’During Obasanjo’s Administration, NJC Sacked 47 Corrupt Judges’
Though Nigeria has never lacked Human Rights Activists, Femi Falana, SAN is one of the foremost Human Rights Lawyers who has, over the decades, even from the military days, stayed committed in the cause of the crusade against societal injustice. As our first interview personality of the year, Onikepo Braithwaite and Jude Igbanoi sought out the international human rights and anti-corruption crusader. In his characteristic manner, he fearlessly spoke truth to power, even on the most troubling issues in the polity, not minding whose ox is gored
The past few weeks have been quite busy for the human rights community, especially with the face-off between human rights Lawyer, Dele Farotimi and the doyen of the legal profession, Aare Afe Babalola, SAN. Arresting Farotimi on allegations of criminal defamation and cybercrime offences following the statements his book titled ‘Nigeria and Its Criminal Justice System’, the subsequent arraignment and detention in Ekiti State didn’t sit quite well with many people, within and outside Nigeria, some of whom believe that defamation is a civil wrong, having been decriminalised in several jurisdictions, including Ekiti. As a human rights Lawyer, what is your take on the entire episode?
The criminal cases against Mr Dele Farotimi are pending in two courts. So, I cannot comment on the materiality of both cases because of the principle of sub judice. But upon the arrest of Mr. Dele Farotimi in Lagos, I was the first to condemn it. I demanded for his immediate release, and advised whoever he had allegedly defamed to sue for libel in a civil court. When I later learnt that Aare Afe Babalola, SAN was the Complainant, I reached out to him and suggested a libel suit instead of pursuing a criminal complaint. Even though my advice was turned down at the material time, I remain convinced that is the best way to handle the matter.
A few months ago, two journalists were arrested and charged with criminal defamation for embarrassing President Barrow of The Gambia. I was one of those who prevailed on the President of that country to drop the criminal charge. The charge has been dropped, while the President has opted to pursue a libel suit.
Having read Mr Farotimi’s book entitled “Nigeria and Its Criminal Justice System”, I believe very strongly that Aare Afe Babalola, SAN ought to institute a libel suit in order to redeem his reputation.
Can a Senior Advocate of Nigeria appear in a Magistrate Court?
For sure, a Senior Advocate of Nigeria is entitled to appear in any court to defend a client. I do appear in general courts-martial and special courts-martial to represent accused officers and soldiers. I also appear in Magistrate Courts to represent clients. From time to time, I appear before a Coroner to inquire into the causes of violent deaths. Of course, I also appear before judicial or administrative panels of inquiry.
Under the Ekiti State Criminal Procedure Law, it is specifically provided that a legal practitioner, regardless of his or her status, is entitled to represent a client in any criminal matter. I was told that the trial Magistrate in the case of Dele Farotimi agreed with the constitutional right of a defendant to a counsel of choice, but that he was bound by a judgement of the Court of Appeal which had barred Mr Adeyinka Olumide-Fusika, SAN from appearing in a Magistrate Court in a particular case.
In the case between the Falanas and Very Darkman, you chose the path of rule of law despite obvious provocation. What exactly transpired in this matter? What is the position of the case?
In spite of the provocation and pressure, I decided to file a civil suit in the Lagos State High Court. My son, Falz equally filed a libel suit in order to redeem his reputation. We did so for a couple of reasons. First, i am involved in the campaign to decriminalise free speech in Africa. Second, the Cybercrime Act has been amended to remove cyberstalking, defamation, annoyance and insult. So, I could not have asked the Police to prosecute anyone under a law that has been amended to guarantee freedom of expression. It would have been embarrassing for me, if it was reported that I had invoked criminal libel to challenge the defamation of my character.
Recently, a report by the NBS/UNODC claiming that the Nigerian Judiciary is the most corrupt institution in Nigeria made the rounds. Do you agree? Do you think this assessment of the Judiciary is fair? What steps can the Judiciary take to reverse this extremely negative narrative and perception?
