“The Role of Bar and Bench in the Fight Against Corruption” – by Orji Uzor Kalu

“Today in Aba, I was the Guest speaker at the Nigerian Bar Association Annual lecture held at High Court Complex, Aba. My lecture which was on “The Role of Bar and Bench in the Fight Against Corruption” remains one of the best I have delivered in the recent times. I urge you to not only add to your stock of knowledge through careful perusal of this lecture but to also understand why we need to strengthen judiciary in Nigeria.” – the former Governor of Abia State, Orji Uzor Kalu posted.

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FULL TEXT OF LECTURE BELOW
I do not know if I will be right to also tag myself a learned colleague having been pulled out of the political front to address the learned that I rather should be learning from. Let me first thank you, the Aba Bar, for inviting me to deliver this lecture and share my knowledge of what role the bar and bench ought to play in fighting corruption in our country.

In doing this, I am guided by the inimitable words of one of ours, and one of the finest products of the Nigerian judicial system, late Justice Chukwudifu Oputa (JSC, as he then was), who asked: “If you are a judge and you are corrupt, where do we go from here? Then everything has come to a halt. If the legislature is corrupt, you go to the judiciary for redress. If the executive is corrupt you go to the judiciary for remedy. If the judiciary itself is corrupt, where do you go from there?”

Justice Oputa, alongside Justice Kayode Eso (also JSC and equally late), is acclaimed as one of the best and a most incorruptible jurist that passed this way. We thank God for his gift to us and, we continually pray that his soul rest peacefully. Like him, Justice Eso was also celebrated as a jurist who abhorred corruption, and lived out his abhorrence of corruption, such that in 2011 some civil society groups gathered to bestow on him the Civil Society Anti-Corruption Defender Award.

Today, when we look back, we somehow feel that the good days are gone. As a politician, when I look at the issue of corruption as it affects the judicial system, and the society generally, the words of Frederic Bastiat, a French economist and prominent member of the French Liberal School who developed the economic concept of opportunity cost, where he said “when plunder becomes a way of life for a group of men in society, over the course of time they create for themselves a legal system, that authorizes it, and a moral code that glorifies it”, comes hitting at the mind.
That seems to be what we have done with corruption in our country. For some, corruption is a game we all play for which those who are caught are considered naïve. I am told that in the legal profession, you have a saying that a good lawyer knows the law but a smart lawyer knows the judge. So, the question is: which is most desired? The good lawyer or the smart lawyer? In navigating our minds between the good lawyer and the smart lawyer, we find that collectively, we have created a system that has not worked for us and will not work until we are able to dismantle the structures that feed corruption and enthrone a regime of merit and order.

In simple language, corruption is a deviation from the good. It does not necessarily indicate stealing or embezzlement of state or company funds.

However, in our political understanding of corruption, it has to be stealing of public funds or money laundering. But we don’t consider driving against traffic, vandalising public utilities, skipping work without permission or health reasons, delaying administrative process while waiting gratification or extortion, polluting the environment, examination malpractice, sex-for-grades and a lot more as corruption, though we condemn them as immoral acts. However, I reckon that our focus is not on all those but on the main issue for which President Muhammadu Buhari is to some people today a hero, and to some, a dictator.
In Nigeria, the judiciary has been a constant factor like the executive. We know that even under military regimes, the judiciary retains its place though its works may be altered by the fact of suspension of the constitution, which in itself, is an act of corruption. So, to some extent, one could argue that the judiciary had also acquiesced and played along with the military in corrupting the political system even though we know that it was coerced to do the bidding of the regime at the time. So, the story of the judiciary in Nigeria is one replete with the good, the bad and the ugly. We all know that even when soldiers upstage a constitutionally elected government and suspend the constitution, they still come back to the bar and appoint lawyers as Attorney Generals and legal advisers. From the workshop of these same lawyers, society is entertained with all sorts of decrees and legal dictates, some outrightly foolish and laughable and some draconian. It is still the lawyer, mostly a Senior Advocate, who agrees to ‘serve’ in a regime whose being is based on corrupt acquisition of power. I have always asked one question: What will happen if lawyers refuse to be used by such regimes to corrupt the democratic system?

