Olawale Fapohunda

Two years into the Buhari Administration, Justice Sector Stakeholders have began the stocktaking of progress made by the Administration in delivering on its promise of important reforms in the Justice System. Olawale Fapohunda, has a long and impressive resume of leading reforms in the Justice Sector. Onikepo Braithwaite and Jude Igbanoi spoke with him on the state of the Judiciary and Administration of Justice in Nigeria, including policing, penal reform, human rights and the much discussed Presidential Investigation Panel to Review Compliance of the Armed Forces with Human Rights Obligations and Rules of Engagement

 

You had great expectations for the Justice Sector at the inception of the Buhari administration, two years into the administration have your expectations been met?

I think many of us who pre-Buhari administration, campaigned for fundamental reforms in the way we administer justice, had great expectations from the administration. In many persons in the administration, we saw justice sector reform champions with sufficient subject-matter appreciation, to deliver on the commitments on delivering a justice system that works in the interest of Nigerians.         We were over confident that if there was one sector that will speedily feel the wind of change, that sector would be the Justice Sector. All I am going to say now, is that today we are much calmer and realistic about our expectations.

 

You choose your words carefully in answering that question, is that evidence of your disappointment with the way things have gone?

Lets just say that, we are looking forward to the next two years with renewed hope and much optimism.

Let’s review each component of the justice sector starting with the Judiciary. You were very vocal in the call for the speedy appointment and subsequent confirmation of the Chief Justice of Nigeria. How far do you think he has gone in reforming the Judiciary? What still needs to be done? 

Well yes insisting that the 1999 Constitution does not provide for the office of an Acting Chief Justice of Nigeria, either temporarily or endlessly, is not a favour done to the Chief Justice of Nigeria (CJN), but a contribution to the wider discussion on the need to strengthen our judiciary. We should keep reminding ourselves that, the judiciary is not a department within government; it is an equal arm of government. We should not expect an independent judiciary, if we place legal and psychological obstacles in the way of such independence. Anyway that is history now. The desire to sustain our democracy prevailed.

I did also say in the course of that advocacy, that it shouldn’t be business as usual in the administration of the judiciary. I am on record to have said that what Nigeria needs today, is not a Chief Justice of the Supreme Court, but a Chief Justice of Nigeria. That means that the Chief Justice should provide leadership and direction, not only for the Judiciary, but also for the Administration of Justice. For emphasis, the CJN cannot simply be the administrative head of the Supreme Court of Nigeria. The Chief Justice must be interested in the delivery of justice across judicial institutions, including those agencies whose activities directly impact on the justice administration in all the 36 States of Nigeria and the Federal Capital Territory. The Chef Justice must also be interested in the workings of the lowest courts. The CJN should be conducting on the spot visits and assessment of courts and places of detention across Nigeria, to get a first hand appreciation of the justice needs of Nigerians.

With profound respect to His Lordship, many of us were disappointed that the first major intervention of the office of the Chief Justice, was the inauguration of a Committee to advice on possible intervention areas in the judiciary. I am certain that, His Lordship was inadequately briefed. The fact that there had been several committees of this nature established by successive Chief Justices, may not have been brought to His Lordships attention. To be sure, there is nothing that needs to be said or written about the needed reforms in the Judiciary, that has not been the subject of multiple committees and constitutional conferences. The reason why many of these reforms proposals are still lying on the shelves, is the absence of political will, leadership and determination to bring together all the three arms of government and their components, to agree on the nature of administration of justice system we desire as a country.

I have proposed a National Council on Administration of Justice Chaired by the Chief Justice, with representation from the highest level of all the other arms of government, to provide implementation and oversight of identified interventions in the justice sector. The idea of a single forum in which the three arms of government, agencies with a justice sector mandate and civil society organisations, meet to identify and implement concrete interventions in the justice system has long been proposed, yet curiously ignored. The fragmented institutional structure of justice related institutions and a regrettable lack of coordination among the three arms of government, are sufficient reason for such Council.

 

So in summary you are saying that you are not pleased with the steps so far taken by the Chief Justice?

