‘Judicial Salaries and Allowances are Unacceptable and Unjustifiable’

Ekiti State, undoubtedly, is one of the most economically disadvantaged States in the country; but, the State is blessed with a progressive Governor and a highly cerebral, innovative, reform-minded Attorney-General and Commissioner for Justice in the person of Olawale Fapohunda, SAN, a two-term Attorney-General. He is undeniably, one of Nigeria’s leading experts in justice sector reform. He played a lead role in the drafting of several Nigerian laws, including the Correctional Services Act and the recently enacted Police Act. On New Year’s Eve, he explained and enumerated his achievements in office, and his plans for the remaining part of his tenure to Onikepo Braithwaite and Jude Igbanoi

Congratulations on your elevation to the rank of Senior Advocate of Nigeria. Out of the 72 of you who were elevated, only two were female. Again, some members of the Body of Senior Advocates have not only complained that not only is elevating 72 people too many, the qualification for elevation should be made more stringent. What are your views on this?

It is an incredible honour to be found worthy of the conferment as Senior Advocate of Nigeria. I think it will be unfair to simply look at numbers, in consideration of conferment. It is my respectful view that, the emphasis must be on qualification. Once an Applicant ticks all the boxes put in place by the Legal Practitioners Privileges Committee, there should be no reason for non-conferment.

Having said this, I believe that a lot more needs to be done to recognise public interest Lawyers, or at the very least ensure that added recognition is given to public interest work in the application process. Presently, Applicants from the advocate category are required to show evidence of four Pro Bono cases only. This, in my view, is inadequate especially when placed side by side with the current access to justice needs of Nigerians. There are simply too few Lawyers working on public interest matters. I am not aware that Applicants in the Academic category, are required to provide evidence of public interest work. Again given the dire need for mentors in legal education, I think this is a missed opportunity. Legal Academics seeking elevation should also be required to show evidence of Pro Bono work including lectures given outside their place of employment, or where practicable, time spent mentoring students in Law Faculties or the Law School. Thankfully, the Nigerian Bar Association is reviewing its Pro Bono policy, and hopefully, all these issues will be considered.

Kwara State recently passed the Gender Composition (Political Offices) Law 2021 providing that the gender composition of those holding certain classes of offices shall not be less than 35% or more than 65% of either sex. This is the first of its kind in Nigeria. Though it falls short of provisions of places like Rwanda where the Constitution makes it mandatory that a certain percentage must be allowed for female representation even in Parliament, it is a step in the right direction for Nigeria. Kindly, comment on this initiative.

Undoubtedly, this is an important step in moving the conversation on gender equality in Nigeria forward. It is novel. Limited female participation in public life, is one of the major obstacles towards achieving gender equity.

Paving the way for more women in the political, business, and civic society arena, is an investment in the socio-economic and political development of States, and invariably Nigeria as a whole.

It is not sufficient to simply ask women to speak out and get involved, we need to enable legal and institutional regimes that allow the voices of women to be heard in any process that will ultimately affect them, their families, and communities. Investing in women’s right to political participation is not a favour done to women, but one that will ultimately have positive impact on our political development.

I have sent a copy of the law to my colleagues in the South West Attorney’s General Forum, as a possible agenda item for discussion in our next meeting. I do believe we should consider enacting this law in our States.

Still talking about Gender Equality and related matters, Ekiti State during your tenure is widely acknowledged to have made tremendous progress in this area particularly in responding to gender based violence. Can you share your experience with us?

I am asked this question frequently, and my immediate response is to say it’s about political will and leadership that understands that the way we respond to all forms of gender based violence, including sexual violence, says a lot about the kind of society that we live in.

In Ekiti State, Government has adopted a zero tolerance policy for all forms of gender based violence. We do not verbalise this as political speech, we have taken deliberate steps to translate policy into an actionable agenda for implementation. In the implementation process, Mr Governor leads in word and deed. We have streamlined key areas of intervention across Ministries and Government agencies. We also have a monitoring mechanism – the Gender Based Violence Management Committee, Chaired by the Wife of the Governor that oversees implementation.

Talking specifics, we have enacted some of the most progressive laws in the country. We have reviewed and amended our Gender Based Violence (Prohibition) Law, in response to current realities. We enacted the Compulsory Treatment of Child Victims of Sexual Violence Law, with a view to providing timely, effective and confidential medical support for minors who are victims of rape. We recently passed the revised Criminal Law of Ekiti State. This contains provisions that ensures that sex offenders are appropriately dealt with, while at the same time ensuring that victims do not suffer double victimisation, especially in the course of the criminal justice process.