Today, we are faced with challenges which had led to arguments that for the fight against corruption to be won, the judiciary must first be cleaned up. That argument had found expression in the Department of State Security (DSS) leading to the recent swoop on the home of justices of the Supreme Court and of other jurisdictions. The news media was awash with stories of how the homes of justices of the apex court were raided in the dead of the night. There were reports that the doors to the homes of some of the justices were pulled down in the bid to gain access. The media described it as ‘sting operation’. So, they had to ‘sting’ the justices to get at them. – guess you know what happens when a bee stings you.

The most interesting aspect of the ‘sting operation’, for me, is not the fact that the justices were accused of acts which are said to constitute corruption or that some cash were found in their homes. I was rather fascinated by the commentaries that followed those ‘sting operations’. I focused my analysis more on what senior lawyers and players in the temple of justice said about the development. In my layman understanding, a Justice of the Supreme Court is like a cardinal working with the Pope in Rome. It means that he is a member of the inner temple of the church. So, when a Justice of the Supreme Court is harassed, embarrassed and shamed in the manner that we had seen, the shame goes down to the least member of the judiciary. That was why I found it hard to believe that senior lawyers would rise in defence of the Gestapo-style ‘sting operation’. Many of you justified that action. You have your reasons for doing so. But as a layman, I felt something was deeply wrong. There is evidently a deep gulf between the bar and the bench. I may not have the details but the issues raised when that ‘sting operation’ occurred clearly showed it.

That development made me wonder if indeed lawyers mean what they practice. You are the ones that are quick to tell brutal regimes that a citizen is innocent until proven otherwise, not just by a court, but by a court of competent jurisdiction. So, I was amazed when senior members of the bar justified that act. I was asking myself if indeed those who justified the action ever came across these three words –Rule Of Law?

Late President Umaru Musa Yar’Adua made rule of law the focal point of his short-lived administration. With that, he wanted us to respect the law and be governed by it. Many of those who justified the ‘sting operation’ on the justices lauded President Yar’Adua when he announced that the focus of his administration would be rule of law. So, is it that we swing with the tide and lack the moral character to stand on grounds on what is right or that we live for pecuniary benefits? In the republic of Ireland, it is said that “when Irish eyes are smiling, they are usually up to something”. Is that the case here? Were those who prefer that the rule of law be jettisoned in the fight against corruption up to something that we all do not know yet? Is it proper for a lawyer to advance his personal interest by sacrificing constitutionality and proper conduct?
I do not know as much about the concept of the rule of law as you the learned gentlemen. But as a politician, I am aware that the rule of law encourages us to be guided, in our actions, by what the law says. Did the law permit the pulling down on the doors to anyone’s home in the bid to arrest him? I am encouraged to continue the discourse on this issue, even beyond here, by the outcome of the trial of Justice Ademola. However, beyond the judicial reprieve he now has, what happens to his image that had been damaged? Can he ever recover it?

So, I think, and believe, that the war against corruption can achieve a whole lot if it is fought within the ambit of the law, and not raw expression of power. I think that it is for this reason that Thomas Hobbes lectures us on why there is a government in the first place. In his treatise on government, he had argued that the absence of rule of law would lead to chaos and life in society would be ‘nasty, brutish and short’. It will be a place where only the fittest survives. If we therefore justify that style in the fight against corruption, we can as well bid order and proper conduct goodbye, because after this administration, another will come in. We shall be the worse for it if the next leader is one cast in the mould of Emperor Jean Bedel Bokassa of the Central Africa Republic.
Here, I have not denied the reality of the fact of corruption in the judiciary. But to clean it up, we must follow due process. The National Judicial Council (NJC) must be properly funded and empowered to do its job. DSS and EFCC cannot usurp the functions of the NJC. If we allow that to happen, then, we would have enthroned a system that fights corruption corruptly. We cannot achieve anything if we corrupt the system that fights corruption. And I am aware that you all have been following the judicial developments in some of the cases brought to court by the EFCC over corruption. What we should do, and must do, is to reengineer the process of investigations and prosecutions such that you go to court with water tight cases. As it is today, I have read analysis and commentaries in the media castigating the EFCC and DSS for lack of prosecutorial prowess. You all read former President Olusegun Obasanjo say that if EFCC must win their cases, they must hire those he called ogbologbo lawyers. I do not think he meant anything derogatory. I rather believe that he was encouraging EFCC to engage serious-minded lawyers who know their work.