I do not agree with the categorisation of the Judiciary, as the most corrupt institution in the country. Notwithstanding its shortcomings, the National Judicial Council (NJC) has an inbuilt mechanism for dealing with erring Judges. No doubt, there are some corrupt and incompetent Judges. But, that cannot be a basis to say that the Judiciary is the most corrupt body in Nigeria. I am in a vantage position to assess the Judiciary. Nigeria has continued to produce very good and incorruptible Judges. Concerned Lawyers must not bespatter the face of the Judiciary, with the paint brush of shame. Our duty as citizens is to isolate corrupt Judges, and expose them through petitions submitted to the NJC. That is better than the indolent way of rubbishing all Judges.
Under the current political dispensation, Judges who were found guilty of misconduct have been removed from the Bench on the recommendations of the NJC. In 1994, the Sani Abacha military junta set up the Kayode Eso Panel, to rid the Judiciary of corrupt judges. The Panel did a thorough job, but some of the indicted Judges were friends of the ruling military junta. So, the report was dumped in the archives. But, at the end of military rule, the News magazine got hold of the report. Since the government did not issue a White Paper, the Editors were advised not to publish the report. But, I advised them to publish the report. They did, and the Olusegun Obasanjo administration forwarded the report to the NJC for necessary action. The NJC acted on the report, investigated the indicted Judges. At the end of the inquiry, 47 Judges were sacked for corrupt practices and other malfeasance. In addition, not less than 20 others, including 3 Justices of the Court of Appeal have been given the boot in the past 25 years. Last month, two Judges were recommended to be removed by the NJC, for producing fake affidavits of age to remain in the service.
In order to remove the perception that the Judiciary is the most corrupt institution in Nigeria, the NJC must redouble its efforts to rid the Judiciary of bad eggs. The Nigerian Bar Association must assist the NJC, because Lawyers, particularly senior Lawyers, know all corrupt Judges in the country. The Nigerian Bar Association has 5 members in the National Judicial Council, and 2 members in the Federal Judicial Service Commission. The members have not been representing the Lawyers of the Nigerian people. I am aware that progressive Lawyers have had to drag the NJC to court, over the appointment of unfit candidates as Judges. The battle to sanitise the Judiciary, has also become a risky venture for a few Lawyers.
It has been alleged that Lawyers who are critical of corruption in the Judiciary are usually harassed by many Judges. Is it true?
My experience is that, Lawyers who have irrefutable evidence of misconduct by judicial officers cannot be intimidated. On one occasion, I gave a public lecture where I said that Nigerian courts had become supermarkets, which are patronised by the rich. Two Judges invited me to confirm whether their courts were part of the supermarkets. I asked for issuance and service of summons on me. Perhaps, convinced that I would challenge the validity of such summons, the Judges did not issue them. I reported the matter to the NJC. Even though the NJC dismissed the petition, my cases were transferred from both Judges to other courts.
On another occasion, a Judge was accused of selling justice in a tribunal headed by him. He was probed and charged with corruption. I was not the petitioner, but he wanted me to intervene on his behalf. I advised him to resign, but he didn’t like it. So, he threatened to kill me. He sent 10 text messages that contained death threats, in less than 24 hours. I reported him to the Police. The allegation was quietly investigated and confirmed. The report was one of the justifications for the removal of the Judge from the system.
Despite the crusade of selfless personalities like you, systemic corruption appears to be rife in Nigeria and also appears to have defied every effort by successive administrations to curb it. What are we not doing right in the fight against corruption?
