A Senior Advocate of Nigeria (SAN), Dr Babatunde Ajibade, tells TUNDE AJAJA his thoughts on the Senator Muhammad Bulkachuwa’s viral video, the implication for the judiciary and the question of legality around the suspension of Godwin Emefiele as the governor of the central bank

What are your initial thoughts on the viral video where Justice Muhammad Bulkachuwa was seen alluding to how his wife, Justice Zainab Bulkachuwa (retd.) as the then President of the Court of Appeal, ‘helped’ some senators?

It was an embarrassment, but coupled with that was indignation. I said indignation not just because the gentleman did not understand the enormity of what he was saying, but that he didn’t even seem to realise that what he was saying was so symptomatic of everything that is wrong with our system. As somebody has said in social media, but for the Senate President (Ahmad Lawan) who stopped him, he probably could have gone on to mention the names of those who benefitted from his influence over his wife. It’s quite sad. No society is perfect, but when a society gets to the point where people commit wrongdoing and apparently do not even know that it is wrong, then it has sunk really low. It is one thing to do the wrong thing and be hiding because you think you can’t get away with it, but when you do it and you are not even aware that it is wrong, then, we have a significant problem, and that got me worried.

Would you say you were deeply surprised by the senator’s revelation, given the common knowledge that there is a lot of corruption and compromise in the judiciary?

The issue of surprise is neither here nor there. As you have said, we know there is corruption in the judiciary and every aspect of human endeavours, and it’s not just Nigeria. There is corruption everywhere. However, whether one knows about it or not, it doesn’t make you feel any better every time that wrong thing you are aware of is established as fact. And of course, it is to the extent that you are not involved in it. Obviously, to lawyers who are engaged in bribing judges, it will be ridiculous to ask if they are surprised about such. It’s just disgusting every time you come across such, and that is my natural reaction to corruption every time I come across it. You know, it’s just disgusting the fact that it is so prevalent in our society, and it’s a problem.

In a previous interview, you said judges are also a product of the society and that it’s somewhat funny when people expect all of them to be above board, does this really dent the image of the judiciary, especially when you juxtapose it with many people’s perception?

Of course, it makes it worse, there is no doubt about that. Basically, what this has done is to confirm to those who might have had any doubts about corruption in the judiciary, that indeed, not only does it exist, but even those who are involved in it don’t seem to recognise the fact that it’s a problem. That is what makes it so disgusting.

Many people have said the former Senate President, who cut short Senator Bulkachuwa’s speech didn’t appear shocked, and that he was rather in a rush to stop him from spilling the beans. Why shouldn’t he be surprised with such news?

Obviously, the former Senate President wasn’t expressing shock about what Senator Bulkachuwa was saying, he was expressing concern that the senator was exposing what they had been up to. So, I agree with you. In a sane society, the Senate President would have been saying to Senator Bulkachuwa that ‘you mean this happened? I want you to give me the names of all the senators on whose behalf you influenced your wife. This is unacceptable, I’m going to report it to the National Judicial Council’. But rather, he was more concerned about covering up the wrongdoing, and saying, ‘Distinguished, I don’t like the direction you are going’. It’s totally disgusting, to be honest. I have sent that clip to a couple of judges for whom I have respect and the consensus is the same, that this is just sad. How low are we going to sink?

Many people have seen that video by now, including those who can do something about it, is it okay that nothing has been said or done about it so far, rather there seems to be a conspiracy of silence?

I think the event happened on Saturday, so I don’t think it’s too late for the relevant organs to still comment on this. However, Justice Bulkachuwa is no longer a serving judicial officer. If she was still a judge of the Court of Appeal when it happened, I think there would be a much greater question as to whether we are going to allow this slide. Right now, I don’t think even the National Judicial Council has authority over her, in terms of discipline, but are there other organs of government or society that ought to address this? I definitely think so. The Nigerian Bar Association has commented on it and I would expect that even the NJC may very well comment on it, but I would hold my breath on that, because unfortunately the NJC in recent times seem to have been more intent in ensuring that judges are protected. Yes, they have sanctioned a few judges, but on the whole, I think it’s fair to say it has been more of them trying to shield judges from discipline than actually coming down hard on them. And that is something that has to change.

Since the NJC does not have control over her anymore, what do you think should be the ideal; should the Economic and Financial Crimes Commission or the police invite them for questioning, because this has to do with the integrity of that institution?

That is a very important question. I will take you back to the concern I had and I still have about the sincerity of the government when it comes to cleansing the judiciary of corruption. I think government generally has been very selective in its approach to cleansing the judiciary of corruption, I mean to the extent that we know that there is corruption in the judiciary and to the extent that the judiciary appears to be finding it difficult to cleanse itself. One would expect that there should be a much more concerted effort on the part of the government as a whole to deal with the issues, So, yes, I agree with you that it wouldn’t have been out of place for the EFCC or whoever to, in the light of the unprovoked and self-confessed admission of corruption, thank the parties for letting you know this and then demand more information on who and who were involved, but because of the seeming lack of sincerity on the part of the government. Those who have corrupted the judiciary the most, with greatest respect to them, are politicians and members of the executive. So, it seems to me to be an unholy alliance, and that is why the problem persists.

