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We all agreed on Judicial reform recommendations, says Agbakoba

Published by Guardian on Tue, 03 Jan 2012


From today we will be reviewing events that shaped the judiciary in 2011.The year ended with the affirmation of President Goodluck Jonathan's government by the Supreme Court on December 23, 2011 and the burning of the Court of Appeal building in Calabar, Cross River State on December 30, 2011.At the brink of a total collapse of the judiciary at the close of 2011 following the crisis that rocked its former leadership, the Chief Justice of Nigeria (CJN), Justice Dahiru Musdapher, set up a 28-member think-tank committee to fashion out the way out of the woods.But the hope of many Nigerians that the troubled judicial sector is on its way back to glory looks dashed as the 28-member reform panel submitted its report without the assent of some members. The development, to many, was an obvious indication of a division within the ranks of the committee.Days later, President of the Nigerian Bar Association (NBA), Mr. Joseph Daudu (SAN), in an interview disclosed that the NBA withheld assent because the view of the association was not accommodated in the final report.But in this interview withJOSEPH ONYEKWERE,a member of the reform committee and a former President of the NBA, Chief Olisa Agbakoba (SAN), refuted the claims, insisting that all the members of the committee reached a consensus on all the recommendations without any disagreement.What does this portend for the judiciary in 2012' Will the stalemate stifle this third arm of government in its bid to revive the sector' Only time will tell. Excerpts:AS a member of the judicial reform committee, do Nigerians have any reason to be optimistic of the outcome of your report'I don't have to remind you of the genesis of the committee and where it came from, the loss of confidence of the Nigerian public in the judiciary, which has done so well in terms of stabilising Nigeria by proactive decisions, particularly the Supreme Court. So, we all felt sad that the Salami/Katsina-Alu tension caused in the division. And it moves us back to the ethnic/political issues. There is the PDP/ACN factor. However, we formed a number of committees. One was to find out whether it was proper to suspend Salami and the committee said it was not. Without prejudice to the merit of the matter, the due process showed that Salami was wrongly suspended. We recommended that he should be recalled. On how to restore confidence in the judiciary, the first issue we grappled with was that the CJN's total control of the NJC was what enabled or can enable the head of the judiciary (CJN) to thwart the judiciary to his pocket. So, what we did was to discountenance it. There was a bit of tension around who should head it. Eventually, we agreed that the CJN should head it, but with the presence of the NBA being part of the appointing authority.In other words, it will comprise the CJN, NBA president, president of the Court of Appeal, and three retired CJN's/presidents of Court of Appeal. So that is a very powerful body. So what I started out with was on CJN. But as we went along, we discovered that the problem was not the headship but the composition. So I signed on. You know it is a different thing to report and another to implement. If those recommendations are implemented, they will go a long way in restoring the falling glory of the judiciary.Tell us more about the reported division among the committee members and your alleged withholding of assent to the report'I did not decline assent. I was in the tribunal in Awka, Anambra State, not in London when the call came. We had finished work and dismissed. So I was in court the day I received the call. I wrote a letter to the CJN to say that I would be in the tribunal and asked to be excused. When I saw the interpretation that would be given to my absence, I wrote to say that I participated in all the deliberations of the committee and that I concurred and agreed with all the decisions. And so did everybody. Akeredolu agreed. There was a robust agreement on it. Everybody agreed. I was there; so do not believe any side comment because we all agreed. Alhaji Abdulahi Ibrahim called us out and began to raise a point. It is a give and take thing. What is the problem' The problem is an out-gone CJN who wittingly or unwittingly caused the problem. But how do we know that the next CJN will not be the same as the last one' So the problem is not the headship. If you want to resolve the problem, it is to be sure that the CJN is not the owner of NJC as it used to be. Before, the CJN virtually appointed everybody in the 23-member council. But now, he can't appoint anybody except himself. He is the CJN/chair because when you become the CJN, you automatically become the chair of NJC. But you cannot say, appoint Justice, X, Y, Z. So, the reason for not wanting the CJN to be the chair of the NJC is gone. It is inconceivable that the Pope would not preside over the Catholic Church.Which of the recommendations excites you most'All of them excite me. But particularly, the one dealing with the quality of justice delivery. Clients beat me on the head and I said, it was not my fault. I was looking at our list of cases last week, not one of the 20 cases was done - the court is not sitting, this and that. So I played a strong role on the mechanisms on court administration. For instance, we recommended the need to have automatic assignment of cases, not just the CJ. If the CJ is not there, files will be assigned. I also recommended that there was need to have electronic pay platform and automatic e-filings. If I can sit in my office and print a boarding pass from Aero Contractors, why can't I file cases from here' Must there always be oral hearing' We shall now go from partial front-load to total front-load so that if you were a claimant, everything about your case (the story, the evidence, the witnesses, the documents and the laws) would be put in. Once that is done, you're gone. The only thing remaining