“Arraigning NBA President is like destroying the Bar” – Quakers SAN
Mr Norrison Quakers, a Senior Advocate of Nigeria, in this interview with OLADIMEJI RAMON, appraises President Muhammadu Buhari’s anti-corruption war in the last four years
It’s less than five months to the end of the leadership mandate secured by President Muhammadu Buhari in 2015. His administration is headlined by the anti-corruption fight. In your assessment, do you think the administration has scored a pass mark in this effort?
How do you measure success? It is in terms of the impact of the crusade on the entire Nigerian society. Has the President’s anti-corruption crusade and posture had any positive impact on the societal fabric? I’d say no. And the reason for that is because as we speak corruption is still prevalent in our system. Yes, some people have been tried and convicted and there are some ongoing cases in court but as to the holistic impact of the crusade on the Nigerian society, I will say no; and that’s with due respect to the person and the profile of the President. Even in his cabinet, the then Secretary to the Government of the Federation was also alleged to have conducted himself in a compromising manner. He’s been fished out but has he been tried? The head of the DSS who was accused of setting aside a humongous amount of money, up until this moment as I speak nothing been said about government’s position on that issue.
By and large, there are a number of people that are being tried but the President himself has also admitted that corruption is fighting back. So, it means that the war against corruption has not been won. But I give it to the President because of his person – you can’t fight corruption if your hands are dirty. The President’s personality has instilled fear in the minds of the people in the system and around him. But it appears that corruption has taken another dimension in the country.
One of the greatest things that one can say the President has succeeded in addressing is that there’s no more free government money because of the implementation of the Treasury Single Account. You now have a single account, rather than multiplicity of accounts, into which all government funds go. Before now, it was an opportunity for politically-exposed persons to fritter government’s funds away. But now, that has been addressed. However, the anti-corruption fight must be holistic and the only way is to block all leakages in the system. On that, the government hasn’t done as much as it ought to do.
Again, some have also said that the crusade is selective. Without mentioning names, how do you explain that some persons are standing trial for corrupt enrichment and the same persons are also involved in the electioneering campaign of the President? That, for me, is not ideal. What signal are you sending to the larger society? So, I won’t say that this government has succeeded holistically in fighting corruption but the foundation has been laid and it’s no longer business as usual.
Why has the Administration of Criminal Justice Act, 2015 not worked in fast-tracking the trial of high-profile corruption cases despite its many radical provisions?
I think you are limiting your assessment to Lagos and it is because Lagos is the hub of litigation. Just recently, I read in the papers that the NJC (National Judicial Council) made an assessment of the impact of the Administration of Criminal Justice Act, vis-a-vis criminal litigation and gave a pass mark, almost like saying 80 per cent success in terms of trials and convictions. It also gave a pass mark to agencies like the EFCC, the ICPC, NDLEA and some other agencies.
While it is not foolproof that the law in itself is enough to ensure speedy dispensation of justice, to a large extent, the law has worked. Sometimes, the delay is caused by the way charges are couched. If we manage cases in court and we have seasoned lawyers as prosecutors, the Administration of Criminal Justice Act will then be seen to be effective, because everything that needs to be defined has been defined by the Act. We must address the human element. We can’t legislate conduct. The reason for the delay is not because the law is not effective; it takes human being to drive the law. If the law must succeed, there must a change in our attitudinal disposition to the effectiveness of the law.8
Why is it that in criminal cases the defence is usually more resourceful than the prosecution? Often the defence team is populated by SANs, while the prosecution is usually made up of upcoming lawyers. Is it that government doesn’t engage SANs or SANs don’t find government briefs attractive?
I don’t think that it is because SANs don’t find government briefs attractive. Some years ago, I was approached by a very prominent person who said to me, ‘I’d like you to prosecute for the government’. Now, I don’t work for an investigative or law enforcement agency; I’m a private practitioner; and therefore, if I have to prosecute, you must do a thorough job before bringing the file to me; I must see that what you are bringing to me must be such that cannot be impeached in court; the evidence must be so overwhelming that when I take up a matter, I don’t get there and be told that, ‘Oh, no, certain things that ought to have been done, weren’t done’. And so, for that reason, an otherwise simple and straightforward criminal case is thrown out.
A prominent senior advocate said some years ago that the government is not serious about fighting corruption through the court; if it were not so, the government would equip and kit the private-sector practitioners to take up these matters. Some private practitioners might do it for the love of the country, some for financial benefit, some because they are just interested in prosecuting. How do you get any of the prominent Senior Advocates of Nigeria to take up corruption cases? It is first by approaching and discussing with them to know what their terms are. The current administration set up a prosecutorial team; how effective has that team been? How many lawyers of the prominent stock are in the team? How many convictions have they secured? Is it also another avenue to “create job for the boys?” For me, the reason why a lot of seasoned private practitioners would not take up any of those cases is because of lack of will on the part of government. If the will is there, the government will pay.