Therefore, for us to make meaningful progress in the fight against graft, the organs of government responsible for the fight, must go back to the drawing table and see the need to be a little bit more thorough with investigations and also engage lawyers who are well-trained in such areas. This will however be a waste of time if we desecrate the constitution and our own laws, by engaging extra-judicial means to achieve purpose. Intimidating judges and seeking to force them to make pre-determined pronouncements will not achieve purpose. But there is need to create a clean legal system through the instrumentality of the rule f law.

Writing in an article published in The Jakarta Post of May 23, 2003, Tony Budidjaja, who was at the time chairman of the Indonesian Christian Legal Society and member of the executive committee of the Law Association for Asia and the Pacific (LAWASIA) said: “The creation of a clean legal system will not be successful if the character, competency and commitment of law enforcers to corruption eradication remain an issue. In addition, the fight against corruption will not be won until the ‘rule of law’ works. Under the rule of law, the law (including the anti-corruption law) is enforced equally against everyone. Without the rule of law, there will be the ‘rule of force’ and justice will be determined by how much power or influence a man holds or how much money he is willing to pay. The denial of the rule of law in preference for the rule of force will have its consequences.”
Budidjaja also said: “The most fundamental requirement for us to uphold the rule of law is to have credible lawyers (including lawmakers and law enforcers) take the lead. There will be no rule of law without credible lawyers; lawyers of course who are righteous and have a strong sense of justice.

The absence of credible lawyers to carry out the mission to uphold the rule of law presents a disincentive to corruption eradication. In the fight against corruption lawyers are an important instrument because they are the key actors in our legal system, which is apparently not functioning properly. It is the lawyers who can contribute greatly to liberating our nation from corruption. All the government’s efforts in the battle against corruption will fail if the majority of lawyers take an opposing stance or act as onlookers.”
Lawyers, your job is cut out for you. You cannot shy away from it.

Like I said earlier, while I do not deny the fact of corruption in the judiciary, I also affirm the fact that our judiciary is one of the best on the continent. I want to state that Nigerian judiciary is not as bad as being portrayed at times. Considering the conditions of their operations, they have been performing wonderfully well. The judiciary have not only helped to sustain our democracy but saved democracy at many critical times.

Nigeria has also produced legal luminaries that made us proud through their juridictions on the continent.Their commitments, excellence, deep knowledge of the law caused their appointments in world courts and supreme courts of other countries. For instance, Justice Bola Ajibola served as World Court Judge at The Hague and has taken part in many adjudications affecting many great nations of the world.

Justice Egbert Udo Udoma was a justice of the Nigerian Supreme Court and later Chief Justice of Uganda from 1963 to 1969. Justice Taslim Olawale Elias, Nigeria’s first Attorney General after independence was also a former president of the International Court of Justice . We have many other Nigerians who have headed supreme Courts of countries like Botswana, Sierra Leone, Namibia, Zambia among others.

No matter the kind of system of government practiced in a country, the judiciary remains the bedrock of survival of that nation. Our judiciary are trying very well and I believe that if our judiciary are allowed to operate with zero interference, that will be the beginning and turn around of our democratic process. Therefore, there is a reason Nigeria is a leader on the continent. As a governor, I came in contact with one hallmark of our judiciary –courage. I had squared up against President Obasanjo over what rightfully would come to Abia state. We went to court and I had feared that the judges would fear federal might and sway justice. But they stood their ground to uphold the law as it should be.It was the judiciary that saved democracy in Abia state. We went to court against Federal government of Nigeria fifteen times and we won thirteen times. The judges gave their judgements with no fear or favour and throughout our tenure, we gave the judiciary all the necessary support needed to perform efficiently.

