Immunity Clause doesn't Shield Serving Govs, President from Investigation

Prof. Taiwo Osipitan, SAN

Aside from sitting on the board of a number of blue chip companies in Nigeria, Professor Taiwo Osipitan, a seasoned Senior Advocate of Nigeria (SAN) teaches Criminal and Constitutional Law, as well as Law of Evidence at the University of Lagos. He is the head of department of Public Law at the university as well. In this interview with STEPHEN UBIMAGO, he discusses the poor adaptability of legislative instruments in Nigeria to ever increasing new developments, saying the National Assembly should be blamed for the trend. He also touched on the controversial subject of immunity clause...

What do law reforms really entail?

Law reforms involve periodic review of the law. It is an acknowledgement of the fact that the law will need to respond to developments in society. That is, a law that is good for society some twenty years ago may become outdated because of developments in society. For example, when we began with the Evidence Act and Criminal Code, nobody knew about electronic typewriter, as they were non-existent then; nobody knew about the email; what we had then was the telegraph. Nobody knew about e-contract, e-evidence, etc. But suddenly, computer and electronic devices came into being. By the time those laws were enacted, the makers of the law hardly contemplated those developments. These developments necessitate the need to go back to the drawing board, and see how the law could be amended to respond to developments in society.

Are state institutions proactive enough in adapting Nigeria’s laws to new developments?

No. My experience has been that our laws are not responding quickly enough to developments in society. Our laws have most of the time trailed behind. We are left behind such that we do not know whether to argue that judges should embark on judicial activism aimed at ensuring that there are no lacunae in the laws.

Respecting tardiness in adapting the laws to new developments, which institutions of state may be blamed?

The lawmakers, of course. There are three arms of government: the executive, the lawmaking body and the judiciary. It is the duty of the lawmakers to enact laws; the executive execute laws; and of course, maybe the executive should share in the blame in the sense that the executive can identify areas where reforms are needed and sponsor bills, called executive bills, to the National Assembly. But since the primary duty of lawmaking is that of the National Assembly, we expect them to review the law periodically.

What about the Nigerian Law Reforms Commission (NLRC)

Yes, that’s why I said the executive should also share in the blame. The Law Reforms Commission has the responsibility of researching into our laws, and seeing the areas reforms are needed. But I tell you something, they are also handicapped. I know, for example, that there was a bill for insurance law reform, which was more or less sponsored by the National Insurance Commission (NICOM), the regulatory body of insurance practice in Nigeria. They sponsored the bill based on researches, and debates here and there on how to have an all inclusive insurance law that will address the challenges of the insurance industry and business in Nigeria. I believe it has been there for three years now before the National Assembly; yet they’ve not been able to pass the bill into law. Again, I’m aware that ICAN had also had cause to see how they can amend the ICAN Law. And indeed there was a public hearing on it some four years ago. We have yet to see the bill. So I am saying that the lawmaking arm of government at the central level is not responding as quickly as possible. Or maybe what they really need is a sub-committee of the National Assembly devoted entirely to the subject of law reforms. So if you have them in place, it will become their duty to push out these reforms as sponsored by the executive, etc. Perhaps we need such a committee to drive the said reforms with greater ease.

Despite the cache of anti-corruption legislations, namely, ICPC and the EFCC Acts, the Money Laundering and Forfeiture Acts, Criminal and Penal Codes, among others, Nigeria’s leading challenge as a state still remains corruption. Where are we not getting it right?

The laws are there, I always say to people. But the ability to administer justice without fear or favour is where the problem lies. For example, the judges will only condemn or sentence people who are brought before them and against whom you have evidence. But if you look at it today, we have not even prosecuted one-hundredth of the people who are involved in corruption. Along the line, you have other people who are either not caught or who have compromised. Take it or leave it, corruption has become a cancer in the Nigerian society, such that those people who are not corrupt are seen as abnormal. So there is need for us to have change of attitude. The issue, therefore, is not about the law, but about the human beings who either apply the law or are governed by it.

Is the judiciary also corrupt?

