Arraigning NBA President is like destroying the Bar – Quakers SAN

Mr Norrison Quakers, a Senior Advocate of Nigeria, in this
interview with OLADIMEJI RAMON, appraises
President Muhammadu Buhari’s anti-corruption war in the last four
years

It’s less than five months to the end of the leadership
mandate secured by President Muhammadu Buhari in 2015. His
administration is headlined by the anti-corruption fight. In your
assessment, do you think the administration has scored a pass mark
in this effort?

How do you measure success? It is in terms of the impact of the
crusade on the entire Nigerian society. Has the President’s
anti-corruption crusade and posture had any positive impact on the
societal fabric? I’d say no. And the reason for that is because as
we speak corruption is still prevalent in our system. Yes, some
people have been tried and convicted and there are some ongoing
cases in court but as to the holistic impact of the crusade on the
Nigerian society, I will say no; and that’s with due respect to the
person and the profile of the President. Even in his cabinet, the
then Secretary to the Government of the Federation was also alleged
to have conducted himself in a compromising manner. He’s been
fished out but has he been tried? The head of the DSS who was
accused of setting aside a humongous amount of money, up until this
moment as I speak nothing been said about government’s position on
that issue.

By and large, there are a number of people that are being tried
but the President himself has also admitted that corruption is
fighting back. So, it means that the war against corruption has not
been won. But I give it to the President because of his person –
you can’t fight corruption if your hands are dirty. The President’s
personality has instilled fear in the minds of the people in the
system and around him. But it appears that corruption has taken
another dimension in the country.

One of the greatest things that one can say the President has
succeeded in addressing is that there’s no more free government
money because of the implementation of the Treasury Single Account.
You now have a single account, rather than multiplicity of
accounts, into which all government funds go. Before now, it was an
opportunity for politically-exposed persons to fritter government’s
funds away. But now, that has been addressed. However, the
anti-corruption fight must be holistic and the only way is to block
all leakages in the system. On that, the government hasn’t done as
much as it ought to do.

Again, some have also said that the crusade is selective.
Without mentioning names, how do you explain that some persons are
standing trial for corrupt enrichment and the same persons are also
involved in the electioneering campaign of the President? That, for
me, is not ideal. What signal are you sending to the larger
society? So, I won’t say that this government has succeeded
holistically in fighting corruption but the foundation has been
laid and it’s no longer business as usual.

Why has the Administration of Criminal Justice Act, 2015
not worked in fast-tracking the trial of high-profile corruption
cases despite its many radical provisions?

I think you are limiting your assessment to Lagos and it is
because Lagos is the hub of litigation. Just recently, I read in
the papers that the NJC (National Judicial Council) made an
assessment of the impact of the Administration of Criminal Justice
Act, vis-a-vis criminal litigation and gave a pass mark, almost
like saying 80 per cent success in terms of trials and convictions.
It also gave a pass mark to agencies like the EFCC, the ICPC, NDLEA
and some other agencies.

While it is not foolproof that the law in itself is enough to
ensure speedy dispensation of justice, to a large extent, the law
has worked. Sometimes, the delay is caused by the way charges are
couched. If we manage cases in court and we have seasoned lawyers
as prosecutors, the Administration of Criminal Justice Act will
then be seen to be effective, because everything that needs to be
defined has been defined by the Act. We must address the human
element. We can’t legislate conduct. The reason for the delay is
not because the law is not effective; it takes human being to drive
the law. If the law must succeed, there must a change in our
attitudinal disposition to the effectiveness of the law.

Why is it that in criminal cases the defence is usually
more resourceful than the prosecution? Often the defence team is
populated by SANs, while the prosecution is usually made up of
upcoming lawyers. Is it that government doesn’t engage SANs or SANs
don’t find government briefs attractive?

I don’t think that it is because SANs don’t find government
briefs attractive. Some years ago, I was approached by a very
prominent person who said to me, ‘I’d like you to prosecute for the
government’. Now, I don’t work for an investigative or law
enforcement agency; I’m a private practitioner; and therefore, if I
have to prosecute, you must do a thorough job before bringing the
file to me; I must see that what you are bringing to me must be
such that cannot be impeached in court; the evidence must be so
overwhelming that when I take up a matter, I don’t get there and be
told that, ‘Oh, no, certain things that ought to have been done,
weren’t done’. And so, for that reason, an otherwise simple and
straightforward criminal case is thrown out.

A prominent senior advocate said some years ago that the
government is not serious about fighting corruption through the
court; if it were not so, the government would equip and kit the
private-sector practitioners to take up these matters. Some private
practitioners might do it for the love of the country, some for
financial benefit, some because they are just interested in
prosecuting. How do you get any of the prominent Senior Advocates
of Nigeria to take up corruption cases? It is first by approaching
and discussing with them to know what their terms are. The current
administration set up a prosecutorial team; how effective has that
team been? How many lawyers of the prominent stock are in the team?
How many convictions have they secured? Is it also another avenue
to “create job for the boys?” For me, the reason why a lot of
seasoned private practitioners would not take up any of those cases
is because of lack of will on the part of government. If the will
is there, the government will pay.