No I did not say that. I said that we need an intervention by the Chief Justice in the Judiciary and the Administration of Justice system in a manner never seen in Nigeria before now. The judiciary needs to find its voice, and respond in deed to concerns that there is a gulf between the workings of the judiciary and the expectations of Nigerians, for a justice system that works in the interest of justice.

And the issue of corruption in the Judiciary?

My view is that corruption in the judiciary, should be placed within the broader context of corruption in the justice system and the country as a whole. It is regrettable that our definition of corruption, appears to be limited to bribe giving and taking. There are fundamental institutional flaws in the system, that provide a festering ground for corruption. In many cases the weak or failed supporting structures around the judiciary, provide fertile ground for corruption.

 

Are you saying that money plays no role in judicial corruption?

Certainly money or lack of it, plays a role. For example, a judiciary that goes cap in hand to the executive, to beg for money for its every need, is not likely to inspire citizens’ confidence. We also need to revisit the conditions of service of judicial officers. I find it disingenuous to say that persons who are not able to survive on a judge’s salary, should not aspire to go to the bench. I think an appropriate conversation, should be around examining the adequacy of the take home pay and benefits of Judges. Judicial salaries, pensions and benefits should be reviewed frequently. I did suggest in one of my write- ups, that consideration be given to the establishment of an Independent Judicial Benefits and Compensation Commission appointed by the President in consultation with State Governors. The mandate of this Commission, would be to undertake a comprehensive review of salaries, allowances and benefits of all judicial officers in Nigeria, including lower court judges. The Commission should be required to submit a report with its recommendations to the National Council of States, for deliberation and possible implementation.

 

The Presidency recently directed the Inspector General of Police to establish Community Policing programmes nationwide, what do you think is the implication of this on the wider concern of police reforms?

Yes, a couple of us are preparing a memo to the Presidency. The Presidential directive on Community Policing, is based on an erroneous assumption that somehow Community Policing will solve policing problems in Nigeria. Community policing is not a program. It is a value system. One which the primary organisational goal, is working cooperatively with individual citizens, groups of citizens, and both public and private organisations to identify and resolve issues, which potentially affect the livability of communities

Community policing, is perhaps the most misunderstood and frequently abused theme in police management in Nigeria. Before now, it has become fashionable for the Police State commands to initiate community policing, often with little notion of what that phrase means. Indeed, all manner of organisational tinkering has been labeled community policing.

What I am saying in essence is that, enabling community policing is not as simple as issuing a directive to that effect. Community policing may inevitably happen at the end of a constructive discussion between the police and citizens on a number of areas like professionalism; the requirement of strict legality; internal and external accountability; transparency; and a relationship of trust with the public. Public trust is at the heart of community policing. The police must first earn this trust.

 

But the IGP appears to think that funding is the only problem of the police judging by the priority the Police hierarchy has attached to the Police Trust Fund Bill in the National Assembly.

Well with due respect to his person, he is mistaken. The number one problem facing the police, is public perception. I doubt if money can buy this. Perception of corruption, impunity, absence of accountability, incompetence, failure to control law and order, are major perception issues facing the police. If you ask me, the priority of the IG should be how to reverse this perception, and transform the police into a true public servant capable of elevating the sense of security of Nigerians. The Police Trust Fund or expensive adverts in the media will not achieve this.

 

You Chaired the Inter-government committee that drafted the Police Services Bill 2017 presently before the National Assembly. What are the principles and the general features of the Bill?

There is broad agreement that the reform of the Nigeria Police will require a wide range of reforms, including replacing the outdated Police Act 1968 with a new legislation. It was our view that, there is a need for a holistic review and redefinition of the role and function of the police. I recall we debated extensively on enabling a legal framework that makes the police less militaristic and service-oriented.

Apart from the proposal for a change in nomenclature from Police Force to Police Service, the draft Police Bill emphasises accountability, including vesting the operational control of the police in the hands of the Inspector General of Police, rather than the President. Lessons learnt from other jurisdictions, show that political authorities exercise policy control of the police, while the Inspector General of Police who is a professional in the field retains operational control. The Bill also includes provision for the appointment of the Inspector General of Police through a transparent, meritocratic and competitive process with a fixed tenure of office, accountable for the broad effectiveness of the Police.

