyers should restrict themselves to an intellectual analysis of the decisions without being disrespectful. Ours is a noble profession of very high ethical standards, behavior and demeanour.

Severe delay of cases in courts by unnecessary applications and interlocutory appeals have been identified as a major setback in the administration of justice in Nigeria. There have been suggestions that interlocutory appeals should be concluded at the court of appeal. What is your opinion on this suggestion? What further steps can be taken to tackle delay in the courts?
I agree that our laws need to be amended to restrict the type of cases that go all the way to the Supreme Court. However this calls for constitutional amendments. Delays have been greatly reduced by the front loading process introduced in the High Courts. We still need to do more. We should be able to predict with some degree of accuracy the period of litigation. This is a question that most litigants will ask you. In particular foreign clients are very pessimistic about litigation in Nigeria Courts. This is negative for the foreign investment drive in the country.
I have advocated that trial dates once given ought to be sacrosanct. This now happens to a large extent in criminal matters under the Administrative Criminal Justice Act. A similar provision must be introduced in civil litigation. This will improve the time spent at the trial stage. Again Judges must have the courage to make reports to the Legal Practitioners’ Disciplinary Committee regarding any counsel who fails to appear in Court without any reasonable excuse or who persists in filing unreasonable application to delay cases. This is done routinely in England.

Laws on Educational Standards and provisions for Educational Institutions appear to be given more attention today, but Nigerian universities do not seem to reflect global best practices. ‎ As Pro-Chancellor of Ladoke Akintola University of Technology, in your opinion how can we make national Universities more competitive regionally and globally?
I think we are losing sight of what University education should be. Quite a number of Universities, particularly the private ones are run like secondary schools or colleges. I attended Government College Ibadan in the 70’s. By the time we left school, everyone’s character was fully formed and developed. The University is not where students are treated like children. Do you know that the University of London which is one of oldest modern Universities in the world was established by groups of Jewish Students who came together and employed instructors in order to acquire knowledge. We keep playing down the role that University Students are expected to play in the society and this affects the development of our Universities. When I became Pro Chancellor at LAUTECH, it was in the middle of a strike by students.

I invited the students for a meeting and my first statement was ladies and gentlemen, we are all mature adults and I would be glad if you all spoke your minds to address the issues at stake. They were surprised as I did not look down on them as children. I put them on the spot as mature adults. The strike was called off the next day and we did not have closure for one day after that. The same students nominated me for a National Honour after my tenure. There is lack of freedom for the academic staff and authority to be regionally competitive or globally relevant. The University must be a place for Cross-fertilisation of ideas. There must be freedom of thought. Again resources must be well managed to create a conducive atmosphere for academic emancipation.

The Independent National Electoral Commission recently voiced concerns that Courts, especially the Court of Appeal, were delivering conflicting judgments on issues that are similar. INEC stated that because of these conflicting Judgments it could not identify which of the Judgments to comply with. How can the court of appeal ensures that its various divisions interpret similar provisions similarly?
You remember that a group of leading lawyers representing INEC held a press conference on this issue. They were very clear as to the interpretation of the decisions of the Supreme Court. There was no controversy. INEC needs to be fiercely independent so as to maintain the trust and confidence of Nigerians. Nigerians are very conscious of their electoral rights now. The Supreme Court has made significant pronouncements and that is the law today.