It is common knowledge that capitalist countries are very corrupt, because the system is built on fraud and sustained by exploitation. The difference between advanced capitalist countries and neo-colonial States, is the attitude to the rule of law by the ruling classes. According to Professor Akin Oyebode, the 11th commandment of the bourgeoisie is ‘thou shall not be caught’. In the West, if you are caught, the law will deal with you. By sacrificing a member of the ruling class, the impression is created that there is equality before the law. Hence, Lord Alfred Denning once stated that, no matter how high you are, the law is higher than you. But, in a neocolonial, capitalist country like Nigeria, the members of the ruling class are higher than the law. Hence, it is very difficult to investigate and prosecute politically exposed persons, because they have the means to frustrate their prosecution. As far as I am concerned, a leader who is determine to fight corruption must be prepared to commit class suicide. Hence, only a revolutionary government can seriously confront the menace of corruption. That is a major challenge before the left forces in the country, because Mao Tseng had said that a revolution is not a dinner party, but an insurrection in which one class overthrows another.
Why do Nigerian Lawyers not seem to be too active in the African Courts like the ECOWAS Court and other international fora, like Nigerian Judges who are serving in such courts?
The Federal Government is solely responsible for denying Nigerians the opportunity to appear before the African Court. By virtue of Article 34 of the protocol of the establishment of the African Court on Human and Peoples’ Rights, member States of the African Union are required to make a declaration accepting the African Court’s jurisdiction to receive complaints from individuals and non-governmental organisations (NGOs). As of December 2024, only eight States have made the declaration. This means that only individuals and NGOs from the eight States can directly access the court, even though 34 States have ratified the protocol. Nigeria is not one of them. All appeals made to Nigeria to sign the declaration, has fallen on deaf ears.
Since the African Court on Human and Peoples Rights was established in 2006, I am the only Nigerian Lawyer who handles cases in the Court. Even though many Nigerians appear in the ECOWAS Court, the Government of Nigeria does not comply with the judgements of the regional court.
However, Nigerian Judges are doing very well in international courts and regional tribunals. They include Judge Stella Anukam of the African Court on Human and Peoples Rights in Arusha, Tanzania, Judge Eboe-Osuji of the International Criminal Court in Netherlands (completed his term in 2021), Judge Dupe Atoki of the Community Court of Justice otherwise known as ECOWAS Court in Abuja and Mrs Abiola Idowu-Ojo, the Executive Secretary of the African Commission on Human and Peoples Rights in Banjul, Gambia. By the way, Dr Taoheed Olufemi Elias is being sponsored by Nigeria, for the Presidency of the International Court of Justice. Also, Nigerian Judges who are serving in the Gambia and in one of the Caribbean countries.
To what extent would you say the recent minimum wage increase of the Nigerian worker from N30,000 to N70,000 has been effective, where a worker’s one month salary cannot even afford a bag of rice? Is N70,000 the living wage that the Constitution contemplates? Some States have even openly stated that they are unable to pay the N70,000 minimum wage. Given the humongous revenue they collect from the Federal Government, is this justified?
What was negotiated between the Federal Government and the trade unions, was a national minimum wage. But, what the Constitution provides is a living national minimum wage. The increase of the national minimum wage from N30,000 to N70,000, has no effect on the earning capacity of a worker. Since a bag of rice is not less than N100,000, workers have banned rice from their menu. In fact, in the majority of homes, Nigerians can no longer buy rice, beans, and even gari. Workers can no longer send their children to school. They can no longer buy drugs or pay rent. So, the President cannot say that the economic policy that breeds poverty, disease and death will not be reviewed. The N70,000 minimum wage in a country where a Senator earns N21 million per month, has made a mockery of income disparity in Nigeria. I have been informed that the trade unions have resolved to commence a struggle for a living national minimum wage, in view of the fact that the Government has devalued the national currency and withdrawn subsidies from fuel and electricity.