 

Our prisons continue to be source of concern. The National Economic Council recently directed State Governors to support decongestion efforts in their States. Why is it that achieving sustainable prison reform has remained a challenge for successive governments?

The sole reason is that successive governments before now, have simply not given devoted attention to prisons. By devoted attention, I mean sustained focus and attention. Not the ad-hoc attention brought about by jailbreaks or prison unrest. Our prison system, is a fall out of our failing criminal justice system. We all seem to be united by the reasoning that, persons who come into conflict with the law, must be treated harshly. So issues of prison reform, are simply not priority. I mean, how else can anyone explain the fact that, a Bill to amend the outdated Prisons Act has been in the National Assembly since 1999. This is not the first time state governments have been asked to support decongestion in our prisons. You may recall that the idea of decongestion by execution, was mooted during the Jonathan administration. The issues have remained basically the same. Overcrowding, under staffing, lack of adequate medical care, inadequate conditions for female and juvenile detainees, poor conditions of work for Prison Officers, long detention of those awaiting trial and limited access to legal advice and representation.

 

So if you were to advice President Buhari on actionable areas, what specific interventions will you be proposing?

I will tell Mr. President to first review existing reports on penal reform in Nigeria, with a view to prioritising implementation. As I said earlier, there is nothing that needs to be written or said about any aspect of our criminal justice regime, that has not been the subject of reports of many panels and the constitutional conferences that we have had. These reports contain a number of practical recommendations that point the way forward. I have mentioned the need for the review of the Prisons Act. Also, rather than simply enjoin state governments to support prison decongestion, an advisory to undertake an audit of all prison facilities in their states, with a view to identifying persons who should not be in prison, stands a better chance of being actionable. I will also advice Mr. President, to remove the Prisons Service from the oversight of the Ministry of Interior and place it under the Ministry of Justice.

But the Nigerian Prisons Service has for long been supervised by the Ministry of Interior and before now, Ministry of Internal Affairs?

That is correct. The Ministry of Interior jointly supervises the prisons service and other paramilitary services like the Fire Service, the Immigration Service and the Civil Defence Corps.

My argument is that, the duties of the Prison Services are fundamentally different from that of the Fire service, Immigration and Civil Defence Corps. Therefore, a situation where they are treated in the same way, and administered by one administrative body will continue to militate against the efficiency and effectiveness of the prisons service. I see no semblance, no matter how far we stretch our imagination, between the prisons service and these other para-military bodies. I will also propose that a Prisons Service Commission be established, to take over the functions of the Immigration, Prisons Service and Civil Defence Board as it relates to the administration of the prisons.

 

On the issue of oversight, will you agree that one of the concerns, is the apparent lack of independent oversight of the conditions of prisoners?

Absolutely. There is a prison visitors scheme that has been in existence for a while now. There is also the occasional prison visits by Chief Judges of States. However, the weakness of the current approach to prison inspections, is that there appears to be no formal process for any of the various monitoring or visiting systems to report on their findings, either to the management of the Prisons Service, the relevant Ministries, the National Assembly or the President. In addition, none of the external agencies or individuals identified for conducting visits, can do so on a full time basis, and the process, while extremely useful and important, is relatively ad hoc.

I will suggest the appointment of a Chief Visitor of Prisons, to conduct inspections on a regular basis, respond to complaints, investigate deaths in custody, publish independent regular findings and make appropriate recommendations for action to the President and National Assembly.

 

Recently, the Chief Judge of Lagos State went on a prison visit, and almost 200 underage prisoners were granted amnesty and released from Ikoyi, Kirikiri and Badagry Prisons in Lagos State. Does the detention of underage children in adult prisons occur throughout the country? How is it that children are being detained in adult prisons, despite the Child Rights Laws? What can be done to stop this type of child abuse? 

As sad as the Lagos State situation is, this is a common phenomenon across Nigeria. The limited and sometimes unavailable juvenile facilities, are a problem. The police are also complicit in this practice, as well as in most cases, magistrates who will rather rely on the wordings of the charge sheet instead of their eyes, to identify an underage person. In all, the role of the prisons is simply to receive and detain. There are repercussions. Not only are juveniles at extreme risk of sexual and other abuse, which is inarguably unacceptable, they are also denied the counselling and educational services that they desperately need. The time they spend in these facilities can set them back educationally, mentally and emotionally.

