NBA Constitutional Crises: Lawyers Have no Moral Right to Condemn the Government for Disobeying Court Orders – Awomolo

Only a very few privileged lawyers in Nigeria have had the fortune of being in the Inner Bar, and sharing its privileges along with their spouses. One of such rare lawyers, is Chief Solomon Adegboyega Awomolo, SAN, who turns 70 this week. In a chat with Onikepo Braithwaite and Jude Igbanoi, the Learned Senior Advocate went down memory lane, on how his journey of 40 years at the Bar, has been so far. The former Attorney-General of Osun State, also shared his radical thoughts on judicial corruption, agitations for restructuring, and why the Privileges Committee must never overlook complaints against those aspiring to the Inner Bar

Sir, on the occasion of your 70th Birthday, we congratulate you. Could you tell us about the major highlights of your journey of almost 40 years at the Bar?

To the glory of God, I was called to Bar on 8th July 1978 and I did my National Youth Service Corp in the old Kwara State, (consisting of Kogi, Niger and Kwara States).

I was most privileged to cut my legal teeth in the Kwara State Ministry of Justice, under well experienced counsel like Isa Ayo Salami, Usman Laaro, Saka Yusuf, Raymond Erin and others. Mr. Isa Ayo Salami, retired recently as President of the Court of Appeal, Hon. Justice Saka Yusuf, retired as Chief Judge of Kwara State. We had the fortune of very dedicated Judges like the late Hon. Justice Saidu Kawu, JSC (of blessed memory), Hon. Justices Ekundayo Gilbert Obayan (both of blessed memory), Timothy Oyeyipo CJ (Rtd) and Hon. Justice John Fabiyi (Rtd).

I started private practice in Kwara State in 1979, in the law office of Chief Tunji Arosanyin. I also did extensive practice experience under the Grand Master, Chief Afe Babalola, SAN, and Chief Richard Akinjide, SAN.

After 5 years of tutelage, I established my own law office at Owoniboys Building, 159, Ibrahim Taiwo Road, Ilorin, and later Mosaic Building at Geri Alimi, Ilorin.

It was fun to have great friends like Chief Gani Fawehinmi SAN, Asiwaju Oladapo, Wole Olanipekun, SAN, Chief Bayo Ojo, SAN and others, who encouraged and motivated my practice. We challenged ourselves, to reach the peak of our careers in record time. I became Senior Advocate of Nigeria in 1992, at the age of 14 years at the Bar, when I was the Attorney-General of Osun State. All my life as a Lawyer, I have been committed to the Nigerian Bar Association and I have the joy of my many friends all over Nigeria.

I believe in adherence to the highest ethical standards. I have been a Life Bencher, the highest body in the legal profession and the General Council of the Bar, I have been a member of the Legal Practitioners Disciplinary Committee, I have been a member of the Board of Trustees of the Body of Senior Advocates of Nigeria. I am a fellow of Nigerian Institute of Advance Legal Studies. In all, God has been very faithful and merciful to me, and I praise His holy name.

The men who motivated me to read law, are the Ayoolas (Hon. Justice Olu and Yinka Ayoola), who were neighbours of my Uncle at Ibadan.

 

Learned SAN, do you believe that the October 2016 DSS Raids on the Judiciary were necessary? In your opinion, has the incident yielded any positive results on the Judiciary?

It was the black night when the Judiciary in Nigeria, lost its innocence. It was one of the most unfortunate and sad developments in a democratic governance. The incident was consequent upon the belief that, Judges were corrupt and the only way to curb the incidence of corruption, was the “commando style raid” by operatives of the Department of State Security at their residences, and they were thoroughly humiliated. There were and are, in my view, better options, including invitation to the Judges after                  proper monitoring and gathering of reliable compelling evidence. It was avoidable with better counselling, even though I agree that there were corrupt Judges in the system.

The raid failed to achieve its purpose, because it was a process outside the rule of law. The lessons here are in legions.

The Attorney-General and Minister of Justice, in a press statement, claimed to have authorised the raid. What a sad and unfortunate decision, what a misadventure in democratic governance. What about the error in the raid of one of the Judges quarters, and yet no public apology was tendered for the error.