Unfortunately, they are not immune. The cancer that is plaguing the country does not respect the judiciary. Yet I believe there are many in the bench who are not corrupt; many of them have pedigree, and are able to hold their heads above water. But unfortunately, in some courts, right from the head to the bottom, it is corruption galore. And those who are not corrupt among them, are victimised and posted to the bush indiscriminately. Once the head, for example, the chief judge of a state is corrupt, it is not difficult for corruption to trickle down; and those who are not corrupt there are victimised. And it is so bad in some states that there is no difference between the chief judge, the judiciary and the executive. There is so much unholy romance between the judiciary in some states and the executive such that people seem to have lost confidence in such state courts, and they now have cause to start looking for how to take their cases to either the Federal High Court or outside the state. But by and large majority of the judges in the country are okay. The very few corrupt ones are the ones giving the judiciary a bad name.

We learn there are certain gaps in the criminal procedure rules, which defence lawyers manipulate to frustrate trial lawyers. What are these gaps, and how can we plug them in the light of law reforms?

Well there are no laws that are completely gap-free. We are, however, obligated to plug the gaps should they prove to be hindering the cause of justice. Take interlocutory appeals and stay of proceeding, for example. Somebody applies to quash a charge, and it is refused. It would appear that the EFCC Act had taken care of it. But really the Act is talking about offences under the EFCC Act for which there can be no stay of proceeding. Indeed offences under the Act are there; they do not extend to the Criminal Code and others. Then again, the right of appeal is a right given under the Constitution. The EFCC Act is an existing law; therefore, if there is a provision like that, which tends to limit, affect or hinder the full exercise of the constitutional right of appeal, it’s null and void, except we go back to the Constitution and insert that provision there outlawing interlocutory appeals. Or if it’s not outlawed, such provision should state that upon an interlocutory appeal, there will be no stay of proceeding. Until you do that, there is a problem. There is also a gap from the viewpoint of defence lawyers. They can’t trust some of the judges that preside over criminal trials. Some of them are timid such that they are swayed by public opinion. There are some convictions that ought not to take place at all. But people have been convicted simply because they’d already been convicted in the court of public opinion. Judges are now afraid of what the public will say.

Is that not also the problem of law?

Not really. Note, members of the public, with due respect, did not study law. They don’t know anything about burden and standard of proof, that is, proof beyond reasonable doubt. That is the exclusive area of lawyers. I don’t know how a surgeon, for example, can be afraid to perform an operation, because he will be criticised by the public. I don’t know how an estate surveyor will be afraid of doing evaluation because of what the public will say. But it does appear that some of our judges are afraid of what the public will say. Yet they are learned, but the public is not learned in the area of law. When did it devolve on the public to decide who is guilty or not guilty? So defence lawyers are also being very cautious, since they cannot be too sure that decisions are based on the evidence before the court, but on prior condemnation by the public. So at every opportunity available defence lawyers go on appeal.

Let’s connect your last comment to the recent Abuja High Court judgment in which a two-year jail term with an option of N800,000 fine was passed on one John Yakubu Yusuf who is said to have stolen N27 billion belonging to the Police Pensions Fund

Well that is most unfortunate in the sense that the sentence, from my own point of view, is light. He was found guilty the way the public wanted him to be found guilty. Maybe the judge really didn’t believe, based on the evidence before him, that the man should be found guilty. But perhaps the fear of public anger made him convict him of the offence. The judgement seems like he was only providing him a window of escape.

He was tried under the Penal Code. Could he not have been tried under a far more stiff provision of a graver legislation, say, EFCC Act?

I think the Penal Code provided for seven years imprisonment. If twelve or ten or seven years jail term appears in a criminal legislation that can only mean the maximum. Meaning you cannot sentence him beyond that maximum, but you can go below. So the judge has discretion in this respect. But one will expect that the discretion should be exercised judicially and judiciously in accordance with settled principles of law. But members of the public don’t know; and indeed not many lawyers know about the principle of maximum and minimum sentencing. Perhaps he would be right if he says the offence of stealing shall attract a minimum of seven years imprisonment without option of fine. If that is the case, then we can now say, yes, he has done something very, very outrageous. But we know the sentencing policy that legally he’s covered. But obviously, though covered, what may be faulted if the judge is exercising his discretion in this regard.

