Legal Nigeria

Our justice system needs overhaul to stop attacks on correctional centres, says Olatunbosun

By Rotimi Agboluaje


Professor Adeniyi Olatunbosun, the Vice-Chancellor, Kola Daisi University, Ibadan, Oyo State, is an expert in Criminal Justice and jurisprudence. In this interview with ROTIMI AGBOLUAJE, he explains why serial alterations to the 1999 Constitution may not make any difference. He also warned that the sanctity of the judiciary must be upheld if Nigeria wants democracy to thrive; among other issues.

The house of Justice Mary Odili was invaded not too long ago. There have been lots of reactions to it. What do you think about it?
It is condemnable. And no one should encourage such activities. It has become a kind of pattern in recent times, which is worrisome to members of the Bar and the Bench. This is because judges occupy a special position in our democracy, even in our public affairs. So, they are supposed to be protected by virtue of their calling and position. They are not expected to grant interviews and make complaints in the public. That is why a form of the shield should be given to them to operate without being in one way or another affected by the vagaries of the society. Although the rate of criminality is worrisome and increasing on a daily basis, our judges must be protected by the executive. The executive has what it takes to protect individuals and respected persons in society.

I believe in the position of the Nigerian Bar Association (NBA). Every reasonable man and woman must condemn the act. We must also let the government know that the sanctity of the judiciary must be upheld at all times, if we want our democracy to thrive and if we want to have the kind of legacy that will show us that we are people of law and order.

There have been cases of allegations of corruption against judicial officers. How can we prevent recurrence?
There is a body set up under the Constitution to ensure that judges codes of conduct is complied with and observed. It is the National Judicial Council (NJC). If there is a breach of such, those whose rights have been breached as a result of the performance of duties by some judges can come before the body and lodge complaints against such judges and the NJC has a mechanism put in place to ensure that erring judges are actually treated in accordance with the law.

There are insinuations that what happened to Justice Mary Odili was meant to cow the judiciary. Could that be true?
Those are speculative. I think the investigation is ongoing. Until we get to the root of what happened, in this era of social media and all forms of fake news and speculations, we must not say that. It is those who attacked the house that will tell us what motivated them and the reason for doing so. But we have judged all over. Justice Odili is a justice of the Supreme Court. We have justices of the Court of Appeal. We have at the Federal High Court, State High Courts and magistrate and other ancillary courts. So, an invasion of just one person cannot affect the courage or the performance of justice generally.

As we said, that act is reprehensible. It is something we should not allow to occur because of its adverse implications on the psyche of the Nigerian public, the body of the judiciary, the lawyers and even the government itself. I believe government must do everything to ensure the culprits are brought to book and appropriate punishment meted out to those found to have actually committed the offence.

So, I believe that the judiciary should remain strong despite this challenge. It is a phase in our national history. We are witnessing all forms of violence, crime, kidnapping, and all forms of terrorism. I believe that we must be resolute, so as to overcome this era. And then, there will be sanity in our system. So, whatever it may be, people should rest assured that we will overcome this challenge.

Recently, they were attacks on correctional centres. Some are of the view that there is a need to reform the correctional centres. What type of reform do you recommend to prevent frequent jailbreaks? 
I’m an expert in criminal justice and jurisprudence. Over the years, we have made recommendations and positions in the entirety of our criminal justice process.

But, to some extent, the government has been responding to most of the scholars’ views about revamping the criminal justice system as well as the correctional homes, which is known as the prison system. I think what is more important is that our administration of the criminal justice system should be recalibrated. We should be able to overhaul the structure so that justice will be expeditiously done as much as possible, such that the number of inmates in our correctional homes would be those who have been tried, convicted and found guilty. A substantial number of those who are in these correctional homes are those awaiting trials.

Also, most of the prison yards were constructed in pre-colonial times when the population was not as huge as this; maybe when Nigeria had about 30 or 40 million people. Now, we are about 200 million and yet, the facilities are not increasing. So, there will be so much over usage of the facilities and that can also result in some of the things happening. What we need to tell the public is that we must discourage attacks on the prison yards and correctional homes. There has been a trend. The rate of criminality in Nigeria is increasing at a very high proportion and velocity and there is a need to ensure that we give public enlightenment to the generality of Nigerians, that they should not resort to self-help when they are addressing the issue of national consciousness. They are not supposed to attack institutions that are meant to support the administration of criminal justice. This constitutes a danger to society. At times, people react when there is a transfer of aggression. People should not go back to the primitive era where you could do mob action, throw stones and kill somebody for allegations that you have not been proved in the court of law or through other forms of judicial apparatus.

It is not good for anybody to go to prison and release prisoners or bomb prisons, where some of the inmates are already incapacitated. It can even result in an untimely death if there’s a fire incident in such a correctional home as a result of the explosion or explosive devices that are put in place.

