In this interview with RAMON OLADIMEJI, Mr. Kunle Ogunba, a Senior Advocate of Nigeria, examines the role of the judiciary in the nation’s effort to exit economic recession
The topic on the front burner of national discourse now is how Nigeria can exit economic recession; it was the focal point of discussions at the National Assembly last week; it has been an issue for the executive to deal with; does the judiciary have any role to play?
There is not much that the judiciary can do but it still has to play a critical role because the effect of judicial activities or inactivity has a vibrating effect on the economy. If cases are not moving fairly well, the foreign investors are scared; people who invest money within the system are afraid of the dispute resolution mechanism if it is not proactive to meet the justice of the case. So, within that context, I think that the judiciary has an ambulatory role to play. The judiciary cannot make economic decisions, but it can intervene if there are disputes. To that extent, the judiciary has a role to play. And of course, the judiciary is much as affected as every other institution in the country. But it is the economists that will take decisions and if it comes to interpretation, the judiciary can come in.
Senator Ben Murray-Bruce said last week that the government’s anti-corruption fight might be discouraging or scaring away investors, both foreign and local. He called on the government to review its anti-graft war strategy, as part of the strategies to take the country out of recession. What areas of the anti-graft war do you think need to be reviewed?
I don’t believe that government’s anti-corruption fight is discouraging investments. In fact, it is encouraging investments. It shows that the economy is being cleansed and you can come in and do clean business. So, I disagree with that parochial view. I don’t know, he didn’t cite any example of how the anti-corruption fight is discouraging investments. Do we now say that people who have stolen should be given a slap on the wrist or something? In fact, the converse is even the case because once foreign investors see our economy as “anything goes,” we are doomed. So, with the anti-corruption fight, we will be seen to be addressing our problems. I think that suggestion is diversionary and should not even be considered. I believe the person who made that statement might not be objective. It is a political statement really without any substance. So, I don’t believe that fighting corruption will discourage investors; in fact, it will enhance the flow of foreign investments.
But what I think is that in this recession quagmire, if I may call it that, the problems seem that the government appears not to know what to do. In a way, if you describe the previous government as clueless, this government appears even more clueless. Last week it was in the press, the Minister of Finance says the interest rate should be reduced so that there could be more borrowing and you were shocked on Friday or so, the CBN disagreed and still maintained the same rate. And this is the same government. There is a lack of synergy between them and we don’t really know who is right or who is wrong. The CBN says if we reduce the rate there will be too much cash and inflation will skyrocket. But are you saying that the Minister of Finance does not know that? Are you saying that the government she represents does not know that? Are you saying that the Minister of Finance and the CBN cannot lock themselves in a room and talk? I thought they had a retreat where the President said, ‘Think outside the box’. What was talked about in that retreat? In fact, some said that the retreat, in view of the nature of the challenges facing the country, shouldn’t have been a one-day affair. It was a sort of a jamboree. You came there, you addressed, there was no strategy – formulating session. In that sort of a retreat, you’d lock yourselves in a room and discuss these issues may be for a whole week and come up with a strategy.
So, for me, if you look at it from the standpoint of even, I’m sorry to make allusion to this, the late appointment of ministers, it appears the government is too slow in addressing these issues. These are gigantic economic problems confronting the nation. Yes, the previous government was not so good; yes, we are on the same page on that, but it doesn’t appear that this government has its hands on it. And that really is the problem that ordinary people seem to have and we cannot see a veritable strategy from the government to get out of it. We hear there’s recession and the government is now conveniently claiming that it was precipitated by the previous government. Yes, the oil price is at all-time low, we all agree, but what do we do in that circumstance. These are things we expect from the government. They are the one in the realm of power.
The government has broached the idea of selling some of the national assets as parts of strategies to tackle this recession and this has become a subject of debate; what is your own view?
What are the national assets? What are they selling in the real sense of it? I don’t know the details but if there are national assets, properly so-called, do you sell them? In sincerity, are people clamouring for this so that they can corner it from the back within the context of our political experience? Some people will champion it and get their cronies to buy. It might be another way of corruption, to pillage the system. If there is sincerity of purpose, are we there yet? In situations such as this, the government could borrow and the government is borrowing. It could diversify the economy; those are things that one expects and not that you will eat your reserves and there is nothing to fall back on. You have eaten your reserves, now you want to sell your national assets; and then the people coming, what will they sell if they get into the same situation? And our system is not always pure. So, whatever it is, I don’t think I support it. We all hear that we should save for the rainy day. So, I think it is diversionary.
The new NBA President, Mr. Abubakar Mahmoud (SAN), seems to be speaking for the NBA when he called for the stripping of the EFCC of its prosecutorial power. But lawyers have taken different positions on this, what’s your own take?
