In this interview with Ise-Oluwa Ige, one-time Attorney-General of Abia State, Prof Awa Kalu, SAN hailed the National Judicial Council, NJC, for sanctioning some indicted judges recently, over misconduct, adding that the road is now clear for law enforcement agencies to prosecute judges indicted for criminal offences if they are interested in the case. He also spoke on recent observation by JUSUN on failure by all state governors to comply with 10-year old Supreme Court decision on full financial autonomy for the judiciary, the arrest and detention of rights activist, Dele Farotimi, and the ruckus trailing proposed tax reform law.
NJC recently wielded its big stick against some judicial officers including two heads of court who were said to have falsified their ages. The sufficiency or otherwise of the sanction has divided Nigerian lawyers. What is your reaction to this?
Well, very simple. Constitutionally speaking, there is an age when you retire compulsorily from the bench whatever your rank. And once that age comes to pass, you are no longer qualified to hold judicial office notwithstanding whether you spent those years in advance. You know what I mean? If you are sitting in a court when you are not supposed to do so, once it is found out that your tenure of office has expired, you must vacate that office. This is because the Supreme Court stipulates or has decided that any time prescribed by the Constitution cannot be moved. It is like the Rock of Gibraltar. If you are given say 14 days to file a document in the Constitution, or by the Constitution, once the 14 days expire, nobody can extend that time for you. So, if the Constitution says at 70, you must retire from anything judicial office, nobody can extend that time for you. So, if you have sat illegally, well, you have to return what you earned while on seat. That has been the tradition known to me. Even in our Holy Bible, there is time for everything. A time to sleep, a time to be awake. That is the thing. If you are unable sleep because of your age, then you have to take time off to go and sleep.
A school of thought is saying the case of the indicted judges should not end with NJC;s sanction. Do you agree?
Well, the NJC itself, as you know, according to the decision of our appellate court, once you are accused of judicial misconduct, that misconduct must first be investigated and done with by NJC. If you fail to do so, the court will quash that kind of trial. So, it is a precedent for any judge to go on trial. You must first go before the NJC. So, it does not mean that if the NJC is done with you, if it is a criminal offence, that you are totally free. In other words, when the NJC is done with you, the way will be clear for any law enforcement agency to do its job. The NJC is not a court of law. It deals with administrative matters. Oh, Honourable Justice ABC has performed judicial duties when he is supposed to be on retirement. If they agree, simple. There are consequential steps to be taken. You have eaten our money because the NJC pays that money at that level, they say: Give us back our money. That is it. If you eat police money, NJC will not ask you to bring it. If you eat money from any organ, NJC will not visit you. But as long as you function as a judicial officer, at the time of breaking the law, the NJC will visit you.
That means law enforcement agency can take over the case if they are interested?
Yes, if they are interested, then, their own functions begin. But for an act of judicial misconduct or an act that is alleged to constitute misconduct, the NJC will first show interest and do their own. Then, after the NJC has done its bit, any law enforcement agency that is interested can take over from there. But any action by law enforcement agency before the NJC takes its stand will be inappropriate. That’s what the law says, to my knowledge.
How do you react to the recent arrest and remand in prison of Mr Dele Farotimi by the the police?
Well, the court has granted the man bail. If he fulfils the conditions of his bail, he will go on bail and become as free as any other person and then await the police to prove what he did, having been charged to court. So, to be separating criminal defamation from civil defamation at this time having been granted bail is a question of public discussion. The matter is within the corridor of the court. The ball of the police has been taken to court. And the young man on the other hand has his lawyer or lawyers who will do everything necessary to guarantee the protection of his constitutional right. That is how far I can go without meddling with the state of affairs in a court of law. Aare Afe Babalola is one of most prominent lawyers in Nigeria at this time. In addition, he is an elder statesman. If police has acted on his behalf, then it is not his name we should be calling. He must have made a report to the police. The police must have scrutinized the nature and the content of the complaint he brought and have made an independent decision to arraign him before a judge. A judge has looked at the case and has granted him bail. I think at that stage, all of us should cool our temper in our everyday language. I’m sure you know that song: cool temper ooo
But some stakeholders are saying the on-going fight between Afe Babalola and the Dele Farotimi may put the Supreme Court on trial. Do you agree?
Put Supreme Court on trial? How? Is the matter before the Supreme Court?
