‘Federal Character Has Destroyed Merit in Nigeria’

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He belongs to a very rare breed of Nigerian lawyers, dead or alive, who have had the privilege of being called to the Inner Bar in England and Nigeria. Professor Fidelis Oditah QC, SAN, has been described by some as an enigma of sorts. He graduated with 1st Class Honours, both in his Law Degree from the University of Lagos (1984), and from the Nigerian Law School (1985). He was awarded a Commonwealth Scholarship enabling him to study at the University of Oxford (Magdalen College 1986-89), where he obtained the degree of Bachelor of Civil Law (1987) and of Doctor of Philosophy(1989), completing his DPhil thesis in only two years. He was a Fellow and Tutor in Law at Merton College, Oxford and Travers Smith Braithwaite Lecturer in Corporate Finance Law at Oxford University from 1989 to 1997. He has been a visiting Professor at the Oxford University Faculty of Law since 2000. He was called to the English Bar in 1992, and by a dint of hard work, made it to the Inner Bar as Queen’s Counsel and Senior Advocate of Nigeria. The highly detribalised Nigerian, spoke with Onikepo Braithwaite and Jude Igbanoi on various issues, including his perception of the ongoing anti-corruption fight of the Buhari Administration, CBN’s BVN policy, former President Jonathan’s demand of N1b to testify in Olisa Metuh’s case, and his strong abhorrence of federal character, as enshrined in the Constitution

 

The issue of Abdulrasheed Maina seems to be a blow to the fight against corruption. Do you agree? If so, why? Mainagate and Babachirgate have raised a lot of doubts in the minds of many, as to the seriousness of the anti-corruption crusade of the Buhari Administration. Many have questioned why Maina and Babachir have not been prosecuted, especially in the face of damning evidence against Babachir, who was only just relieved of his appointment? The former NIA boss, Ayo Oke, seems to be being treated differently, leading people to think that the anti-corruption crusade is selective. Are there any cogent legal reasons for the others not to be prosecuted, while Oke is?

Corruption in Nigeria is pervasive. It cannot be illustrated, by reference to a few instances, however infamous or notorious those instances may be. Accordingly, I do not agree that the furore surrounding the dismissal, recall and re-dismissal of Abdulrasheed Maina is a blow to the fight against corruption. Rather, I see the furore, as further illustration of the discordant tunes being played in relation to the fight against corruption in Nigeria.

As an individual, I believe President Buhari is probably serious about the fight against corruption. However, with the best will in the world, President Buhari alone cannot fight the corruption pandemic in Nigeria. He needs everyone’s buy-in into anti-corruption. Sadly, he has had neither the cooperation of his fellow members of the Ruling class nor of Nigerians.

Prosecution is a function of investigation, evaluation of evidence and legal and factual analysis. It is not based simply on the fact that a person is removed from office. For example, I was surprised a few years ago when I discovered that there was no crime of official corruption in the Penal Code that is applicable in the North, whereas, there is such an offence in all the Criminal laws of the Southern States. How can you fight corruption, without an offence of “official corruption” in the Penal Code? That is shocking. But given that lacuna, it is possible for the same conduct to constitute an offence in the South, but not in the North!

Besides, Ayo Oke’s case appears to be based on money laundering, whereas, Babachir’s is not. There could therefore, be valid legal reasons for the apparent difference in the treatment of the two individuals. But I do not know all the facts, and I cannot say categorically whether or not, first, the two individuals are being treated differently and, secondly, if they are, whether there are valid grounds for the supposed difference in the treatment. From what I read in the press, Mr Maina appears to have been charged with some offences and is therefore, being treated in a similar way to Ayo Oke..

Having said that, in a deeply divided country, it is easy to explain the supposed and apparent differences along the well known ethnic, geographic and religious fault lines that have marred post independence Nigeria. We should be cautious, before we take refuge in such superficial explanations.

How would you rate the Government’s fight against corruption over the past year? Do you believe that having a Committee to monitor corruption cases, will make any difference to the fight? Do you think that Hon Justice Salami had cogent enough reasons to decline his appointment as Chairman of the Corruption Cases Monitoring Committee?

I rate the Government’s anti-corruption rhetoric very high indeed, but sadly the evidence of the Government’s effort to prevent corruption, does not match its rhetoric. This is hardly surprising. Many of President Buhari’s comrades with whom he exercises his executive powers, do not share his anti corruption vision. Many are hungry and/or greedy, and a good number have no verifiable sources of their apparently ostentatious and wasteful lifestyles. To use a Nigerian colloquialism, “anywhere belle face, na him be front”! Governor Fayose became infamous for “stomach infrastructure”, but he was merely the messenger. We all know the message.

