A Senior Advocate of Nigeria (SAN), Mr Tayo Oyetibo, shares with Tunde Ajaja his views on the issues around Diaspora funding of elections, lessons from the Kenya election and other sundry issues in the judiciary.
Many Nigerians commended the process and the speed with which the Supreme Court of Kenya dispensed justice in the presidential election petition filed by Raila Odinga against William Ruto’s victory. What should Nigeria learn from that experience?
We have to look at each case on its own merit. Nigeria is bigger than Kenya and we have more constituencies in Nigeria. When an election is conducted, you have results originating from the polling units to the wards, to the local governments and then the state. If it’s a presidential election, from the state level, it goes to the national collation centre. All those processes take time, especially for a country that is as big as Nigeria. After the announcement of results, those who are dissatisfied want to go to election petition tribunals. In our case, there are two layers; for presidential, it starts from the Court of Appeal, and after ruling if one of the parties is not satisfied, it moves to the Supreme Court. But in Kenya, presidential election petition goes to the Supreme Court. Those are issues that have to be taken into consideration and I think the amendment to our constitution has taken care of the undue delay that we used to experience. Now, the proceedings must be concluded within a specific time.
Delay in justice delivery is a major challenge in the judiciary. How can the judicial process be optimised, because you find cases lasting up to 10 to 15 years from the trial court to the Supreme Court?
Yes, that is correct, but you have to look at the problems of the judiciary. In 2022, many of our courts still record proceedings manually. If the government wants the best for justice delivery system, it must invest in the judiciary. Under no circumstance should any judge of a High Court, Court of Appeal or Supreme Court still be recording proceedings manually in Nigeria in 2022. But up to the Supreme Court, they still record proceedings manually as of today. That shouldn’t be so. There should be an automatic electronic recording system and judges should just hold their pen and listen to arguments and presentations by the counsel and the parties. After the conclusion of proceedings, they have a person that would have transcribed everything and present to the judge. Why are we not looking into that? The government should look into these issues. You cannot identify a problem without looking at the cause of the problem. Quite apart from that, there are other issues; maybe our procedural laws need to be revamped to do away with archaic procedural rules in our books. Those are areas we can look into with the view to achieving an optimal justice delivery system.
Since the judiciary is independent and prepares its own budget, should it not factor in those facilities or equipment and make budgetary provision for them by itself?
I would ask that you investigate whether or not those funds are released to the judiciary. Are those funds budgeted released as and when due to the judiciary? What is the budget of the judiciary, executive and legislature? Compare the three and see how the judiciary is being relegated to the background in the scheme of things in Nigeria. Let it be known if the money budgeted is released and if it is not released, we should know why.
The legislature as an arm of government gets its funding from first line charge, and the constitution says the heads of courts should forward their budget to the National Assembly, but in practice the judiciary prepares its budget and sends it to the executive. Is the judiciary not by itself playing a second fiddle?
The implementation of the law is the problem. In Nigeria, everything revolves around the executive. To some extent, the legislature was able to extricate itself, probably by negotiation, and that is because of the give and take that we see. We see that play out when they (executive) take some matters to the legislature for approval. But the judiciary is on its own. Judges can’t go on strike, neither can they talk nor complain. They are suffering in silence. We have a system where nobody cares to look at what is happening in the judiciary and they do not have a forum for complaining. If you have a chief judge that is docile, the judges under him don’t have the means of complaining. Everything revolves around the chief judge (for High Courts) or the president (for the Court of Appeal) or the chief justice (for the Supreme Court). So, we must have a proactive system where the affairs of the judiciary can be addressed. There is a need to improve the conditions of the judiciary to be able to achieve the type of justice delivery system that we desire.
Rather than remain helpless, should there not be a way the judiciary can save itself?