Since the Tinubu administration assumed office in 2023, there has been demolition of properties for one infraction or the other in Lagos State. Now, the FCT appears to be doing even more, with land allocations being revoked and properties being demolished. The FCT Ministry maintains that it is playing by the book. Kindly, share your views on this
The demolition of houses in Nigeria without due process, is completely illegal. The right to housing is guaranteed by the Constitution, and the African Charter on Human and Peoples Rights. Under the current political dispensation, the fundamental rights of citizens cannot be infringed upon by any public officer without due process. If any citizen takes over my property, I cannot embark on self-help to eject the trespasser. In like manner, the Minister of the Federal Capital Territory cannot proceed to demolish the property of any citizen without following laid down procedure. Specifically, the Minister of the Federal Capital Territory lacks the power to demolish any house without seeking and obtaining an order from the Urban and Regional Planning Tribunal in the Federal Capital Territory. In Oboh v Minister of the Federal Capital Territory, the High Court of the Federal Capital Territory held that properties cannot be demolished, without an agreement reached with the owner or the occupier of a property.
When Senator Ahmed Bola Tinubu was the Governor of Lagos State, the Federal Government was sued over the forceful seizure of the statutory allocations belonging to the local governments in the State. In its epochal judgement, the Supreme Court held that President Olusegun Obasanjo did not have the power to seize the funds of Lagos State local governments on the basis of his whims and caprices. The Apex Court advised the Federal Government to stop engaging in self-help or brute force, instead of approaching the court for redress. So, President Bola Ahmed Tinubu cannot support the resort to brute force or self-help in the demolition of the houses of citizens by Minister Wike.
I have also confirmed that, court orders suspending the demolition of some of the houses were treated with disdain by the demolition squad. Even under a military junta, the Supreme Court ordered the Lagos State Government to restore the late Chief Emeka Ojukwu to the property that was the subject-matter of an appeal pending in the court. The Kano State Government has just been ordered to pay compensation of N8 billion, for demolishing a property without due process. I am aware that the Federal High Court, in three separate judgements, had ordered the Federal Government to pay compensation of about N199 billion for the illegal demolition of properties in Odi in Bayelsa State in 1999, Zaki Biam in Benue State in 2001 and Gbaramotu in Delta State in 2009.
Since all actions of the Government shall be humane, just and fair it was wrong on the part of President Tinubu to have publicly endorsed the illegal demolition of houses in the Federal Capital Territory. Notwithstanding the Presidential endorsement of the demolition of several properties in the Federal Capital Territory, all the victims should approach the courts for legal redress.
What is your opinion of the new Tax Reform Bills, particularly that of the VAT? Many believe that it is a good initiative, and the new distribution formula somewhat fairer to those who generate it. Kindly, comment on this
The National Economic Council constituted by the Vice President, Minister of Finance, Central Bank Governor and the 36 State Governors advised President Tinubu to afford Nigerians the opportunity to study and debate the Tax Bills. That was a united voice. But, the President ignored the wise counsel and forwarded the Tax Bills to the two Houses of the National Assembly, where he had thought they would be passed without any debate. But, the debate on the tax reforms Bills, has polarised the country along ethnic lines. Some politicians in the South have gone to the extent of accusing Northerners of sharing VAT from alcohol consumed in the South. Those politicians have failed to realise that, the Southern States share from the huge VAT from tobacco that is largely consumed in the North.
Under the Bills, overburdened citizens are going to pay more taxes to enrich the Federation Account to the benefit of the three tiers of government. For instance, the controversial Value Added Tax or VAT will be increased from 7.5% to 20% in the year 2030.
As far as I am concerned, the National Assembly lacks the power to pass the Tax Bills. VAT is neither on the Exclusive Legislative List, nor the Concurrent Legislative List. To that extent, it is a residual matter. As such the National Assembly cannot legislate on it. As the then Governor of Rivers State, Nyesom Wike obtained a judgement that affirms that VAT is a State tax. The appeal of FIRS, which is pending in the Supreme Court, will be dismissed as the law is very clear on the matter. Therefore, a constitutional amendment is required to include VAT in the tax reforms Bills. Secondly, the tax Bills have proposed a new allocation formula for the country. That is the exclusive constitutional mandate of the Revenue Mobilisation Allocation and Fiscal Commission. The transfer of the power to distribute revenue from Revenue Mobilisation Allocation and Fiscal Commission to the tax authorities, requires another constitutional amendment.
