Abiodun A. Olatunji (SAN), a first class law graduate of the University of Ibadan (UI), is a partner at Abdullahi Ibrahim & Co. In this interview with Deputy News Editor JOSEPH JIBUEZE, the banking and commercial law expert speaks on the NBA election outcome, threats to the Bar’s unity, CAMA 2020, the anti-graft war and judges’ appointments.
Do you see the Nigerian Bar Association (NBA) weathering the post-election storm?
The interesting thing for me is that the candidate who came second during the contest immediately conceded defeat, congratulated the winner and urged all members to rally round the new President to achieve his set goals for the Association. That is the kind of leadership contest that we all desire for the NBA – a contest in which the winner claims victory with grace and the loser accepts defeat with equal grace. Those who disagreed with the outcome of the elections have the rights to disagree and ventilate their grievance (if any) at the appropriate venue. What we should not condone is any attempt by anybody no matter highly placed to pull the association down simply because the individual lost an election. The NBA is bigger than any individual and its interest is superior to every individual member’s interest.
What do you make of issues that arose with the dis-invitation of Kaduna State Governor to the Annual General Conference?
The attempt by some members to wrap the whole issue in an ethno-religious garb is rather unfortunate and uncalled for. The National Executive Committee of the NBA issued a statement on this issue, making it clear that the decision to dis-invite Mallam Nasir El-Rufai was based on its judgment that it was not in the best interest of the association to be engulfed in the controversy that trailed the invitation. You would recall that a group of lawyers had launched an online petition against the decision to invite the governor as a Speaker at the NBA 2020 AGC and called for the withdrawal of the invitation. The petition within days had secured thousands of signatures, before the NBA NEC took the decision to dis-invite the governor. The former NBA President, Paul Usoro, tendered an unreserved apology to the governor and explained the circumstance which necessitated the withdrawal of the invitation. The NBA NEC also did a letter to the governor to explain the circumstance of the dis-invite and also offered an apology to him. The NBA NEC made it clear that it did not by the dis-invite pass any judgment on the governor as there was no basis for such. Contrary to the religious and ethnic sentiments being whipped up by some members, the NBA and its NEC do not represent the religious or ethnic view of any group or persons. It’s an umbrella body of all lawyers in Nigeria irrespective of religious or ethnic bias.
What do you have to say about moves to form a parallel body?
The unfortunate move of some members to form a parallel association and thus create crisis within the association must be condemned by all. The NBA is the conscience of the nation. A strong and united bar is a bulwark against government interference in the administration of justice, infringement on citizens’ fundamental rights, disrespect for the rule of law and executive lawlessness. If the NBA is divided there will be no association to speak truth to the throne, there will be nobody to hold our leaders to account thus our nation and our people will be at risk. It is, therefore, not in anyone’s interest to allow any form of religious schism or ethnic sentiment to develop within the NBA.
Do you think there is a valid basis for the controversy over CAMA?
The Companies and Allied Matters Act 2020 has elicited mixed reactions from Nigerians. It has been hailed by the business community as good for the economy as it has been seen as facilitating the ease of doing business in Nigeria while on the other hand some religious bodies and some Non-Governmental Organisations have condemned some Sections of the Act. Section 839 of the Act has been the most criticised of the provisions of the Act. Section 839 of CAMA 2020 empowers the Corporate Affairs Commission to suspend trustees of an association and appoint Interim Managers to manage the affairs of the association where the Commission reasonably believes that there has been misconduct or mismanagement in the administration of the association or where it is necessary or desirable for the purpose of protecting the property of the association or securing a proper application of the property of the association or in the public interest or the affairs of the association are being run fraudulently. Some religious leaders and others have called on the President to revoke his assent. With all due respect, once the President has assented to a bill duly passed by both Chambers of the National Assembly, the bill becomes law and can only be changed by way of an amendment which must also go through the whole process of law making. If there is any provision of the Act which is inconsistent with the Constitution, that provision will be struck down by a competent court of law as being null and void to the extent of its inconsistency. If the organisations and stakeholders that have threatened to go to court can show that the provisions of Section 839 conflict with any of the sections of the Constitution, then the court will intervene on the side of the supremacy of the Constitution. In the absence of any such conflict or inconsistency with the Constitution, CAMA 2020 remains the law of the land.
Do you agree with the call by Aare Afe Babalola (SAN) for rapists to be castrated?
Rape is a social malaise. It is a criminal conduct that is very brutal. There is no depth to the sense of outrage and revulsion that one feels when one reads reports of rape and the subsequent murder of the victims by murderous gangs who indulge in this inhuman conduct. However, I am of the opinion that rather than a knee-jerk reaction to this problem, what the society needs is a resurgence of solidarity geared towards the protection of the most vulnerable. No single mode prevention, solution and or punishment will suffice. For me, the enormity of this crime simply deserves any form of punishment no matter how extreme. Castration, you know is the surgical removal of a man’s testicles or his treatment with drugs to lower his testosterone and consequently his libido. This may be part of the solution. Some medical studies have shown that castrated criminals have lower recidivism rates than those who did not receive the procedure. In some countries where the crime is endemic, castration is an option that is now being forcefully pushed. In many of the federating states in the United States such as California, Florida, Iowa, Louisiana, Montana, Texas castration may be required of a repeat offender. India, a nation that has been on the global spotlight for brutal rape cases recently proposed chemical castration of rapists, South Korea also of recent decided to castrate a serial rapist. Women parliamentarians in Zimbabwe are pushing for severe punishment for rapists which include life term or castration. I do believe that such measure if adopted where the rape incident does not result in the physical disability or any life threatening injury or death of the victim, may help deter those who indulge in this heinous and brutish violence against women. Where, however, the devious acts of rapists result in death of the victim, the penalty should be bullet to the head of the rapist.