In addition, the fight against corruption, depends upon successful prosecution of those found wanting and the expeditious disposal of corruption prosecutions by the courts. Funding of the anti corruption infrastructure (Police, EFCC, the prosecuting counsel and the courts), is often abysmal. The fight against corruption, is also affected by the pervasive and continued erosion of core national values in Nigeria, and the unbridled obsession with money and ill gotten gains. It is also affected by our very weak, inefficient and corrupt institutions – the investigators, prosecutors and the courts. President Buhari cannot be blamed for a dysfunctional, inefficient and corrupt court system. As a result of these factors, corruption investigations often leave much to be desired, being often shoddy, superficial and very limited. The prosecution is often amateurish, whereas, the standard of proof required by law is proof beyond reasonable doubt – a high standard. There is a disheartening disconnect between what the prosecuting authorities feed the public with, and the reality in the court room. A person can only be convicted on the basis of credible evidence painstakingly assembled and pieced together, and not on the basis of sensational, selective and salacious newspaper headlines and reports. In short, we have simply not invested the political, judicial and prosecutorial capital, necessary for a successful anti corruption fight. We are simply pandering to the public outcry for scapegoats, and sacrificing detailed and thorough investigation and prosecution, on the altar of sensational, selective and salacious headlines. That is a doomed strategy. It is not surprising that it hasn’t worked.

The government’s prosecution policy is anything but consistent, thereby encouraging the suspicion that there are sacred cows that cannot be prosecuted, or that particular ethnic groups are favoured or unfairly vilified and prosecuted. None of this, should surprise us. If our schools are not doing well, and our ministries are not doing well, and our hospitals are not doing well, and our infrastructure – transport, water and power – is not doing well, why should we expect our fight against corruption to do well? Besides, we have shown a disappointing inability, to enforce our civil and criminal laws. How could our anti corruption fight be any different?

In contrast, in many countries, eg the UK, criminal investigations are thorough and detailed and not announced prematurely for short term political and other supposed gains; prosecutors are very deliberate and thorough, and the quality of the evidence often presented to the courts is high and compelling, inducing even the most confident corrupt person or money launderer on occasion, to plead guilty in order to receive a reduced sentence.

As for monitoring of corruption cases, based on the details of how it is supposed to operate that I read in the press, it is impossible to see how it could possibly make any difference to the fight against corruption. I understand that, the monitoring, is supposed to involve committee members attending court during corruption trials. Having regard to the composition of the monitoring committee, it is very likely that the trial Judge would recognise the august visitors in his/her court, and behave properly. Moreover, no one has ever suggested that, corruption is practiced in the open court. At best, the monitoring committee is further evidence of our lazy and superficial approach, to serious issues and, in this context, to the fight against crime.

Justice Salami had no choice, but to decline chairmanship of the monitoring committee. A number of the members of the Nigerian Bar Association put on the committee, were counsel in Alhaji Wamako’s infamous Sokoto Gubernatorial election defence a few years ago, which directly led to the wrongful and unlawful termination of Ayo Salami’s judicial career.

What advice do you have for Government to make the fight against corruption more effective? Is there really a panacea to corruption in Nigeria?

We need observance of rule of law, strong and independent institutions (Police, EFCC, Ministries of Justice, Courts and Prisons), absence of political interference, adequate funding, and meritocracy, in order successfully to fight corruption. At the moment, we are doing little more than paying lip service to the fight against corruption. We cannot disdain merit, and expect a successful fight against corruption. We cannot refuse to enforce our laws, and expect a successful fight against corruption. We cannot weaken and impoverish our institutions, and have a successful fight against corruption. Strong and independent institutions, lead to a successful fight against corruption. A key ingredient in building strong and independent institutions, is a return to meritocracy. A situation where recruitment and promotion into the public service of the Federation or a State, are based on lobbying, nepotism and cronyism, rather than on merit, can never augur well for the fight against corruption. Nepotism, cronyism and disdain for merit, are inimical to any sensible fight against corruption.

Has the South East Zone been marginalised? How should Nigeria go about restructuring constitutionally and otherwise? For example, the South East have complained that the other zones have more States than it does; The constitutional procedure to create a new State, makes it almost impossible to do so. What is the way forward?