Concerning victims, we recognised that our criminal justice system places priority on the offender, frequently to the detriment of the victim. We have taken practical steps to reverse this. First, by publishing a Victims Charter, which in very simple language informs victims of crime about their rights and obligations within the criminal justice system. We have backed this up with the establishment of a Sexual Assault Referral Centre. A one stop medical facility, that provides a range of support services to victims of sexual violence. These are in addition to a number of administrative measures we have put in place. For example, a convicted sex offender will not benefit from Mr Governor’s powers of prerogative of mercy. We have also opened a register of sex offenders, to capture details of sex offenders for the purpose of appropriate record keeping.

Let’s talk about this Register. Under your watch as Attorney-General, Ekiti became the very first State to open the Sexual Offenders Register. How does this work in practice?

The Sex Offenders’ Register is a key component of our holistic response to sexual violence in Ekiti State. The Offenders’ Register essentially captures our “Name and Shame” policy. This policy was put in place in 2012, during the first term in office of Governor Fayemi. We discovered that we had little by way of a criminal records registry. In cases of sexual violence, we discovered that there were increasing cases of repeat offenders, and we struggled to obtain records of their previous convictions. This was what led to the idea of opening a register where all the details of the offender will be kept, both manually and electronically. The Director, Public Prosecutions is the custodian of the Register.

We have found the Register very useful, particularly in prosecuting repeat offenders. The Register does not exist in isolation. Once the details of a convicted sex offender is entered in the Register, we will publish same details with the offenders picture on all Government media platforms. Additional measures we have taken, include pasting posters of such offenders in prominent places in the offender’s community or home as appropriate. We have now strengthened and institutionalised this process by its inclusion in the Criminal Law of Ekiti State. We are now set to enforce compulsory psychiatric tests, for persons who defile or rape minors.

The hard won battle for judicial autonomy doesn’t seem to have settled or laid to rest the issue, as many States have refused to comply with the judgement of the Apex Court on the matter. What is the position in your State?

I think the issue of judicial financial autonomy, has largely been settled in all States of the Federation. The Nigerian Governors Forum has been clear and unequivocal, about its support. I am also aware that, the implementation process has commenced in most States. In my State for example, the 2022 Appropriation Law aptly captures estimates from the Judiciary, in compliance with the Autonomy Law. I know that there are a number of States that are presently caught up in a curious situation, where the Judiciary will now get a lot less under this new arrangement. Those States are grappling with how to come to terms with this situation. I think it would be fair to say that, for many States the enactment of the law has been the easiest aspect. I know that there is an ongoing peer review process, where States are sharing their experiences. What should be obvious to all now, is that achieving financial autonomy for the Judiciary will not be an event. It will be a process that will require political will, and sincerity of purpose of all involved.

It is obvious that the Justice Sector is in dire need of reform, from funding, appointment of Judicial Officers, their remuneration and conditions of service, to Prison decongestion, better living conditions for the inmates, Police Reforms the list goes on. With one year left of the Buhari administration, have we made meaningful progress?

The simple response to your question is that, we are certainly not where we were when President Buhari took office. Yes, we have made progress; but truth be told, we are also not where we should be, given the enormity of what needs to be done. In the area of law reform, we have made remarkable progress. The Police Act and the Correctional Services Act, both legislation which had stalled in the National Assembly for over a decade, are now laws of Nigeria. We have had investments in prison facilities nationwide and Police stations, to a lesser extent.

Across the States of the Federation, the Justice sector has witnessed a level of prioritisation that has before now been limited to non-existing. So, yes, we have made progress; but, on many important areas we have stalled. One of these areas, is the condition of service of all those who work in the justice system. For some strange reason, we have kept salaries and allowances of judicial officers fixed for a decade now. Yet, paradoxically we expect quality judgements from our courts. Not even Justices from the highest court of the land, are spared the indignity of poor remuneration. It seems that, as a country, we have resolved that a call to the Bench is a call to penury and servitude. The Correctional Services are not better.

