Professor Akindele Oyebode is the
Head of Department, International Law and Jurisprudence, University of
Lagos. The renowned international law scholar, who clocks 65 today, speaks on the judiciary, corruption and insecurity
Please continue reading after the cut..
People say the judiciary is very corrupt. What is really wrong with the system?
I agree that there have been
considerable misgivings about the pronouncements of some of our judges,
especially in election petition cases as well as other political cases. I
think the judges have their work cut out for them because, as the last
bus stop before anarchy, they have to be sensitive to the callings and
expectations of the high office which they hold.
Judges have such powers that would make
ordinary people fear and tremble. Judges can even dispatch fellow
citizens to the world beyond. So, it’s sacred a duty that they have – to
expend justice without fear or favour, affection or ill-will. And that
is why there is the aphorism that justice should not only be done but
should be seen to have been done. My students will always add,
“Manifestly seen that it is done.”
People have to be convinced that those
who dispense justice are beyond guile; that they cannot be intimidated.
But when there are suggestions or signs of failure to live to the
billings of the high office, which judges hold, the society is
perturbed, if not in discomfiture. I think the society will be disturbed
at any allegation of judges acting in a manner untoward to their
calling and their high office.
It is perfectly in order for people to
subject the actions, activities and pronouncements of judges to
treatment by cynical acid.
Why is it that several
probes into high profile and transnational financial scams have hit the
brick wall despite glaring facts that could be used to prosecute persons
indicted?
This is a country where not even a camel
but an elephant can pass through the eye of the needle. The whole thing
stems from what we can call selective enforcement. A former president
turned the Economic and Financial Crimes Commission into his attack dog.
Like Nuhu Ribadu (former EFCC chairman) once said, corruption too has
the capacity to fight back.
The greatest problem we have in Nigeria
is not corruption, it is impunity. Because once everybody knows that you
cannot get away with violating the law, then everybody would sit up.
Then, the law would be uniformly applied regardless of whose ox is
gored. But in this country, we adopt what in law we call ad hominem
application. You look at the face of the accused person, if he is from
an ethnic group, religious group, or belongs to a group the Indians call
sacred cows, then, we don’t touch such people.
Invariably in other countries, selective
enforcement is deemphasised. If you are caught with your finger in the
till, you will pay the price. There must be uniformity in the
application of sanctions. It is not the severity of the sanction that
serves as a deterrent to criminal behaviour; it is the certainty of the
punishment.
I have been quoted as saying that maybe
we should employ the approach in China: Corrupt people proven as such
should be lined up as we used to do with armed robbers at the Bar Beach
and send them speedily to the world beyond to teach other people a
lesson. Some people have said it is too draconian, inhumane and that
Amnesty International does not like death penalty. Why not life
imprisonment; you put them in jail, lock the door and throw away the
keys. So, they rot in jail. If there is certainty of punishment and
sanction, without any respect for status, then we will have some
cathartic effect. We will feel a sense of wholesomeness that justice is
done.
The Halliburton scandal involved a
former vice-president of the United States and he paid the fine in the
US. You have Siemens scandal: Siemens, a German company was indicted and
a German court imprisoned those who were caught. In Nigeria, what
happened? I know at least one of those indicted in the Siemens case who
later became a minister. Not just a minister but in one of the most
important ministries in this country, and heavens did not fall. Instead
of taking a cue from what happened to his confederates in Germany, we
are rewarding them with public appointments.
The case of Nigeria is worse than
useless. You remember the situation in the US, where a bribe taker lost
his seat in the Congress and was put in jail. In the West, efforts have
been made to give capitalism a human face. A former British PM, Ted
Heath, used to speak of what he called ‘the ugly, unacceptable face of
capitalism.’ In Nigeria, to quote Femi Falana (SAN), “Corruption seems
to have become the fundamental objective and principle of public
policy.”
You don’t say you are looking for
corruption; corruption is so pervasive that it has become a categorical
imperative of the modus operandi of Nigeria. And it is very sad because
that is how we are perceived abroad. As soon as your green passport is
sighted, you’re presumed guilty. Then, you have to prove your innocence.
