Funds diversion allegation at Supreme Court confirmation of judiciary collapse –Lawyer

Femi Falana

A Senior Advocate of Nigeria, Mr Femi Falana, speaks about the recent protest by Supreme Court Justices over alleged poor welfare and funds diversion in this interview with OLADIMEJI RAMON and TUNDE AJAJA

The protest by Supreme Court Justices over alleged poor welfare seems novel in the history of the Nigerian Judiciary. Did you see it coming?

The protest by the Justices is unprecedented in the annals of our history. I saw it coming. During his recent valedictory service, Honourable Justice Ejembi Eko invited the Economic and Financial Crimes Commission and the Independent Corrupt Practices and Other Related Offences Commission to probe what he described as the internal fraud and corruption in the management of the budgetary resources of the judiciary. He accused the Chief Registrars of allowing themselves to be directed willy-nilly in the vandalism of the judiciary. His Lordship revealed that the heads of courts in the country have enormous budgetary resources from which they can improve the welfare and conditions of serving judges. I was recently briefed by two retired judges to sue the Lagos State Government for not paying her meager pension as and when due. Before then, another judge had dragged the to the National Industrial Court for the same purpose. So, I was not taken aback that the Supreme Court Justices cried out.  The bubble was allowed to burst because the call for investigation by Justice Eko was ignored.

There is a popular saying that if you find one cockroach in a room, it’s an indication that there are more. Would you say the outburst by the Justices suggest there are bigger issues of concern within the Supreme Court?

The issue of the neglect of the welfare of judges goes beyond the Supreme Court. I am aware that the Justices of the Court of Appeal and in the high court are treated much worse by the system. Unlike the Supreme Court, which has a modern building complex with three court halls, many high court judges have no courtrooms. A number of judges have to sit after their colleagues have risen for the day. Others cannot sit due to power outage.

In his response to the leaked protest memo by the Supreme Court Justices, the Chief Justice of Nigeria rebuked them, saying their approach was like dancing naked in the market square. Do you think the Justices should have employed a different approach?

Our judges are very conservative. So, I do not want to believe that the protest letter of the 14 Justices was deliberately leaked to the press. As I said, if the call of Justice Eko had been promptly attended to, the embarrassment would have been avoided. I read the reply of the Honourable Chief Justice, where he accused his learned brothers of dancing naked in the marketplace, but by replying his colleague in the media the learned Chief Justice has been accused of joining the 14 Justices to dance in the same marketplace.

The CJN said the protest letter should not give an impression that the usual camaraderie and good communication among Supreme Court Justices has eroded. But should we take his word for it, if his second in command is among the authors of the protest letter?

The learned Chief Justice should urgently summon the meeting of the NJC to discuss the concern of the Justices because the issues contained in the protest letter are too weighty to be dismissed with a wave of the hand. Unless the nagging issues are discussed and resolved, the camaraderie among the Justices would not be restored and that will have adverse effect on the quality of the judgments oozing out of the courts.

In their protest letter, the aggrieved Justices seem to be insinuating diversion of funds. For instance, they demanded to know whether their training funds had been diverted. They also said they don’t understand why they no longer get basic provisions to work despite increased budgetary allocation to the Judiciary. Do you find such allegation or insinuation coming from the helm of the nation’s judiciary worrisome or embarrassing?

It is worrisome because the judiciary is a sacred institution in bourgeois democratic societies.  But it is not worrisome to members of the ruling class who have shown total disregard for judicial independence and the rule of law. Frankly speaking, the neocolonial state has virtually collapsed. The protest letter of the Justices of the apex court is a confirmation of the collapse. Otherwise, the highest echelon of the judiciary would not have been forced to cry out against denial of basic tools to discharge their constitutional responsibilities.  Since the country is currently witnessing minimum the letter has been ignored by the Federal Government. In fact, President (Muhammadu) Buhari, who jetted out of the country after the publication of the protest letter, did not deem it fit to intervene in the crisis with a view to restoring confidence in the judiciary.

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Do you think this kind of allegation about diversion of funds is counter-productive to the clamour by the Judiciary for financial autonomy? Some say when heads of courts start handling money directly, temptation for embezzlement arises and judges, like politicians, may find themselves being arraigned for corruption.

The allegations have not impugned the campaign for financial autonomy for the judiciary. It has, however, strengthened my suggestion that judges should not be involved in the preparation and implementation of the budget of the judiciary. The suggestion was made due to the fact that in a few states, where limited financial autonomy was granted to the judiciary, some Chief Judges were subjected to investigation. They were indicted and would have been charged with criminal diversion of public fund but for the fact that the system didn’t want to antagonise the judiciary. The system has vested Chief Registrars with the responsibility to manage the fund earmarked for the judiciary and account for such fund.