I do not know enough about what is going on in the South East, or what appointments have been made by President Buhari from the South East, or what the South East representation is in the Federal Public Service, in order to conclude that the region has been marginalised. I do not believe the politics of States creation by itself, is sufficient to conclude that the South East has been marginalised. I certainly do not believe that we should create more states. If anything, we should consolidate the States, in order to reduce them to a more manageable number, and reduce the cost and other burdens of governance. That is not going to happen, under the current political and democratic arrangements. We cannot preach one Nigeria, and at the same time, insist on the further fragmentation of Nigeria through the creation of additional States, that would simply be economically unviable and a further drain on virtually non-existent public resources. I dislike Federal Character, but it is enshrined in our Constitution. In my view, we have destroyed our country and turned merit on its head, whilst taking refuge inappropriately in Federal Character.

Restructuring is the buzz word at the moment, but it means different things to different people. What I would like to see, is a rebalancing of the distribution of power and resources between the federating units and the central government. The Federating States, cannot go cap in hand monthly to the Federal Government, for their paltry share of FAAC money. We cannot ask them to raise their internally generated revenues, when the Constitution has taken a significant part of their ability to generate revenue. The States have got to have some control over the resources in their States, and pay an agreed percentage for the defence and administration of the centre. I believe the Republican Constitution of 1963, largely got the allocation of power and resources between the federating states and the central government right.

It seems that with the proscription of IPOB, the agitations for Restructuring have somewhat cooled down. Do you agree?

IPOB, was largely the result of the failure of political leadership in the South East. How could an unknown Kanu, wake up and in a few months dominate South East politics? He simply tapped into the disenchantment of the gullible and unemployed youths, in the South East. No doubt, there is palpable disaffection in the polity, and in particular, in the South East, caused by the pauperisation of the masses by the leadership and the failure to give the masses the dividends of democracy, but IPOB is not the solution.

I do not agree, that the clamour for restructuring has somewhat cooled down with the proscription of IPOB. IPOB, is not relevant, to the redistribution of power and resources in Nigeria. And from what I see and read in the press, the clamour has intensified rather than cooled down.

There has been an outcry against the NGO Bill which is now at the Committee stage in the House of Representatives. Do you have any objection to the Bill or do you believe that it will do more good than harm to governance of NGO’s in Nigeria? Some even see the proposed legislation as a direct attack on Christianity. What is your opinion?

I believe there is a general need for sensible regulation of the voluntary sector, but I do not see the current controversial NGO Bill as the solution. It seeks to go from one extreme of zero regulation, to another extreme of draconian regulation. The solution, lies somewhere between these two ends of the pendulum. However, it is unhelpful to evaluate the Bill on the basis of our religious fault lines.

Many lawyers have complained that the Senate has been overreaching itself, by going outside the purview of its constitutional mandate with some of its actions, like summoning all manner of public officers before it, especially those like Professor Itse Sagay who make utterances that do not sit well with them. Are they acting beyond their legislative duties, the Senate almost constituting itself as a quasi-judicial body. Or Can the Senate do this?

To a very small extent, the National Assembly (and not just the Senate), from time to time, dabbles into areas that have been allocated to the Executive by our Constitution. It is wrong to do so. However, I do not believe that the exercise of the National Assembly’s oversight powers, can be described as “overreaching itself”. The National Assembly has the power under section 88 of our Constitution, to investigate the conduct of any person who has responsibility for the administration or execution of laws enacted by the National Assembly, for the purpose of exposing corruption, inefficiency or waste. As Chairman of the Presidential Advisory Committee Against Corruption, Prof Sagay is certainly a person charged with responsibility for administering or executing anti corruption laws enacted by the National Assembly. He may also be paid from the public purse. So long as the purpose of being summoned to the National Assembly, is to assist with law-making or to expose corruption, inefficiency or waste, the Senate would seem to be acting well within its investigative and oversight powers. If, on the other hand, the purpose of summoning Prof Sagay, is to gag and stifle him, or to show unhappiness with his views, that would be an abuse of the oversight and investigative powers of the Senate.

Does the Central Bank have the legal right to implement its new BVN policy?

The answer is plainly Yes, it has. The CBN Act, gives the CBN the power to make regulations for the purpose of implementing the provisions of the CBN Act. The BVN Regulations appear to have been made pursuant to that power. However, like all delegated legislation, the BVN Regulations must comply with the Constitution, and other limits to secondary legislation.

If the CBN has the power to make regulations, it must have power to implement the regulations, but again the implementation must comply with the Constitution and other relevant procedural and substantive laws.

