Some judges have surrendered their independence to politicians — Oditah
PROF.Fidelis Oditah was educated at the Universities of Lagos and Oxford. He qualified as a Nigerian lawyer in 1985 and as an English lawyer in 1993. He was appointed a Queen’s Counsel (QC) in England and was conferred with the rank of a Senior Advocate of Nigeria (SAN), in 2004 the Nigerian equivalent of an English QC. In this interview, he spoke on the misuse of preliminary objection, invasion of the National Assembly by Police and judges inability to assert their independence.Excerpts:
THE NBA has advocated the appointment of Supreme Court Justices from the bar, what is your position?
I think there is something to be said for that. The Supreme Court is the apex court, the constitutional court, and I think for such a court, it will be enriched by having to recruit from diverse sources. The idea that the only people who are fit to sit in the Supreme Court are people who have gone from High Court to Court of Appeal and then to Supreme Court impoverishes the court and deprives the users of legal services of the great expertise which can be found outside the judiciary.
Successful Supreme Court justices
In many countries, people have been appointed directly to the Supreme Court, even in this country. Dr. Elias was appointed from the bar, Dr. Nnamani was appointed from the bar and they were successful Supreme Court justices in this country. In England, two years ago, a man called Jonathan Sumption QC was appointed directly from the English bar to the English Supreme Court. There are examples in Kenya. Indeed the Chief Justice of Kenya contested and won, he did not go through Magistracy and High Court and Court of Appeal. So there are many examples. Even in the case of United State, Chief Justice Robert was taken to the Supreme Court and made the Chief Judge of United State. More recently, in Singapore, the Attorney General was appointed to their apex court, which is the Court of Appeal, and then on the retirement of the Chief Judge of that country, he was appointed the Chief Justice of Singapore.
Some lawyers have accused the NJC of not carrying out some measures that will make judges proactive in the discharge of their duty, which includes late sitting and unnecessary adjournments, what do you have to say about that?
I think any measures which are designed to speed up the administration of civil and criminal justice system in Nigeria must be welcomed. I think also that there is a lot of indiscipline among the judges. As a result of that, many of them sit late. These judges are supposed to sit at 9am, many do not sit until 10am, half past 10 and users of court services sit in some cases for over an hour waiting for the judge to turn up, and in some cases some of them sit in their rooms giggling with their friends, which is the height of unprofessionalism. Whatever it is, someone needs to tell them that high judicial office of being a judge of a superior court is a tremendous privilege. It is a call to serve and not a position that one should think, entitles one to behave irresponsibly, to treat members of the bar with such disrespect like coming to court very late.
Having said that, I do not believe that the delays are caused entirely by the judges. I believe that the barristers themselves, both junior and senior, contribute significantly to wide spread delay to civil justice. Everyone who has ever practised in the Nigerian courts is aware of the wide spread misuse of the preliminary objection.
Even when there is nothing to object to, there is a preliminary objection which is claimed to be jurisdicial in respect of which they claim to be entitled to have a ruling, in respect of the ruling which they claim they have a right to appeal, in respect of appeal, inevitably, most High Court judges will stay the proceedings. This is just an easy way to cause delay.
Apart from the misuse of preliminary objection and the misinterpretation of questions which are truly jurisdicial across all courts in Nigeria, there is the chaotic listen where a lawyer can have cases in five or six courts without any junior and then without the courtesy of informing the other side. The civil justice system is completely broke and something has to be done urgently.
Judges in Nigeria have been blamed for failing to assert their independence- would you say this is true?
I think that poverty is a terrible thing and greed is even worse. I do fear that some judges have surrendered their independence to politicians. Some for monetary reason, some in order to further their judicial ambition. I also believe that the politicians have sought to erode the independence of the judiciary. For example, by a Governor refusing to pay a State High Court judge his entitlements or refusing to provide them proper courtrooms for them to work with, and in some cases even refusing to provide them official vehicle.
I think these things are entirely deplorable. But one must blame the judges more than we blame the politicians because the judges have allowed themselves to be manipulated in that way. A lot of it has been due to corruption and some of it is excessive ambition or inordinate ambition. If I sit as a High Court judge, somebody then comes to tell me that Mr A is his friend and he has a case in my court so I should do the right thing, I will ignore them.
You must assert your own independence. But when you judges go cap-in-hand to Governors begging for various things, some of them even go to beg for money to go on holidays, then lobbying to help them seek promotion, and we know some of them who lobby to be put on Election Tribunals, it is all parts of the erosion of their independence. If you carry yourself as a serious judicial officer people will look at you well. But if you carry yourself as a comedian or a joke to be toyed with, then people will toy with you and you should not blame anyone for being toyed with. You have surrendered your independence, your freedom, and you cannot complain. So it does not lie in the mouth of the person who plays with fire to complain of burnt fingers. That is part of the tragedy that the judiciary finds itself.
And of course it is a pity because there are many judicial officers who are doing their best to assert and uphold their own independence but a number of their colleagues undermine them.
How would you describe the invasion of the National Assembly complex by security operatives?