It has been argued that the immunity clause under s. 308 of the Constitution provides cover for governors to pursue corrupt self-enrichment. That section is anachronistic. Isn’t it?

Well, like I’ve said, everybody in Nigeria now is a lawyer, both trained and untrained. And everything is debated and settled on the pages of newspapers, which is very unfortunate. You have to look at the history behind the immunity clause. The art of governance is a superior issue. And that you do not want a situation where a governor, whilst he’s there, is looking behind him and saying, ‘I’m going to court to testify.’ So the immunity clause is not limited to criminal cases. It also applies to civil cases. Why are we singling out criminal cases? Do you want the clause also to be removed from civil cases in which case your governor is in and out of court on daily basis? What time will he have to settle down to governance? A case is fixed for Monday, which is Exco Day in Lagos State. Do you expect Governor Fashola to go and testify in court in a civil matter in which he has been sued, or in which a subpoena has been issued against him? Once you have a subpoena, you must go to court. So, for example, Governor Fashola, will then have to go to court on Exco Day – maybe two or three Excos in a quarter. Meaning he has to step down other pressing state functions, because he must give preference to the court, otherwise a case of contempt of court may arise against him. For this reason, they need one hundred per cent concentration and attention. There is a Fawehinmi’s case involving Tinubu whereby he got an order of court declaring that immunity does not extend to investigation. Thus you don’t have to wait for a governor to finish his term of office before commencing investigation on him. You can collect your evidence whilst he’s in office. And once he’s out of office, you can prosecute him.

Wouldn’t the governor use his high office to obstruct investigation?

I don’t think so. The governors are endangered species. They have more enemies in government than friends. The document they need for prosecuting them can be produced by civil servants who are aggrieved. The civil servants are the most aggrieved set of human beings around. And for no cause at all, they will bring out the evidence on demand. So you can do your investigation discretely whilst the governor is in office. It is not a perpetual immunity. But what do you find? Nobody investigates them until they leave office; by then the evidence had disappeared. There is still power to investigate. There is no immunity against investigation. They can gather the evidence when it is fresh, and wait for him. You don’t have to interrogate him. When he’s finished his office then you can proceed. But what obtains in Nigeria is that they will even arrest the person before they begin to gather evidence against him. That itself is breach of the person’s right to personal liberty. You don’t arrest until you are ready to take the person to court.  But the EFCC and other agencies, would rather first arrest, make noise on pages of newspapers before they start interrogating witnesses. That is wrong. There is no immunity against investigation. So why are they not investigating the governors?

Former Governor Peter Odili of Rivers State is said to have obtained a perpetual injunction against his appearing before a court for trial respecting his time in office. Can you throw light on this?

It’s unfortunate that such a decision can come out. But what has the prosecution done? Have they appealed the injunction? Or have they prosecuted the appeal diligently. Judges are entitled at High Court level to take decisions. It you find a decision unpalatable, the next thing to do is to go on appeal and set it aside. Not just shouting that it is unpalatable. I expect the prosecution to go ahead and appeal the decision. And that kind of decision, even if it comes before another judge, it is not binding on him; he can refuse to follow it. So it is not a precedent binding on courts of coordinate jurisdiction. It is just an isolated case.

Would you agree with the view that acts of terrorism has remained unchecked owing to inadequate laws for dealing with the menace?

I don’t think so. For example, the EFCC Act makes the work of the EFCC to include investigation and prosecution of terrorism and terrorists. In the Penal and Criminal Code, there is also provision to tackle acts of kidnapping and terrorism. A crime may not be committed if the criminal knows that if he is caught, he’ll be dealt with decisively. But what do you have? How many of them have been caught and prosecuted based on empirical evidence? In fact many of them have reportedly escaped custody. Intelligence gathering is very key.