Professor Ernest Ojukwu (SAN), is a legal instructor and former deputy director at the Nigerian Law School. He discusses the problems militating against the Nigerian legal system with CHIDI NWACHUKWU.
The Nigerian Bar Association, NBA is seen to be experiencing an internal crisis that has factionalized it. Are there interventions to arrest the situation?
Well, I don’t know whether we have an internal crisis that can be described with such strong assertion. The NBA is still very strong. We have had one or two hiccups in recent times especially in the events leading to the last elections and thereafter. One or two members went to court over the process of constitutional amendment or reform and the present problem can be traced to that event of the litigation. For some time now, at the last National Executive Council (NEC) meeting, the president briefed the National Executive Committee on all the efforts he has made to reconcile with people who are aggrieved. So, I cannot say that it is a factional thing, but there are surely people or members who are not happy because of one decision or the other arising from events and occasions not created by the present regime. And you asked what measures have been put in place; well, the president has met with some elders and trustees, and I think he is also trying to hold meeting with aggrieved people if you can call them that. I remember during the last Executive Council Committee of the bar at Lokoja last month; members passed a vote of confidence on the president. So, in moving forward, I think the president may need to personally make more effort to get more aggrieved persons to step down and reconcile with the system.
You headed a sub-committee in the Law Reform Committee. How far have you gone with your assignments?
Chief Tony Ngige SAN headed the Legal Practitioners Review and Reform Committee and I headed a sub-committee of that committee. The committee was divided into two main parts: the present state of the legal profession and the future state of the legal profession. I headed the future state and we have since submitted our report and the draft legislation.
Has the Mahmoud-led NBA been able to actualize the goals it set out to achieve?
Well, I’ve not really assessed his regime, but I know that the reform of the legal profession is one promise he made, and which he has embarked on. The reform is very wide. It aims at setting up new structures, setting new laws, setting new rules. All these are meant to guide the future actions of the bar. I think they are fundamental. If you get these reforms right, most of the other promises he may have made will definitely come to fruition because those promises and actions would work only if these reforms take place such as the restructuring of the administrative process of the bar, the disciplinary process of the lawyers, the connection between the bar and the members, the representative position of the bar as against the regulatory position, and the independence of the profession. All these are promises he made, and they are all tied to this reform.
You once suggested that non-lawyers and judges should be incorporated into the Disciplinary Committee of the bar, which is the Legal Practitioners Disciplinary Committee (LPDC), why did you suggest that?
Well, one of the major problems of discipline in the legal profession has been associated with lack of independence of the disciplinary committee of the bar. Under the current position, the process of discipline starts from the representatives of the bar. They are to send their petitions to the president or some other officers or chairmen of branches, and even when these petitions are sent to the Body of Benchers or the chief judge, they will reroute it back to the leadership of the bar, and under that process, the petitions or complaints are sent to a committee located in one part of the country or the other, to make a prima facie case, and those committees are all members of the bar who live within that zone, and from making a decision on that process, they make a decision to prosecute, and they return it to the secretariat of the NBA, which will in turn, through a committee, frame a charge that will now be sent to the disciplinary committee, and all these processes are kind of controlled by the bar itself, and it has given room to some complaints in relation to the independence of the process. So, the committee itself is made up of legal practitioners and some other non-legal practitioners who also are connected directly to the leadership process of the bar. That doesn’t give it some independence. So, some of us think that you have to insulate the disciplinary process totally from the bar. Let it be an independent body, even if many members of that body are not members of the profession. So, based on my own experience, I think the best would be to have some judges at the higher level, and some non-lawyers selected by a special committee that will be set up under the new law. That will give it some independence. In many parts of the world, they have moved away from self-regulation, at least at the disciplinary level, to independent regulation. That creates more trust in the system, and allows even the public to trust the profession that they are not protecting their own.
Are there measures in place to close the large gap between the number of practicing lawyers in the Northern part of the country and in the South?
Well, it is not a primary work of the bar to close any gap, if any. Remember education is a primary responsibility of the government of Nigeria and the government of states and the local governments. So, two main reasons why we have a wide gap in education between one part of the country and the other to me, is that the part that is lagging behind requires more push, more information to make people understand the benefit of education. The bar can play a role by educating the public as part of its public interest programmes, but it is not the primary role of the bar.
The budget of the judiciary in the 2017 Appropriation Bill is higher than that of the previous years; what impact will this development have on the functionality of the judiciary?
At least, it brings hope if nothing else. The slight increase in budget may not translate into a real fiscal input because the naira has been weakened as we all know. But it gives hope as we all know that the government of the day recognizes the need to fund the judiciary better.
What is the biggest challenge of the judiciary presently?
