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Executive Order Can’t Be Implemented Without Court Judgement – Raji

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A Constitutional Lawyer, Ahmed Raji (SAN) in this interview with ADEBIYI ADEDAPO shares his views about implementation of the Federal Government’s Executive Order 6, the Senior Lawyer insisted that government must secure court order in specific cases before imposing travel ban on any Nigerian, excerpts.

Judges are to be seen, not heard, therefore the Bar is expected to defend the Bench. How would you respond to allegation of corrupt practices against some judges in the country and the way such is being handled by the security agencies?

Generally, there is a perception that the Nigerians society is corrupt, and since judges are part of the society, whatever affects the society may not exclude them. By a way of general introduction, it is easier to levy allegations than to prove it. While some of the allegations may be right, but several others are sometimes frivolous, to the extent that by the time they got to the National Judicial Council (NJC) and they ask them to come with the proof, most of those that make such allegations cannot come forward to substantiate them. But that is not to say that corruption and bad conduct should be condoned, but people should be wary of raising allegations that cannot be substantiated.

Nigeria Bar Association (NBA) and the body of Senior Advocate of Nigeria (SAN) condemned the invasion of judicial officers’ residences, yet some lawyers, particularly government appointees justified it. Should the NBA take actions against such lawyers for acting immorally or bringing the legal profession to disrepute?
They must be very few, majority of lawyers condemned the act. You will recall that when the raid took place, all former NBA Presidents and indeed the then serving NBA President met and issued a statement condemning such, so if we have one or two lawyers out of 30, 000 lawyers in the country, we cannot but have one or two non-compliant individuals. I do not see any issue in that. Maybe they have personal issues with the affected judges, just as they could be part of the people that encourage the government to do it, nobody can tell. But the point is majority of the lawyers frowned at it and condemned it and just as the leadership of the Bar also condemned it. That is fair enough, one or two voices would not remove the fact that the generality of the Bar was against it.

Recently, Chief Judge of the Federal High Court, Justice Adamu Abdu-Kafarati directed judges under him not to grant ex parte motion in any political matter ahead of 2019 election, how would you respond to that?
There is what we call Rules of the Court and there is what we call Practice Direction, and what I will call informal rules to guide the conduct of judges. All these would work and assist the judiciary to discharge its duty and to maintain its integrity with the members of the public. What CJ of the Federal High Court was trying to achieve is to avoid a situation whereby the judiciary will be blamed for certain things in the system and to take them away from unnecessary allegations of corruption. He is not saying don’t listen to the case, all he is saying is that they have to put the other side on notice.

The President Muhamadu Buhari led administration prides itself as waging war against corruption, yet the anti-corruption agencies has only managed to secure a few convictions in court, what in your assessment ?
That will be wrong, Dariye is in the prison, Nyame is in the prison, and they have also secured a lot of convictions. I think anti-corruption war is not as bad as they are trying to paint it, and we must commend the individuals who are manning the agencies. As far as I am concerned, they are doing their best, EFCC Chairman, Ibrahim Magu is putting-in his utmost best, we may not be there fully, but at least we are on the way to the right destination.

Do you think the government is witch-hunting the opposition under the guise of anti-corruption fight as widely alleged?
Dariye is a member of the APC, he is in the prison, he is a serving Senator on the Platform of the APC, he is in the prison. So what are they talking about and the fact someone is in the opposition should not be an immunity against trials, the question is did he do anything wrong? If he has done wrong, the fact that Mr. A,B,C and D are perceived to have committed crimes and only Mr. W,X,Y and Z is not a defence. To say some other people are also guilty, why are they not been prosecuted is immaterial.

Some Nigerians are of the opinion that Executive Orders 6 amounts to military fiat in disguise, what is your view?
It is not, President Trump in the USA tried something similar, which appears to me more draconian than what our President has done. But the question is, is it allowed under our own constitution? Does it have any precedent? I think Justice Ojuckwu has modified it in her judgment that yes the order can be given, but before it is implemented they need to apply to court to get the necessary enabling orders. So it is not absolute, the Court has defined how the Order can be applied. It is still subject to supervisory role of the court, that was what Justice Ojukwu read in her judgment, the government cannot just wake-up and pick anybody to say they are acting under Order 6, Order 6 is not a judgment, it is just a mere statement of intention as to how the policies of the government should be implemented, that’s all. It is not Order.
Should individual judges handling the trials not be allowed to decide the pattern of litigation, especially as regards the travel ban placed on certain individuals?
Ojukwu has said before you even ordered the travel ban, you have to come and obtain court order that is the meaning, the fact that there is an Executive Directive on Travel ban on some people, it is not self-executory, you still have to go ahead and take a court order. After all, somebody is facing trial and he applied to court for leave of court to travel abroad and it is granted. Executive Order cannot override the leave of court in all material particular. if the government feels strongly that the person should not be allowed to travel, the proper thing for them to do is to go and file an application before the court to oppose the sort leave of court.

So the government cannot stop anybody from travelling without a court order?
There must be an intervention of the court.
But EFCC restricted immediate past governor of Ekiti State, Ayo Fayose from travelling abroad as sitting Governor without a court order, and even wrote to other security agencies to that effect, is this justifiable in law?
No. I think what they are trying to say is that he is wanted and they have told him they need him, and they should put an eye on him, so that he doesn’t escape after he has left office.
That is the meaning of what they are saying.
Nobody could have stopped a sitting governor from travelling, what they are saying is that security agencies should watch-out for him. It was a directive given in anticipation that he may want to leave the country after his tenure has expired.

You are very familiar with administration of criminal justice in Nigeria, what are the improvements it has provided for the criminal justice administration?

The Administration of Criminal Justice Act (ACJA) has brought some desirable innovation for prompt adjudication of criminal matters. For example, stay of proceedings is becoming a things of the past, frivolous applications to stop trial is becoming a thing of the past and long adjournment is also becoming a thing of the past, so you can see a substantial improvements in the way and manner criminal trials are being conducted, but there is still a lot of room for improvement.



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