Yes, but by the nature of the work judicial officers do, they cannot come out of their shell, literally. They are by the very nature of the work they do conservative. Even though you have some radical judges on the bench, their radicalism is not in demanding their perquisites, allowances and conditions of service. It is usually radicalism in their judicial activity; the making of decisions. You cannot have a radical judge that goes out of their way to meet the executive to ask ‘why have you not released our money?’ You cannot do so. A judge cannot go and meet the governor directly to make such demands. Everything goes through the Chief Registrar and the Chief Judge, so if you have a chief judge or the head of the judiciary that is docile, every other person under him would suffer. You saw what happened recently when many of the justices of the Supreme Court complained that they were not given their dues. That was an extraordinary situation. You could imagine what they must have been going through before they could come out of their shell. They probably have suffered for too long and could no longer bear it. That must have been what gave rise to that. Otherwise, you don’t find judges doing that.
Till now, Nigerians do not know the outcome of the investigation into the issues raised by those 14 justices against the former Chief Justice of Nigeria, Tanko Muhammad. If there were allegations of corruption at the highest level of the judiciary, should the matter not be brought to a close transparently?
I believe the appropriate authority was looking into it at some point, but I don’t know the outcome.
On the issue of diaspora funding, the law is clear that political parties cannot receive funds from outside the country. Ideally, Nigerians abroad are wont to be interested in what goes on back home, is it right to have a law that bars them from contributing to a political party for electioneering?
The law does not say Nigerians cannot contribute, it merely says you cannot hold or possess any funds or other assets outside Nigeria and you cannot redeem any funds or assets remitted or sent to the party from outside Nigeria. So, it did not discriminate against Nigerians outside Nigeria. It merely says if you are outside Nigeria, don’t remit money to a political party and if you as a political party receive any, remit to the Independent National Electoral Commission. I don’t see it as discrimination. I think the whole essence of that provision is that the law doesn’t want money to flow in from outside to fund elections in Nigeria. However, nothing stops Nigerians outside the country from remitting money into their Nigerian account and transferring the same locally to a political party within the threshold allowed by the law.
The constitution talks about political parties and not candidates and people are highlighting that distinction. Does that prohibition extend to the candidates or it’s only the parties that can’t receive money from outside?
The issue that may arise is whether or not that candidate has not received the money as an agent of the political party. That would be an issue, so the candidate does not run afoul of the law. In the ballot paper, the name of the candidate is not there, it’s the party. So, if a candidate receives money, it is deemed to have been received on behalf of the political party.
Should any political party receive money from outside the country, the constitution says it should be remitted to INEC but it didn’t indicate what INEC should do with the money. What will the commission do with the money?
(Laughs) The commission will be looking at it in its account. What do you do with money? It will form part of the revenue that the commission received.
Do you agree with those who say we need to amend that law for Nigerians abroad to contribute to the electioneering or should it remain as it is to avoid undue influence?
If you are a Nigerian living abroad and you want to send money, send money to your account in Nigeria. From the Nigerian account, you can transfer to the party. What the law is saying is that; don’t remit money from abroad to a political party. So, in my view, nothing stops a Nigerian from supporting a political party. It’s just to ensure that there is no manipulation of the political system from outside, because the system may not be able to monitor the source of the money coming from outside.
At all levels, judges and justices of the Supreme Court are poorly paid, and some persons have argued that it is difficult to eliminate corruption from the judiciary when judicial officers are poorly paid. What do you think?
My view, sincerely, has always been that you cannot justify corruption on the grounds of poor salary or poor working conditions. That is my consistent view. But that is not to say that the conditions of service of judges should not be improved. You have to take care of judges in order to take their eyes away from things that could lure them into corrupt practices, but honestly you cannot justify corruption on the grounds of inadequate pay.
In several instances, judges have been accused of corruption, and much of what happens thereafter is that they are quietly dismissed. Should corrupt judges also not be sentenced if they are found guilty, rather than hiding under the NJC where they are only eased out of the system?