The biggest challenge is funding; that’s one. There is also lack of capacity including in the appointment of both the judicial personnel and the non-judicial personnel. We still have a problem with choosing who should be judges in Nigeria. So some appointments have been below standard. So, those are our challenges for the judiciary. We also have the one that I will not call a challenge for the judiciary, but a challenge for the country – it is delayed justice; the delayed process of justice for both civil and criminal matters, is telling so badly against our image development. So, it is a major challenge.
Is there any landmark achievement of the judiciary under Justice Walter Onnoghen, so far?
Onnoghen has been there as the Chief Justice of Nigeria for only a short period, so it will not be fair for us to have an objective assessment of him. But he is forward looking, and reform-minded. So he is causing a reform of the process, he is causing a cleansing of the system from corruption, and so those are the things we will continue to support him for.
You were at the Nigerian Law School as a deputy director; you understand the fundamental challenges of the legal system in Nigeria, especially the education aspect of it. What are the authorities doing to alter the negative trend of the production of half-baked lawyers?
Well as you have said, it has been identified in recent times that our legal education standard is falling. I think many people agreed based on the evidence from people who have graduated in the past few years. You remember that legal education is at two levels; one is at the university where the students spend about five years, and then they come out and go to the Nigerian Law School before being called to bar. So, all of them must be taken into consideration. I mean all those levels. You cannot isolate one from the other to know where the problem lies. One solution that I have talked about many times is that we all agree that there is a National Universities Commission that controls education. For the law programme there is the Council for Legal Education. It is a necessity to have the profession decide what roles and how the National Universities Commission and Council for Legal Education should function in order to actualise the best practices in legal education. So the Nigerian Bar Association holds the key to raising standards in legal education, and what is the first thing they must do? The Nigerian Bar Association must set a goal for legal education. They must decide why they are training people to be lawyers; what is the reason? If they set that goal, Nigeria Bar Association must write a blueprint of what they consider the best practice for legal education. The third level is that the Nigerian Bar Association will now actively insist on enforcing their blueprint; that is the only way we can alter the trend for the standard of legal education.
Our Criminal Justice System promptly prescribes Custodial Sentencing for criminals, and this has led to congestion of prisons even when Nigeria is not capable of funding the welfare of prisoners. In what ways do you think that this ugly trend can be curtailed?
Well, the Administration of Criminal Justice Act (ACJA) has brought in some reforms, and if we follow the letters and the spirit of the ACJA, the system will not just be an imprisonment system, it would have brought in a reformative system too. So it’s now left for the Administration of Criminal Justice Monitoring Committee that has been set up, to push for these reforms to take root. We must also go back to the drawing board in relation to changing the attitude of legal professionals including the lawyers, the prosecutors and judges in relation to what the objectives of what our prison system is all about, and why I say so is that throughout the five year programme or training in the university, only few law students are exposed to justice education, they are only trained on the letters of the law; and therefore, they develop no attitude towards justice system; and one of the reasons why we have prison congestion is the fact that the judicial system, the legal profession does not address justice administration, but rather it addresses imprisonment. So we need also to begin to train law students to focus on justice because these law students in a few years when they graduate, will become the legal practitioners defending the suspects, some of them becoming prosecutors for the state, or as magistrates who will sit over some cases, and some will emerge as judges, some will become attorneys general who will make decisions about prosecution, some will become the DPP of states at different levels of criminal adjudication. So if you have a new set of lawyers with different attitude, that understand the reason for criminal justice administration, things will change.
With all or most of the accused judges released and reinstated to their duty post, don’t you think that development may portend disrepute for the judiciary?
I do not think so. In fact, I applaud the National Judicial Council for asking those judges who were suspended based on accusation of crime to go back to their duties since no charges has been brought against them for more than eight months. That is in conformity with the rule of law. Our constitutional basis for fundamental right is the rule of law, and the constitution presumes any person accused of a crime of being innocent until proven guilty. We know that to some extent, the judges are in special position, and therefore when they were accused of crime, we supported that they excuse themselves from sitting until they finish their trial, but the trial never came and has not come up till today. So, it will be antithesis to the rule of law and human right to continue to ask them not to sit. So, the National Judicial Council has done the right thing.
What about the statement made by the chairman of Presidential Advisory Committee on Corruption, Prof Itse Sagay, a learned professor, condemning the reinstatement of the judges?
Well, that’s his own personal opinion, and I have stated my own personal opinion. I support the NJC’s decision, and the reasons are clear. You accuse somebody of crime, and you don’t charge him for eight months, and even the time we were discussing whether or not to reinstate them, you had more than one month, you still didn’t charge them, and after the NJC pronounced the reinstatement, you still have not charged them up till now, and even at that time, there was no evidence that there was an appeal. So, there is clearly no foul play in the system. It was an open process, and therefore, the NJC was right in according rule of law the pride of place in our judicial system.
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