The incident, told the world so much about our country’s inelegant way of dealing with delicate issues. For Judges, it was a shock therapy and a warning that in this clime, nothing is ruled out. The great lesson is that, due process of the law and respect for the independence of Judiciary has great reward after all.

 

What would you say, is the panacea to the problem of judicial corruption in Nigeria?

Corruption as we all know, is not a Nigerian problem alone. It is a universal problem. It is a destructive monster. It destroys administration of justice, since it blurs the eyes of the Judge. It is a sin for which God never forgives, even if restitution is paid. Any Judge that eats the bread of corruption, will face the everlasting condemnation in hell fire. He will die the second death that lasts 4000 years.

The children of corrupt Judges, will suffer severe repercussions of their fathers’ sins. No one should encourage corruption, howsoever.

All over the world, several methods have been devised and applied to curb judicial corruption. They include education and thorough monitoring. Several countries have a body that judges the Judges, and their own decision is unquestionable in any court of law.

In my view, the best panacea is to recruit men of character into the Bench, monitor and regularly assess the character of serving Judges, remunerate them properly, and strengthen the Institution of the Judiciary with a view to dealing effectively with corrupt Judicial officers.

 

Some of your learned brother silks, are facing allegations bordering on bribing of judicial officers. And many are saying that even if they are adjudged guilty, nothing will come out of it because the Legal Practitioners’ Disciplinary Committee (which you were once a member of) and the Legal Practitioners’ Privileges Committee do not seem to be playing their roles effectively. Do you agree? In fact, many are arguing that the seeming lack of will on the part of both bodies to play their roles, has been a major catalyst for what some may refer to as indiscipline within the legal profession. Kindly, comment on this. What can be done to improve this narrative, if indeed, it is true?

The trial of Senior Advocates of Nigeria on allegations of corruption and bribing Judges, is a very sad and unfortunate development. As leaders of the legal profession, we are expected to lead by exemplary life, and lead the majority by good conduct. The SANs represent the best of the Bar, in and outside the court.

I believe that these SANs, are entitled to the benefit of doubt, as they enjoy the Constitutional presumption of innocence. The trial, even if they win, will forever affect their practice, as the scars may remain on them forever.

It is a great lesson, for those who wish to learn that what elevates a man is holiness and righteousness, as sin remains a reproach forever.

The role of the Legal Practitioners Disciplinary Committee, is to sit in adjudication over allegations of professional misconduct or infamous conduct, that are not consistent with the ethics of the legal profession. It is not their duty, to condemn or find guilty innocent Legal Practitioners. My experience for about six years on the Committee, touched me so deeply, as I realised that the societal ills of greed, stealing, misappropriation and lack of contentment, has almost destroyed the Legal Profession, and that flows into the public perception of the administration of justice as, corrupt. A colleague, the other day, said Ruling and Judgements were for “cash and carry”, but unfortunately, he protected the Judges he knew were in the trade. I wish he had exposed them. In the last few years, the Committee has done very well in dealing with misconduct at the Bar.

There is need to strengthen the Committee, so that it can cope with the increasing cases of misconduct at the Bar. We have men of integrity in that Committee now.

There is need to establish a body, that will deal with all misconducts at all levels, irrespective of rank and promptly deal with it. The process appears too slow, having regard to the avalanche of cases of misconduct that are reported every day. The courts and Judges, should support the Bar in exposing cases of misconduct or unethical conduct by lawyers.

The rank of Senior Advocate of Nigeria, is the highest rank any legal practitioner can attain in the legal profession. It is a rank that remains the dream of any lawyer.

It is expected to be a rank that admits only lawyers of impeccable character. It is a rank that should never habour misfits, cheats, people with records of unethical and infamous conduct; that is why the process leading up to the conferment, is made very rigorous and open to members of the public. The Privileges Committee, consists of people with integrity under the Chairmanship of the Chief Justice of Nigeria. I doubt if they can, for any reason, compromise the standard.

There are records of counsel who were denied investiture, due to complaint of infamous conduct. Recall Chief Babashola Rhodes, SAN was denied in 1990/91. He was only honoured in 1992. The rank is not a right, but a privilege, which can be withdrawn or suspended, if the need arises.