What they are doing with Tambuwal, claiming that he is no longer speaker, gives an example of lawlesness. I learnt he went to the National Assembly and they prevented him from getting into the complex on the basis that by joining the APC he has seized to be a Lawmaker and therefore a Speaker. In what country have you seen the police prevent a Speaker who has not been declared not to be a Speaker by a competent court of law, you prevent him from entering National Assembly?What about the other members of the House who have left PDP a long time ago, who are in APC, have they prevented them from coming into the National Assembly? It just shows you the intolerance and the juvenile nature of those who exercise the executive power.
A man is in court saying he is occupying his position, no one has ruled that he has seized to be a member, and his own colleagues who have the power to remove him as Speaker have not done so. But you the executive, because you appoint the Inspector General of Police, and you appoint the Director of State Security, you directed them to prevent the man from entering the National Assembly, that is an abuse of power. And those are the reasons why people have been talking about State Police. That type of irresponsible behaviour threatens our democracy.
In view of continuous attacks and bombings in the Northeast, do you think the State of Emergency Bornu, Yobe and Adamawa States should be extended?
I have heard some of the arguments in favour of the position of Emergency Rule because it allows, in some cases, to take actions which in normal circumstances may expose you to liability for violation of rights, whether those rights are fundamental rights or simple contractual rights or other rights. So the State of Emergency provides a blanket or insulates what might have constituted unlawful action from being that because it tells you that the circumstances are extreme and extraordinary, and therefore there is a measure of departure from the norm.
Common experience
But our own common experience so far is that we did not do anything with the previous State of Emergency that we had in those three states. Prior to the declaration of State of Emergency, Boko Haram had not occupied any territory in Nigeria. After its declaration, the Boko Haram had ransacked and occupied at least 6 towns in the Northeast Nigeria. And so that calls into question, what is the utility of this emergency rule? I will also think that apart from that there seem to be some misconception about the use of emergency hours.
As a Commander-in-Chief of the Federal Republic of Nigeria and a Commander-in-Chief of the Armed Forces of the Federal Republic of Nigeria, you do not need a State of Emergency to crush insulgency in the Northeast. How is the State of Emergency then in seeking to prevent the soldiers from running away when they see Boko Haram? How is it going to curtail the insurgency? Many people who are cynical might say this is just an attempt to deprive the APC States which are affected of the votes they would have.
And I hope no one would say because there is some type of insurgency in those states that normal elections will not hold.
As 2015 draws closer, what is your take on Prof. Jega, INEC, as well as free and fair elections?
The free and fair election depends partly on the electoral umpire and the participants. They must depend on the system put in place to ensure free and fair elections but it also depends on the participants in this election.
Credits}vanguard
PROF.Fidelis Oditah was educated at the Universities of Lagos and Oxford. He qualified as a Nigerian lawyer in 1985 and as an English lawyer in 1993. He was appointed a Queen’s Counsel (QC) in England and was conferred with the rank of a Senior Advocate of Nigeria (SAN), in 2004 the Nigerian equivalent of an English QC. In this interview, he spoke on the misuse of preliminary objection, invasion of the National Assembly by Police and judges inability to assert their independence.Excerpts:
THE NBA has advocated the appointment of Supreme Court Justices from the bar, what is your position?
I think there is something to be said for that. The Supreme Court is the apex court, the constitutional court, and I think for such a court, it will be enriched by having to recruit from diverse sources. The idea that the only people who are fit to sit in the Supreme Court are people who have gone from High Court to Court of Appeal and then to Supreme Court impoverishes the court and deprives the users of legal services of the great expertise which can be found outside the judiciary.
Successful Supreme Court justices
In many countries, people have been appointed directly to the Supreme Court, even in this country. Dr. Elias was appointed from the bar, Dr. Nnamani was appointed from the bar and they were successful Supreme Court justices in this country. In England, two years ago, a man called Jonathan Sumption QC was appointed directly from the English bar to the English Supreme Court. There are examples in Kenya. Indeed the Chief Justice of Kenya contested and won, he did not go through Magistracy and High Court and Court of Appeal. So there are many examples. Even in the case of United State, Chief Justice Robert was taken to the Supreme Court and made the Chief Judge of United State. More recently, in Singapore, the Attorney General was appointed to their apex court, which is the Court of Appeal, and then on the retirement of the Chief Judge of that country, he was appointed the Chief Justice of Singapore.
Some lawyers have accused the NJC of not carrying out some measures that will make judges proactive in the discharge of their duty, which includes late sitting and unnecessary adjournments, what do you have to say about that?
I think any measures which are designed to speed up the administration of civil and criminal justice system in Nigeria must be welcomed. I think also that there is a lot of indiscipline among the judges. As a result of that, many of them sit late. These judges are supposed to sit at 9am, many do not sit until 10am, half past 10 and users of court services sit in some cases for over an hour waiting for the judge to turn up, and in some cases some of them sit in their rooms giggling with their friends, which is the height of unprofessionalism. Whatever it is, someone needs to tell them that high judicial office of being a judge of a superior court is a tremendous privilege. It is a call to serve and not a position that one should think, entitles one to behave irresponsibly, to treat members of the bar with such disrespect like coming to court very late.
