The Chairman of the Presidential Committee on Corruption, Professor ItseSagay, needs no introduction. In this interview he blames senior lawyers for corrupting judges and promoting corruption and defends the recent crackdown on the Bar and Bench by security agents. He also commented on an investigation by The Interview, which found that the National Judicial Council gives retiring chief justices up to N800m cash and a house valued at N500m, off the books:
Complaints about bribery and corruption on the Bench, aided and abetted by senior lawyers, appears to have increased in recent times. What happens to them at the end of the day?
I made it quite clear that it is my colleagues doing this. I feel sorry for the poor judges. They are not used to the type of money that they have been receiving, but who brought it to them? Senior lawyers! They carry millions to them - dollars, naira - to these poor judges and have spoilt them with money. What will happen to them? They should be tried and imprisoned and removed from the legal profession because they are not fit to be lawyers. We know quite a number of them. They are not fit to be lawyers. They are a disgrace to the profession and they are the ones that brought down the judicial system.
Can’t the Nigerian Bar Association sanction them?
How far is the NBA even clear in all this? When all these things have been happening, what positive role has the NBA played? They have been a big disgrace in the fight against corruption. Many senior lawyers have become multi-millionaires because of corruption cases. Effectively, they are sharing the proceeds of crime with these politicians. Now they have private jets, houses all over the world and are carried away. As I said earlier, they have made a profession out of frustrating the corruption cases and made millions from it. And from what I can see, they are not yet ready to even consider restraining themselves. So we have a very big problem. Until something like twenty or more Senior Advocates are imprisoned, we will not learn a lesson. Some of them have to go to prison.
Do you think that will also help cleanse the Bench?
Oh, yes. Once we eliminate these lawyers who are the ones fueling the corruption, it will cut off the source. It is just like a cocaine supplier. If you cut off the supply, those who are depending on cocaine will have no choice but to do without it.
We understand there is a practice in the NJC to give retiring CJs cash gifts worth nearly
N800,000 and a house valued at over N500m. Where is the NJC copying this from?
I don’t know. This is what we are mulling over. I think some of the rewards which the Chief Justices are taking away with them are frightening; that’s all I can say at the moment. I think journalists need to go and do some investigation. Frightening rewards are being taken away by retiring CJs. It is totally unrelated to what the judiciary are entitled to. They are already well taken care of, so something very serious is happening there. Those rumours have some basis.
The EFCC has also said that they discovered some secret accounts that judges can access, for instance, for holidays and such like.
If you look at these things that are happening, the source is that very CJ that I told you about who is now retired. He set up a whole scam system for rewarding judges both in terms of bribery and unauthorized funds. He is the source behind all of this. He started it. I feel sorry for the judges. You’re sitting there minding your business, suddenly the Chief Judge says you are entitled to, maybe,
N50m. Most people will not ask where they got it from; they will take it.That’s what is happening.
There are growing concerns that the government’s anti-corruption war has not recorded any major convictions. Do you share this concern?
No I don’t. We have to look at where we are coming from before determining what is happening now. The situation that existed in which you have a group of Senior Advocates of Nigeria (SANs) who had carved out a new profession out of corruption, and that profession was a many-sided one, stalling, frustrating and also depriving us. With that combination, all of that created a situation where there were no major convictions since 2003, apart from the former governor of Edo State, Lucky Igbinedion, who was just given a slap on the wrist and allowed to go.
Why are convictions slow in coming?
Two major things have happened since then. The first one is the passing of the Administration of Criminal Justice Act. That Act took care of a lot of the problems. Previously, the minute you file a corruption case of a high profile personality, the first thing his lawyer will do is to file an application that the court has no jurisdiction, and there was a tendency for the court to concentrate on that application and sidetrack the issue of corruption which is the major issue. At times, it took 18 months or even two years to resolve. Rather than resume after that, the SAN would then appeal to the Court of Appeal. That issue will take another two years and he will then appeal to the Supreme Court. By the time you finish at the Supreme Court with the court’s jurisdiction confirmed, a minimum of ten years would have passed and you know what that can do to a case. Evidence would have been affected, witnesses moved, died or been intimidated and others compromised. The judge on the case might have retired and all that. So we had a situation where cases were not ending. They were hanging, suspended in the air, where the accused were neither innocent nor guilty. And the SANs were happy with that. Then in 2015, the Administration of Criminal Justice Act was passed. It achieved some major things: firstly, under the Act, you are compelled to try crime cases in which corruption is a part, on a day-to-day basis; not to hear a case, adjourn for a month and then come back. You must hear the case daily until the case is concluded and there must be no adjournment. Where an adjournment is inevitable - because in human society, there will always be problems, maybe a party falls ill - the court is permitted to adjourn for not more than 14 days. And throughout the trial, there must not be more than five adjournments. That is intervention number one.
