Most times, governments are in quandary about the desire to rid the society of different ills and at the same time preserve the rights of its citizens from being violated. The point at which to draw the lines, in most cases, always raises issues of law. Chief Robert Clarke (SAN) in this interview with Assistant Editor, Law and Foreign Affairs, JOSEPH ONYEKWERE believes the present system of government breeds corruption and therefore, should be jettisoned for a parliamentary system. He also wants a restructuring that would curb the powers of governors and the president, in addition to the adoption of a criminal justice system that presumes an accused guilty until he proves his innocence.

In your last interview with one of the television stations, you expressed the view that based on the need to fight corruption in the country, rule of law could be set aside to engage those accused of corruption?

On Channels TV, I said that in Nigeria as of today, the law allows courts to give consideration to state security matters when dealing with matters arising from fundamental human rights or from the doctrine of the rule of law.

But my answer was predicated on what could have motivated president Muhammadu Buhari to have suggested to the courts, knowing that as a president, he has no power to change the law.

Of course, it is because the circumstance that Nigeria has found itself.

In about 10 or 11 states in the North and part of the Middle Belt, Hausa/Fulani and cattle rustlers/herdsmen have created a situation where life is no longer meaningful.

It is not that Nigerians haven’t seen these occurrences in the past, but no president in Nigeria has ever taken any step to find a solution. And this is very disgusting.

Secondly, cases of armed robbery all over Nigeria are so high because there is mass unemployment of youths and those who believe that politicians are stealing Nigerians’ money without consequences are ruining the country.

So, my belief is that the doctrine of the rule of law, which has been placed in our law, should be given more consideration by the courts.

I am not saying that it should supersede the rule of law. I am not saying so.

But I am referring to a circumstance where you are taking a matter to court and the person is a known killer, a murderer, a kidnapper and the offences do no warrant life imprisonment. They are offences, which under the law are bail-able offences.

Is it not proper in view of the antecedents I just stated that the courts should take that aspect of our lives and make sure that such people are not thrown back into the streets because of the rule of law? That is my main reason for saying so.

And to be honest, that is also Mr. President’s belief that because of the rule of law, we should not throw back to society those who have committed heinous crimes.

I believe that the situation in which Nigeria is today, we need a little bit of discretion on the part of our judges to exercise certain areas of the law that will lead to the doctrine of the rule of law.

In your opinion, does it apply in corruption cases?

For corruption cases, the law in Nigeria is that you are presumed innocent. That is the constitution; that is the law.

So, if the government, after inquiries by the Economic and Financial Crimes Commission (EFCC) finds out that during the period that you occupied public office, you embezzled, you will be taken to court.

The court has a process to follow. The machinery of justice grinds slowly but surely.

In view of what is happening in Nigeria today, we all want to see justice delivered the same day.

If that is what Nigerians are looking for, then amend the constitution.

Let it be amended in such a way that people who are found to have stolen by one way or the other stands guilty at first and then, let them go to court to prove their innocence.

Then, we will be happier and have a swift and speedy movement in dealing with corruption.

But when we still have the extant laws, when we still have the hierarchy of courts we have today, corruption trial will have to tread a very slow pace in Nigeria.

If you have such a restrictive aspect of our law that does not allow corruption to be dealt with swiftly, then is it not better, as Buhari implored judges, to try within the limitations and exercise discretion in favour of national security when they are granting bails?

So, what is the nexus between corruption and national security?

Corruption is the base of all iniquities. Corruption has been able to thrive in Nigeria because of two principal cushion chairs it has to sit upon.

Corruption is happy to thrive in Nigeria because of ethnicity and religion. Those two things are the two elements giving food to corruption in Nigeria.

And once you cannot isolate ethnicity or religion, corruption will always thrive.

I have seen in Nigeria where a man from a particular ethnic group who has stolen and we all know he has stolen, will still be hailed by his kinsmen. They never see anything wrong in it.

We have seen in Nigeria where a particular man from a particular region is the president, people from other regions will never see anything good in him.

