Those Waiting for Clean Politics, Will Wait Indefinitely

The office of State Attorney-General and Commissioner for Justice, is one delicate job that only the best of Lawyers should hold. Olawale Fapohunda, SAN is a two-term Attorney-General of Ekiti State, a trail blazer who introduced many innovations to the Justice Sector of his State, left uncountable, progressive legacies which will hopefully endure and be built upon by his successors-in-office. In a chat with Onikepo Braithwaite and Jude Igbanoi, the well respected and renowned Administration of Justice Sector Reform Activist, whose reputation goes beyond the boundaries of Nigeria, shared his vast experience in Justice Sector reforms, and his vision for a better regime of justice administration in Nigeria, including his altruistic quest for better welfare, working conditions and remuneration for judicial officers at all levels

Learned Silk, kindly, give us an overview of your two terms in office as Attorney-General and Commissioner for Justice of Ekiti State? What would you say were your major achievements, and what legacies have you left behind for your successors-in-office? 

I first came into office in 2012 until 2014. I was again reappointed in 2018. I had a clear idea and mandate from Governor Fayemi, on my key areas of intervention. The most important intervention area for me, was to strengthen the capacity of counsel in the Ministry of Justice to deliver on our mandate. It was clear to me from the onset, that achieving success in the other intervention areas depended wholly on an efficient and professional Ministry of Justice. We had to build good human resources policies within the Ministry, so that we could do our work well. It was important to me, that we achieved a professional cadre of Lawyers and non-Lawyers, who were able to promote the new values of the Ministry. Directly related to this, was providing career advancement possibilities for all those who work in the Ministry. To achieve this in concrete terms, I established the Ministry of Justice Academy. The first of its kind in Nigeria. It was through this Academy, that we facilitated training and continuous education programmes for staff of the Ministry. This initiative was not only targeted at Lawyers. We ensured that our administrative staff, were beneficiaries. So, I can confidently say that I have left behind an efficient, service oriented Ministry of Justice. 

By the time I left, we were largely focusing on service delivery and on verifiable results. 

The other area, was the need to revisit the manner we administered State legal affairs. We had to reaffirm the place of the Ministry of Justice, as the sole legal adviser the Government of Ekiti State. I simplified and made more efficient, the framework that I inherited. One of the innovations I introduced, was appointing State Counsel as legal advisers to all MDAs in the State. I also established  a department of advisory services, to monitor and supervise them. My main achievement in this area, was the provision of legal services to the State Government in an efficient and cost-effective manner. 

The other key intervention area, was the reform of justice system itself. Our administration of justice system in Ekiti State was in need of change, not change for the sake of it, but because our people wanted a more effective and open system of justice which is within the reach of the ordinary person. As a first step, I set out to address the special needs of disadvantaged groups such as women, children and rural communities. Notably, I set up a Citizens Complaints Centre in the Ado Ekiti Main market. The purpose of this was, to achieve access to professional legal services by our market men and women and indigents. This was also in response to the concerns, about lack of physical access to the Ministry of Justice. I embarked on awareness visits, to rural communities across the State. The main purpose of these visits  was to make people more aware of our new image, the services we provide and how to use them. I  completed the holistic review of the Laws of Ekiti State. Archaic laws were removed, and many laws were reformed to meet the aspirations of our people. I should also mention that, I translated some of these core laws into Yoruba language.  So, in terms of legacy, I will say I left behind a legacy of efficiency in the provision of legal and legislative services to the government and people of Ekiti State.

Some have argued that the role of Attorney-General and Commissioner for Justice should be separated, and the roles carried out by two people. What would you say makes them have that opinion? Do you agree? Is there a clash between the two roles?

I understand the concern, about independence of the office holder. My response has always been, we cannot cure the fear of independence by separating the office. A practical solution may be to ensure that persons appointed to the office of Attorney- General, whether State or Federal, are of  high professional standing and comfortable in their shoes. It is this high standard that will ensure the ability of the office holder to make decisions based on his or her conviction, and not on the directive of the appointor, in this case, the State Governor. 

In my case, I never had to act on directives from the Governor’s office. I admit that the exposure, understanding and personality of the Governor are key factors. If you have a Governor that does not believe in any rule of law but that set by himself, the Attorney-General will struggle. People often say that, in that case, the AG should resign. I agree, but that may only happen when the occupier of the office does not require the office to survive. My view is that, independence cannot be legislated. It is about appointing the right person to the office. 