We should go back to the culture of ensuring that we abide by the law. Obedience to the law is key to national development. Without obedience to law and order, there will be anarchy. That will be counter-productive to all the society. So, all of us must imbibe the culture of abiding by the law to have the development we are yearning for.

There have been conversations on the need to amend the Constitution. What kind of amendment do you think is needed to attain development? 
If we look at history, the American Constitution came into being in 1776. That is over 200 years ago and yet it has witnessed few amendments. But the Nigeria Constitution that came in 1999, has had a series of alterations. I think what Nigerian society needs are the spirit of obedience to law and order.

In as much as we have areas that are worrisome in our constitution, which can be looked into from time to time, what is more, important is that those who operate the Constitution should be able to imbibe the culture of constitutionalism. What I mean by that is to live and rule by the terms of the Constitution. Many times, the provision of the Constitution are twisted to meet their own selfish desires and ulterior motives. For example, if the Constitution says two-third of the members of the House of Assembly can impeach a governor, we know what the two-third of 18 members will be. However, for the purpose of meeting their needs, the powers-that-be may seclude some members of the House of Assembly. Maybe, they seclude about 10 of them from coming into the chamber and they will now say the two-thirds is the two-third of those who are there. And this is not good.

So, no matter the level of constitutional reviews, amendments and alterations that we do, there is a need for Nigerians to imbibe the spirit of constitutionalism. That is what will make us know that we don’t need to do self-help or carry out self-interpretation into provisions of the Constitution.

On the issue of state police, do governors merit the appellation, Chief Security Officers of their respective States when they do not exercise constitutional control over the police in their states?
I wrote a paper in 1998 when I was talking about the need for state police if actually, we want to tame the spate of criminality in our society. True federalism is not being practised in Nigeria, because If we actually practise it, there will be an avenue for states to have their own police. It is ripe now for Nigeria to allow states to have their own police units so as to augment what the national police is doing.

The Police is a federal institution. States under federalism cannot control even staff of federal agencies, not to talk of police.

Governor of Oyo State, for instance, cannot tell federal civil servants who are in Ibadan to do a certain thing. They have to write to their overall boss in Abuja for approval.

It is high time that governors were given powers to set up their police units for the purpose of complementing the role of the national police and also curbing the rate of criminality in our society. Though Constitution says the state governor is the chief executive officer, it is just in terms of nomenclature. When it comes to the practical aspect of it, especially in the implementation of the order, if a state governor gives a commissioner of police an order, except when the order borders on state jurisdiction alone, that is when the commissioner of police may be ready to accede to the request of the governor. But if it comes to the federal matter, the commissioner has to get clearance from the IGP in Abuja. So, governors do not have what it takes to be chief executive officers in their states when it comes to security matters and policing in particular.

Are outfits such as Amotekun empowered to fill the gap? 
It can be upgraded but what they are now is not actually of the policy status. It is more of ensuring security is put in place in our society. The law establishing it can be amended. In the 40s, we used to have the native police that is just what will translate to state police. So, Amotekun and other forms of security outfits can actually be upgraded to the position of state police in their respective units or states.

Talking about legal education, some commentators are of the view that Law programme should be a second-degree course. Will that enhance the study of Law?
Those making the suggestion have their reasons. But I believe with the number of universities that are offering law programmes, there is no need for the government to make it a second-degree programme. Some universities in America have done that probably because they feel it was the way to go, that students need to have some element of maturity. But in every admission that each Nigerian university has been offering for law programmes, there is always a percentage reserved for first degree holders who are coming through Direct Entry in various programmes. By and large, there is no need to make it a second-degree programme because we have a number of students aspiring to become lawyers. People have also enjoyed some privileges in the past. I don’t think it is now necessary for us to make it a second-degree programme.

Again, many of the students we have, especially the young ones are very intelligent and very resourceful. Many of them are savvy in ICT and education has also changed in terms of what is expected. In the past, lecturers were used to giving notes and all forms of tutorials, but nowadays, there is nothing you want to say that students cannot confirm whether it is correct. The challenges are for lecturers to be abreast of what they are teaching because students are more conscious, more trendy and modern in the acquisition of knowledge. So, in this ICT era, we cannot afford to go back and give privileges to those who have already got degrees. Whoever aspires to study law, can come in as a matter of choice but not as a compulsory requirement by law. This is because when that is done, a lot of youths will be deprived of the opportunity to do it.

Also, with the economic situation in the country, inflation is always on a high rise. What costs N500,000 two years ago is now N750,000. If we have to do that to many of the youth, we are delaying their potential and opportunities. By the time they go for the first degree and come back, things would have escalated and they would have wasted a considerable number of years, although, there is no knowledge that is a loss. If someone had done a degree earlier, it will help the person in legal practice, even in assimilating and understanding the law. But we have many brilliant students nowadays that we don’t need to delay them unnecessarily because of some policy decisions and initiatives.