But in fairness, you have some government prosecutors who are doing very well, who are using their personal resources. Many years ago we knew some of them; some of them, today, are retired. If the government is serious, these are people that can be engaged. There is a man called Fola Arthur-Worrey, a former Solicitor-General of Lagos State; I don’t see why a person like that should not be engaged to prosecute on behalf of government. And there are many like him out there who have retired from the civil service and are now consultants. In other civilised climes, people like that would not be allowed to go; you’d find a way to engage them and ensure that they regularly prosecute for government and also train other prosecutors.
You cannot expect a prominent lawyer to take up a corruption matter without discussing terms and it will depend on the kind of case. For instance, a high-profile case involving high net-worth defendants, should be handled by high net-worth lawyers as prosecutors because a lot of the lawyers have invested in their practice.
I give it to the Economic and Financial Crimes Commission; I think there’s a consciousness to invest in the prosecutors because they go for training and they also subscribe to legal information. The ones I’ve appeared against in court, I commend them for their industry. It’s no longer business as usual. I don’t know about the ICPC and the police but for the EFCC (it’s no longer business as usual).
It seems to me the only SAN prosecuting for the EFCC is Rotimi Jacobs, then Festus Keyamo. Who else do you know of the silk stock that is prosecuting for the EFCC? I recall that not to long ago, Chief Adegboyega Awomolo (SAN) was also prosecuting; then there is Mr Dipo Okpeseyi (SAN), who is in the government prosecutorial team. For a population of about 200 million people, these are the few prominent senior advocates that are prosecuting for the government. It’s shameful and I remember not too long ago that one of them even complained about dearth of materials, dearth of evidence or information. As a SAN, you don’t want to be disgraced. You take up a case and get to court only for the matter to be thrown out for shoddy investigation. So, that’s a disincentive for some SANs to prosecute for government. The government needs to do a lot in that regard. If you want private lawyers to be involved in prosecution, you have to create a war chest and be transparent about it.
Whether we like it or not, this is a system that encourages corruption and that’s another reason why it will also be difficult for some other senior advocates to take up some of the matters.
The leader of the Nigerian Bar Association in on trial by the EFCC for alleged corruption. How do you feel about this?
It’s not ideal; it’s not good. But again, time does not run against crime; criminal actions are not time-barred. It’s not about the occupant of that office, it is the office itself. You can investigate while the occupant is still there, but you defer to the office. The President of the Bar will only occupy that office for two years and there is no time bar, so, you can wait and once he steps out you arraign him. The man entering the dock is not the man, it is the institution that he represents that is now being tried. That’s where I differ. While I don’t have anything against anybody being tried, there is a need for discretion. A governor who is found to have corruptly enriched himself while in office is protected by executive immunity. The law provides for the removal of that governor from office for the purpose of trying him but usually they wait for him to finish his tenure. Wasn’t that what they did to the former Ekiti State Governor? Has he not been arraigned? Is he not facing his trial now? The former Governor of Abia State, has he not been arraigned? Is he also not facing his trial now? For me, it has to do with the institution that the President of the Bar represents. He is seen as the President of the Nigerian Bar. By putting him in the dock, it is actually the Nigerian Bar that is being showcased because he’s standing there not in his individual capacity because right now you can’t separate him from the institution that he is representing. They should have allowed his tenure to lapse; it’s just two years, then do whatever they want with him.
But if that is done, other professional bodies, like the NMA, ICAN, etc, will also be clamouring for the same treatment?
If the Senate President, the number three citizen, can stand trial in his capacity as Senate President, it means anybody can stand trial. Apart from the President, the Vice-President and governors, who enjoy executive immunity, anybody can stand trial.
Yes, the President of the Bar does not have immunity, the President of the Nigerian Medical Association does not have immunity, the President of ICAN does not have immunity but there is also a place for discretion. We need to respect the institutions that these persons represent. If you have facts that they have breached laws, either before their emergence as a representative of a professional body or while in office, you should wait until after their tenure. What you’ve done now (by arraigning NBA President) is that you have desecrated and destroyed an institution. That’s the way I see it. It’s not about him (NBA President); it’s about the institution he represents. After all, they tried and convicted a senior advocate but he was not representing an institution. You are trying the President of the Nigerian Bar Association? When he enters the dock, he enters in his capacity as Paul Usoro (SAN), but presently, he is the President of the Bar. Since, there is no time bar, why can’t you simply wait till he finishes his term? Assuming, without conceding, that after all of this, he is not found culpable, what have you done to the institution? What have you done to the psyche of all lawyers in the system? You take the embodiment of the Bar or the Bar personified and put him on trial, what you are saying to the community of lawyers is: Can you see? This is your President; he’s a thief. This is the man you voted for to represent you! So, all of you, are you thinking right? So, for me, the timing of the trial is not right. I think the situation could have been managed better, after all, they’ve had these facts all along.
NB: Interview by Punchng.com
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