 So much needs to be done in the administration of justice sector in Nigeria. Kindly, chart a course for the sector in 2023 – the Judiciary, Prisons etc

I think the first thing we need to do in 2023, is to undertake an in-depth assessment of all we have done in the sector, at least, since the return to democracy in 1999. I hear some of our colleagues often argue that, nothing has been done. That is not true. There have been a number of interventions, at both the Federal and State levels. Many States going further than the Federal Government. We need to have an understanding of where we are. I am proposing a holistic review of laws, the state of our justice institutions, and the adequacy of administrative interventions in the justice sector. 

There will always be the issue of where to start from, given the enormity of what needs to be done. I will suggest we start from our criminal justice system. This is an area where the Federal Government needs to reset its relationship with State Governments. Our failure to make progress in criminal justice administration, is today no longer simply a justice reform matter. It is now a matter of national insecurity. All parts of Nigeria, are victims of this limited progress. 

Of course, there is no way we can embark on this review without focusing on key justice institutions. The Judiciary, Police, Correctional Services and even the Justice Ministries. The outcome of the proposed review, will then enable us chart a path forward especially in deciding what has to be done, when it will begin, how long will it take, who will be responsible, what resources will be needed and what concrete indicators will tell us if we are succeeding. The bottom line is that, it can’t be business as usual. I think the emergence of a new government is May 2023, provides an opportunity for this review.    

Where do you place the issue of Judicial salaries and allowances in this your proposed review process?

Very high on the agenda. Also, it’s great to see that we are now making some progress. President Buhari’s recent approval of a review of judicial salaries and allowances, is a welcome development. I hear the cynical comments about timing, and whether this is not too late in the day. When all is said and done, this is progress, however one looks at it. There has been a lot of behind the scenes advocacy led by the NBA, before we got to this point. What is important now, is not to waste time on unnecessary debates and bureaucracy. All the information required for immediate implementation, is available. There is no need for any high-level Presidential committee on this, except for the purpose of discussing immediate implementation and appropriation. 

I was a member of the Technical Committee on the Review of Judicial Salaries and Allowances, which submitted its report in 2018. We recommended salary increase for all Judicial Officers. We observed that between May 1999 and March 2011, the Federal Government of Nigeria reviewed the salaries and allowances of Public Servants and Political office holders on four occasions, specifically in 2000, 2005, 2007 and 2011. However, the salaries of judicial officers were only reviewed twice during the same period. As a result, judicial officers have been on the same salary structure for over  13 years. 

While recognising the enormity of the economic challenges facing the nation, we agreed on the compelling need to increase judicial salaries. It was our view that judicial salaries must be set at a comparatively high public-service level, in order to remove both the temptation to corruption and public contemplation of the possibility of such temptation. We identified two main issues on judicial independence and salaries and conditions of service. First, the administration of salaries and conditions of service of judicial officers, should not be lumped together with that of other public or political office holders. As it currently exists, the provisions relating to judicial salaries and entitlements are to be found in the Certain Political, Public and Judicial Office holders (Salaries, Allowances, etc) Act 2002 and the Amendment Act 2008. Secondly, the review of judicial remuneration, should not be left to the discretion of the very arms of government on which they should not be dependent. 

In response to these concerns, we proposed a Judicial office Holders Entitlements Bill, to consolidate legislative provisions relating to judicial salaries and entitlements into a single piece of legislation. The proposed Bill supports judicial independence, by creating a modern statutory framework for determining the salary, allowances and conditions of service for judicial officers. Specifically, the Bill will create a Judicial Office Holders Entitlements Panel to replace the Revenue Mobilisation, Allocation and Fiscal Commission, as it relates to the Judiciary. I am pleased to note that, the President of the NBA is seeking to present this Bill to the National Assembly for its consideration.  

The Nigerian Bar Association witnessed a very disgraceful incident at its 2022 Annual General Conference, when Lawyers invaded the venue and looted conference materials from there. You and the Committee that you chair, were given the responsibility of unravelling the immediate and remote causes of the ugly incident, with a view of bringing the perpetrators to book. What has your Committee done so far? Have you been able to identify the perpetrators, and what further steps will the NBA leadership take on this matter? Will you have the perpetrators tried in a court of law? 