I am of the firm view that, the rank should not be allowed to be brought into ridicule or contempt, by overlooking complaints of members of the public. There is need for discipline, decorum and good report, of members wearing the rank and enjoying the privilege. No one should be spared, because the rank is bigger than anybody, and unless the rank continues to enjoy the confidence and respect of all and sundry, it is not worth retaining it. I am aware that many junior lawyers have consistently contested the process leading to the Rank, but I think they are not correct.

 

Some Lawyers have expressed the opinion that the 1999 Constitution of the Federal Republic of Nigeria, is incurably bad, especially in comparison with that of 1963. And that it claims to be a federalist constitution, when in fact it is a constitution that supports a unitary system of government. What are your thoughts on this? Do you think that the 1999 Constitution can still be salvaged and ‘panel beaten’, or that it requires complete rewriting? What are some of the major elements which you may have identified in the 1999 Constitution that need to be addressed?

In discussing the general view of some of my colleagues on the Constitution of the Federal Republic of Nigeria 1999, it is important that we have a reflective view of the Constitutional history of Nigeria. More importantly, we need to note that, the incursion of the military in 1966, was a very deadly blow on the nature of the Constitution since then. The Independence Constitution of 1960 and the Republican Constitution of 1963, were products of Constitutional discussions, negotiations and agreements of the founding fathers of Nigerian independence.

The amendments to the Constitution by the amendment and modification Unitary Decrees, made Nigeria a Unitary State in the nature of military command structure, where all orders come from the Commander-in-Chief and centralisation of powers from the centre.

The 1979 and 1999 Constitutions, no doubt concentrated powers at the centre in the pattern of the military command structure, even though                  they are described as Federal Constitutions. It is in my view, a product of long years of military rule, which have changed the mode, mentality and orientation of all Nigerians.

The Constitution of 1963, is structurally different from the 1979 and 1999 Constitutions, because the 49 wise men who brought about the 1979 Constitution considered that the Parliamentary British system was no longer feasible, but considered American Presidential system more modern and acceptable. Nigerians have now realised that Presidential system is expensive and over concentrated power in the Federal Government.

The recent clamour for a change, in my view, arose from failure of all governmental institutions. The Local Government System which is nearest to the people, has failed and is unable to meet basic needs of the people. Mere primary health care and local education, have become a mess of its pasts. The State Governments, which were created to bring administration and development to the people, have failed. Nothing seems to be working. The Local Government and State Administrations, have lost control and the confidence of the people. There is no security of lives and properties. The States and Local Governments, have turned to avenues of self enrichment of the political class. There is hunger, unemployment and grave insecurity. There is discomfort at all levels, poverty is ravaging everywhere, there is a great rural-urban movement, and all these are blamed on the Constitution, unfortunately.

The Government at the centre, has acquired to itself enormous powers, wealth and attention, so that almost all the citizens everywhere now believe that their existence hangs on the government at the centre, in Abuja.

Indeed all the State Governments, have lost every initiative to make life worth living for the citizens. Unfortunately, the economy of the country, is hinged on the production and sale of crude oil. So the agitations for review essentially arose and have increased by the reason of failure of Institutions and not the Constitution.

I think the differences in the content of the 1963 and 1999 Constitutions are not very wide, apart from the structure of Government. Fiscal issues, are at the bottom of all agitations. Whereas, the Federal Government has acquired for itself too many issues, that ought to be devolved unto the States and Local Governments.

The consequences are that the volume of National Wealth that is allowed to the Federal Government, is enormous in proportion to its responsibilities. The agitation for resource control, devolution of powers (restructuring as they are called), merely demonstrate dissatisfaction with the Constitutional responsibilities of the Federal Government, and the amount of resources allotted to that tier of the Government. Nigerians now see too much waste and misuse of national resources, at the Federal level.

There is need to critically engage the Institutions charged with the alteration of the Constitution, by all the Stakeholders. There is no perfect Constitution anywhere in the world, and it is impossible to throw away the 1999 Constitution, that will create a void, and the Constitution abhors void.

