Ex-NBA scribe, Afam Osigwe: Creating special courts for corruption cases will create super judges

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Mazi Afam Osigwe is a Senior Advocate of Nigeria (SAN), a former Secretary of the Nigeria Bar Association (NBA) and a member of the body of benchers, among many other professional bodies. In this interview with Saturday Sun, he said Nigeria needs urgent laws that will transform the country to greatness, and explains why he is opposed to the creation of special courts for corruption cases. He spoke with GODWIN TSA.

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I have always maintained that our problems are not the absence of good laws. It is the absence of fidelity to the provisions of these laws by those who are ministers of these laws, by those who are players, those who interpret these laws and those who, one way or the other, are affected by these laws.

Our electoral system has not failed to produce results generally accepted by the people, not because our laws are inadequate, but simply because we have a penchant to always undermine these laws. When the laws says a person who scored the highest number of votes at the party primary should be declared winner, our political parties device ways of undermining these laws.

It has never been the absence of good laws but our good faith and fidelity to these laws. To what extent are we ready to abide by these laws? Some of these laws we have in Nigeria were wholesale importation of laws which have been used by countries in the Western world to achieve great results, but when we bring them here, they fail to work. And we keep focusing on electoral matters as if they are the cure all for nation building. They are not. We did not make laws to make our economy vibrant. We keep amending the constitution either to abridge time to appeal and so forth and our courts are being burdened with electoral matters.

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We did not make those laws that will make Nigeria great and attractive to foreign investors. We did not make laws that will attract direct foreign investment, those laws for the ease of doing business find it difficult to scale through in the legislature. Those laws that will make Nigeria a good place for people to come and live and develop, advance and achieve her full potential are not given priority. But when it comes to election, because the legislatures are involved, because they have these battles with their state governors and other politicians, we keep amending our laws to dwell on election issues, and not about due process of law, not about ensuring that Chapter two of the constitution, for instance, is made more enforceable to better the lives of the people.

So, laws are not our problem, it is our ability as citizens, as residents in Nigeria, to respect these laws, not to subvert the electoral process, not to commit financial and economic crimes, not if you are in an executive position, you embark on executive recklessness. These are some of the problems, not the law.

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Even when the laws are there, we have a problem of implementing them. You go to court to enforce them, you are frustrated, cases take 15 to 20 years from the high court to the Supreme Court. It doesn’t happen in advanced countries and that explains why arbitration matters and commercial disputes are taken away from Nigeria because more and more countries are expressing lack of confidence in our judicial system.

Talking about delay in the dispensing cases in our courts, do you support the call for the establishment of special courts?

I never agreed with the creation of special courts. To me, it doesn’t make any economic sense. We have a way of asking for special courts. The Federal High Court started as federal revenue courts. From being a special court to deal with the revenue of the Federal Government, it has become a multi-jurisdictional court, having exclusive jurisdiction to entertain matters as contained in section 251 of the constitution.

We have clamoured for the setting up of the National Industrial Court, to deal with labour matters, for how long? A labour court is supposed to be a simple court where an employee can go to ventilate his or her grievance, with or without a lawyer. But it has also become so formalised like the state high court and the federal high court, and you now start to ask, what is the need for it? The same problem they had when the state and federal high courts started having when they were handling labour matters, has now crept in, where you have too many formalities and the cases are not moving at the expected speed.

Creating special courts like corruption courts will end up creating super judges. Judges who think that because they are asked to man special courts, to deal with corruption matters, they are above board like Julius Caesar’s wife. All we need is to increase the capacity of our courts to deal with cases before them. We do not need to have special courts to deal with corruption otherwise, tomorrow, we will ask for political courts to deal with political matters.

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We must make our current courts more effective. We must appoint the right calibre of people to man our courts. There should be no interference in the ability of judicial officers to discharge their duties. And more importantly, the prosecutorial agencies must do special investigations and cases that do not deserve to go to court should not be taken to court.

What’s your view on the state pardon granted former Governors Joshua Dariye of Plateau State and Jolly Nyame of Taraba State by President Muhammadu Buhari?

There are two aspects involved, legally and procedurally. The pardon is very much in order, in that the law empowers the president, upon receiving advice from a Committee of Prerogative of Mercy and Council of State, to grant the pardon. So, procedurally, the grant of the pardon is in order as it followed the processes it was bound to follow.

Now, the other aspect of it, is the public perception of the pardon, which is that, it weakens the anti-corruption fight and gives the impression that if you are a big man, especially a politician or a high profile government functionary, if you commit an offence, and you are convicted, you can dodge serving the sentence by getting a state pardon from the government.

And to the extent that so much time and resources is invested in prosecuting these individuals, who were pardoned by the Federal Government, to that extent, people generally are of the opinion that, it is not a good signal for the anti-corruption stance of the federal government. People feel that it discourages the Economic and Financial Crimes Commission (EFCC), and other anti-corruption agencies in the fight against corruption. And if they can spend so much time and energy in securing the conviction of these high profile individuals only to be pardoned by the federal government, without having served a substantial part of their sentence, it gives the impression that politics will always interfere with the due prosecution of persons who have stolen public funds.

In that case, do you think there should be limitations or some form of restrictions to the exercise of prerogative of mercy by the President?

In most societies, there is not quite limitations that is why it is rooted through a committee and the Council of State before the president can act on it. What it means is that, the president does not just exercise it. There are committees constituted to review the cases and reasons for granting them pardon and it is on the recommendation of these committees, which are constitutional bodies, that the president and requisite bodies act.

So, it is not just what a governor or president wakes up to do. That is why we have prerogative of mercy committee in place. And if am to believe what the media aide to the president, Garba Shehu said, which is that, it was based on ill health, and ill health is usually one of the reasons for granting pardon and some other reasons. To the extent that the constitution has entrusted a certain number of persons with the responsibility of determining those that qualified for it, to that extent, I do not think it will be necessary to place a limit to it.

The people who are exercising these powers on behalf of the society are presumed to have the best interest of the society at heart. Whether they always do, that is a different thing. But to that there are different levels people pass through before getting state pardon. To that extent, I will not be advocating any form of limitation to be placed on it, except to caution that those who are shouldered with this responsibility should discharge it in the best interest of the country, so that the exercise of the pardon should not be called to question.

Who is an ideal President for Nigeria in 2023, given the current situation of things in the country?

Nigeria needs a person with vision and positive ideals that can reposition and transform the country and make it great. A person who is a nationalist leader, who can foster the unity of the country and protect the lives and property of the citizens.  Political parties should be able to hold their members accountable and ensure smooth execution of their manifestoes for the benefit of the people.

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