I believe we can still continue to run the system the way it is. It is open to the young ones who come through Unified Tertiary Matriculation Examination (UTME). It is open to senior students coming through A’ level or JUPEB. It is also open to very mature candidates, who have got relevant degrees. Relevant degrees to study law include Philosophy, English, some aspects of humanity, some aspects of Social Science, maybe Economics or Political Science. Basically, I think it is still good to have both systems of admission into law programmes.

Some of the young lawyers earn as low as N25,000 per month after all the years of training and qualification. What can be done to make it better?
I think people should not lose the trend of the historical development of legal practice. In Nigeria, we are practising English Law, except in some places where Islamic law is being practised. Substantially, Common Law is what we practise. In the UK where we imbibed most of the law programmes, the Common Law system entails that a young lawyer needs to acquire experience in terms of what we call pupillage in chambers with senior lawyers.
So, if we want to follow the English tradition, it is the young lawyer that is supposed to pay the principal for the knowledge being given to him or her while in the chambers.

But the contrary is the case nowadays. We don’t follow that kind of tradition again. So, lawyers are employed as young lawyers in the chambers. So, they expect their principals to give them salaries. But what they need to know is that there is a difference between legal practice for lawyers in law chambers and those who are in other spheres of engagement.

Those who are into the legal profession need to have some element of tutelage and apprenticeship. The monetary aspect should not be their priority for that period of tutelage. They need to persevere and endure until they have acquired the prerequisite knowledge and then would be able to get what they need for them to set up their own chambers or go to other forms of practice. By and large, the economic situation of the country is worrisome and disturbing. As a result that, the monetary value of naira is very low.

I’m not supporting the fact that N25,000 is appropriate but every principal is entitled to pay what he can afford because it is the private sector. It is not a regulated sector like the public sector where there is a budget. Legal practitioners pay their young ones based on the income they also acquire. They also give them some element of discretion in practice. They are also encouraged to get some other patronage apart from the salary that they get. Most of the upcoming legal practitioners get patronage from their relations, parents, uncles, friends and community associates who know they are lawyers and will be contacted for legal services. Outside what they get as their salary from their principal, they are also able to get one or two briefs in the course of being a lawyer. By and large, once they acquired the requisite skills and experience and set up their own, they can begin to make as much as possible.

There have been calls for the separation of the Office Attorney-General from that of the Minister for Justice. Is that a good idea?
In most climes, they combine two offices (Attorney-General and Minister of Justice) while in some like the U.S, it is separated. Nigeria is experimental in everything, because most of the time, like when I was delivering my inaugural lecture in 2014, I said: “Be tough on the crime but soft on justice.” What I mean by the statement is that most of the time, it is not the combination of offices that is not making the person who is in that office to perform effectively and efficiently. It is the nature of the person that is in the office. So, if we have the two offices separated, that is fine. It will be such that the Attorney-General will be purely a legal practitioner who has had the requisite knowledge, while the minister of justice may be a practitioner, who is not actually into practice or a politician of note. Every office is capable of being abused by whoever occupies the office. Most times, when people are placed in a position of authority, they have 50 per cent of compliance with the law and have 50 per cent of discretion in whatever they do.

Most importantly, we really need forthright men and women who know the rudiments of their various professions and who are also conscious and morally upright to ensure that the tenents of their profession are upheld; those who can stand the test of time to ensure that justice, fairness and equity prevail whenever they are called upon to perform public assignments so they will not open primordial sentiments. Many times, you will know what people are made up of when they get to the office. Those who have been projecting themselves as human rights activists, turn out to be dictators. Those who have been trying to show that they are men and women of God, turn out be something else. So, until the in-built in us is actually tamed to ensure that we are much more concerned about fairness in what we do, we may not get any different results.

So, I believe that either of the two is good. If you want to retain it, let us make sure those who are appointed are people of merit. If we want to separate them, we can do that but all I know is that when you separate two seaming positions, there will be some friction, even internal friction that may not actually work well and may even defeat the essence of what we are trying to guard against. So, it is not the separation that matters, it is the person that is occupying that office that will determine the nature and the scope on how he wants to exercise his power.

Some lawyers are suggesting that the Administration of Criminal Justice Act (ACJA) should be repealed, while others said it should be reviewed. What is your position?
Maybe, many of the lawyers are concerned about the immediate challenges they are having. The Administration of Criminal Justice Act (ACJA) came in 2015 and some states are just adopting it. So, if something came in 2015, why do we want to repeal it? It seems that people just want to throw away a baby with the bathwater. So, I believe that if there are areas that are worrisome, they can call for a review or an amendment. But to say that we should repeal it, to me, is retrogressing. This is because the Criminal Codes that we were practising date back to 1945. It was in use until ACJA came in 2015. You can imagine about 70 years or so. If we have allowed those codes to exist for about 70 years, we need to be patient with the 2015 Act, which is just barely about six years. So, I don’t subscribe to the call for repealing that law. Those grey areas can be referred to the Law Reform Commission, which is saddled with the constitutional duties of revising and reviewing laws in that regard.