I think reversing this trend, should go beyond the Child Rights Law. In any case, many states are yet to enact the law and even those that have enacted it, have very weak implementation mechanisms. It may be imperative for Chief Judges of States, to issue practice directions on the appropriate treatment of children in conflict with the law.

 

The Federal Ministry of Justice recently launched a National Policy on Administration of Justice. Will you agree that we have had too many policies and that what we need now, is an implementation policy? Is the Federal Ministry of Justice in a position to provide leadership for the Justice Sector?

I guess it is better late than never, but to be fair many of us who have campaigned for reforms, agree that Justice Sector reforms stand a better chance of success, when the government has a clearly stated policy, setting out the official vision of the reform objectives, and committing government to specific reforms necessary to realise that vision. Also in addition to a policy commitment to reform, government intervention in the justice sector is more likely to be effective and coherent, if detailed plans for reform have been prepared. My advice is that, this should be more than a launch. We need to frame reform as a process, rather than a single event.

 

But what is the Nigerian Bar Association doing to highlight these issues you have raised?

You will have to ask the leadership of the Bar that question. Hopefully, with much of the controversy around the last elections over now and the annual conference concluded, attention will shift to activities that place the legal profession at the heart of these reforms.

 

Lets talk about other access to justice institutions. You recently complained about the neglect of the National Human Rights Commission, and the inability of the Commission to achieve its mandate. What specifically needs to be done to strengthen the Commission?

We need to take it more seriously.         We stand the risk, of reversing the euphoria that accompanied the amendment of its enabling Act. Moving from a recommendation only institution to a Commission that serves as an extra-judicial mechanism for the enhancement of human rights, was no mean feat. I am concerned about the Commission being an isolated solution to the problem of human rights violations.

Limited funding has hampered its ability to work effectively. This has in no small way contributed to public disappointment with its limited activities and reach. There is little point in government establishing a human rights commission, if it is then deprived of the resources needed to ensure performance.

 

Still talking about Human Rights, you were recently appointed to the Presidential Panel on the investigation of allegations of human rights abuse against Army personnel, what are the terms of reference of the panel? Also there have been criticisms about membership of the panel on social media. Some said that members were all Christians, also that a certain part of Nigeria was not represented. You in particular, was said to be a known critic of the Military? How is the panel responding to these comments?

You did not mention the other accusation, that I am also a military loyalist, what ever that means. My daughter said I should be grateful, that they did not call me a Boko Haram loyalist, given the way I have spoken about the need to achieve access to justice for the insurgents. At the risk of dignifying the ridiculous, we are not all Christians, and we do not all come from the same part of Nigeria, and to be clear all zones in Nigeria are represented. We also have gender balance.

Yes, it was a privilege to be appointed to the Presidential Investigation Panel to Review Compliance of the Armed Forces with Human Rights Obligations and Rules of Engagement. The terms of reference of the panel include, reviewing extant rules of engagement applicable in the Armed Forces of Nigeria and the extent of compliance thereto; and to investigate alleged acts of violation of international humanitarian and human rights law under the Constitution of the Federal Republic of Nigeria, 1999 (as amended), Geneva Conventions Act, African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act and other relevant laws by the Armed Forces in local conflicts and insurgencies. We have also been asked to investigate matters of conduct and discipline in the Armed Forces in local conflicts and insurgencies and recommend means of preventing violations of international humanitarian and human rights law in conflict situations. I think if we focus on all that is written on social media, we will not get any work done.

 

Is there not a danger that the establishment of this panel, will alienate the Nigerian Military who most Nigerians will agree have done well in containing Boko Haram and responding to other conflict situations all over Nigeria?

No I don’t think so or rather the Nigerian Military should not feel alienated. The Military emphasises professionalism in the conduct of its operations. Achieving this, requires frequent review of its operations especially in conflict situations, to be sure that there is compliance with international humanitarian and human rights laws. The military should therefore, not see this as a witch-hunt, but rather as a crucial process in its desire to achieve its desired level of professionalism.