Lately, there appears to have been progress concerning the plight of Police officers. The impact of the increase in Police wages, remains to be seen. Curiously, many of us don’t see the linkage between our struggle with the fight against corruption and the horrendous conditions of service of our Justice sector workers. If I am asked to suggest one single agenda for the remainder of President Buhari’s tenure, I will suggest review of judicial salaries and allowances. It is long overdue. The current situation, is not acceptable or justifiable. We will be deceiving ourselves, if by any stretch of the imagination, we assume we can make any meaningful progress in the Justice sector, without this review.

You are on record to have contracted Covid-19 in 2020, before vaccines were available. What was your experience? Now that the country is going through the fourth wave, many States have tried to constrain their civil servants to take the Covid-19 vaccine. As a well-known human rights Lawyer, what is your opinion on this matter? Would you support this stand in your State?

We have to realise that, we are dealing with a public health crisis of a nature that we have never witnessed before. When you look at the situation in the United States and Europe, you will agree that God must truly have a soft spot for Nigeria. Somehow, the millions of deaths that were predicted for Nigeria at the onset of Covid 19, has not materialised. It is simply inexplicable that it is those countries that predicted doom and gloom for Nigeria, that are now getting the wrong end of Covid-19. The downside of this for us as a country, is the air of complacency that pervades our national life. Many are still in blissful denial that the virus exists, and those who believe it exists now appear to be suffering from Covid fatigue, and observe the prevention protocols more in breach.

I agree that we should not be complacent. I am in support of any practical and reasonable measure, that will enhance our awareness of the seriousness of this virus. Enforcement of vaccination, is a necessary and important step. The available science tells us that vaccination helps, even if it does not prevent infection a hundred percent, it reduces the possibility of serious illness or death. The bottom line is we all need to take this virus seriously, especially given the reality that this may be with us for a while to come.

As a Bencher, what is your assessment of the state of legal education in Nigeria, do we really need reforms?

I think there is broad consensus, that we need a new vision for legal education in Nigeria. Regrettably, there have been a lot of debates to the detriment of practical and sustainable interventions. This new vision cannot simply be about building new Law Schools, or spreading the Nigerian Law School campuses across Nigeria. The vision must focus on quality. I have no issues with the democratisation of legal education, but at what cost? The fact that most of our Law Faculties and the various campuses of the Nigerian Law School are struggling, adds to the urgency of a road map to transform legal education. There have been a number of sensible proposals, which the leadership of the NBA has put forward. I will mention three of these that caught my attention.

First, our legal curricula must be made multidisciplinary, creative and flexible. We must integrate topics such as reforms in the justice delivery system, clinical legal education and alternative dispute resolution, into teaching modules in our Law Faculties and the Law School. Thankfully, many Law Faculties have taken up clinical legal education, with varying degrees of success.

Secondly, quality law libraries in our Faculties are too few, and most poorly stocked. We need to enable an endowment that provides for the latest technological tools of research, linking our law schools with the best sources of knowledge globally.

Thirdly, the NBA Pro Bono scheme under review, must ensure that senior practitioners, particularly legal academics with expertise in particular areas, compulsorily take a minimum number of classes in lesser-endowed Law Faculties. As I mentioned earlier, consideration must be given to including this as a requirement for conferment of Senior Advocate of Nigeria.

The dismissed unmarried Policewoman in Ekiti State showed your human rights side, as you immediately went to court to defend her. Kindly, shed some light on what really transpired and how the case was resolved. Is it not time that these discriminatory laws or rules of conduct in the Police and other security agencies be expunged from our law books?

In the course of reviewing the Police Act, somehow the Police Regulations skipped our attention. I will also have to take some responsibility for this omission, because I Chaired the then Inspector General of Police Review Committee. A cursory look at the Regulations, will give the impression that the Nigeria Police is at war with women. The Police Regulations is replete with many discriminatory provisions against female Police Officers. For example, Police women on duty are prohibited from putting on jewellery except wedding or engagement rings and/or wristwatches; applying face powder, lipstick or coloured nail varnish. They are also required to place the alphabet ‘W’ before their rank. Compensation, Gratuity and Disability Pensions provisions are made for payment only to “wife” or “widow”. No reference to spouses (husbands). Police women married to civilian husbands, are disallowed from living in Police barracks. Travel allowance are made only for accompanying ‘wife’ and children. No husbands.

Section 121 of the Police Regulations provides that female Police Officers shall, as a general rule, be employed on duties which are concerned with women and children. Also, married women are disqualified from enlisting in the Police; a Police Woman who is single at the time of her enlistment must spend two years in service before applying for permission to marry, giving particulars of fiancé who must be investigated and cleared before permission for marriage is granted.