You may recall that on 5th September, 2022, the President of the Nigerian Bar Association (NBA), Yakubu Chonoko Maikyau, SAN inaugurated the Conference Incident Investigation Committee (CIIC), to investigate the disturbances and report its findings to the National Executive Committee of the NBA. I was appointed to Chair the Committee, CP Lough Simon Asamber, SAN, was appointed Alternate Chair. The Committee was mandated, among others, to investigate and establish the cause of the disturbance, with reference to any contributing immediate and remote cause(s), as well as investigate and establish the identities of the persons involved in the disturbances. We were also asked to make recommendations, taking into consideration the Constitution of the Federal Republic of Nigeria 1999 (as amended), Constitution of the Nigerian Bar Association, 2015 (as amended in 2021), Rules of Professional Conduct for Legal Practitioners 2007 and other relevant legislations, policies and guidelines. The Committee was mandated to  recommend measures to ensure the future safe conduct of Annual General Conferences of the NBA.

The Committee considered considerable evidence submitted by the Conference Service Providers, Technical Committee on Conference Planning, Bar Leaders, Members of the Bar and members of the public, in making its preliminary findings and recommendations. We presented our preliminary report to the NBA National Executive Council, at its December 15 meeting. 

Without going into the details of our findings, there is a consensus within the Committee that the conduct of those persons brought shame and embarrassment to the NBA specifically, and the legal profession generally. Our recommendations reflect the Committee’s conclusion that the incident is of a serious nature, and that strong measures should be applied to deter its future occurrence. Concerning the identification of specific persons, at the NEC meeting we released the photographs of certain persons who we believe may be able to assist us in achieving our mandate. We note the hullabaloo that resulted, consequent upon that publication. It may again be helpful to re-emphasise that we did not say that those persons whose photographs were published, were the culprits. We simply called for assistance in identifying them, to enable us conclude our investigation. 

Going forward, we have made some progress, and we will be inviting those persons to a meeting early this month. We plan to submit our final report to NEC, no later than end of January. It will then be left for NEC to take the next steps.   

What are your observations about the new 2023 Guidelines for the conferment of the rank of Senior Advocate of Nigeria, especially as it relates to the Academic category? It also seems as if the rank is gender insensitive, with a total of 40 women or less being elevated to the rank since it’s inception, out of a total of about 752; is this because we are all gentlemen at the Bar?

I agree that there is a need for a review of the guidelines, for the conferment of the rank of Senior Advocate. I am respectfully however, unable to agree with the recent amendments.  

The amendments should have been broader, and should have gone to the root of the values that the NBA holds dear. For example, lawyering in public interest. We need to encourage Lawyers, to do more public interest work. The limited pro bono cases requirement for advocates is, in my view, inadequate. The NBA has for a while now been concerned about how to respond properly to the legal needs of Nigerians, especially the poor and the indigent. Given the number of Lawyers in Nigeria, we should be doing more. The requirement for pro bono work, should not only be about litigation. There is an emerging consensus that we need to change the way that those who go into the legal profession, are educated and trained. There are many practicing Lawyers whose experience and knowledge across the various fields of law, would be invaluable in our Law Faculties and indeed, the Law School. There is also an urgent need for law reform. It is often said that our problem in Nigeria is not the absence of laws, but the implementation. I agree, but this may also be as a result of drafting un-implementable laws. So, we need Lawyers skills in this area. 

There are also a large number of Lawyers who have dedicated their lives, working in the area of public legal education. These are the ones, who are consistently contributing to our understanding of the law. They need to be recognised. What I am saying is that, we need to ensure that the conferment of the title responds to the legal needs of our country. I am concerned about the limited number of female Lawyers within the rank. I have always disagreed with the, ‘we are all men at the Bar’ reasoning. Holding on to this reasoning, may inadvertently be undermining the growth of female Lawyers in the profession. Thankfully, I am aware that the President of the NBA has began consultations on this issue. Hopefully, we will begin to see changes.     

There have been very worrisome developments, in the Nigerian legal profession recently. Suddenly, and to the chagrin of many Lawyers, a splinter body of Lawyers under the aegis of Law Society of Nigeria emerged. What, in your view, does this portend for the cohesion of the Nigerian legal community?

It is really difficult to understand the reasoning of those behind the latest clamour, for a Law Society of Nigeria. This is, more so, when the original founders have publicly distanced themselves from the idea. They have stated that the idea was muted, when the NBA was being muscled during the military era. This is not the situation today. Now, if the recent clamour is based on the ideal of an effective Bar, then it seems to me that the best way forward, is to seek to strengthen what we have now in the NBA.  Achieving the ideal of a Lawyers Association that meets the aspirations of all Lawyers, cannot be met by the breaking up of the NBA. I agree that, at various levels the Bar needs strengthening. However, the NBA can only be as virile and strong as its membership. 

