‘No Excuse for the Shameful Desecration of the Rule of Law by the DSS’

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Few Nigerian lawyers, have over the years, distinguished themselves in other jurisdictions, especially the United Kingdom. Professor Fidelis Oditah QC SAN is one of such. In a chat with Onikepo Braithwaite, Jude Igbanoi and Tobi Soniyi, he gives a legal perspective on the raid of the Judges by the DSS, and the ongoing debate over the proposed sale of the nation’s assets, which he supports with a caveat. He also spoke on a wide range of national and professional issues and compares legal practice in the UK and Nigeria, jurisdictions both of which he practices in.

What is your view on the Dawn Raid of some of the Federal High Court and Supreme Court Judges by the DSS today?
Like most Nigerians I woke up with that breaking news. I felt very sad because, the commando style arrests and attempted abduction of serving judicial officers are entirely misguided, represent a further misadventure in our democratic journey, and threaten to return the country to its recent dark days. The manner of the arrests and attempted abduction represents the height of impunity and breakdown of law and order. In all circumstances, the rule of law must prevail. There can be no excuse for the shameful desecration of the rule of law by the DSS. We cannot condone such jungle justice under any pretext and I fear that the misguided actions of the DSS have done more harm than good, to the fight against corruption. The DSS is seeking to return us to the rule of force, but that can only presage a breakdown of law and order. Whatever the alleged crimes are, there must be due process. Was any of the Judges invited for interrogation and refused? Are public officers suspected of crimes arrested by the DSS in such commando style? We must strengthen our institutions rather than weaken them. The actions of the DSS show how very weak our institutions are, and how they can be manipulated and misused for ulterior purposes. We need strong and independent institutions, not strong Presidents or DSS Directors. Our judiciary cannot be intimidated or cowed. We must expose and condemn abuse of power, whoever the abuser or the abused is.

To be clear, Judges like all of us, are subject to the rule of law, including the criminal law of Nigeria. If they commit offences, they should be investigated and prosecuted like any other citizen. And, if found guilty, should be sentenced like any other citizen. The judicial office cannot be used to cloak corruption or any other crime. Judges should be paragons of virtue, not petty or serious criminals abusing and desecrating their judicial oaths. There are known instances in the United States and other countries, of Judges being imprisoned for corruption after they were investigated, prosecuted and convicted, following due process. We should do the same in Nigeria and cleanse our judiciary of the criminals amongst them masquerading as Judges and abusing their judicial powers. So far, the National Judicial Council (NJC) has shown little appetite to prosecute erring Judges, preferring to retire or dismiss those found guilty and in some cases with full benefit. Such decisions do not serve the public interest, and must be corrected. We expect the NJC to recommend criminal Judges for prosecution, otherwise it risks undermining public confidence in the judicial system and in the NJC¹s ability to discipline erring Judges.

Finally, as we condemn the show of shame by the DSS, we must not lose sight of the fact that judicial corruption has become the bane of the Nigerian justice system. Many Judges are corrupt and corruption takes a variety of forms. What is common to judicial corruption in all its forms, is that the case is thrown and justice is miscarried. Because of the general fall in the standard of our Judges and adjudication, it is often difficult to tell where incompetence ends and corruption begins. But given that there should be no room for incompetence or corruption, we call on the NJC to be more proactive in disciplining incompetent or corrupt judges, while we commend and eulogise the thousands of honest Judges doing their best for the country, under the most challenging circumstances created by executive and legislative corruption.

Learned QC SAN are there any constitutional provisions and other laws that allow for the sale of Nigeria national assets by the Federal Government? If so, do they stipulate any conditions for such sales?
Inherent in the concept of ownership is the power and ability to dispose of the bundle of rights constituting the ownership, unless there is a prohibition against alienation or disposal. Indeed one of the features of ownership of an asset which is inherent in everything capable of being the subject of ownership is the power of disposal. There is therefore no need to search for a statutory or constitutional power to dispose of an asset owned by Nigeria. Like any other owner, Nigeria as the owner of an asset has inherent power to dispose of its assets unless there is an express or implied prohibition against disposal. And Nigeria’s dispositive power is generally exercisable by the executive arm of the government. There can be no doubt therefore that Nigeria has the power to dispose of its assets.

In addition, there are a number of statutory provisions which make express provisions for the disposal of assets by identified functionaries of the government. Two examples are, first, the Petroleum Act 1969, gives the Minister of Petroleum power to grant oil exploration licences, oil prospecting licences and oil mining leases – all species of asset disposal and, second, the Public Enterprises (Privatisation and Commercialisation) Act 1998 which lists specified public enterprises for partial or total divestiture and gave power to add to the list by a publication in the Gazette.