Nigerians have become better informed, and conscious of the art of governance, that the control of the Federal Government has been construed as the solution to the societal problems. The political consciousness of tribes, natives and people, of the need to control what they regard as their wealth, has heightened agitations. The 1999 Constitution can be altered to reflect national aspiration, promote egalitarianism, promote development at all levels, ensure political stability and growth, rather than secession or break up of the country. A united Nigeria, is most beneficial where every unit of governance is allowed to grow at its pace, equity in distribution of national resources. The failure of the 8th National Assembly, to take advantage of the report of the 2014 Constitutional Conference, is unfortunate. Worse still, is the failure to review extensively, the exclusive legislative list in the First Schedule to the Constitution of the Federal Republic of Nigeria 1999 (as amended). The major areas that may be touched are Construction, alteration and maintenance of roads, Evidence, Export duties, fishing and fisheries in rivers and water ways, the labor, including a minimum wage other than federal officers, police and other security agencies established by law, prisons, public holidays, trade and commerce. There is the agitation by some Nigerians, concerning the control of mineral resources; this can be made a matter within the concurrent legislative list. The Federal Government should release her hold on railways, management of internal water ways; value added tax, and power generation and distribution.

 

As the debate for the restructuring of Nigeria rages on, and as an indigene of the South West Region in Nigeria, were you satisfied with the outcome of the Yoruba Summit which held in Ibadan on 7/9/17?

The South West agenda, falls within the questions for devolution of powers and in particular, the claims on exclusive legislative list just mentioned. It is part of the agitations, to free the Federal Government from certain areas of national interest. Alteration of the 1999 Constitution, can adequately satisfy this. There is no need to bring back the Regions. The States even under 1999 Constitution, are free to collaborate in many areas of common interest. There is the South West Government Forum. If there is serious concession among the Governors, they can have common transport system, electricity generation and distribution, grazing reserves, export companies of raw and mineral resources. They can have interstate services, whereby personnel from one State can work in another State. They can have a common tax commission, that would increase generation for the six Yoruba States. They can have common industrial and trade zones, or joint air and water ways or transport commission. The management of problems of politics, exposure and ego of the Chief Executive, is key to the success of the joint venture.

 

You have prosecuted cases for the government in the past. What is your advice to government prosecutors, on how best to prosecute their cases, seeing as they have lost several high profile corruption cases in recent times?

I have prosecuted for Government Agencies, and I am still prosecuting. The success or failure of prosecution, largely depends on

1. Level of Education/Training of investigators and prosecutors.
2. Experience of both.
3. Commitment remuneration by the instructing authority.

The success of many cases, depends on the thoroughness of investigation. There must be synergy, cooperation and support of all the investigating agencies. Most investigating bodies, are always eager to go to court to satisfy the public applause. No, there should be no filling of charges, until the investigation has been concluded, and the prosecutor is satisfied with existence of all the elements of the offences.

The situation where there is press trial or prosecution (persecution) before cases are filed, should be avoided. I have experienced cases forwarded to me to prosecute, but I declined because the investigator has met just 60% or less, of the required demands.

The defence counsel is not interested in what you have done, but all that you have left undone, which may appear trivial. The witness will be exposed to ridicule under cross-examination, for the “little gap” and the court will not and cannot help to fill the gap. I have the habit of cross- examining my witnesses before I put them in the witness box. I ask my juniors to interrogate the witnesses critically and until I am satisfied, the case file remains with me.

Prosecution must be properly remunerated. The amount the agencies pay is almost pro bono, since it does not justify the impute, the risk, the sacrifices and cost of loss of patronage by potential clients.

The patronage of media trial has been explained, that they do not need conviction, all that they want is to scandalise and make the victim unhappy, ostracised and condemned unheard. Fighting corruption must be sincere, honest and with a view to building the values to the society. It is not to be taken lightly.

Corruption is an evil monster that requires commitment, seriousness and deliberate attack aimed at destroying it, not shadow boxing. The efforts of the Federal Agencies fighting corruption have yielded results, and the efforts must be appreciated, if we reflect on where Nigeria is coming from in the global index.

