Legislators in Nigeria have converted COVID-19 lockdown to a holiday, says Falana

The fight against the coronavirus pandemic requires all hands to be on deck as seen in Europe and America, where legislators are working to pass economic stimulus laws and other legal measures to cushion the excruciating effect of Covid-19 on their citizens. In this interview with SUNDAY
AIKULOLA, human rights lawyer, Femi Falana (SAN) lamented that legislators in Nigeria have converted the lockdown to a holiday. He also spoke on other interesting legal matters.

Political activism has gone down in recent times unlike the military era. What do you think needs to be done to change this narrative?


With respect, I do not agree with you. Political activists are fighting on many fronts. But unlike what obtained under military dictatorship when the jurisdiction of the courts was ousted in respect of anything done or purported to have been done by military dictators, the courts are empowered to determine all disputes under the current civil rule.  Even though it is not a democracy yet, the avenues for waging struggles are an integral part of the governance structure.  Unlike when military dictators could detain people indefinitely, law enforcement agencies are required to charge anyone arrested for known offences before the courts.  That is why the rule of law is a sine qua non under a democracy.  However, the quality of the nation’s political development is embarrassingly low.

Take the fight against the coronavirus pandemic as an example. The legislators in the United States, United Kingdom and other democratic nations are working around the clock on economic stimulus laws and other legal measures to cushion the excruciating effect of the Covid-19. But the legislators in Nigeria have converted the lockdown to a holiday. The executive and the Central Bank have announced an economic stimulus package without appropriation in violation of sections 59 and 81 of the Constitution. Even the budget was unilaterally reduced by the federal executive council to the tune of N1.5 trillion without an amendment of the Appropriation Act 2020.

You recently said the constitution should be amended to allow retired judges to constitute members of the election petition tribunals, so that the courts can carry out their duties without any disruption. Can you shed more light on this?
A national newspaper published the paper titled “The Tribunisation of Democracy in Nigeria”, which I was privileged to have delivered in Lagos last month in honour of the late Pa Tunji Gomez. In preparing the paper I found, to my utter dismay, that Nigeria records the highest number of pre-election cases and election petitions in the world. All pre-election matters, which originate in either the federal high court or state high courts are fought up to the Supreme Court, while governorship and presidential election petitions equally end up in the Supreme Court. Because election cases and appeals arising from them are said to be time-bound, the regular courts are compelled to suspend all other matters including criminal cases, which pertain to the liberty of thousands of people languishing in custody. 

Since the Constitution has accorded equality of rights, obligations and opportunities before the law to all citizens, it is unjust, discriminatory and illegal to attend to political cases at the expense of the cases of other litigants. Because of the disruptive nature of such matters, it is now agreed on all hands by relevant stakeholders that governorship election petitions be terminated at the court of appeal, as was the case before the constitutional amendment of 2011. So the suggestion that retired judges be recalled to handle election related matters is a response to the disruption of the normal duties of courts by election petitioners and their lawyers. I am of the strong view that the system should engage retired judges to handle election petitions and appeals so that regular courts can carry out their constitutional duties without disruption.  We have a large pool of competent and upright judges in retirement.

Under the defunct military dictatorship, appeal tribunals were constituted by retired judges. Having retired from active service, the appeals were handled by the retired judges on a part time basis. The quality of justice, which oozed out of such appeal tribunals was unimpeachable. Under the current political dispensation, retired judges are regularly engaged to serve as heads and members of electoral bodies and other statutory bodies as well as heads and members of judicial and administrative commissions of enquiry. They are also appointed as heads and members of local and foreign arbitration panels. So they can serve as heads and members of election petition tribunals and appellate courts. In the United States, retired judges are recalled and given temporary appointments to hear certain cases in order to decongest the courts including the Supreme Courts of many states. In many African countries, election petitions are handled by specialised courts, so that regular courts are not distracted. In reacting to the suggestion some lawyers have expressed the fear that it may be difficult to control retired judges. That is not a problem. The Constitution will have to be amended to empower the National Judicial Council to exercise disciplinary control over retired judges. 

You also said the phenomenon of inconclusive elections constitute threat to the electoral process. In what way can this be a threat?
The conditions for the return of candidates who have won elections are explicitly set out in the Constitution. For instance, in a governorship election, the candidate who scores the majority of lawful votes and who records the highest number of lawful votes in at least two thirds of the local governments in a state is deemed to have won the election.  The guidelines of the Independent National Electoral Commission (INEC), however well crafted, cannot amend or alter such constitutional stipulations. Why then should INEC be allowed to declare elections inconclusive because thugs and other criminal elements perpetrated violence? Why are the thugs who cause such violence not arrested and prosecuted? So far, INEC has got away with inconclusive elections because they have been limited to governorship and legislative elections. The day a presidential election is declared inconclusive, the country will witness political violence of monumental proportion. The earlier the dangerous phenomenon is addressed the better for the democratic process.