 

Is the whole idea of this Panel a Presidency initiative, or one driven by foreign governments and organisations like Amnesty International?

Without holding brief for the Presidency, I do believe that Nigeria is able to stand its ground on matters of human rights. We will be doing ourselves much disservice, if we say that any Government-inspired effort to review the state of human rights in Nigeria, is necessarily foreign driven. What we need to do is to strengthen our National Human Rights Commission. And support the growth of human rights NGOs.

 

You were also an integral part of the core team of lawyers under the aegis of the Nigerian Bar Association, who visited the North Eastern part of Nigeria at the height of reports of human rights violations against suspected Book Haram terrorists. You also Chair the Nigerian Military Human Rights Dialogue. How would you score Nigerian Army’s human rights record in the fight against terrorism in the country? 

I can’t comment on that now. You want to give social media more ammunition to shoot me.

 

On social media and ‘Hate Speech’, The National Assembly has commenced the process of passing a bill on Hate speech, would it not amount to depriving Nigerians of their cherished freedom of speech?

It is certainly a good thing, that there is focus on this issue, especially at the highest level of government. While the phenomenon of hate speech cannot be exclusively linked to social media, I think the misuse of social media, has largely contributed to the spread of hate speech in Nigeria. I agree, that we need to create a balance between freedom of speech and curbing hate speech. It is simply mind boggling the kind of materials that people put on the internet. It would seem that, any hope of self-censorship appears to be lost. So yes, I am in support of stopping the spread of hate, but we must be sure that this proposed legislation, seeks to cure the mischief and nothing more. There should as far as possible, be in-built provisions to safeguard human rights.

 

As former Attorney-General of Ekiti State, you introduced quite a number of initiatives, which many commended as laudable, including the Sex Offenders Register and your tenure had a clear roadmap on restorative justice and alternative or noncustodial sentencing. How did these initiatives impact on justice administration in Ekiti State? 

I can’t honestly take credit for all that we did. I worked with a Governor who was well versed in justice sector reforms. Achieving reforms in the sector, requires strong leadership and commitment, and Dr. Fayemi gave us that. We wanted to make Ekiti State, a reference point for best practices in justice administration. I was also fortunate to work with a Solicitor General, that was well versed in the subject matter. He has just been appointed Solicitor- General of the Federation. So I am quite excited at the prospect of taking forward some of the initiatives we developed, to the national level.

On the sex offenders register, we were the first to introduce this in Nigeria. That was our response to what was then, an alarming increase in rape cases. We also noticed increased cases of recidivism. The idea was to ensure that appropriate records were kept, to support our case for stiffer penalties for repeat sex offenders. Our vision was for a justice system that is affordable, efficient, independent, transparent, professional and accountable to those living in Ekiti State. Prison reform, was a major component of our intervention. At some point, I was accused of releasing criminals arbitrarily. But the logic was, if we can’t prosecute persons awaiting trial for upwards of five to ten years, then we were never likely to be in a position to do so. Also, we tried to reverse this ease of sending persons to prison. Petty offenders should be diverted away from prisons. Under my watch, we were the second State in the Federation, to enact the Administration of Criminal Justice Law. We also enacted, a very progressive Magistrates Courts Law. Don’t ask me what happened, after we left office.

 

Finally, lets have your views on the state of the nation. President Buhari is back from his medical vacation. Some Nigerians interpreted his nationwide broadcast as ill-prepared, inadequate and unresponsive to the yearnings of Nigerians. Do you agree?

Thank you, we have gone through a period of different rumours, most outlandish about the heath of Mr. President. When some of our citizens could no longer accept this state of uncertainty, they took to the streets under the banner of Resume or Resign our mumu don do. Mr. President has now resumed. I would have thought that, this is the time to articulate our thoughts on taking the country forward. The energy and time that we have spent analysing and reanalysing Mr. President’s speech, could best be used setting an agenda for the administration, over the next two years. The state of Nigeria today, requires action to improve our lives and not speeches. While communication is important, I will be more interested in what is done concretely to improve our lives.