Secondly, on the major cause of the problem - challenging the court’s jurisdiction, bringing a preliminary objection - the Act now states that if you bring a preliminary objection, the court must hear it but not give a ruling, so there is nothing to appeal against. When the main case has been heard, the court is by law directed to give the ruling that was suspended along with the judgment on the corruption case together. So if you are guilty, you go straight to prison and then you can appeal. If you’re not guilty, well that’s the end of the case. The new law states that whether you appeal or not on any interlocutory matter, the case continues.
Thirdly, if a judge is promoted in the middle of hearing a case, his jurisdiction to hear the case continues regardless of the promotion. So he is compelled to complete that case rather than leave to take up a position. This has been used in the past to prolong cases. The total effect of the Administration of Criminal Justice Act is to cut off the ground from under those SANs who have made a profession out of frustrating cases and ensuring that they don’t come to a conclusion.
That’s why I say I’m optimistic and not discouraged. This law just came in last year. And now there’s a new government that is determined to wrestle corruption to the ground, unlike the last one, which was indulging corruption. This government wants to bring corruption to an end with every means at its disposal. A combination of these two things - a new law that empowers the judicial system and a new executive that is going to promote the fight with energy -simply means that the future is quite promising for solving corruption cases.
It was thought that the amendment of Administration of Criminal Justice Act would make prosecution and conviction more efficient, if not faster. Would you say that is happening?
Why we have not seen results now is that the law is only just being applied. If you look across the board, cases are going on. We talked of the former publicity secretary of the PDP whose case is virtually over. We talked of the former chief of defence staff, the one who was getting
N500m every month. That case is goingon. Quite a number of others are going on. There is some disturbing evidence that some judges are not yet at home with the new law. Look at the Sarakicase, the man is still adjourning by a month, two months. That is against the law. Some of them still need to be taught.
In fact, as an aside, we spent one year training the judges on how to apply this law to corruption cases. So they know what to do now, and the areas they have been missing and neglecting, they no longer have an excuse. They are supposed to be in control of their courts. An example of this is allowing one witness to be cross-examined for thirty days. Some judges have not got it yet. The first witness to give evidence against Saraki was cross-examined for 30 days. It never happens. Judges are supposed to control their courts. If cross examination is going on for too long, you tell counsel that you will give them a time limit, say, thirty minutes, to wrap up, and if they are not finished, too bad. If he’s not happy, let him appeal. But the presiding judge of the CCT just allowed them to go on and on endlessly.
In view of what is happening, would you recommend the setting up of a special court to try corruption cases?
That’s a good question. Yes, it is in progress. My committee has drafted a Bill for a special court which will hear not only corruption cases but will hear cases of kidnapping, terrorism, money laundering and drug offences. Those judges will be limited to those matters. I want to say one thing – not all judges are corrupt. There are a few corrupt ones but most judges are upright. The majority of judges are upright.
Most politicians return stolen public funds and we just let them go. The investigation seems to stop there.
No, no. As a matter of practice, that has not been the case. Yes, they will return some but the investigation still goes on. Most of the people who return loot are those who have not been accused. It is only in the case of OlisaMetuh where, at the conclusion of the case, the family said they were going to return
N400m. There will be some sanction but, most likely, it will not be as severe as if he had allowed the country to waste resources and time.
A senior lawyer said it was hypocritical for the government to go after the judiciary for corruption after the ruling party took advantage of the same system to get to power. What do you think?
I don’t know about that. There no quid pro quo in this sort of thing. Let me put it this way and you will appreciate: no matter the quantity of evidence gathered, if you do not have a court you can depend on to do justice, the person will get away with it. When there is no confidence in the judicial system, anybody can do anything. Say a man has collected
N20bn, he can afford to take N2bn out and buy their (judges’) conscience and make them give him a favourablejudgement. The point I’m making is this – without an upright judiciary, forget the struggle against corruption, forget about it; it doesn’t exist. So we have to clean the judiciary before we can even start the process. We know there was some corruption within the judiciary but we didn’t know it was that bad, so bad that it was even at the highest level of the judiciary, the Supreme Court level. There is a need to really deal with it at that level. We need to try to stamp it out at the judicial level before we can even begin to deal with the one against politicians and other members of the public who are engaged in very serious acts of corruption. Otherwise, once you get to the judiciary, that will be the end of the matter.
Is it getting worse?
Oh, yes. I have not done any research but what I observe is this: the thing really took off after 2007, after Yar’Adua was elected. That was when millions were carried around by the then attorney-general, spreading money. And that was when there was a particular Supreme Court judge who we all know, who is retired now, who was at the centre of this particular thing. He was the point man to whom everybody was taking the money to. And he would then distribute it. So he established, at that time, a system of corruption which had become entrenched.
Can you name him?
I won’t name him. He is retired now. And you can do your research. He later became Chief Justice of Nigeria. Yes.
The leadership of the legislature and the executive are not getting on well. There should be independence of the judiciary. When the executive is going after the judiciary, will it not breed mistrust?