I also saw that happen when the same Obasanjo squared up against Lagos state government over local government allocation. Irrespective of the fact that he ignored the courts the fact remains that the judges refused to be intimidated and stood on the side of the law. There are several other instances. Under the present administration, there have been clear cases of abuse of judicial orders. But the outstanding fact is that the judges refused to be intimidated. That is the spirit we want to see more in the judiciary. We have been told severally that the wheel of justice grinds slowly, but certainly. That certainly is what our society needs to develop. As politicians, we know that members of the bench will come under tremendous pressure to sway justice. When that happens, remember, that it took the courage of a judge to bring to an end, the military contraption called Interim National Government headed by a handpicked Ernest Shonekan. The judge who made the decision did not fear for her tomorrow. She did not fear that she may be thrown out of job. She did not mind that she may be transferred to a Siberia. She did not mind that as Interim-President, Shonekan was in a position to reward her beyond her imagination. She simply stood with the law and did the needful.

Writing in an article titled ‘The role of the judiciary in the fight against corruption’, President Muhammadu Buhari stated: “The Judiciary must take steps to ensure that it is not seen as being partisan. As such, it must be aware of the sensitivities of the public and take steps towards avoiding even the shred of a doubt as regards its independence. In justice, integrity is a necessity. Hence, Judicial Officers and all other members of this sector must always demonstrate manifest integrity. In other words, the Judiciary should be in the forefront of efforts to develop rights based jurisprudence as an element in the multi-disciplinary approach advocated in the fight against corruption. It does have a role to play in the fight against corruption by enforcing the applicable laws.”

However, to push ahead the integrity of the judiciary, the judiciary must be independent and self-funded. You may not be able to succeed in ridding the judiciary of influence and intimidation of strong political players like governor etc, if the judiciary runs cap-in-hand every time to the governor in search of operational funds. When the Chief Judge of a state sees his appointment and funding as favour from the governor, justice remains what the governor wants. This is because as Gary Allen, and English writer, said “in politics, nothing happens by accident. If it happens, you can bet it was planned that way”. To overcome this, fund the judiciary from the first line charge and insulate it from executive intimidation and interference because as Justice Oputa said “once corruption sets in, you can never distinguish between who is right and who is wrong”.

In its editorial published on December 5, 2015 titled “Corruption, between the bar and the bench”, The Guardian wrote: “The challenge before the Bar and the Bench now is how to collaborate to ensure that corrupt lawyers and judges are removed from the judiciary in order for it to retain its respect as a hallowed institution.
“Ridding the judiciary of corruption must necessarily start with rigorous review of their appointment processes so that only those who are eligible not only by professional competence but also by character are allowed to become members of the Bench. Where judges are appointed because they can pay for their positions, justice should not be expected. It is judges who emerge through such a mercantilist system that easily seek other means outside their salaries to recoup the investments they have made to attain their positions.
“Obviously, where the process appointing judges has been deliberately skewed towards undue advantage, those who have their integrity to protect do not show interest in the Bench. There is therefore the need for the appointment to be made transparent so that the Bench can accommodate as many people who are qualified and are interested in it.”
I agree with this recommendation. I also think that it is in line with this that the NBA had advertised for interested lawyers to apply to become judges. I believe that the leadership recruitment process, both on politics and judiciary, should be transparent and open to get the best. It is when we get the best, who has integrity to protect, that we begin to re-work our internal processes that will take care of observed lapses.