Under section 16(1) of the Nigerian Constitution, the Government is mandated to harness the resources of the nation and promote national prosperity and an efficient, dynamic and self-reliant economy. Section 16(2) requires the government to harness and distribute the material resources of the nation for as best as possible, to serve the common good. How can this objective be attained if there is no power of disposal of national assets?
The power of disposal of assets owned by Nigeria is exercised routinely. We concessioned our ports and are about to concession our airports. The Federal Government disposed of many of its landed properties in many parts of Nigeria. This Day newspaper of 4 October 2016 carried an advertisement of the proposed sale of two aircrafts from the Presidential fleet. That is a proposed disposal. There is no distinction for this purpose between strategic and non-strategic assets. The executive power to dispose is constrained by the well known public law principles that the power of disposal must be exercised for proper purpose, in good faith, for the purpose of raising revenue or stopping waste or some other identified public benefit.

In addition, the Public Procurement Act lays down procedures and safeguards for the disposal of national assets, eg sections 55 and 56, eg that: (i) the primary source of receiving offers for the purchase of any Government asset shall be via an open competitive bidding, (ii) a valuation report must be prepared for the property by an independent valuer, (iii) the disposal of assets shall be planned and integrated into the income and expenditure budget projection of Government, and (iv) the timing of the disposal of the assets shall take place when the most advantageous returns can be obtained for the asset in order to maximise revenue accruing to government.
If the sale process is transparent, full value is achieved for the national coffers and the sale proceeds are invested in critical infrastructure. Asset sales should be encouraged. A sale in such circumstances would make Nigeria’s balance sheet more liquid and enhance the value of Nigeria. Past experiences do not suggest that Nigeria has the political will to achieve these objectives.

The Senate seems to be against the sale of national assets. What is your opinion?
I am aware that on Wednesday, 28 September 2016, the Minister of Information stated that the Government was yet to make a decision on this matter and that reports suggesting an imminent sale were mere speculations. Be that as it may, as I had previously noted, the decision on whether or not to sell national assets is a purely commercial and economic one for the executive arm of the government. The Senate has no power to direct the executive arm of the government not to sell any asset. The functions of the Senate are spelt out in the Constitution. They do not include the power to pass resolutions directing the Executive on how to exercise executive powers of the Federation that is vested in the President.

What is the impact of the Senate saying that the national assets should not be sold? Does the Constitution allow the Federal Government to by-pass the Senate and go ahead with the sale? Can you comment on the Senate’s 20 point agenda to reflate the economy?
The resolution of the Senate is just what it is – a resolution! It is at best advisory. As I have stated in the previous question, a resolution is not a law. There are procedures for making laws. The Senate can pass a Bill seeking to place restrictions on the power to dispose of assets and hope that the House of Representatives will pass the same Bill and that the President will assent to same. When these procedures are followed, a valid law will be in place restricting sale of national assets. But simply passing a resolution directing that the assets be not sold, is futile.

The Senate 20 point agenda – which added 13 to the late President Yar’Adua’s 7 point agenda is entirely advisory. In these challenging times, any useful advice is welcome. To the extent that the Executive arm of Government sees merit in some of the Senate’s 20 point agenda, it will adopt and implement them. Nothing more, nothing less.
I think there are some good recommendations in the Senate’s 20-point agenda and no doubt the President and his cabinet would have found some of them useful, although most of the recommendations are matters of common sense. The devil is in the implementation. Nigeria has found it difficult to implement even the most basic reforms partly because of corruption, partly because of conflict of interest, partly because of an inefficient, corrupt and almost illiterate public service.

Is there a constitutional provision for Nigerians to have a referendum to decide for or against the sale of national assets (as in the case of Brexit or Bremain)? Or will it be a case of the Federal Government thrusting its decision on Nigerians, whether they want it or not?
The 1999 Constitution does not provide Nigerian citizens with the right to have or request a referendum to decide whether or not Government should sell national assets. In fact there is no constitutional provision for deciding national issues through a referendum. Nigeria’s representative democracy is built on the overarching premise that its citizens exercise control over the executive through the ballot box and over the legislature through the ballot box and the power of recall, not the referendum.