But in fairness, you have some government prosecutors who are
doing very well, who are using their personal resources. Many years
ago we knew some of them; some of them, today, are retired. If the
government is serious, these are people that can be engaged. There
is a man called Fola Arthur-Worrey, a former Solicitor-General of
Lagos State; I don’t see why a person like that should not be
engaged to prosecute on behalf of government. And there are many
like him out there who have retired from the civil service and are
now consultants. In other civilised climes, people like that would
not be allowed to go; you’d find a way to engage them and ensure
that they regularly prosecute for government and also train other
prosecutors.

You cannot expect a prominent lawyer to take up a corruption
matter without discussing terms and it will depend on the kind of
case. For instance, a high-profile case involving high net-worth
defendants, should be handled by high net-worth lawyers as
prosecutors because a lot of the lawyers have invested in their
practice.

I give it to the Economic and Financial Crimes Commission; I
think there’s a consciousness to invest in the prosecutors because
they go for training and they also subscribe to legal information.
The ones I’ve appeared against in court, I commend them for their
industry. It’s no longer business as usual. I don’t know about the
ICPC and the police but for the EFCC (it’s no longer business as
usual).

It seems to me the only SAN prosecuting for the EFCC is Rotimi
Jacobs, then Festus Keyamo. Who else do you know of the silk stock
that is prosecuting for the EFCC? I recall that not to long ago,
Chief Adegboyega Awomolo (SAN) was also prosecuting; then there is
Mr Dipo Okpeseyi (SAN), who is in the government prosecutorial
team. For a population of about 200 million people, these are the
few prominent senior advocates that are prosecuting for the
government. It’s shameful and I remember not too long ago that one
of them even complained about dearth of materials, dearth of
evidence or information. As a SAN, you don’t want to be disgraced.
You take up a case and get to court only for the matter to be
thrown out for shoddy investigation. So, that’s a disincentive for
some SANs to prosecute for government. The government needs to do a
lot in that regard. If you want private lawyers to be involved in
prosecution, you have to create a war chest and be transparent
about it.

Whether we like it or not, this is a system that encourages
corruption and that’s another reason why it will also be difficult
for some other senior advocates to take up some of the matters.

The leader of the Nigerian Bar Association in on trial
by the EFCC for alleged corruption. How do you feel about
this?

It’s not ideal; it’s not good. But again, time does not run
against crime; criminal actions are not time-barred. It’s not about
the occupant of that office, it is the office itself. You can
investigate while the occupant is still there, but you defer to the
office. The President of the Bar will only occupy that office for
two years and there is no time bar, so, you can wait and once he
steps out you arraign him. The man entering the dock is not the
man, it is the institution that he represents that is now being
tried. That’s where I differ. While I don’t have anything against
anybody being tried, there is a need for discretion. A governor who
is found to have corruptly enriched himself while in office is
protected by executive immunity. The law provides for the removal
of that governor from office for the purpose of trying him but
usually they wait for him to finish his tenure. Wasn’t that what
they did to the former Ekiti State Governor? Has he not been
arraigned? Is he not facing his trial now? The former Governor of
Abia State, has he not been arraigned? Is he also not facing his
trial now? For me, it has to do with the institution that the
President of the Bar represents. He is seen as the President of the
Nigerian Bar. By putting him in the dock, it is actually the
Nigerian Bar that is being showcased because he’s standing there
not in his individual capacity because right now you can’t separate
him from the institution that he is representing. They should have
allowed his tenure to lapse; it’s just two years, then do whatever
they want with him.

But if that is done, other professional bodies, like the
NMA, ICAN, etc, will also be clamouring for the same
treatment?

If the Senate President, the number three citizen, can stand
trial in his capacity as Senate President, it means anybody can
stand trial. Apart from the President, the Vice-President and
governors, who enjoy executive immunity, anybody can stand
trial.

Yes, the President of the Bar does not have immunity, the
President of the Nigerian Medical Association does not have
immunity, the President of ICAN does not have immunity but there is
also a place for discretion. We need to respect the institutions
that these persons represent. If you have facts that they have
breached laws, either before their emergence as a representative of
a professional body or while in office, you should wait until after
their tenure. What you’ve done now (by arraigning NBA President) is
that you have desecrated and destroyed an institution. That’s the
way I see it. It’s not about him (NBA President); it’s about the
institution he represents. After all, they tried and convicted a
senior advocate but he was not representing an institution. You are
trying the President of the Nigerian Bar Association? When he
enters the dock, he enters in his capacity as Paul Usoro (SAN), but
presently, he is the President of the Bar. Since, there is no time
bar, why can’t you simply wait till he finishes his term? Assuming,
without conceding, that after all of this, he is not found
culpable, what have you done to the institution? What have you done
to the psyche of all lawyers in the system? You take the embodiment
of the Bar or the Bar personified and put him on trial, what you
are saying to the community of lawyers is: Can you see? This is
your President; he’s a thief. This is the man you voted for to
represent you! So, all of you, are you thinking right? So, for me,
the timing of the trial is not right. I think the situation could
have been managed better, after all, they’ve had these facts all
along.

Culled from PUNCH