I am told that in the lawyers’ rule of professional conduct, it is stated that “It is the duty of every lawyer to report any breach of any rule that come to his knowledge to the appropriate authorities for necessary disciplinary action.” Ibrahim Abdullahi of the Department of Private and Business Law of Usmanu Danfodiyo University, Sokoto, writing in The Role of Legal Practitioners in the Fight against Corruption in Nigeria integrity, courage and professionalism as necessary qualities which a lawyer must possess to achieve purpose in the fight.
Your past President, Augustine Alegeh, commenting on how lawyers must join to win the fight against corruption said: “The fight against corruption and the need to enthrone the rule of law must thrive on the willingness to live within the law in so far as the law coheres with the attribute of fairness, equity and good conscience. The man who must fight to combat corruption must be a man who has cured himself of the vices capable of his soul. He must be an incorruptible and disciplined man”

Though this is a view that I share, I am however taken aback by the views of Abdullahi where he writes on “The Challenge of Legal Practitioners in the Fight against Corruption” and holds that “law officers in recent times face several challenges in Nigeria ranging from poor remuneration to poor work environment amongst others. It is often said that the salary of a law officer is only as good a remuneration as when he was a junior at the Bar to the extent that when he grows at the bar, his remuneration translates to mere pittance in comparison with the earnings of his call mates in private legal practice or the in house counsel of private companies. Yet it is the same law officers that are required to vigorously defend the cause of the state and be at the vanguard of the fight against corruption and the rule of law campaign.

“A visit to some of the Ministries, Agencies and Parastatals where our law officers work leaves you heartbroken. Most of the offices are either without computers or have dysfunctional or outdated machines. In such offices, there are no libraries and the ones that have libraries have outdated books, law reports and law journals. A law officer working under these stringent conditions cannot, in all honesty, be expected to gallantly fight corruption when his immediate environment in itself is pervaded by corruption. Such a law officer can be easily compromised to alter the course of justice with mouthwatering offers of cash or other gift items. Therefore from which ever prism or ramifications one views it, the law officers in Nigeria appear heavily challenged in the role expected of them to tackle and combat corruption.”
Gentlemen, like I said at the beginning, I am not a lawyer but a politician and a businessman.

However, I have associated with lawyers long enough to learn some of their mannerisms. One of such is not to bore an audience with long lectures. Lawyers prefer briefs but how long a brief is can only be imagined. So, I will like to keep this brief having made sure that all the essentials are very well covered. But let me remind you what one of yours, Abdullahi said. He stated that “The fight against corruption will not be won until the “rule of law works i.e. the law (including the anti corruption law) is enforced equally against everyone. The rule of law creates a disincentive for the corrupt or crooked people to do what they want. The most fundamental requirement is for us to have credible lawyers (including lawmakers and law enforcers) to take the lead. The rule of law cannot thrive without credible lawyers who have strong sense of justice. The absence of credible lawyers to carry out the tenets of the rule of law presents a further disincentive to corruption eradication.

“A clean legal system is imperative to stop corruption. The clean legal system envisages clear figures, and corruption within the legal profession however minute must be eradicated. The media and academia can and should equally play a key role in creating a culture of hatred against corruption in our society. Today there are too may “corrupt lawyers” and celebrity lawyers who inappropriately receive too much publicity. At the same time, there has been very low coverage of humble lawyers with excellent sense of professionalism. The media must therefore give adequate spotlight to people who have been consistent in obeying the rule of law and committed to implementing zero tolerance against corruption.
“Corruption can be successfully fought when all the players and stakeholders in the legal system (including judges, prosecutions, police and advocates) share the same commitment.”
I do not think there are any debates on this view. The view I do not want to accept is the view that lawyers should not accept to defend persons accused of corruption. I don’t think that is in line with the work you do because as I am made to understand, justice should not only be done but be seen to be done.

In fighting corruption, it is the task of the bar and the bench to ensure that justice is served and preserved. Justice Oputa left us with the tripod concept of justice –Justice for the accused, justice for the victim and justice for society. In the anti-corruption war, if fought on the grounds of rule of law, I have no doubt that the accused will have justice served him, the victims of his corrupt act will also be served while society will be mended with justice. But one last word here is what James Ushie Ebuara of the Nigerian Law School, Enugu Campus wrote in his paper titled “The Pivotal Role of A Lawyer in Combating Official Corruption in Nigeria”. He concluded that paper saying that “members of the legal profession have been implicated in many corruption cases in Nigeria and that this happened because lawyers including judges have failed to adhere to ethical standards in the profession while the mechanism of enforcement of these standards is lacking.”

Learned gentlemen, Thank you for listening.

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