I think that every process, every institution, every organisation, every individual that resists reforms or is averse to genuine criticisms is not even good for our system and economy. We are all here to make the system work better. I may not be right in my criticism but it might engender the party being criticised to wake up to its realities and, may be, to be on top of its game, as it were. So, within that context, I think the statement by the NBA President was just twisted out of context. And I think there are examples in what he has said. So, I don’t think it was right for the EFCC to throw darts at the president for making such a statement. To now say there are vultures in the NBA, I think that that is rather unfortunate. It is addressing the person and not the issue. The issue is: with the corruption cases that the EFCC is saddled with, are they on top of it? If there are statistics that they are doing well, then they can continue. But if there are reasons for the system to be reviewed, you don’t look at the person calling for it and call them names. There could be many reasons the suggestion is made; so, you’ll just look at it from the standpoint of the contribution to the overall growth of that institution. It’s not whether Magu is there today and A.B. Mahmoud is there as the President of the NBA. We should look at it like an institution and how to fine-tune it. That is the way I look at it without looking at the merit and demerits of what each one says. I think we should concentrate on the issues and not the personalities. What I felt not too pleased about is the attempt by the EFCC to personalise it and go after the NBA President for making such a call. His is just a suggestion. He’s not in government, even though his views carry a lot of weight, but he is not the one to implement. So, I think the EFCC overreacted.
The issue of underfunding has been a major challenge for the judiciary, what measures do you think should be put in place to cushion the effect of recession on the judiciary?
I am an advocate of the fact that our judges are not well paid. I’ve said it severally. I also know, for a fact, that some of our judges are overworked. If you look at Lagos State for example, there are not even enough judges for the cases. If you look at the population ratio, if you do the statistics like they do in policing – how many policemen per person? – you will find the statistics very shocking for the judiciary. And that is why you go to court and you find 50 cases in a day for one judge. He’s a human being like me and there’s little you expect him to do in that circumstance. He’s not a magician. So, I think one way to insulate the judiciary is proper funding with the judges being well remunerated so that they can effectively and happily perform their roles. And again, litigants and lawyers should limit filing frivolous cases in court because you’ll find out that many people now take advantage of the municipal factor of congestion of courts to file frivolous cases, knowing that it will take years to unravel and the punishment for that is minimal. You file cases knowing that the cost that might be awarded against you, if it is found that the case is unmeritorious, is far less than the injury you are trying to avoid. So, within that context, we should put a system in place that if your case is found to be frivolous, you are sanctioned heavily to serve as deterrent for others who want to come and pollute the system.
Evidence abound in these multi-door courthouses; you will find out that most of the cases take only 30 minutes to resolve; yet litigants have been in court for ages and all they need is just for someone to lock them up and say ‘what is the issue? Why are you being unreasonable?’ and then the cases are resolved. But if nothing is done, cases like this will continue to be on the rise, causing congestion of the courts because the judges are human.
And I’ve said in previous interviews that even our court system is obsolete. Our judges write longhand in 2016. And you don’t expect much from such a system. I’m granting this interview, you are not writing. It’s being recorded; it’s not so in our judicial system. If you cough, the judge writes it down. And that is not supposed to be.
There is a practice that obtains at the Supreme Court whereby you argue a case and the judges instantaneously make their decision and say ‘we’d give reasons later.’ It’s available at the Supreme Court but it’s not available at the lower courts. The lower courts have to listen to evidence; they have to listen to written addresses and then adjourn to give a well-reasoned judgment. Maybe we can think of a system where the practice in the Supreme Court can be introduced at the lower courts. But the fear is that every system here tends to be abused. If you give the lower court judges the power to say, ‘I’d give judgment now and give my reasons later,’ you might discover, shockingly, that some of the reasons may never come. But it’s something that will serve our collective interest if we can make it work. Look at the Kogi State case, for example, that was resolved the day it was heard. That kind of system should not be limited to election petitions alone. Because of antecedent, the court system came up with that initiative. That holistic approach should be applied even in commercial cases that some of us are involved in. It is not only political matters that should get accelerated hearing. That same treatment should be given to commercial cases for the overall benefit of our economy because the investors are watching, stakeholders are watching. If you owe a bank, for example, certain millions of naira and you know that you can tie the bank perpetually in court for, maybe, five, 10 years, without paying the money, then the incentive to behave irresponsibly is there. You’ll just go to court and get all manner of injunctions. In fact, we have seen that in some cases, at the time the cases are being resolved, the bank is moribund, which is not good for our overall economy.
It’s a new legal year. What are some of your expectations in terms of things you’d like to see and those things that happened in the last legal year that you think have to stop?
Like I said earlier, I think our judges need to be well remunerated; the condition of service should be made more attractive to serve as an incentive for judges to work harder. More judges need to be appointed, because our judges are overworked. The judiciary needs to be funded. If you look at the antecedent of the funding for the judiciary, you will see that the budgetary allocation kept dwindling year-in-year-out and it affects the overall performance of the judiciary as a separate arm of government. The judiciary hardly now builds new courtrooms; some of the courts that are in existence in some of the various jurisdictions are obsolete. The high court in my own state, the one in Ijebu Ode for example, has been there for many years; the society has been changing but it is the same old system. And how do we expect a 1960 court to perform a 2016 assignment? So, that is one major problem that we do have. So, I want more funding for the judiciary and for the judges to cease totally from writing longhand. I think also the system of making pronouncements instantaneously on issues when arguments are raised and deferring the reason till later should be taken advantage of not only by the Supreme Court but also by the lower courts so that we can quickly decongest the courts. The truth is that when you argue an application before a judge, he has a fair idea where the pendulum will swing but he is not allowed to say it but will defer it till a later time. But if the system can be made in such a way, we will all be better for it.
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