Having said that, I do not believe that the delays are caused entirely by the judges. I believe that the barristers themselves, both junior and senior, contribute significantly to wide spread delay to civil justice. Everyone who has ever practised in the Nigerian courts is aware of the wide spread misuse of the preliminary objection.
Even when there is nothing to object to, there is a preliminary objection which is claimed to be jurisdicial in respect of which they claim to be entitled to have a ruling, in respect of the ruling which they claim they have a right to appeal, in respect of appeal, inevitably, most High Court judges will stay the proceedings. This is just an easy way to cause delay.
Apart from the misuse of preliminary objection and the misinterpretation of questions which are truly jurisdicial across all courts in Nigeria, there is the chaotic listen where a lawyer can have cases in five or six courts without any junior and then without the courtesy of informing the other side. The civil justice system is completely broke and something has to be done urgently.
Judges in Nigeria have been blamed for failing to assert their independence- would you say this is true?
I think that poverty is a terrible thing and greed is even worse. I do fear that some judges have surrendered their independence to politicians. Some for monetary reason, some in order to further their judicial ambition. I also believe that the politicians have sought to erode the independence of the judiciary. For example, by a Governor refusing to pay a State High Court judge his entitlements or refusing to provide them proper courtrooms for them to work with, and in some cases even refusing to provide them official vehicle.
I think these things are entirely deplorable. But one must blame the judges more than we blame the politicians because the judges have allowed themselves to be manipulated in that way. A lot of it has been due to corruption and some of it is excessive ambition or inordinate ambition. If I sit as a High Court judge, somebody then comes to tell me that Mr A is his friend and he has a case in my court so I should do the right thing, I will ignore them.
You must assert your own independence. But when you judges go cap-in-hand to Governors begging for various things, some of them even go to beg for money to go on holidays, then lobbying to help them seek promotion, and we know some of them who lobby to be put on Election Tribunals, it is all parts of the erosion of their independence. If you carry yourself as a serious judicial officer people will look at you well. But if you carry yourself as a comedian or a joke to be toyed with, then people will toy with you and you should not blame anyone for being toyed with. You have surrendered your independence, your freedom, and you cannot complain. So it does not lie in the mouth of the person who plays with fire to complain of burnt fingers. That is part of the tragedy that the judiciary finds itself.
And of course it is a pity because there are many judicial officers who are doing their best to assert and uphold their own independence but a number of their colleagues undermine them.
How would you describe the invasion of the National Assembly complex by security operatives?
What they are doing with Tambuwal, claiming that he is no longer speaker, gives an example of lawlesness. I learnt he went to the National Assembly and they prevented him from getting into the complex on the basis that by joining the APC he has seized to be a Lawmaker and therefore a Speaker. In what country have you seen the police prevent a Speaker who has not been declared not to be a Speaker by a competent court of law, you prevent him from entering National Assembly?What about the other members of the House who have left PDP a long time ago, who are in APC, have they prevented them from coming into the National Assembly? It just shows you the intolerance and the juvenile nature of those who exercise the executive power.
A man is in court saying he is occupying his position, no one has ruled that he has seized to be a member, and his own colleagues who have the power to remove him as Speaker have not done so. But you the executive, because you appoint the Inspector General of Police, and you appoint the Director of State Security, you directed them to prevent the man from entering the National Assembly, that is an abuse of power. And those are the reasons why people have been talking about State Police. That type of irresponsible behaviour threatens our democracy.
In view of continuous attacks and bombings in the Northeast, do you think the State of Emergency Bornu, Yobe and Adamawa States should be extended?
I have heard some of the arguments in favour of the position of Emergency Rule because it allows, in some cases, to take actions which in normal circumstances may expose you to liability for violation of rights, whether those rights are fundamental rights or simple contractual rights or other rights. So the State of Emergency provides a blanket or insulates what might have constituted unlawful action from being that because it tells you that the circumstances are extreme and extraordinary, and therefore there is a measure of departure from the norm.
Common experience
But our own common experience so far is that we did not do anything with the previous State of Emergency that we had in those three states. Prior to the declaration of State of Emergency, Boko Haram had not occupied any territory in Nigeria. After its declaration, the Boko Haram had ransacked and occupied at least 6 towns in the Northeast Nigeria. And so that calls into question, what is the utility of this emergency rule? I will also think that apart from that there seem to be some misconception about the use of emergency hours.
As a Commander-in-Chief of the Federal Republic of Nigeria and a Commander-in-Chief of the Armed Forces of the Federal Republic of Nigeria, you do not need a State of Emergency to crush insulgency in the Northeast. How is the State of Emergency then in seeking to prevent the soldiers from running away when they see Boko Haram? How is it going to curtail the insurgency? Many people who are cynical might say this is just an attempt to deprive the APC States which are affected of the votes they would have.
And I hope no one would say because there is some type of insurgency in those states that normal elections will not hold.
As 2015 draws closer, what is your take on Prof. Jega, INEC, as well as free and fair elections?
The free and fair election depends partly on the electoral umpire and the participants. They must depend on the system put in place to ensure free and fair elections but it also depends on the participants in this election.
Credits}vanguard
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