We have seen in Nigeria where a particular ethnic group produces a president, people on the other side will say he is a Fulani extremist.

He is going to destabilise Nigeria.

These are the things that are breeding corruption, such that when they steal, they know they have a cover-up either through their religion or their ethnic group.

The pillar upon which security is fought today has at its base, corruption. And if you want to fight corruption, you must fight it with all your might.

Are you suggesting to the judges that in exercising discretion in handling corruption cases, they should put into consideration issues of deprivation of liberty for those accused of corruption, going by what we have today as law in Nigeria?

I am very clear in my mind that the deprivation of liberty arising from criminal proceedings has not arisen to such a state in Nigeria where it will cause any alarm.

The only case I know today is maybe the Sambo Dasuki case but it is a single case.

After all, how many people have been charged for corruption? How many governors have been charged?

How many of them have been detained without a bail? So the question of affecting security is only in very rare cases and it is not a norm in Nigeria.

And that is what is very painful to the so-called people fighting corruption in Nigeria.

They feel that the system allows corruption to thrive because the courts are not trying corruption cases quickly.

I remember that Buhari once admonished at a seminar where he was addressing judges and castigated judges and lawyers, especially senior advocates, for being the people allowing corruption to thrive.

And I replied in a Channels Television programme that the problem about corruption in Nigeria in the delay of delivering judgment is not the fault of the judiciary or that of the lawyers.

There are sets of rules to be followed. And a trial lawyer must be a master of the court. And how do you become a master of the court?

It is by having at your fingertips the procedures and rules of courts.

So, if a lawyer plays with rules of court in exercising his rights to defend his client, do you regard him as a corrupt man? You don’t!

You have to look at the system itself and see what you can do because the lawyer works within the system.

He works within the law. It is what allows him within the law that he does.

So, the fact that corruption is not being given the treatment that it deserves is because the law has to be reviewed.

You have admitted an isolated case of the deprivation of liberty.

As a senior lawyer, don’t you think that the backlash against the presidential statement is because if such is allowed and glossed over by the citizens, there might be escalation?

I am always distressed when Nigerians speak in terms of freedom, liberty and so on, when they cannot get their daily bread to eat.

Democracy thrives in a society that is orderly, which provides welfare and security for its citizens.

None of this is present in Nigeria. Let me just be bold to say that since 1999 that we have had civilian governments, none of them has provided for the poor.

They have not provided security for you and me. Instead, they have been furnishing their pockets. Let us be frank. What has Dasuki done?

I am not saying that he is guilty but a man that has access to USD$2.1 billion of Nigeria’s money and claims that under instruction of the Presidency, he was sharing it out to people for different reasons without following due process.

Is that amount not enough for the provision of hospitals?

Many things could have been done with that money to uplift the average living standard of Nigerians.

So, if you weigh the disadvantage that that act of Dasuki has done to Nigeria; if you look at what that money, if it had been well-spent, would have done to you and me, you will not be the one to say why is he being locked up or why is his freedom being deprived?

Let us be honest and go to the other side of the coin and make sure that would ensure that every Nigerian who is found to have stolen money is guilty until he proves himself innocent.

Are you saying that the six judges who had handled his matter and had pronounced that he should be granted bail did not exercise discretion properly?
I am not saying that!

Or they did not weigh very well the enormity of his offence?

Discretion is within the power of the man who is exercising it. The way he thinks and the way he utters his statements are all his.

I cannot begrudge it. The apex court has spoken. They have said grant him bail.

That is why I said the isolated case is that of Dasuki. I am informed by that decision.

The position is that if we tolerate the isolated case, what is the guarantee that there will not be escalation?
You are getting me all wrong. I am not saying we should tolerate it. You may say it is an aberration, but I am not tolerating it.

But is it an aberration?

It is! 

How many of those people that Buhari and EFCC have sent to courts have been denied bail?

That’s the angle you should look at it. It is over 200! I am for the rule of law.

I have been practising the rule of law for almost 50 years.