How can the anti-graft war be more effective in view of rising cases of corruption?
This administration was voted into power on the basis of its promise to stamp out corruption from our national life. Nigerians saw in the person of the President an incorruptible and fearless leader determined to match his words with actions. They were convinced based on the antecedents of Mr. President. But to fight corruption in this country we need more than a strong leader. We need strong and truly independent anti-graft institutions. The two major anti-corruption agencies in the country – the Economic and Financial Crimes Commission (EFCC) and the Independent Corrupt Practices and other Related Offences Commission (ICPC) – need to be strengthened and immune from executive interferences. Executive interference is the bane of a successful anti-corruption war in this country.
What else needs to be done?
The EFCC, which is the most visible of the two major anti-graft agencies, is at the moment embroiled in corruption as its suspended Acting Chairman is currently being investigated on very weighty allegations bothering on corrupt practices raised by no other person than the Attorney-General of the Federation and Minister of Justice who has direct supervision of the EFCC. While the allegations against the suspended Acting Chairman of the EFCC remains an allegation until his guilt is established, the revelations that have been made so far on how recovered loot had not been properly accounted for and how the agency had consistently and flagrantly disobeyed court orders and undermined the rule of law and a whole lot of other abuses, it is not out of place to say that the EFCC has fallen short of the expectations of Nigerians. The ICPC on the other hand has been less visible although it has been able to secure convictions in a number of cases instituted in court. In general, I think the two agencies need to be strengthened for them to be able to deliver on their set objectives.
There have been issues with the appointment of judges, with some saying the processes should be advertised rather than being shrouded in secrecy. What can be done about this?
The Constitution has given too much power and influence to the Executive arm in the appointment of Judges. This needs to be looked into through the lens of an amendment focused solely on insulating the judiciary from the crushing weight of the Executive. I think the National Judicial Council should be more involved than merely making recommendations to the Executive, especially considering the fact that the recommendations are based on the advice and list of persons received from other Executive bodies under the control and direction of the appointing authority. Given the composition of the NJC, it is my humble opinion that the Council should be the appointing authority subject to confirmation by the Senate in the case of Chief Justice of Nigeria (CJN), Justices of the Supreme Court (JSC), President of the Court of Appeal (PCA), Chief Judge of the Federal High Court, Chief Judge of the High Court of the FCT, Grand Khadi of the Sharia Court of Appeal for the FCT and President of the Customary Court of Appeal for the FCT. At the state level, the Council should also be the appointing authority subject to confirmation of the House of Assembly only in respect of the Chief Judge, the Grand Khadi of the Sharia Court of Appeal of the State and the President of the Customary Court of Appeal of the State. The role of the executive should be limited to the relevant executive body i.e. Federal Judicial Service Commission and the State Judicial Service Commission – advising and submitting list of persons to be appointed as Judges to the NJC.
What are your thoughts on the new Correctional Service Act?
The Correctional Service Act 2019 contains a lot of progressive innovations designed to redress the poor living conditions and improve the well-being – both physically and mentally of inmates. The provisions of the Act changed the citizens’ perception of prison as a centre of retribution and breeding ground for hardened criminals to one now perceived as focused on reformation, rehabilitation and reintegration of those who indulge in criminal infractions. The Act provides for medical, psychological and spiritual counseling for inmates. It also provides for the deployment of educational and vocational skill training programme. There are a whole lot of provisions of the Act that are designed to radically change the public perception of the prison system in Nigeria and if well implemented, at the end of an inmate’s term, the inmate should rejoin the society a better person. I think it is too early to make a judgment on whether the Act has achieved the objectives for which the law was enacted.
Why do you say so?
As you are aware, the COVID-19 pandemic berthed in Nigeria in March and since then things have not been the same. The pandemic affected every aspect of life. The correctional centres were particularly of high risk of infection and spread of the virus. To prevent the spread of the disease within the facilities, the CJN sometimes in May this year directed the Chief Judge to decongest the correctional facilities within their jurisdiction by releasing certain categories of inmates. That directive led to the release of thousands of inmates from correctional centres. From available records, the population of inmates across all the correctional facilities in the country is about 73,995 out of which 50,427 are awaiting trial inmates and 23,568 convicted. This is according to a report by the then Nigeria Prison Service published sometime in July 2019. Of this figure, 1489 are female while 72,504 are male. In the coming years, we shall begin to see the impact of the Act.