Some Nigerians (including trade unions, who have threatened to go on strike) are dead set against the sale of national assets, arguing that nothing good has ever come out of those sales. That Nigerians have never benefited. That past governments have simply sold such assets to their friends and cronies at ridiculously cheap, under-value prices, and this new exercise would be no different. Others argue that if the Federal Government alienates all the country’s assets, our children will not have much to benefit from in the future. What is your opinion? Do you think that the concerns of the opposers to the sale of national assets are germane?
I believe the debate has become somewhat confused. Transparency, full value and judicious use of the sale proceeds are my guiding principles for the disposal of assets. If we can get a few billion dollars from the asset sales to invest in our infrastructure, I would be all for the sale. Sadly, there is every reason to be apprehensive whether these objectives can be achieved. Some asset sales have been very successful, eg telecom licences in early 2001. But in some cases, corruption took over the sale process and many people who have no two brown pennies to rub together, acquired ownership of national assets without the technical or financial capacity to own or operate such assets. A good recent example is the privatisation of NEPA where a number of “investors” borrowed both equity and debt to fund acquisition, leaving the acquired DISCOs overburdened by debt and no source of fresh investment.

Taking into consideration, the reservations of Nigerians in respect of the sale of national assets, do you think that there is a better method that the Federal Government can adopt in its sales technique, to ensure that the goals of the sales are achieved and maximum revenue is derived from same? How will Nigerians benefit from the sales?
If there is integrity in the disposal process, it is transparent, full value is obtained for the assets and the proceeds are put to infrastructural development then I am all for asset sale. You use what you have to get what you need. That is what everyone of does. Nigeria can be no exception. Besides, leaving the assets in public ownership encourages rent-seeking and other forms of corruption and waste. The public fear, which is well founded, is that the sales would be affected by monumental corruption and what belongs to all of us will end up for little or nothing, in the portfolios of private individuals. The Nigeria Liquefied Natural Gas Company Limited (NLNG) is not a good candidate for disposal, because it is not a burden to the Government and appears to be professionally managed and generates reliable revenues.

As you are aware, the State Governments go to the Federal Government regularly, for ‘bail outs’, even to pay their workers. Recently, it was reported that a further reduction in the Federal Government’s dwindling revenue, is imminent, as NNPC intends to use Royalties (part of which were probably being given to the Federal Government) to fund Joint Ventures. Obviously, this may result in less bailout funds for the States. Do you think that this system of 36 States plus FCT is viable and sustainable in the long term, seeing that most of the States in Nigeria do not seem to be able to generate any funds to maintain themselves?
Both in the short and long terms, the kind of federalism we practice in Nigeria whereby the Federal Government plays a paternalistic role by offering monthly handouts to the states is highly problematic. It is plainly is unviable and unsustainable. But there are several aspects of the problem. The first is the vesting of all natural resources in the Federal Government by section 43 of the 1999 Constitution. This is a recipe for disaster. It creates too strong a central government and impoverishes the states.

Every state cannot generate IGR like Lagos where almost 60 of all economic activities in Nigeria takes place. Many state governments are lazy, clueless and simply have no agenda to improve the lives of their people, but the root cause of the problem is the dysfunctional constructional structure, which vests all the natural resources in the Federal Government and returns a little back to the states through derivation and other sharing principles. The solution is to go back to the 1963 Constitution of Nigeria where we had genuine devotion of political and economic power to the regions. In other words, we need fiscal federalism and not the lip service of the 1999 Constitution. Vest resources in the states and make them contribute an agreed percentage to the Federal Government to run those services that are best provided centrally. That is not rocket science; it is common sense. But will it be implemented? Probably not. Turkeys are not known to vote for Christmas! The allure and sucre of Federal power and the capacity for graft that it promotes, are so strong that politicians are unlikely to find the political will for such obviously beneficial reform. In the absence of fiscal discipline, we are likely to continue to have the problem of paucity of funds even where States are allowed to manage their resources. The bailout of States by the Federal Government is thus a short-term measure and is neither viable nor unsustainable.

The ECOWAS Court has ruled that the continuous detention of Colonel Sambo Dasuki (Rtd), the former National Security Adviser, is unlawful. Can you comment on this?
As a Nigerian, I am outraged by the scale and manner of dissipation of scarce resources by Dasuki as the National Security Adviser. It was shameful and disgraceful that a national security adviser should waste public resources in financing a political party. It was most irresponsible and he should be punished for his shameful role. However, that punishment has to come from the courts following due process. It cannot be from the executive. Our Constitution does not give the executive arm of the government the power to punish any Nigerian for any alleged crime. Dasuki’s detention after he was granted and met the bail conditions imposed by the Nigerian court, is plainly unlawful and a gross violation of his rights and of the Constitution. Nigeria does not belong to anyone – not to Dasuki, not to Buhari, not the DSS. Every power which every government functionary exercises in Nigeria is derived from law, not from force. The rule of law is sacrosanct. The executive arm of the government cannot cherry-pick which laws to observe. It has no such choice. Dasuki’s continuous detention cannot be justified on the basis that he is a security risk or that he is being detained for his own protection. That is utterly disingenuous. Whether or not he is a security risk is or needs to be detained for his protection is for the court to consider and take into account, in deciding whether to grant him bail and if so, on what terms. And having taken these considerations into account and decided to grant him conditional bail, it is childish, disrespectful and wrong for the DSS to continue to detain him. He must be released immediately.