Quite sincerely, Nigeria has to do
something to stop corruption if corruption is not going to stop Nigeria.
Nigeria is party to the United Nations convention against corruption,
which was adopted in 2005. We still have to provide the political will
to enforce international legal obligations that are incumbent on
Nigeria.
We have the EFCC Act, the ICPC Act, the
due process Act, the public procurement Act, the anti-money laundry Act,
we have so many laws. It is not that we don’t have anti-corruption
laws, what we have lacked, hitherto, has been a full, uncompromising,
untrammelled enforcement of these laws against those accused of
corruption. That is the situation today.
But it seems the judiciary
is failing to play its role in the anti-corruption war, giving the case
of James Ibori, a former governor of Delta State.
Of course, the indictment, prosecution
and conviction of Ibori were an indictment on the judiciary. You can see
the glee with which the prosecutor said a common thief had found his
way to the government of Nigeria. I had to bow my head in shame because
some of us had been following the case for a while. This is a country
where almost anything is possible. There are allegations that some of
judges hand over their judgement depending on the size of the wallet of
the accused. The judges are supposed to be impartial arbiters but we
have noticed that the lady of justice, Themis, who is supposed to be
blindfolded, with a sword on one hand and a scale on the other, peeps
through in Nigeria to really see who is before her. And then, she bends
the scale of justice in accordance with the status or with what the
accused person has provided. I will be the last to give the Nigerian
judiciary a clean bill of health.
The quest for justice in Nigeria is a
work in progress. The judiciary depends on its functionality, efficacy,
legitimacy and acceptability; it depends very much on the calibre of
persons appointed to the bench in terms of the moral fibre. If you don’t
appoint people of proven integrity – the incorruptible judges – then
they are human subjects to human foibles. The rule is, anybody who has
been caught to be violating the ‘cannot’ of his job should not be
handled with kid gloves. We must let the hammer descend very heavily on
them. We must shame them; there must be a sense of shame.
This is a country where people who have
been tried, sentenced and who have served terms of imprisonment for
corrupt practices, finish serving the term and go to a church to
celebrate and to give thanksgiving. And the people term this as normal
when we can see that moral values in Nigeria have been desecrated. We
have a distortion of values. There is problem now for parents; what type
of upbringing are you going to give your children?
Nigeria is at the crossroads; it is
enduring moral crisis, which most people have agreed requires
revolutionary treatment. Olusegun Obasanjo was threatening Nigeria with a
revolution of the youth a few weeks ago. If those who were in the
positions of authority, power and influence are now saying something
drastic has to be done in order to averta revolution, you know that we
are very close towards the debacle.
With the spate of insecurity
in the country, is the government making headway in its battle to check
the insurgency by the Islamic sect, Boko Haram?
You cannot discuss terrorism in the
world now without mentioning Boko Haram. The sect has called into
question the survival ability of Nigeria as one nation. Because the
security agencies will tell us they are on top of the situation but you
and I know they are not on top of the situation. Routinely, they are
killing people and still saying they want to dialogue. They are very
cynical. If they really want to dialogue, they should have given us a
sense of optimism by declaring, unilaterally, a ceasefire in order for
Nigeria to allow their grievances to be ventilated.
I think President Goodluck Jonathan is
caught on the horns of dilemma. Jonathan is between a rock and a hard
place because he’s damned if he does and damned if he doesn’t. I pity
the President because he is incapacitated. There was a time he even said
his government had been infiltrated. And you can see the sympathisers
of the Boko Haram in the security forces. Some of them (suspects) break
jails; some of them disappear from custody; that tells you that this is a
serious matter. They want to bring Nigeria to a halt; that’s the way I
am seeing it.
Nigeria must decide whether it wants to
live with terrorism, as it has manifested itself through the antics of
Boko Haram, or if we want to seize the bull by the horns. A drastic
ailment requires a drastic remedy. Since they are not seizing their
fire, Nigeria too cannot seize its fire. Nigeria has to meet force with
force and at the same time leave the door open for dialogue.
-Punch
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