They said the genesis of the fight arose from a judgment of the Supreme Court in a land matter
You are going too far. You don’t cross the bridge until you get there. Now, where we are is that the Federal high court has granted him bail. He should proceed on bail and plan his steps carefully because the gap between freedom and custody where he is, is thin. Let him just plan his action and let the court decide on whether he has committed an offence or not. That is what it means by granting him bail. He has taken his pleas before a court of law and that court has said alright, let’s see what the police have against you. That’s why he is on bail. Lets not run faster than our legs can carry us. He is on bail and that is level one. Level two will be for the police to prove its case against him by bringing their witnesses and the exhibits they have. Then, level three will be for the young man to defend himself. When we throw this matter to the media, or to social as the case may be, it is very difficult to smell a rat. I love illustrating my point with proverb. The ball is in the court of the police. Let them show us as members of the public those things we dont understand. That is the thing. They have to bring those facts: that Afe Babalola, a very distinguished lawyer made a mistake by going to the police or that the police actually have no role to play in the matter. To be debating in the public is unhelpful. That is the truth.
The Judiciary Staff Union of Nigeria (JUSUN) during the week alleged that ten years after the Supreme Court ruled in favour of full financial autonomy for the judiciary, no state governor has fully complied. If this is true, does it worry you?
Full financial autonomy, let me be frank with you, I don’t understand what it means. This is because when you talk about full financial autonomy, is it that the judiciary should take control of its own finances by generating its income and disburse it? Is it about capital as well as recurrent budgeting? Is that what they are in charge of? Are they the ones to award their contracts? Are they the ones to supervise the implementation of their contracts? Are they the ones to generate their salaries? These are the issues. If you look at the real operation of judicial financing critically, the Federal Government is in charge of part of it, though, not the totality of the operation of judicial financing. What I am saying in effect is that when you talk about this financial autonomy, Federal Government is in charge of part of the financing. Federal Government is in charge of part of the execution, like payment of high court judges for instance. So, you have to get to the nitty-gritty of it to see that there are small, small issues here and there. Does every state understand it? Does the Federal judiciary understand it? Does the NJC understand it? Does the Federal Judicial Service Commission understand this thing? Plus state judicial service commission.
Some people actually demand for separation of the Federal judiciary from the state judiciary. Their argument is: If we are doing federal system, lets do the federal system. If we are doing state, let everyone understand. But as it is, what we have is a mix. In most cases, federal judiciary has some federal plus state and in some circumstances, federal minus state. There are what they called scattered thunderstorm here and there. That is to say, you don’t have total federal judiciary. And I personally will prefer a clear separation of federal responsibility from state responsibility as far as the financing and management of judicial matters are concerned.
But if I understand JUSUN very well, I think they are talking about the provision of section 162 (9) of the 1999 Constitution which says “Any amount standing to the credit of the judiciary in the Federation Account shall be paid directly to the National Judicial Council for disbursement to the heads of courts established for the Federation and the States under section 6 of this Constitution
Before you continue, the Federal Government has its own consolidated revenue fund. Every state has its own consolidated revenue fund. So, which one now consolidates state judicial financing? It is like managing roads in the country. They tell you that you have Federal Government road and state government road. When you are in a state for instance, and the roads are bad, then, who determines which one is Federal road and who determines which one is state road in terms of practical maintenance and performance? So, when you talk about courts, magistrate courts for instance, they belong to states. Then, you talk about the state high courts, they said they belong to the Federal Government or they belong to the Federal judiciary. So, in terms of allowances, training and monitoring of performance. Why is it that we cannot consolidate the separation between federal and state judiciary? Why cant we say alright, state government, be in charge of your judiciary. So, if you want to appoint 200 judges, do so on your own strength. But when you want to appoint judges, then you have to go to NJC for screening and discipline. My belief is that the distinction between Trunk A Road or Trunk B road or that these roads belong to the Federal, state, local govt, etc, is that these things cause confusion. We can sit down and have committees that will delineate responsibilities. When you say full autonomy, for me, I don’t fully understand it. These things are good grammatically. But when it comes to understanding fully where state judiciary begins in terms of monitoring and execution of funds that come in, it is difficult to know. If we are running true federalism, this problem will not arise. That is my take.