Do you think that the Code of Conduct Tribunal and the Prosecutors, have been performing within the ambit of the Code of Conduct Act, in the handling of some of the recent high profile cases?
I believe the CCT and the prosecutors have been acting within the ambit of the existing law in handling some of the recent high profile cases. The problem is not with the CCT; it is with the high profile individuals who have a feeling of entitlement and see themselves as being above the law. It is an arrogant mental state that needs to be disabused. Another aspect of the problem is the misuse of legal procedures by senior lawyers in shielding their clients from prosecution. It is a wrong and ignoble role for the lawyers and they should be sanctioned.

In every legal system, if you are accused of a crime or other wrongdoing, you are entitled to your day in court for the prosecution to prove its case. In Nigeria, senior lawyers promise their client that they will frustrate the prosecution and filibust and they misuse every available legal procedure to achieve their ignoble ends, and in the process bring the profession into disrepute and erode public confidence in our legal system. In this way, both the senior lawyers and their clients act with impunity – one to commit a crime, the other to shield the accused from prosecution. That is truly disgraceful as they give the impression (which can no longer be regarded as wrong) that Nigeria cannot enforce its laws and has outsourced the enforcement of its criminal laws to foreign prosecuting authorities. Or that there is one law for the rich and another for the poor.

You have had the benefit of practicing in the UK and in Nigeria. How will you compare both? What really distinguishes legal practice in the UK from practice in Nigeria with particular reference to civil procedure?
The differences are like night and day and probably worse than comparing chalk and cheese. The UK courts are probably the most efficient and dependable in the world. Over 75% of the cases litigated in the UK Commercial Court have no connection with the UK. Neither party is a national of or resident in the UK. They are foreign parties who have chosen English law and English courts to resolve their disputes because of the ubiquity of English law. The court staff including masters, registrars and judges are courteous skilled and efficient professionals that provide high quality public service. For similar reasons, London is the global centre for international arbitration. The availability of experts, the existence of arbitral infrastructure and a very knowledgeable and supportive court system. In short, the court is administered as a high quality professional public service. As small as England is, four out of the top ten global law firms are English law firms – providing legal services to clients the world over and generating over £40 billion annually from the provision of legal services. You can imagine the significant contribution that the provision of legal services makes to the UK GDP. UK regulators and courts are facilitative.

In Nigeria, in contrast, the court system is administered as a bureaucratic, incompetent and highly inefficient public service where judicial staff – registrars and judges treat litigants as if they are doing them a favour. The system for listing cases is chaotic, too many cases are listed, routine applications that should be dealt with by registrars, come before the judges, very few judges read case files before sitting, very few are prepared to give bench rulings on disputed interlocutory issues, adjournments are the order of the day, there is a very weak exercise of case management powers, the appellate courts provide insufficient support to the High Courts especially in respect of case management interlocutory decisions, there is no effective or meaningful cost regime, there is no sifting system for appeals.

Every flimsy issue can be pushed all the way from the High Court to the Supreme Court, provided a question of law can be formulated. The court registries simply do not do their work efficiently or at all – this too is a function of management and I must note the improvements in the administration of the Lagos Division of the Court of Appeal. Because of an incompetent court registry, judges perform registry functions in open court. It is not unusual to go to the Supreme Court and the Judges will be asking when did you file this or when did you file that, or hear applications to file processes out of time. With all due respect, those are registry functions, not for the Judges in open court. When you have not seen how other systems work, you won’t find anything wrong with judges performing registry functions in open court. It is impossible to see this in the UK or the US, for example. In the UK, a few days to the hearing of an appeal, the Barristers clerks attend the registry to ensure that all the papers are in apple pie order. In Nigeria, there is a litany of problems. Underlying the dysfunctional court system are the same factors that underlie our dysfunctional public service – indiscipline, incompetence, inefficiency, corruption and weak administration.