Starting from the Branches, we need more Lawyers to get involved in the administration of the Bar. The NBA Sections, can do with more active participation from members. The Law Society discussion is a distraction. This is not the time for such distraction. This is the time when all Lawyers need to unite as one body, and engage the many issues we are facing as a country. Tackling the impediments to the rule of law, achieving accountable political leadership at all levels of government, the crisis of insecurity, our weakening justice sector, inadequate legal representation for marginalised communities, to mention a few. These are some of the issues millions of voiceless Nigerians expect the NBA to speak out on, on their behalf. As we approach the 2023 elections, we need a united Bar that will speak with one voice on the unfolding political situation in the country.  

You did a lot of work in the area of violence against women in Ekiti State. On a national scale, it would appear as if the country is still struggling with this issue, particularly if the daily media reports of sexual violence nationwide are taken into consideration. You are also a very strong advocate of gender parity/affirmative action, especially admitting women to important political positions in every strata of government and public service. What would be your advice for the incoming administration at Federal, State and Local government levels? 

Reversing the everyday occurrence of violence against women, will not happen overnight. We need a lot more political will to make a difference. It is true that the Nigerian Governors Forum with the buy-in of the Presidency, declared a national emergency on this issue. That was an important first step, in acknowledging that we have a problem. The challenge the Governors face on a daily basis, is how to translate this declaration into evidence-based results, especially for women and girls in their States. The role of the Governors, will always be crucial. 

In Ekiti State, whatever success we recorded, was largely based on the leadership of Governor Fayemi. The office of the Wife of the Governor, also played an important role in translating the declaration by the Governors Forum into concrete deliverables. We enacted one of the most progressive laws anywhere in the world, prohibiting gender based violence. We backed the law with several administrative interventions, including opening a register of sex offenders. We were the first in Nigeria, to do so. The State Executive Council approved our name and shame policy. Here, we published the details of persons convicted of sex offences. We provided a legal framework for these policies, in the Criminal Law of Ekiti State. As a deterrent, we ensured that persons convicted of sex offences, do not benefit from Mr Governors power of prerogative of mercy. We opened a Referral Centre for victims of sexual violence. The Centre was established, to provide medical and other interventions for victims. We enacted a victims of crime law, that includes victims of sexual violence. I am not aware of the existence of this law, in any other State in Nigeria. Our purpose is to recognise victims, in our criminal justice system. 

We initiated and sustained a women’s economic empowerment programme. This we did, in recognition of the nexus between economic dis-empowerment and gender-based violence. 

No less important, was our recognition of the important place of women in public office. If our women can campaign and bring out the votes, they are good enough for public office. This has always been an Ekiti State policy, but we went a step further by enacting a law to make provision for female appointments into political offices. The Ekiti State Political Offices (Gender Composition) Law, provides for the appointment of 35% of women in political offices. 

Put together, our goal was to leave our people in no doubt, about the State Government’s commitment to women’s full and equal participation in all facets of our society. 

After your successful tour of duty as a two term   Attorney-General,  what is next for Olawale Fapohunda, SAN?

My initial thought, was to take a break. After just about a decade in government, it is necessary to take it easy for a while. Regrettably, I can’t do that. I still believe that there is much to do in government, especially at the Federal level. No doubt, a lot has been achieved in the justice sector, but there will always be the need to do more.  The administration of President Buhari, has set the agenda for a number of interventions in the sector. The job is not yet completed. We have moved a long way along the path of reforms, but we are not there yet.  

If there is anything I learnt from my experience in Ekiti State, proposals for reform and change have a fighting chance of happening, if one is around the table where those decisions are made. I know that for most of the ideas I have put forward in this interview to happen, I will have to position myself in a manner that makes my voice heard, especially at the Federal level. It is for this reason that I intend to participate actively in the deliberations of the party that I served, particularly on issues of reform of the administration of justice system in Nigeria. 

I have also spent much of my time since leaving office, writing my memoirs and encouraging my friends to get involved. Again, change will not happen if we all sit in our comfort zones arguing that ‘politics is dirty’. Our politics is not self-cleansing, and it is not likely to be for a while. Those who are waiting for clean politics, may have to wait indefinitely. The energy, time and resources many of us deploy on social media complaining about the state of the nation, including the challenges facing our justice system, can best be used by directly engaging the political parties and their leadership. We simply have to find a seat on the table, where these issues are being discussed. I have told my friends that Lawyers, by our training, are well suited to take active leadership roles in the political process. Our daily association with people helps us develop people’s skills, skills that would serve any politician very well. In addition, our court room skills, will always give us an edge in the rough and tumble world of politics. 

My final thoughts are that Lawyers should get involved. We should stop complaining, roll up our sleeves and get involved. 

Thank you Learned Silk.