I think all these complaints arose from the fact that the executive buys cars for judges, build houses for them. So, some stakeholders hold that he who pays the piper dictates the tune. They argue that since these monies are government funds, why don’t you release it to the judiciary so that it can use the fund for what it needs
If you put your ears to the ground, you will know that you can have some issues in terms of executive management of their money. Ditto for the legislature. But when it comes to the judiciary, and you say ABC has embezzled certain fund or that ABC has misappropriated certain money, then, they will say, ah, take it easy. You understand me. If you say a chief judge has embezzled money, for instance, how do you blow it to the public. If you say a chief judge awards contract and there is a kickback, how do you blow it open? That is where my concern is.
Are you saying it will tarnish the image of the judiciary?
It will blow it to smithereens. If you talk about the kind of billions that EFCC monitors, how will that happen to judicial autonomy on finances? So, there are complications beyond the grammar we speak everyday. And we have to be careful. That is the truth. If we talk about judicial autonomy over finances, will the judiciary also accept harassments that go to other branches when money is missing, mishandled, or mismanaged, or is embezzled, or is misappropriated? The grammar that follows financial management is not easy. That is the real problem. When storm comes to the executive branch of government over financial matters, will the judiciary accept the same level of discussion if money varnishes from its account?
You mean if judicial officers are entrusted with funds, money may varnish?
There is no way money will not varnish. In our present circumstances, there is no way money will not varnish. The question now is : when that money varnishes and we the public want to talk about it, how will that be? If a judge varnishes with money, how will that be taken?
Are you saying the judiciary may lose its legitimacy?
Overnight. It will lose it overnight. So, we have to be careful about that level of autonomy we are talking about. Autonomy is English grammar o. We have to be extremely careful about how we push it. Because there is no human being including those who have, that cannot be tempted to want more. It is easy to speak grammar but when the consequences of speaking that grammar comes, you will understand why things should remain the way they are now. I will tell you one light-hearted joke. A secondary school teacher has not seen his pupil for a week. When the young man returned to school and the teacher said: Oh, young boy, I haven’t seen you for a while? The young boy of 13 years said: Oh, my mother died. That’s why you have not seen me for days. The teacher said to him: What a shame! You understand the grammar. That was what the teacher told the African boy of 13 years who lost his mother. Then, a few weeks later, the teacher now lost his own mother and came to class and said: Oh, I lost my mother. And the pupils said: Oh, what a shame! And the teacher said: All of you, kneel down. (burst into laughter). It is the consequence of speaking grammar. It is advanced level grammar for Africa. That grammar is harsh. When you now come to financial supervision, remember that one day, they will say to you: What a shame! When they say: Ah, N500m is missing from the account, or N200m has been misappropriated, somebody will say to you: What a shame. I believe you will not say to that person: Kneel down.
Tax reform bill is still generating controversy. Some stakeholders are still mounting pressure to kill the bill. It has already divided the senate itself. At a point, the senate shifted the heat to the media, accusing them of misquoting the senate. How do you react to the lingering controversy trailing this bill?
Let’s separate the bill from the controversy. Those who are raising eyebrows over the bill have not said exactly what their anger is over the bill or the provisions of the bill. So we have to separate the controversy from the content of the bill itself. Number one, the president is not a member of the National Assembly. So, what he has done is to execute its own function. He lays the bill before the National Assembly. Legislative process will then take over. If, in his view, the anger is high enough to affect the passage of the bill, he is at liberty to withdraw it. If he says: No, I’m not withdrawing it, then let the National Assembly deal with it. If they cannot pass it, then the bill will lapse in their hand. They have a legislative process—First Reading, Second Reading, Committee work and all that. Then, they can take a vote. If the bill will not pass, well, it varnishes at that point. But to be debating in the media the veracity of the bill that is before the National Assembly and the bill is at a standstill, it is either they pass it or it does not pass. That is the ABC of legislative process. The president will not debate the bill. He will not participate in the hearing of the bill. So, why can’t the National Assembly perform its own function? If the circumstances are difficult for the National Assembly to pass the bill, then, they know what to do about it. If you have food before you and the appetite does not allow you to eat the food, then, the person who brought the food can come and take away the food until you are in need of the food. The politics, I must say, that is accompanying that bill cannot be easily understood by the man on the street. That is the truth about it. The National Assembly should either deal with it or leave it in abeyance.