What is the whole basis of the independence of the judiciary? It is not whether the executive does what it has to do. In this case, it has no choice. No it is not that. What creates independence, particularly in the judiciary, is moral authority. If you have men of the judiciary who are upright, they will be the most feared. There was a time when the Supreme Court was even more powerful than the government. I always tell people that this was so even in the military government of Buhari, when we had people like Anthony Aniagolu, KayodeEso, ChuwudifuOputa, Andrews Obaseki, Mohammed Bello, etc. These people had established such a high moral authority right from the high court where they all started. By the time they got there (Supreme Court), their integrity was so high, moral authority so high that no government could disobey them on any issue. It was during that period that we had the famous case of Ojukwu’s house being seized by the then military government of Lagos State. When the Court of Appeal gave judgement, the state didn’t obey it. Instead, they appealed to the Supreme Court without obeying the order to release the house. When they (Lagos State government) got there, each judge lambasted them, telling them they were lawless and indulging in self-help and were not deserving of help from the Supreme Court since they did not obey the Appeal Court order. That is how Ojukwu got his house back. The military government gradually withdrew and released his house. It happened in Buhari’s military regime. Judgement after judgement was given against that military government by this group of people and they were obeyed because they had high moral authority. But when you live on Mount Olympus, when the whole country is worshipping you as a smaller god and you come down to our level and swim in the mud of corruption, then you have lost your independence by yourself. It is not the executive.
Leading human rights activists have expressed concern about the continued detention of former NSA SamboDasuki against the ruling of the courts, including the ECOWAS Court. Would you advise the government to release him on bail?
I don’t know why this is so. There must be something that the government isn’t saying. I have not been taken into confidence about it. My impression is that Dasuki is a very powerful man, he probably has the capacity to destabilize the government. That’s the impression that I have, so I don’t want to make any definite statement. It’s very rare for a government to insist on keeping him and you know he has been under Department of State Services (DSS) before going into normal detention. It’s not usual. You can condemn the government for not obeying court orders but you need to be on the inner recesses of government to know what they know that the rest of us don’t. I’m not going to condemn the government because I have a feeling that there is something they know that we don’t and they have not communicated it to the public.
Let us look at the capacity of the Ministry of Justice to diligently advise the government and prosecute a number of the high profile corruption cases and that of the EFCC. The EFCC tends to prosecute them on the pages of the newspapers and then start gathering evidence.
No, it’s possible. That used to happen but if you have been studying the EFCC of late, they are not doing that anymore. They bring their cases to court; they bring their witnesses. What you are saying probably was a thing of the past. It no longer happens. Apart from the EFCC, one of the things we have done, in collaboration with the Ministry of Justice, is to raise a prosecution team, a total of 160, who have been trained in various aspects of prosecution, particularly in drawing up charges so that in a case where you need just five charges, you do not draw up fifty, diluting the case and making the whole thing tedious and irrelevant. We also have a prosecution manual which tells the prosecution, from A to Z, how to go about prosecuting, to work as a team, to know that every prosecutor must have, not only an investigator but counsel and other members. The lawyers are there to guide the investigators because they know that for a crime to be established, there are ingredients and you must establish ALL of them. As time goes on, we are going to see better results.
The Buhari government came very close to appointing Femi Falana as Minister of Justice but suddenly pulled back. Do you think that was a missed opportunity for the government?
(Laughter) I will not discuss that.
A serving judge recently accused the Minister of Justice of paying him back with evil because he ordered the minister’s arrest and detention for professional misconduct some time ago in Kano. Do you think that accusation is valid?
I don’t know whether that happened but I think it is unbecoming of a judge to say that. If you are accused as a judge, there are ways to deal with it. It is only little children that say, ‘but he’s against me because of this and that.’ If your hands are clean, then there’s no issue, so I don’t take such statements seriously.
It appears that the government agrees that the DSS should have allowed the EFCC or the police to handle the arrest of the judges, instead of storming their houses. Is it even legal? Isn’t that why the matter has now been transferred to the EFCC to handle?
Yes, the Administration of Criminal Justice Act allows that. You do not break in unless there is resistance or refusal. You knock and announce who you are. If there is an answer, there is no problem, but if you delay, that gives time to hide things or run away and all that. If that is going on, they have the right to break the door and move into the house. The DSS is actually established for the protection of our internal security, but if you have acts of corruption that are going to affect that security, then it gives the DSS a mandate to handle it. I think that is the basis of it, because our security was beginning to be affected by the level of corruption that was going on – people are being denied of the right to justice. I’m a lawyer; you sit down in your office, you prepare, you go through all your law reports and you write your brief. It takes time and effort. You go to court and you don’t know that you’re wasting your time - the judgement had been bought. No matter how excellent your presentation, or brief, it’s all a wasted effort. When it gets to that stage and a whole country is beginning to lose confidence and is frustrated by the judicial system, it can affect internal security.