Allegation of funds diversion and misappropriation bothers on criminality. Do you think the allegation by Supreme Court Justices should be treated administratively/in-house by or should anti-graft agencies get involved?

In the controversial judgment of the Supreme Court in the case of Justice Nganjiwa  v Federal Republic of Nigeria, it was held that a judicial officer accused of corruption and other crimes or misconduct cannot be charged unless he or she is indicted and removed from the bench by the appointing authority, which is the National Judicial Council. Applying the authority to this case, the allegations contained in the protest letter of the Justices have to be investigated by the National Judicial Council.

The fact that the Chief Justice is the Chairman of the National Judicial Council is of no moment, as his Lordship will be required to step aside when the matter is slated for discussion in line with the doctrine of nemo judex in causa sua – no one can be a judge in his own case.

The Senate has waded into the matter, with the Senate President directing the Committee on Judiciary, Human Right and Legal Matters to meet with the CJN and the judiciary to find out how the National Assembly can help. What advice do you have for that committee as they set for work? What areas do you expect them to cover?

Both chambers of the National Assembly and the President contributed to the crisis. Whereas Section 81 of the Constitution stipulates that the President shall submit the estimates of the revenues and expenditure of the federation for the following financial year. The budget of the judiciary is passed without details and signed into law as part of the Appropriation Act. That is a breach of the constitution, which should stop without any further delay. It is hoped that the intervention of the Senate Judiciary Committee under the leadership of Senator Opeyemi Bamidele will address the serious lacuna. The National Assembly should ensure that the details of the budget of the judiciary are set out in the budget prepared and submitted for the consideration of the legislators. Otherwise, the National Assembly is not in a position to appreciate whether the N110bn earmarked for the judiciary is sufficient or not.

What do you expect of the NBA in this case?

It is not surprising that the Nigerian Bar Association, Body of Senior Advocates of Nigeria; and Body of Benchers have not waded into the matter. These bodies are preoccupied with irrelevant issues like sitting arrangements in the courts or whether the President of the Nigerian Bar Association should speak before the Chairman of the Body of Senior Advocates in valedictory sessions. The silence of these bodies confirms that a number of policymakers have given up on the institutions of in the country. In other words, the culture of impunity has permeated the entire society to the extent that the leaders of the legal profession are not bothered that the Justices of the highest court of the land have questioned the integrity of the Chief Justice. I have recently come to the conclusion that the members of the ruling class are going to fast-track the revolution that will inexorably consume the country.

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There have been calls for an upward review of judges’ salaries and currently there is a pending lawsuit in court on that subject matter. What is your view about judges’ salaries and allowances in Nigeria vis-à-vis the perennial struggle by the labour to get many states to pay the new minimum wage of N30,000 to workers?

It is scandalous that the salaries and allowances of judges have been stagnant for about 15 years. It is a policy designed by the executive to sabotage the independence of the judiciary. I have commended Mr Sebastian Hon, SAN, for approaching the National Industrial Court to challenge the poor conditions of service of Nigerian judges. Because it is a just cause I have joined the team of lawyers assembled by Mr Hon to prosecute the case. Apart from the poor conditions of service of judges, the courts are over-congested.  For instance, the Supreme Court of Nigeria is the busiest apex court in the world. In spite of such congestion, the National Assembly has increased the jurisdiction of the court to entertain disputes between the President and the National Assembly and appeals arising from governorship elections in the 36 states of the federation. Before 2011, such appeals terminated at the Court of Appeal.  A few concerned lawyers in the Senate recently sponsored a bill to decongest the Supreme Court by limiting the number of appeals that it can entertain. But the bill was defeated by the majority of the members.  Right now, the Supreme Court is battling to hear 10-year-old appeals because it is congested with political cases which are time-bound. So, it not enough to address the issue of improved remuneration without reviewing the mandate of the Supreme Court so that only constitutional cases and limited appeals are entertained by the court.

Certainly, judges have not been insulated from the general situation in the country. Recently, as you yourself alluded to, some retired Lagos State High Court judges sued the state over non-payment of their pensions. Do you think this is a dangerous dimension to the issue of non-payment of pensions?

Unlike former governors, whose scandalous pension and other emoluments, are paid promptly, other former public officers and employees are forced to wait indefinitely for payment of their meagre pension. The implication of not paying retired judges their pension as and when due is that serving judges are indirectly asked to take care of themselves and prepare for the rainy day. It is a dangerous practice as it is bound to promote judicial corruption.