Legislation and legal regimes, have consistently been amended to reflect new expenses by the agencies and the courts. I do not agree with the propaganda, that the courts have not played their role in the fight against corruption. Why were there convictions at all, if the propaganda is true?

The court is an institution that is process driven. Anything done outside the due process of law, is null and void.

Nigerian courts operate an accusational judicial system in the tradition of the common law, not inquisitorial of the French system. Here, the Judge must be seen to be independent. He/she sits between the accuser and the accused, listens attentively to both sides, retires to the chambers to consider and reflect on the facts and the law, and render a decision in accordance with the Constitution, the law and his/her conscience. The judge is a mere mortal, fallible and liable to make mistakes, but he/she cannot use the rules of his/her thumb, or whims and caprices or the noise of the market, to decide the fate of any Nigerian. No Judge ought to be pressured by public sentiment or fear of the powers that be or what any person howsoever will think, to determine the case before him/her. That is a travesty of Justice and a sin against God.

No Judge ought to be influenced by corrupting influence, or the status of the parties, in determining the case before him/her. It is a professional misconduct for any Judge to ignore any superior precedents binding on the court, in the determination of the claim before him/her. Judicial precedent is very important and with all sense of modesty, there appears to be nothing new in the law. There are sufficient precedents in respect of any aspect of law, be it constitutional, criminal, civil cases and or election matters. God has blessed this country with the calibre of finest Justices in the highest Court in the land, from the first Chief Justice of the Federation to the present one, Hon. Justices Walter Samuel Onnoghen, GCON.

The decisions of Nigeria Supreme Court are very well respected and sought after, all over the world. In the last Kenya Presidential Election, the decision of the Nigerian Supreme Court, was cited in the argument. We are very lucky in this country, that we have great legal minds at the Bar and Bench that are respected all over the world.

 

How do you think that this government has fared in upholding the rule of law?

Three things are needed in a democratic governance; obedience to the spirit and letter of the Constitution, strict adherence to the Rule of Law, including respect for the Institutions established by the Constitution and the law. Finally, the fear of God which cannot be compromised.

For me, there is a deficit in obedience to the Constitution of the Federal Republic of Nigeria and the Rule of Law. The Government still encourages disobedience to court orders.

There is deliberate propaganda by officials of the Executive, aimed at destroying the Institution called the Judiciary. It is convenient for officials of Government to scandalise the Judiciary as an Institution. They find it convenient and fashionable, to accuse and scandalise Judiciary of corruption, in my view, to sustain their offices or be seen to justify their position. Building the Judiciary as an Institution, is the duty of all the arms of government and obligation of all Nigerians. Justice is rooted in confidence, where by reason of omission or commission, the Judiciary is brought down, the consequence is anarchy.

I believe the legal practitioners in Government, must be faithful to their calling. It is not constructive to scandalise, personalise and cause public disaffection against the Judiciary as an Institution, or member of the Institution. I am completely against corruption, undue influence and misuse of judicial power. Any Judge who misuse his/her position, does not deserve to remain on the Bench. He or she must be excused, before destroying the Institution. A Judge must be a man or woman of character, and any lawyer in whatever position or office he/she occupies, must be a man or woman of honour, dignity and character.

 

Juxtaposing the functions of the National Judicial Council and the Judicial Service Commissions, some have argued that both bodies basically duplicate functions, and sometimes even work at cross-purposes. Do you share this view?

The National Judicial Council (NJC) is a creation of the Constitution. It has overall jurisdiction over all Judicial officers of the Federal Republic of Nigeria. It came into being in the Constitution of the Federal Republic of Nigeria 1999, charged with appointment, promotion and discipline of Judicial officers.

The Federal Judicial Service Commission (FJSC) is responsible for appointment, promotion and discipline of Federal Judicial officers. It has since 1958, been solely responsible for Judicial officers of the Federal Government.

There is no conflict of functions. The NJC is the final authority, and its functions complement the FJSC, and other bodies operating in the States and FCT. For the purpose of argument, if there exists a conflict, the decision of the NJC which is the superior body, prevails.

The FJSC, is composed of political as well as judicial appointees and recommends to NJC for appointment, promotion and discipline of Federal Judicial officers.