It appears that we simply cannot administer or run any public service efficiently in this country. If we cannot run our public utilities or schools or civil service efficiently, why should we be able to run an efficient court system? Lawyers are hampered from providing efficient and world class services by an impossible court and public service, that are rooted in the distant past and stifle innovation and impedes everything rather than being innovative and facilitative. For example, we have had to abandon two large transactions this year, because we were impeded by regulators in Nigeria and consequently lost the significant revenues that would have accrued from both transactions. The cost of our incompetent system is huge, and we are not doing much to address the problems. How can there not be youth unemployment if virtually illiterate public servants and regulators frustrate the most innovative transactions? If the deals I am talking about were in the UK, we would have done and completed both transactions. Does it mean that the Nigerian regulators truly know more than the UK regulators? We must tell ourselves a few home truths.

You are a well known access to justice enthusiast, and the Nigerian justice delivery system has been adjudged as one of the slowest in the world. What, in your view, is the panacea to this worrisome problem of wanton delays in the system? What measures can be taken to improve the system?
We need more efficiently administered court system, competent judges must be recruited across all levels of decision making, proper costs orders must be made, and the appellate system needs to be streamlined. Let me give you an example of the problem we have in this country. A judge grants an accused person bail. The Judge does not sign the bail order before he travels for Judges conference. The bail cannot be processed because the registry staff say there is no signed and sealed court order. The Judge is away for over a week. The accused person languishes in jail for an additional 10 days because of this silly issue. In most sensible places, the court staff will process the bail application on the basis of the manuscript order read by the Judge in open court. Another example. I go to court in July to argue a case.

The Judge says he is no longer taking contentious cases because of the looming vacation. He gives me a date in September. I turn up in September and I am told the Judge is away for Judges conference. To my mind that is a most incompetent way to administer any public service. How can the court not know in July the date for the annual Judges conference in September – 6 weeks away? In over 20 years of high end legal practice in England, I have never heard of a Judge refusing to hear a contested application because the vacation is looming! Why can’t the Judges have the conference during the court vacation? How many weeks vacation do other public servants get annually? We have truly set the bar for performance of public service in this country, self indulgently and self destructively too low. We run a court system that will spare the court users no inconvenience.

Our courts were not always this incompetent or inefficient. We have entrenched mediocrity everywhere and sacrificed merit. No system can make progress in that way. You must put your best people in positions of authority. Sadly there are very many mediocre people occupying very senior and powerful positions, in all aspects of our public service and dumbing down on all of us. While other countries are aspiring to reach the top in public service delivery, we appear to be engaged in a race to the bottom. You cannot put something on nothing and expect it to stand!
Another example of how we have lost our way, is how the courts exercise the power to award costs. Costs are supposed to help the victorious litigant to recoup his expenditure in prosecuting or defending a case. Its assessment, requires the victorious person to file evidence of costs incurred. The assessment could be detailed or a summary. But the object remains the same. In the 1970s and 1980s our courts awarded proper costs. In some instances, costs of more than £200,000 were awarded in Nigeria. In one case, I saw costs of £435,000. In today’s money, that would be costs of between N120 and N250 million. Would a Nigerian court ever award such costs today? Very unlikely. But such costs are awarded routinely by arbitral tribunals seated in Nigeria and are enforced by the courts as part of the award.

It is not unusual for the Supreme Court to award N100,000 at the end of a case that has taken over 15 years to prosecute from the High Court to the Supreme Court. Today, N100,000 is $200. Is it conceivable that anyone can conduct a case in this country in the High Court for such paltry amount? Is the N100,000 the filing fees paid or the cost of compiling records of appeal or the cost of flying to Abuja? What about the legal fees? Is there any appeal that can be prosecuted or defended by any lawyer for N100,000? In short, what does the court think it is doing by awarding such ridiculously low amounts as costs? Until and unless the courts begin to award proper costs, they cannot give litigants any incentive to use the courts efficiently or to settle unmeritorious cases. The abuse of interlocutory applications and interlocutory appeals and their irresponsible use to delay the resolution of cases in court, is possible in part because of the absence of an effective costs regime and in part because of weak exercise of case management powers by the courts.

Finally, the courts at all levels will continue to be overburdened with spurious and unmeritorious cases so long as they refuse to impose proper cost orders. In this respect, the Supreme Court must lead the change. With no sifting mechanisms for determining appeals that should be heard, and a career promotion (SAN) based on the number of appearances in the appellate courts and no proper costs orders, we have erected a court system that has failed its users. Only politicians are served effectively and timeously by our courts, but there are many commercial cases that are more important than disputed governorship elections. Many of them wallow in the Supreme Court dockets for 10 years or more while political cases get resolved within 6 months. It shows that we really know our priorities and that our aspirations for being a top 20 economy in 2020 is well on course!