Section 125 of the Regulations also states that “A married woman Police Officer shall not be granted any special privileges by reason of the fact that she is married, and shall be subjected to posting and transfer as if she were unmarried”.

Section 126 of the Regulations provides that “A married woman Police Officer who is pregnant may be granted maternity leave in accordance with the provisions of general order. However, an unmarried woman Police Officer who is pregnant shall be discharged from the Force”. This was the provision relied on by the Police authorities in dismissing the Police woman from the Force.

I took up the matter more out of the need to achieve a comprehensive review of the Regulations, in the hope that a positive outcome will benefit women who wish to enlist the Nigeria Police, but are put off by the Regulations. Regrettably, the Federal High Court found that the suit was an abuse of court process because of a similar suit having being filed in the Industrial Court. Thankfully, though, the court affirmed the powers of the Attorney-General to institute human rights suits in defence of citizens rights. I will therefore, be approaching the courts in defence of citizens rights in other matters. We have filed an appeal on this matter. For me, it is about results. I am open to an administrative solution of this matter. I hope the Inspector General of Police will share my desire for a Police institution that affirms President Buhari’s oft stated commitment, to removing obstacles to women enlisting in our security agencies.

The South West is the only region where the States’ Attorneys-General have established a forum for collaboration. As the Chairman of the South West Attorneys-General Forum, how successful has this initiative been?

The idea of the South West Attorneys-General coming together, was driven largely by a desire to share experiences, information and also cooperate on matters that affect the South West States. We have since evolved to sharing our individual State experiences, particularly in areas of law reform and the administration of justice broadly. We agreed on a peer review process, where each State presents its agenda and interventions in the administration of justice. We share ideas on what works, and what we can do better. We worked together on the Àmòtèkun Law, and the South West Development Commission Bill in the National Assembly. We also worked together to present a South West common position, on the Constitutional Review Proposals.

Presently, we are working on the modalities for publication of the Judgements from the South West States High Courts. We are also working on the Harmonisation of the Laws of South Western States. We have established full fledged Secretariat, and to ensure sustainability especially after we leave office, each State has a focal person with an office in the Ministry of Justice. Our experience is truly unique. Our meetings are always memorable. Such is the wealth of experience and ideas among my brother Attorneys-General, that we are always learning from each other. I tell my colleagues that, I am not ashamed to steal their ideas for use in Ekiti State. That is the spirit that pervades our meetings.

As a two term Attorney-General (which seems to be the exception rather than the norm), as your second term draws to an end in the next few months, what would you say have been your major legacies?

I won’t say I am not glad that my tenure is coming to an end. The opportunity to serve as a two term Attorney-General has been an incredible opportunity, especially being able to put into practice many of the issues I campaigned on before I became Attorney-General. It has been an amazing journey, for which I am thankful.

I set for myself a vision of a State that fosters the principles of justice and fairness, where the law and the Ministry of Justice are used to bring about positive change and improvement in the socio- economic development of all those living in Ekiti State. I commenced and concluded a radical review of the laws of Ekiti State. Ekiti State can proudly take its place, among States that have removed all vestiges of inherited laws from its law books. We have gone a step further by translating some of these laws, especially the ones that affect the lives of our people on a daily basis, into the Ekiti language. I have rebranded the Ministry of Justice. We are no longer seen as that boring Ministry where people dress up in black, and only go to court.

We have made ourselves relevant, and central to the growth of Ekiti State. Nothing of substance happens in the State without our imprint. Professionalism, is at the heart of our service delivery. We established the Ministry of Justice Academy – the first of its kind in Nigeria, to further enhance our ability to provide efficient and effective services to the Government and people of Ekiti State. We have published many advisories and practice publications, all with an eye on ensuring that our people understand what we do and how we can be relevant to their access to justice needs. Under my watch, we published the first Ekiti State High Court Judgements Report. Also recognising the importance of Palace courts in dispute resolution in our State, we published the Ekiti State Palace Court Judgements Report.

So, aside from progressive laws and strengthening the Ministry of Justice for effective service delivery, I am most proud of the work we have done in the area of promotion and protection of Women’s Rights. This has earned the State accolades, both nationally and internationally. My last few months in office will be focused on consolidating our gains, and ensuring that all that we have put in place is sustainable and survives my term in office.