Recently, you alleged that there were plans to re-arrest Omoyele Sowore. What should Nigerians expect in case it happens?
A fortnight ago, we got information that a couple of lawyers from the Nigerian Army were actually at the federal high court to shop for a remand order for a 90-day incarceration of Mr. Sowore. As soon as we confirmed the information, we wrote to the Chief Judge of the federal high court requesting to be put on notice if an application was filed for our client’s arrest and detention.  We did not want to take chances because of our recent experience.  On February 19 this year we had appeared before the Honourable Justice Inyang Edem Ekwo in the Abuja judicial division of the court to attend to the fundamental right application filed against the federal government by Mr. Sowore.  The counsel to the State Security Service (SSS) had asked for adjournment to file a response to one of the processes filed by us. The adjournment was granted. As we were leaving the courtroom the learned trial judge asked the counsel to the SSS whether he wanted to move his application for the 90-day detention of Mr. Sowore.  Even though he had been released on December 24 last year the motion was praying for a fresh detention period to hold him to investigate his alleged terrorist links. That was the same ground for obtaining a detention order to keep him for 45 days in August last year. Since we had not left the court, the counsel to the SSS was embarrassed. As the cat had been let out of the bag, the counsel withdrew the application. Consequently, the learned trial judge struck it out. This was why we did not want to be caught unawares once again.  

Rule of law, justice and independence of the judiciary are indispensable for the stability of the state but some people believe that political actors are tampering with the judicial process in the country. How do you think this can be addressed?


In their desperation to impose their will on the country, politicians will always want to tamper with judicial independence.  Even in the United States, which is said to be the bastion of bourgeois democracy, President Donald Trump openly subverts the independence of the judiciary. He attacks and abuses judges who grant orders of injunction against his dictatorial polices and programmes.  Politicians in other climes prefer to do it in a subtler manner. But the objective is the same. The situation is worse in a post colonial and post military environment like Nigeria. For nearly three decades, the military oligarchy suspended the Constitution and put the rule of law and human rights in abeyance.  The crisis is compounded by the fact that former military dictators and those who had served in senior government positions under military regimes still largely dominate the politics of the country. For a political class of such background, the independence of the judiciary is an irritation. As far as they are concerned, the rule of law must give way to the rule of might. 

That explains why the Buhari administration hides under the bogey of national security to defend disobedience of court orders.  Unfortunately, the Nigerian Bar Association (NBA) is too weak to mobilise the people to defend the judiciary. I have tried to convince the leadership of the legal profession to stop alienating its members by queuing behind the few corrupt judges that are messing up the judiciary. Judges who commit the eleventh commandment of the bourgeoisie i.e thou shall not be caught should be asked to resign to preserve the integrity of the judiciary. We once had a bar association that fought for the rule of law and independence of the judiciary under a murderous military dictatorship. We must reorganize and reposition the legal profession to defend the judiciary, rule of law, human rights and democracy. 

Cross Rivers State Assembly refused to honour the nomination of Justice Akon Ikpeme as Chief Judge of the state because of her state of origin. What do you think of this development?
The discriminatory treatment meted out to Justice Akon Ikpeme cannot be allowed to stand in any civilised community. The reactionary action of the Cross River State house of assembly is illegal and unconstitutional. But mind you, the Cross Rivers State house of assembly is not alone in promoting discrimination against women. Happily, some colleagues have challenged the illegality of the discriminatory treatment at the federal high court. I have accepted the request to lead the legal battle against the illegality. The case will be fought to a logical conclusion.  More importantly, we need to amend all laws that discriminate against women so that we can be at par with African countries like Rwanda, South Africa and Ethiopia where the national cabinets and other bodies are constituted on the basis of gender equality. 

Some experts have advocated reform of the judiciary. Which area do you think deserves immediate attention?
First, the judiciary has to embrace case management. For instance, hundreds of appeals in the Supreme Court relate to the jurisdiction of the federal high court to entertain certain cases. What stops the court from fixing a day for all such matters, invite all the lawyers and ask them to address the court on any area that has not been determined in previous decisions? Secondly, technology has to be given priority by the judiciary. It is unacceptable that judges are still taking evidence long hand. By now, our courts should have acquired the necessary equipment to facilitate electronic recording of all proceedings.  I have been handling cases in the African Court on Human and People’s Rights sitting in Arusha, Tanzania since 2011. 