The position of the law is clear that if there is a disciplinary issue against a judge in the performance of their duties, whether by way of corruption or not, they file it before the National Judicial Council. The council would remove the person from the bench and then you can deal with the person. What was not right was what the Department of State Services did. For the DSS to have (in 2016) invaded the homes of judges in the middle of the night with hoods, breaking their doors is absolutely wrong; you don’t find that in any civilised environment. There are so many ways you can catch a corrupt judge. The DSS could have carried out that task without behaving like a typical outcast. There is no justification for what the DSS did on that occasion. But that is not to say corrupt judges should remain on the bench. In fact, many corrupt judges have been shown the way out of the bench in the recent past. After the NJC has dismissed such a judge, you can arrest and even prosecute them. Some of those arrested by the DSS, they didn’t find anything against them and they (government) didn’t apologise. I know a particular one whose home was broken into in Abuja and nothing was found in the house and up till today, they didn’t apologise to the judge. That’s not right; it was sheer intimidation that should be condemned by any right-thinking person. They should have apologised to those they didn’t find anything against, because even from the outset, they shouldn’t have embarked on that action in that manner.
Some people have called for a new constitution and that the 1999 Constitution (as amended) lied against itself when it said ‘we the people’. Such persons argue that there was no time the people agreed to adopt the draft of the 1999 Constitution. Do you also feel Nigeria needs a new constitution or the amendments should continue?
Many people have said that a number of times and my view is that it is not the form of constitution that matters but the operators of the constitution. Britain has no written constitution, yet they are well organised in the way they run their democracy. The ‘we the people’ was also in the 1979 constitution. That is not the issue with the constitution. It is the people that something is wrong with. It is the people running the constitution that have problems. Let’s examine ourselves. Even the provisions that are there now, have we properly operated them? Do you know how much is spent on constitutional amendment? Almost every Assembly goes on constitutional amendment and they spend so much money. What is the outcome? Yes, we may need to amend some provisions of the constitution but that is not the major problem of Nigeria. The problems are the politicians who don’t respect the provisions of the constitution. If we follow the provisions, we may still have some leverage over the issues that we have. Politicians just have to do self re-examination with a view to doing things properly.
Your colleague at the bar, Chief Niyi Akintola (SAN), in a viral interview allegedly referred to the immediate past president of the Nigerian Bar Association, Mr Olumide Akpata, as a boy. People like Governor Rotimi Akeredolu (SAN) of Ondo State have faulted that statement. What’s your position on that issue?
Honestly, I didn’t believe that Niyi Akintola made such a comment, because I didn’t see the video. But if that was said, to me, there was no basis for referring to Olumide Akpata as a boy. You could call yourselves different names during informal conversations, but when it comes to official reference, he deserves the respect of that office. He’s man enough, if I may use that expression.
Was there truly a pact by the Yoruba leaders at the bar that the group would not dignify Akpata with their presence at any bar gathering?
Quite frankly, I do not see how anybody can justify the purported pact that he (Akpata) would not be supported. I see myself as a Nigerian lawyer, and I’m Yoruba but I’m not aware of such a pact and I think if there is any such pact, I don’t think it was a general pact. Maybe a group of people believed that they should not support him. Everybody had their right whether or not to support him. So, it cannot be a general pact among lawyers from the South-West. Quite a number of lawyers have interacted with him. I have seen him on a number of occasions and we greeted each other respectfully. I regarded him as the president of the NBA. I do not think it was a correct position to say there was a pact between lawyers of Yoruba extraction not to respect him. That certainly cannot be correct.
The NBA has experienced some internal issues in recent years, how best can the association retain its dignity and influence many Nigerians accord it?
Personally, I have never liked the idea of ethnic groups within the association. You could have some groups of professional interests, like media law practitioners, insolvency law practitioners, corporate law, trial lawyers, etc., because that is what brings us together. It is not ethnicity that binds us as lawyers. No. So, it is most unjustified to begin to create Egbe Yoruba (Yoruba group), Arewa lawyers or Igbo lawyers. There is nothing peculiar to ethnicity; it is the practice of the law. It’s a professional association and what binds us together are professional issues. The NBA should stand up to discourage such groups within the association.
But it will be argued that there is freedom of association.
Of course, I know members are entitled to freedom of association but it is not the space of the Nigerian Bar Association or the space of the legal profession that should be used to create such association. It should be discouraged. It doesn’t do any good to the cause of the national body and the profession. When such groups meet, you wonder, what do they discuss? Is it law or ethnicity? If it is law, then it is no longer an ethnic issue, and if it is not, they can go to a platform that advances such.
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