Unlike the judiciary that goes cap-in-hand to the executive for its funding, the National Assembly draws its funding from first line charge. Why can’t this be replicated for the judiciary, which deserves even more independence?

The constitution does not expect the judiciary to beg the executive for funding.  Financial autonomy for the judiciary is guaranteed by Section 81(3) of the constitution, which provides that any amount standing to the credit of the judiciary in the consolidated revenue fund of the federation and the states shall be paid directly to the National Judicial Council for disbursement to the heads of the courts established for the federation and the states. In the same vein,  any amount standing to the credit of the judiciary in the consolidated revenue fund of a state shall be paid directly to the head of the courts concerned in accordance with Section 121 (3) of the constitution. Furthermore, Section 81 (4) and  (7) provides that the remuneration, salaries and allowances as well as the recurrent expenditure of the judicial officers of the federation shall be a charge upon the upon the Consolidated Revenue Fund of the Federation. But for reasons best known to the judiciary, the heads of courts are not prepared to ensure total compliance with the relevant provisions of the constitution on financial autonomy for the judiciary. Whereas the funding of the judiciary shall be on first-line charge, our judges prefer to kowtow to the executive and thereby contribute to the subversion of judicial autonomy by the executive.

The judiciary seems to be losing its credibility gradually, owing to corruption allegations, delay in justice delivery, seeming preferential treatment for wealthy offenders and other issues. How best can the integrity of this critical arm of be restored and what should be the starting point?

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We are witnessing a reign of corruption and impunity because the Buhari administration has abandoned  governance to the extent that there is no form of control from any quarters. The alleged looting of N80bn by the suspended Accountant General of the Federation is a tip of the iceberg. A former Chief of Army Staff is being investigated by the ICPC for allegedly engaging in the criminal diversion of billions of naira budgeted for arms procurement. The fellow is an ambassador of the republic.  Even though the President has just granted pardon to the 70 soldiers who were convicted and sentenced to death for demanding weapons to fight the Boko Haram terrorists, we are following the investigation. The offence is akin to a crime against humanity.

Even though our judges operate in a dangerously corrupt environment, majority of them remain loyal to their oath of office. Unlike other arms of the judiciary has an effective way of dealing with corrupt judges. The challenge is for Nigerians to monitor judges and report the few bad eggs among them. The integrity of our judges cannot be restored by this regime because it has lost the opportunity to reform the Nigerian society in every material particular.  If care is not taken, the next may be worse than the current one. Instead of expecting corrupt and lawless regimes to reform the judiciary, we should look elsewhere. The Nigerian Bar Association has to mobilise the Nigerian people to adopt measures to restore the integrity of the judiciary.

Do you think a re-composition of National Judicial Council will be critical to the fight against corruption within the Judiciary?

Fourteen out of the 24 members of the National Judicial Council are nominees of the sitting Chief Justice. The Federal Judicial Service Commission and the National Judicial Institute are headed by the Chief Justice.  The Supreme Court is headed by the Chief Justice who has to assign cases, preside over the conferences of the Justices of the Supreme Court and write judgments. The Chief Justice is also a member of the Community Judicial Council of the Economic Community of West African States. The Chief Justice attends local and international conferences. From the protest letter of the Justices of the apex court, it has been revealed that the Chief Justice manages the fund of the judiciary.

It is just not possible for any judicial officer to combine these responsibilities effectively and productively. Unfortunately, the National Assembly has failed to amend the constitution to reduce the enormous burden placed on the shoulders of the Chief Justice. But since the Chief Registrars are the accounting officers of the courts, the Chief Justice and Chief Judges in the states should be relieved of involvement in budget preparation and budget implementation.

Some SANs and other lawyers applied to be Supreme Court Justices some months ago. Are you also open to becoming a judge?

It took an appreciable time before I was reluctantly made a Senior Advocate of Nigeria by the establishment. Owing to irreconcilable ideological differences with the nation’s judicial authorities, the system cannot take the risk of appointing me a judge. It is feared in legal circles, perhaps rightly so, that if appointed a judge, I would interpret the law like Justice Krishner Iyer of India to alter the status quo to the detriment of members of the ruling class. Like the late Dr Akinola Aguda, I would insist that equality before the law is a myth promoted by bourgeois lawyers and judges to deceive the masses. Like Karl Marx, I would insist that law is the product of economic forces; and that it is a tool of the ruling class to maintain its powers over the oppressed working classes. However, I would apply to be a judge after the success of the revolution that is likely to occur in Nigeria sooner than we think.

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