But I have attended the proceedings of the court only once at the invitation of the judges, while I have conducted all other matters online. The filing of all processes and written submissions are done online. That is the trend in many jurisdictions.  We must move with time. In Kenya, some courts deliver judgments by Skype and email.  I know a few courts in Nigeria that allow service of processes and hearing dates by electronic means. All courts should be digitalised without any further delay. Thirdly, because our law is essentially neocolonial and elitist, all judicial reforms have excluded customary courts, which are patronised by the majority of our people. Customary courts are totally neglected by the government.  Can you believe that the Lagos State Government has not established the Customary Court of Appeal? Most judges and lawyers are not aware of the fact that the British colonial administrators who imported and imposed the adjudicatory system on the African people found that it was alien to the indigenous jurisprudence, which places premium on arbitration and mediation.  The colonialists were impressed by what they found on ground.  So they took it away, fine-tuned it and adopted it to decongest their courts. It was later brought back to us and christened Alternative Dispute Resolution (ADR). 

But I call it African Dispute Resolution. I have attended proceedings in some palaces of traditional rulers.  We have a lot to learn from the way and manner intricate disputes are settled amicably. Many of our traditional rulers and chiefs handle more cases than the regular courts. They even handle commercial and criminal cases. No appeals are filed against the decisions rendered by palace courts. I have been encouraging many educated traditional rulers to have record books. I was so impressed when the Ekiti State Attorney-General, Mr. Wale Fapounda recently launched the Ekiti Palace Law Reports. I am also aware that on a daily basis, cases are settled in police stations through mediation and arbitration. Parties are discouraged from attending the settlement sessions with their lawyers. These are areas that have to be improved upon because they are patronized by the masses of our people who have no confidence in the neocolonial legal system. Happily, the regular courts have begun to advise parties to embrace mediation and arbitration. Many cases are now resolved in pretrial conferences or in multi-door courts. The African Dispute Resolution mechanism is the future of legal practice in the country. Fourth, even though the Constitution has guaranteed financial autonomy for the judiciary, no state government has complied with the law. State governments have also ignored the two decisions of the federal high court, which have upheld the right of the judiciary to financial autonomy. Hence, the relevant provision of the Constitution has been amended to remove the funding of the judiciary from the tight grip of the executive organ of government. Without financial autonomy, the independence of the judiciary is a huge joke. This is an area that the NBA should intensify efforts to actualize the provisions of the Constitution on financial autonomy for the judiciary.  

The judiciary has allegedly been described as the appendage of the executive. Do you share this view?
The Constitution recognises three arms of government i.e the executive, legislative and judicial organs. No organ is higher than the other. But the executive has converted both the judiciary and legislature into mere appendages. This was done through the denial of independent funding for both institutions.  However, to strengthen democracy in the country, the 2018 amendment of the Constitution has stipulated that the funding of both arms shall be via first line charge. It is now left for the NBA to ensure that the respective state governments respect the constitutional mandate. 

The former Emir of Kano’s dethronement has been described as illegal. Do you share this view?


The dethronement of the Emir cannot be defended under the Kano State Chieftaincy Law. Under the law, the government based on the recommendation of the Kano Emirates Council can only remove an Emir. There was no such recommendation.  More serious is the fact that the deposed Emir was not afforded any opportunity to defend himself by the Kano State executive council, which sacked him. Luckily for the Kano State Government the deposed Emir has decided to let bygone be bygone.  But the illegality of his deposition from the throne was carried to the ridiculous extent of banishing and detaining the deposed Emir in a village in Nassarawa state. Even under the colonial regime, the Privy Council decried the banishment of Oba Esugbayi Eleko to Oyo. And recently, the Court of Appeal condemned the uncouth practice of banishing and detaining former Emir of Gwandu in Nasarawa state by the Kebbi state governor. It is hoped that ex-Emir Sanusi Lamido Sanusi will pursue this aspect of the serial infringements of his rights in the federal high court. 

What do you think the Independent National Electoral Commission (INEC) can do in 2023 to conduct hitch free poll?
INEC has proposed certain amendments to the Electoral Act. To some extent, the proposals are fundamental. Instead of amending the Electoral Act 2010 the national assembly should promulgate a new law. But it has to be realised that credible elections cannot be conducted in an atmosphere of impunity.  INEC would have shown that it would not be business as usual in 2023, if it had prosecuted the criminal elements that disrupted the 2019 general elections.  As far as I am concerned, it is not too late to do that. After all, the police have forwarded the case files to INEC. The suspects should be arrested and arraigned in court as soon as possible.