The Inner Bar has in the last few years been facing serious criticisms, with aspersions being cast on the integrity of some members. Some are even facing trial in various courts on allegations of corruption. How, in your view, can sanity be brought into the Inner Bar, to restore the dignity that the rank confers?

Criticism is not a bad thing. To cast justifiable aspersions on the integrity of some members of the Inner Bar, is entirely appropriate. There can be little doubt, that some lawyers lack integrity. Prosecution, however, is not conviction, and we should not convict anyone in the court of public opinion.

Having said that, it is a matter of serious concern, that disaffection with some senior members, has reached the level of serious criminal allegations being made against them. In a sense, the travails of the Inner Bar, reflect the travails of our nation. There is so much deplorable indiscipline, impunity and lack of integrity.

How can sanity be restored? First, merit and not Federal Character, should be the sole overarching criterion for elevation to the Inner Bar. Secondly, we cannot appoint SANs, based simply on ticking the boxes, as we currently do. The selection appears to based largely on the number of trials and appeals handled by an applicant, rather than the quality of his/her performance. This obsession with form rather than substance, can lead to very surprising outcomes and erode public confidence in the rank of SAN. Finally, discipline and dignity must be restored to the Inner Bar, by sanctioning erring members. The impunity and indiscipline that some SANs are said to exhibit reflect the indiscipline and impunity that characterise Nigeria. SANs are not from Mars. They are part and parcel of the dysfunctional Nigerian society and susceptible to its weaknesses and excesses.

Since 2006, there have been calls for the outright abolition of the rank of SAN, and various reasons have been adduced for the calls, including the undue privileges attached to the rank and compromising the standards. Even in the UK where you are also a silk, some have called for the abolition of the rank of Queen’s Counsel. To what extent would you say some of these calls are justified, and what amendments would you suggest for the requirements for the award of silk in Nigeria?

Based on what I have seen, there is no justification for the abolition of the rank of SAN. From time to time, people have called for the abolition of the rank of SAN in Nigeria and of the Queen’s Counsel in the UK. But we must defend people’s freedom to express disaffection with the conduct of SANs, and even to call for the abolition of the rank. The right to express a contrary view is an aspect of freedom of expression which is a constitutionally guaranteed right in Nigeria and in the United Kingdom.

Former President, Goodluck Jonathan, requested N1b as travel expenses to enable him come to court to testify in Olisa Metuh’s trial. Although Jonathan has lost his constitutional immunity, what is the propriety of calling a former President, to appear as witness in a trial bordering on some acts which he may have been remotely connected with while in office? Would that not amount to vindictiveness or persecution?

Former President Jonathan is a competent and compellable witness in Olise Metuh’s criminal trial, and like any witness, it is his legal and civic duty to assist the court in its fact finding exercise. I do not believe that Dr Jonathan or any Nigerian, is above the law. The only thing that is supreme in Nigeria, is our Constitution, not any particular individual.

A witness, is entitled to reasonable travel and other expenses of his attendance to give evidence in court. He cannot ask for a ransom! The determination of what constitutes reasonable attendance expenses, is for the trial Judge and not for the witness or his counsel. The call by Dr Jonathan’s lawyer for the payment of N1b to meet Dr Jonathan’s expenses of attendance as a witness, is abusive and unfortunate. It shows his very limited understanding of Dr Jonathan’s legal and civic duty as a witness, and typifies the indiscipline and impunity that some senior lawyers exhibit, which brings both the rank of SAN and the legal profession into disrepute, and erodes public confidence in the administration of our criminal justice.

More fundamentally, it is wrong for a former President, to refuse to assist the court in an important criminal trial, by shamelessly asking for wholly unreasonable expenses. It is another example of gross indiscipline, arrogance and impunity.

Many over the years, have expressed dissatisfaction over the fact that in England, most Nigerian lawyers are hardly admitted to the English Bar and that a majority of them end up as Solicitors. Is this true? If so, as a Nigerian who has attained the highest rank at the English Bar, how can this trend be reversed?

I am not aware of the dissatisfaction and it is certainly not true that Nigerian qualified lawyers are not admitted to the English Bar. On the contrary, I know that Nigerian qualified lawyers are routinely admitted to the English Bar. I am an example. There are many others. I also know that it is easier for a Nigerian qualified lawyer to be admitted into the English Bar by taking and passing the Aptitude Test, than it is for an English Barrister of Nigerian descent, to be admitted to the Nigerian Bar.