 

A few months ago, you wrote letters to the Board of Trustees of the Nigerian Bar Association (NBA) asking that the 2014 and 2015 Constitutions of the Association be nullified, based on the judgement of the Federal High Court by Justice Tsoho. Now that the NBA has duly registered the said Constitution with the Corporate Affairs Commission (CAC), does that in your view cure the defect you complained about?

The Nigerian Bar Association is very dear to my heart, and anything concerning it matters to me. I have sacrificed my life and resources for the Association. The NBA as the umbrella Association for all legal practitioners, must in all its actions, demonstrate integrity, obedience to rule of law and exemplary integrity.

The election of officers in 2016, under the Amended Constitution of 2015, was contentious, compromised and became an issue of litigation. I advised the leadership to approach the issues with maturity, and deal with the contenders with utmost humility and constitutionality.

A colleague, instituted an action to challenge the validity of the Amended Constitution of the Association, approved by the Special Convention of 2015. The Board of Trustees were sued, and other persons joined. The matter was not properly advised. It was scandalous and a disgrace to the Association, that officers of the Association failed and neglected to register the amended Constitution.

On 30th March, 2017, Hon. Justice Tsoho of the Federal High Court, Abuja declared that failure to register the Constitution was unlawful, and that every decision, action, including the election held in 2016 were null and void and were set aside. What did the elected officers do? They remained in office, and sought to register the Constitution. They obeyed the law after the deadly blow to the decision of the Association in 2016 which elected officers. It was, in my view, dishonourable and out of character for lawyers to disrespect, disregard and disobey the decision of the court. It was painful and a great loss for the Association, that the elected officers were elected in vain. What I told the Trustees, was that we should conduct a review of the Constitution and register same for 2017 AGM, and conduct a fresh election.

Unfortunately, I was a minority who could only be heard and ignored. But the law remains that all officers and actions taken on the nullified 2015 Constitution, remained nullified until set aside by the Court of Appeal. Why do we live in self denial and pretences?

We, as law officers must not compromise the integrity of the law, the decision of the law court or ignore the truth in all we think, say or do. The registration of the 2015 amended Constitution, took effect from the date of registration in 2017, not retrospectively. We lawyers, the way we are going, have no moral right to condemn the Government for disobeying the orders of courts.

I remain with the truth, and I have no regret for speaking out. You know evil thrives when good people keep quiet, look away or pretend that all is well, when they should speak out.

 

Non-lawyers sometimes jocularly refer to lawyer spouses as committing professional incest. Your wife is a fellow Senior Advocate of Nigeria. What is the experience working in the same office with your spouse, especially at that level? What are the challenges? What are the benefits? What advice would you give spouses who desire that kind of professional affinity with their spouses?

I am one of the luckiest men in the whole world. God in His mercies gave me the bone of my bone and the flesh of my own.

My wife has the background of Science. She graduated in 1981 having read and graduated in Chemistry from the University of Benin. She taught for ten years. I took her to all the Lawyers’ Conferences everywhere within Nigeria and several countries of the world, so it was not difficult to convince her to read law as her second degree.

She has the character of a scientist, sees all things scientifically, analyses all issues mathematically and unlike me, never rushing into conclusion, on legal arguments.

You know, my little training as a police officer, made my attitude worse. I believe the complainant first, and then put the suspect to prove his/her innocence. But with both of us, we argue legal issues and we arrive at the best or superior arguments. She writes very good English and her briefs were always better than mine, so there is never a disagreement. She indeed complements my inadequacies; she is patient, painstaking and spiritually matured. She is the Managing Partner and excellent organiser, with an immeasurable zeal for perfection. She is the family prayer warrior. Her only fault, is that she is an elegant super dresser. We quarrel anytime I accompany her to do her shopping, when we are outside the country. She loves her children so much so that, I sometimes feel that she gives them more attention than me. She loves me, not because I am a lawyer or SAN, but because I love her. She is my major critic and I dare say, teacher in Information Technology (I.T.) But I also teach her the law coming from my experiences at the Bar.

I am happy, fulfilled, content and give God all the glory for all I have been for 70 years

 

Source- Thisday Newspapers