would be veracity, that is testing what you have done by counsel and that should not take time. Cross-examination would not be more than 30 minutes. There will be no room for interlocutory applications. There is also the issue of fundamental restructuring of the Supreme Court to become a more serious court, so that the Supreme Court will be known as a court of policy. We talked about the Supreme Court justices sitting. There was a huge argument whether they should sit so that land case in Igbosere would not go to Supreme Court. We talked about having a state Court of Appeal. So that the state Court of Appeal would absorb all the pressures from the federal causes. In America, you have federal and state cases but here, it is mixed up. Because of the mix up, there is a traffic jam. Take for instance, taking one Justice Mohammed from Daura to Enugu. But the bulk of the cases that emanate from the zone are localised. So in my own draft proposal to the National Assembly, I said that states, as part of their own economic integration process, could create Regional Court of Appeal. So if we have all these mechanisms in place, what would happen is that the delivery of justice system would be faster.Will it be possible for Salami to come back'Why not' That is our recommendation. If you remove him wrongly, then it will be an injustice not to put him back. There is no how he will not come back, unless the CJN declines the recommendation.What does removal of fuel subsidy portend for our economy'We met with the President some days ago and we had a conversation with him, we had conveyed the general view that the whole debate about taking the subsidy away was not popular. He, in all sincerity, explained the reason he felt it was necessary. He said to keep subsidising the product would mean that the government would become broke one day, and that he would rather take tough and courageous decisions than to run the Nigerian ship aground. That as a President, he was always looking at the big picture to present the best to Nigeria. And I was quite happy about that honest clarification.But the media also made an error for always presenting the debate for and against. I don't think so. The question should be, is it really in Nigeria's interest to continue to have subsidy' Conceptually, I say no. This is because subsidy breeds corruption, inefficiency and waste. So, it is a matter of timing. It is a matter of actually creating the information exchange, the confidence, the trust, giving the fact that nobody trusts government. Some people are saying that once you remove subsidy, the money will enter private pockets. That is the general view. So what I see is that information is necessary'Is there anything wrong with subsidy'When Europe is subsidising the banking sector, why do we listen to the IMF/World Bank institutions that are saying deregulate when they are right now regulating. So these are all the contradictions. Why should Africans continue to do the bidding of international organisations and international government' So these are the concerns. I think we shouldn't hit the President too hard for saying he wants to do what he wants to do. It is to tell him that what he wants to do requires more explanation from his own part.Number two, he needs to explain more. I like what Femi Falana told him. He said: 'Mr. President, remember that Obasanjo was challenged by Adams Oshiomhole, stop doing this subsidy issue as though when you are waking up from sleep'. So Obasanjo's response was to create an institution - the Petroleum Product Pricing Regulatory Agency (PPPRA). Femi referred him to section 7 of that agency, which refers to the power to regulate price but we don't see the PPPRA in the debate.Secondly, in order to increase prices, the PPPRA has a very important function of engaging Nigerians and craving their understanding - this hasn't happened. So my own personal view is that the subsidy thing, whether it is timely or untimely, should have been delayed and postponed till April 1, 2013, to enable Nigerians participate in the discussion and then understand why it should be removed. Nobody can claim that it has all the answers. I mean we can have the answers at the table, but the time to take a decision is not now. So it is premature.Did you raise the issue of our moribund refineries with him'We did but it is just like the chicken and egg situation, that there is no money to build refineries, that it is the subsidy money that would be used to build them. It depends on the side of the divide you are, the President's argument is: I need the money to build refineries. But we said those arguments were not convincing enough to remove the subsidy. What is clear, however, is that there is a major information gap. Even if he has to do that, it has not been properly internalised by Nigerians. Nigerians are asking: Why do we keep suffering for government's inefficiency' Why is it that we are the ones who readily get picked' All the state governors have access of about N150 billion security votes. Let them say under the Governors' Forum (GF), we hereby sacrifice N100 billion. That is something. Let the government say, we are slashing our salaries. The National Assembly will slash salaries by 50 per cent, so we see another N50 billion and so on and so forth. But they want to put the burden on Nigerians. That is the mistake.The government is claiming that it is broke, that is why it needs that money urgently. What is your view'I put this question to Mr. President that I volunteered to look for money for him.How'It is a disgrace that I arrested a vessel called MD Biva for violating Nigeria's cabotage laws and nothing came out of it. Foreign vessels come here without licence and take our products from the NNPC. So NNPC takes part in sabotaging our cabotage laws, feed these vessels and they go. We have protested this for a long time. The Indigenous Ship Owners' Association of Nigeria now empowers a number of maritime lawyers to intercept vessels. Lo and behold, MD Biva has no papers. So the court now found it liable. But