How can such possible influence be checked, especially when judges are married to politically exposed persons?

At the Justice Sector Summit that the Nigerian Bar Association organised in January, 2022, we stressed then and I will continue to stress that the most important problem we need to address in the justice sector is the appointment process. If you appoint the right people into the judiciary, it doesn’t matter whether they are married to the President, governor, minister or whoever, a judicial officer worth their salt would ensure that you wouldn’t even discuss any of the matters they are handling. Your spouse would even know that raising such an issue with you is a no-go area. I don’t think we can afford to have a situation where you would because your husband or wife is politically exposed, we will exclude you from being a judicial officer. That would be unacceptable discrimination. But if you appoint the right quality of people to the judiciary, the nature of their marital arrangement will have no bearing on their independence or their incorruptibility.

Till date, lawyers continue to refer to the likes of Justices Kayode Eso, Chukwudifu Oputa, Augustine Nnamani, who served at the Supreme Court years ago, why is it more satisfactory to refer to them than some of the judges of nowadays even though we still have very good judges at all levels; what changed?

What changed is exactly what I just mentioned. We lost focus on the importance of appointing the right men and women. It’s not as if we no longer have good judges; we still have some very good judges out there but speaking generally, we have lost focus of the need to ensure quality appointments into the judiciary, and that is why we keep referring to the Oputa, Eso, Nnamani etc. It’s not to say they were perfect, but by and large, compared to the majority of the people we have now, they clearly were miles ahead, and this is not just in terms of corruption, because as far as I’m concerned, incompetence is just as bad as corruption where a judicial officer is concerned. And I keep saying it’s not peculiar to Nigeria. If you have some degree of corruption in the judiciary, and you combine it with incompetence, it’s a lethal mix. Now, we have judges and people being appointed to the judiciary, some of whom are corrupt, but on top of that, incompetent. At least one thing you could say for judges of those days like Eso and Oputa was that not only were they less susceptible to corruption, they were also, by and large, people who were on top of their game. They were first-class intellectuals, and that is why when you read their judgment, you would be in awe of them. But today you read judgment and there is very little in many of them to inspire you. So, we have to get that appointment process right. We have to make sure we go back to the point where it is people who are way above the average that are going into the judiciary. The bench should not be a place for just every lawyer.

What do you make of the suggestion that judges should also be appointed from the bar and the academia so there could be a mix, instead of the current model where only judges from the lower courts could be appointed to the higher courts?

Absolutely right, and the NBA made that recommendation in the proposal it submitted to the National Assembly in the recently concluded constitution amendment process. But our proposals didn’t find favour. We recommended that there should be a mix so that you have a balance of experience and exposure on the bench. It shouldn’t be just people rising from the magistrate to the High Court, to the Court of Appeal and to the Supreme Court. We are not excluding that cadre, but there should be a nice balance to accommodate people from other sectors of the legal experience.

Does that necessarily require constitution amendment, because the constitution did not say those to be appointed to higher courts must have served in the lower courts, the emphasis was on the years of practice as a lawyer, among other provisions, and it would seem the exclusion of others is the decision of the appointing institutions?

As you have said, the constitution doesn’t exclude people from the bar and academia from being appointed judges; but then it doesn’t compel it either. So, if the judiciary or those in charge of appointments in their wisdom are only appointing from a particular cadre, then the question is not whether the constitution prevents them from doing what we are saying, but that we should try and get the constitution to compel them to do that which we are asking. That was our proposal. So, you are right; they can do it right now and it doesn’t require constitutional amendment for them to do it, but if they are not doing it, what we are saying is that let us now amend the constitution to make it compulsory for them to do it; that each time you are making appointments, it must cut across. That is why non-judges and academics apply but there seems to be this feeling of being separate and that if I started as a magistrate or a registrar and I had risen up through the ranks, why should you come from outside and want to be appointed above me? But that thinking is so unfortunate, because they also should realise the benefit of having different points of view in arriving at judicial decisions, especially at appellate levels. But seeing as they have refused to have that point of view, that is why we are saying let us amend the constitution to compel them to make appointments from all these sectors.

The slow dispensation of justice is an issue that many lawyers have lamented about, but at the end of the day nothing changes. Who should champion that reform, because it would seem the judiciary can do more to help itself?