So I am not going to be the one to say jettison the rule of law, but what I am saying to you is that you have taken Dasuki’s case and I said Dasuki’s case is isolation, because over 200 politicians, governors and senators, have been sent to the courts and were all granted bails.

They were not denied freedom and Dasuki’s case is an aberration of that. But that doesn’t mean I support it.

If I were in government, every thief who is proved to have stolen should be guilty first then let him go to court to prove his innocence.

So you will advocate change of our laws?

Not change of our laws. In other civilised countries that is the rule of law. In France today, that is the rule of law.

That is inquisitorial system?

Yes, that is the rule of law and the system has worked for them for over 270 years after they started the republic.

On account of all these, will you now advocate the creation of special courts for trail of corruption cases?

We don’t need any special court. Every state high court today has a division.

They have division for criminal matters; matrimonial matters and judges are assigned to them.

The only thing is to increase the number of judges that should be assigned to criminal matters.

But there is no fast-track process for criminal matters. We only have them in commercial cases.

We have fast-track matters. The Administration of Criminal Justice Act (ACJA) is there.

According to the law, you cannot ask for more than five adjournments. There are also other regulations to curb excessive adjournment and all that.

The ACJA has been here for the past three years. In your estimation, has there been much difference?

Well, it is you to decide. I have not seen but it is for you to deicide.

That is the best we are operating upon and you can see the problems we lawyers have.

So when you people start criticizing lawyers, you see that the system itself does not allow for speedy trial.

Now, apart from perhaps recruiting more judges, what could be done to ensure that we get justice delivered fast and efficiently?

You see this is the funny aspect of it. The more you get judges, the more you are producing corrupt politicians who are stealing everyday and the more you are producing corrupt public officials who are stealing.

So when you appoint judges, make sure that the rate of ascendency of corruption is whittled down but that is not the point in Nigeria.

The greatest crooks in Nigeria today are public officials and politicians. Are you curbing them?

What is the way forward?

The system of governance we have in Nigeria today is the problem. The system of governance allows corruption and insecurity.

When you give one man in a state power and call him executive governor; give him all the accounting powers, administrative powers and security powers, he becomes drunk because power corrupts and absolute power corrupts absolutely. That is the problem in Nigeria today.

If you become a governor and somebody does not like your face, that man in that your state cannot make any progress.

If he is in civil service, he will never be promoted. If he is a politician, he will disappear. S

o the powers of executive governors and Mr. President should be curbed.

So, you support restructuring?
I have always approved of restructuring but restructuring in the sense that the constitution we operate is too large and wide.

Nigeria does not need 36 states, 36 governors and 36 attorneys-general.

Nigeria needs about six or eight states where the amount of money spent in governance will not be more than 40 per cent of its revenue.

Today, Nigeria spends 80 per cent of its earned money on governance. That is the restructuring I want.

So won’t the eight governors that might be appointed from the kind of restructuring you propose exercise executive powers?

Whether they exercise or not, what I am saying is that they should curb their powers.

Nothing curbs their powers at the present except impeachment and the first thing a governor does when he comes into power is to buy the legislature.

Let them be members of the state assemblies in which they are the governors like in South Africa.

You want us to return to the parliamentary system.

Yes, because when you return to the parliamentary system, corruption in terms of garnering votes will disappear.

Now a governor has to campaign in all the local governments and spend money in each. That’s where corruption starts.

Whereas, in a parliamentary system, his local government is the only place he has to go and campaign and win his seat.

When he gets to parliament, if they want to make him the president, they will vote for him there.

The caucus will have to agree to it like in the British Parliament, so that when election is coming, there will be no do-or-die.

Primaries will not be fought on money. So when you eliminate all these areas that breed corruption, people will even be happy to participate in politics.

People who don’t have the money but have the guts will come forward. But now, if you don’t have money, you cannot try it.

Do you know how much it costs to contest as a candidate for gubernatorial primaries in a state?

If you don’t have N5 billion to ask for nomination, you won’t get it. This system of governance is revolting and must be jettisoned!

 

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