The funding of TETFUND will stop in 2030, without any replacement. The implication is that, students are going to be charged skyrocketing fees for the running of the tertiary institutions. That is a major burden for the poor. The World Health Organisation has recommended a budgetary allocation of 15% for health. By law, only 1% of the Consolidated Revenue is earmarked for health services in the 2014 National Health Act. I would have voted for the tax Bills if the budgetary allocation for health, education, and other services are going to be increased.
Recently, the Edo State Government suspended 18 Local Government Chairmen and Deputies. Despite warnings from the Federal Government through the Attorney-General of the Federation, Governor Okpebholo has continued with the impunity. What does this say about our style of democracy and the relationship between Federal and State?
I want to believe that the Edo State Government was not well advised on the full implications of the Supreme Court judgement, in the case of the Attorney-General of the Federation v Attorney-General of Abia State & Ors on local government autonomy. The Government ought to have known that the payment of the statutory allocations belonging to the local governments in the State has stopped, in line with the terms of the judgement. The Acting Chairmen appointed by the Governor to manage the local governments, are not recognised by law. It is a complete diversionary show of power, by Governor Okpebholo.
Nigeria is witnessing poverty, at a level never seen before. 35 minors were reported to have died in a stampede at Ibadan, while struggling for handouts. Another 22 also died in Anambra State, also in Abuja under similar circumstances. What does this say about Nigeria? How far are we from the proverbial ‘eating from the dustbin’?
Owing to the poverty induced policies of the governments, the poor are experiencing hunger in all the States of the Federation. In the last two years, stampedes occurred in the West and East, North and South where 115 people were killed. It is indisputable that, the remote cause of the stampedes is poverty. But, the immediate cause is the failure of the Police to provide adequate security at the venues of the distribution of rice and other food items. Since the country had witnessed stampedes triggered by mass hunger for over a decade, the Government ought to have put in place a mechanism for preventing the reoccurrence of the tragic incidents. Having failed in its duty to prevent the stampedes and protect the victims, the Federal Government should pay compensation to the survivors, as well as the families of the casualties.
How you would you assess the Tinubu administration so far, almost two years in office, vis-à-vis its Renewed Hope Agenda? Was the removal of the fuel subsidy and/or the implementation of the policy done properly, considering the economic hardship Nigerians are experiencing?
The renewed hope agenda was designed to consolidate the implementation of neoliberal economic policies, in line with the dictates of the International Monetary Fund and the World Bank. Hence, both Bretton woods institutions have been lauding the Bola Tinubu administration, while the people are experiencing excruciating economic pains. I listened to the President’s media chat, last week. It is apparent that the President believes that the implementation of neoliberal economic policies, will transform Nigeria to a land of prosperity. On the contrary, the removal of fuel subsidy, increase in electricity tariffs, floating of the currency and devaluation of the national currency, will continue to promote poverty in the land. According to the Manufacturers Association of Nigeria, about 767 manufacturing companies shut down operations, while 335 others experienced distress in 2023. Many more companies may close down this year due to exchange rate volatility, inflation of 34% and a hostile business environment. The implication is that the unemployment crisis has been compounded, while the taxes collected from the companies have dried up. Unless the Government reverses the neoliberal economic policies and empowers Nigerians to run the country, no meaningful development will take place.
I have taken a cursory look at the 2025 budget of the Federal Government. It is a complete rehash of official profligacy and opulence. There is no evidence, that the political leaders are prepared to make any sacrifice. Indeed, while the masses are asked to be patient, the budgets of the executive, judicial and legislative organs of the government have been increased. Similarly, the budgets of the regional development corporations have equally been increased, for the benefit of members of the political class. Nigerians have been told, loud and clear, that the Government is not prepared to review the policies that promote poverty, disease, unemployment, insecurity and corruption in the country. I expect genuine progressive forces to mobilise the people to reject the further implementation of the unpopular policies of the Nigerian State.
Thank you Learned Silk.