Everybody has a role to play. I think it’s a complete red herring every time these issues come up and I think the media doesn’t help by trying to pigeonhole it as whose fault it is, because what you then have is the judges blaming the lawyers and the lawyers blaming the judges. That really doesn’t solve the problem, because the problem of delay in the administration of justice is a problem of the society as a whole. Part of the delay in the administration of justice has to do with inadequate resourcing, which has nothing to do with either the judges or the lawyers. If the funding provided for the judiciary is insufficient, that is not a judge’s or lawyer’s fault or problem. If the quality of the support staff that judges have or the quality of the registrars, etc., is insufficient or if the courts are not properly equipped in order to deliver, that is not the fault of the judge. So, I don’t think we should approach this from the angle of whose fault it is; I think we should approach it from the fact that these are the problems and these are the solutions. We can go further to say for the problems that relate to the judges, let’s get them to deal with it. The ones that relate to the lawyers, let’s address that through a proper disciplinary process, because lawyers also come up with all sorts of dilatory applications and technicalities. If it comes to lack of infrastructure, etc., let the executive address that by providing the necessary resources. So, I think we need to take a holistic approach to it rather than looking for who to blame. I don’t think that gets us anywhere.

If there is a sort of agreement that politicians are part of the problem and they benefit more from a suppressed judiciary, do you think they would want to play their part to address the problems?

There is an element of truth in what you said, but that is why I said it really doesn’t get us anywhere to try and put the problem in a particular place. I think we just need to identify the various strands of the problem. You have identified some too; you said the executive may derive an advantage from a subdued judiciary so there may be no incentive to resource them properly, but you might also have people in the judiciary who feel that there is more benefit from receiving corrupt inducements from the executive rather than actually getting the executive to resource and reform the judiciary properly. If the judiciary is so badly remunerated and the conditions of service are so poor, why is it that you have lawyers who are clamouring to be appointed as judges? The only problem being that we perceive that it is the wrong quality, by and large, that are doing that clamouring. Obviously, there must be some benefits that they are seeing there. So, really the problem is multifaceted and that is why I said I don’t think we get very far if we are looking for who is the problem. No, there are problems of funding, appointment, legal training and even mindset, because the mindset of the justice sector participants, be it lawyer or judge, should be that you are there to provide service. But we don’t have that service orientation. That’s why you go to court now and the court registrar would act like they are doing you a favour, even the way they relate to lawyers. They don’t see themselves as being there to provide a service. You file an action and the bailiff is acting like he’s doing you a favour to go and serve the processes, whereas you pay for that service.

What if you draw the attention of the judge to it?

If you complain to the judge, the judge could tell you that ‘well, you know what you should do now’ or ‘is it today you started practicing law?’ So, the orientation of the judges, lawyers, the support staff and the government, as the one that appoints people, has to be changed completely. We all need to realise that having a functional justice sector is a critical requirement for a civilised society. As it is, we don’t seem to have got there. Few days ago I saw in the news that President Bola Tinubu said more judicial reforms would come. If this administration is able to implement the type of far-reaching judiciary reforms that are required, then it would have done a great thing for us.

On the issue of appointment, some lawyers have said since the legislature appoints its leaders without recourse to other arms of government and the executive makes certain appointments without referring to other arms of government, the judiciary should be able to make its appointments too. What do you think?

I think those saying that have a completely skewed or shallow understanding of the way government is supposed to work. I remember I had cause to address this at a conference in Uyo, Akwa Ibom State, a few years back. The system of government that we are trying to run or that we have adopted is based on separation of powers but also checks and balances. So, the three arms of government, the way the system is supposed to work, are not totally independent of the other. They are supposed to act as checks and balances for one another. We must realise that for the executive and legislature, the major checks and balances for them is that they are elected officials, so at some point they go through a referendum by the people. But if a judge is appointed at the age of 35, until the age of retirement, which has now been increased to 70, and there are no checks and balances, the judges should not be a law unto themselves? What if you now have rogue judges and there is no way for the other arms of government to act, that is not reasonable. The independence of the judiciary is important but judicial independence does not mean that the judiciary is not accountable. There has to be accountability, and it is to that extent that it is important that the other arms of government have a say on judicial appointments. The society as a whole has a say on the election of those other arms of government and they are then the ones who can have a say on the appointment of judicial officers, unfortunately they use that power corruptly. Everything I have said about judicial appointments and the dysfunctional state of that process is also a result of the process being politicised. So, you find that a lot of people are appointed as judges because they have one godfather somewhere, not really based on competence and suitability for the post.

On the suspension of the CBN governor, Godwin Emefiele, by the President, questions have been raised about its legality, because suspension is not in the CBN Act and that the removal of the governor requires Senate approval. What is your position on this?

It’s not something I have looked at in any detail, but I think the question really is whether by suspension you actually mean suspension. When you now use suspension as a means of permanent removal, I have a problem with that. I don’t know for a fact now, but even in the former President Goodluck Jonathan and Lamido Sanusi example that is being bandied around, if Jonathan took the next logical step as stated in the CBN Act. So, I understand the argument that under the Interpretation Act, he who has the power to appoint also has the power to suspend, so I think there is a rational argument for saying that even though the CBN is supposed to be independent, you look at checks and balances because you can’t have a situation where the CBN governor is totally immune no matter what he does. The President should be able to suspend him but it should be a suspension pending when the necessary things to have him removed have been done, not suspension as a means of removal. Remember, the provision of the CBN Act is supposed to ensure that the President cannot on a whim remove the CBN governor; he is opposed to get two-thirds of the Senate to agree with the decision to remove him.

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