it invoked foreign arbitration clause and the matter has to go to England. MD Biva returned to Nigeria, changed its name to MDB, carrying about $150 million of our products. It was arrested last week. Then, a corrupt naval captain conspired with the 30-man crew, put them in a hotel from where they went back to the vessel and ran away. We have 5,000 illegal foreign vessels in Nigeria. So we have to seal the hole where money is leaking in Nigeria. I told the President I could do it for him. We had a meeting with the Minister of Transport and the Director General of NIMASA said that it could be done.And I refer to earlier interviews where the British government pays 53 billion pounds subsidy for National Health Services. It is a democratic government that believes in market forces. The American government has the social security administration where it pays a lot of money to subsidise social programmes of its people. So why are we different' Why will these Americans and Europeans come and deceive us and say don't give them anything, yet the people are hungry and suffering'The level of insecurity in the country is becoming alarming by the day, especially with the Boko Haram threat. Is there any way out of this situation'There is a strategy and a tactics. The strategy is to ask the broad question: Is there really a country called Nigeria' I became aware of this question when my mother told my father that we should leave Northern Nigeria. I was probably seven. So looked at the gap, looked at the time we were still discussing that fact. So we can't run away from that question. Shortly after we had crisis in the then Western Nigeria, tensions between the northern politics and Yoruba politics, if we must call a spade a spade, NNPP led by Chief S. N. Akintola and the AG led by Chief Obafemi Awolowo and the bid by the NNPP to control the Western Nigeria sounds familiar with the PDP and the ACN, nothing has changed that spiraled us into the Civil War where the only man that had ever spoken the truth - Emeka Odimegu Ojukwu, until he died, everybody started to say he was a great man. But when he was alive, they could not admit it. The hypocrisy is too much. Ojukwu was the only man who had spoken the truth to Nigeria.He said: 'We can't live as close as we are today, let us find space'. That word was 'confederation'. Was it his fault that they went to Aburi ready and the Nigerian side was not ready' It was not his fault. Nigeria cannot be a federation; it is not possible. Nigeria can only be a centripetal federation - a loose federation. That space that Nigeria will get from moving apart would resolve a lot of problems. I am not sure whether the security problem is political or religious. Boko Haram is a political process. Niger Delta is not a security issue - it is political.The Egbesu Boys, Oodua Peoples Congress (OPC), MOSOP or MASSOB and others are not security issues. There is a saying in philosophy that when the cause ceases to have effect, effect ceases. The cause of insecurity and instability is the political arrangement whereby a winner takes all. So Abuja asogatakes everything. So that is a strategic issue. If we now want to resolve that, then we have to reconfigure Nigeria to make Abuja less attractive so that we can have local champions. That was what Alex Ekwueme advocated by calling for the official recognition of the six geo-political zones. For Abuja to exclusively legislate on 68 items and concurrently legislate on another 36 to the exclusion of the states is hypocritical and cannot be sustained. So if we tinker with that, then you will see that the security problems you tend to see will disappear.A number of Nigerians are worried that we don't have vibrant opposition political party any more. The ACN in Lagos is even embroiled in toll palaver and the civil society groups that used to fill the gap seemed depleted. There are even reports that NLC is divided over the fuel subsidy removal'I am particularly disappointed in the ACN in Lagos. On the Lekki toll, the Lekki Concessionaire Company (LCC) as far as I know did not contribute a drive to the project. So if the toll fee goes to the LCC, what did they bring' What is the purpose of the private sector participation' That is the first problem. The second thing: You want to get the private people to participate, of course that is acceptable. The government cannot do it alone. Must you now overlook the societal upheavals that will occur as we all saw' Is there not a better way to do the toll' I have suggested in earlier interviews to use the car tax. I think the challenge that Babatunde Fashola (SAN) has is that the road that has been built by the private sector, which he has to pay will cost for instance N10 billion and he can't afford it. So he built it for our common good but can't he find the most interactive way to make us pay for it' Why punish the people in Lekki' The one I am proposing, all Lagosians will pay it and he can then use it to build roads, driven by private sector people. To have a toll-gate is absolutely unnecessary. The high point of that is whether it is constitutional to put a toll that impedes the movement of people. And the constitution points to the freedom of movement, which Ebun Adegboruwa talks about. The law also talked about the alternative road. In Lekki's case, where is the alternative' It is not legally permissible for the Lagos State government to take a toll because the contractual obligation to the Lagos people has not been fulfilled. There is no alternative. Lagos State government's statement that Maroko Road is the alternative route is the biggest lie in the world. That is a private road with gates. A private road cannot be an alternative road.And lastly, the matter is in court. The very example that Lagos State government gave for not obeying LASTMA's decision is that it is on appeal. And that is the more reason they should also obey this one. The Supreme Court has decided that once an application to stay is on notice to you, it stays your hand.
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