Human rights activist, Mr. Femi Falana (SAN), speaks on his disagreement with the Nigerian Bar Association on the recent arrest of judges by the Department of State Services, allegations of corruption in the judiciary and other issues, in this interview with GBENRO ADEOYE
It appears that you have created more enemies for yourself in the NBA and the legal profession as a whole with your recent statements; don’t you feel bothered by that?
For ideological reasons, I have always had enemies in the legal profession. I am not bothered because some of the NBA leaders are not defending judges but themselves. When I was working with the late Comrade Alao Aka-Bashorun, who is rated as the best NBA president so far, the NBA did not address press conferences to declare a state of emergency, whatever that means. If judges were harassed or lawyers were detained, the NBA leaders would meet the Attorney-General or President of a country to find out the basis of any arrest. Aka-Bashorun did that in Nigeria, Togo and Ghana. In 1987, Aka-Bashorun mobilised 270 lawyers to defend the late Gani Fawehinmi. He was fighting a very corrupt military junta. When the same military dictators later charged some of us with treasonable felony, the NBA also defended us. The NBA also rallied round non lawyers like Comrade Balarabe Musa and Dr. Beko Ransome-Kuti as they were in the forefront of the struggle for the restoration of democratic rule. At that time, the NBA never mobilised 90 lawyers to defend any lawyer charged with corrupt practices.
You accused alleged corrupt judges being investigated by the anti-graft bodies of rushing to the court to seek interlocutory injunction to stop their arrest and prosecution. But isn’t that allowed in law?
I have always kicked against the issuance of interim, interlocutory and perpetual injunctions by judges to restrain the anti-graft agencies and the police from arresting, investigating and prosecuting corrupt people in the society. It is an illegal exercise of judicial power to confer immunity on rich and powerful criminal suspects. The Supreme Court and the Court of Appeal have stated very explicitly that no judge has the power to turn any citizen into an outlaw in any civilised society, where the rule of law operates. Whenever judges were accused of corruption in the recent past, senior lawyers had rushed to court to secure court injunctions to frustrate the investigation and prosecution of the suspects. Neither the National Judicial Council nor the Nigerian Bar Association has ever called the judges and lawyers involved in the illegality to order. Sometime in 2011, it was alleged that the head of the National Judicial Institute was involved in N6bn fraud. He was politely invited for questioning by the Independent Corrupt Practices and Other Related Offences Commission, but the then sitting Chief Justice of Nigeria and Chairman of the Institute asked him to ignore the invitation. The suspect did and thereafter, he secured an injunction at a Federal High Court to halt the investigation. As if that was not enough, he collated the names of 18 employees of the institute and sacked them because he suspected that they had exposed the fraud to the ICPC. The sacked employees cried to the National Judicial Council and the Nigerian Bar Association for redress. They were ignored. They ran to my office and I had to file a suit praying the Federal High Court to set aside their illegal dismissal. We are currently pursuing the matter on pro bono basis. On another occasion, a judge in a Federal High Court was invited by the Economic and Financial Crimes Commission to explain the source of N2bn found in her account. She rushed to court and obtained an order which has restrained the EFCC from investigating and prosecuting her. Can you believe that the order was granted by one of the judges being investigated by the Department of State Services? There is also the case of a chief judge, who used the public presentation of a book to raise money from members of the public, including litigants. At the ceremony, a businessman, who had two cases before the chief judge, announced a donation of N10m. A poor man, who had a case against the donor before the chief judge, asked his lawyer to apply for the transfer of his case to another judge. The lawyer made the application. The chief judge ordered the lawyer’s arrest. After the NBA refused to intervene to prevent the lawyer’s arrest, he had to turn to me. I took up his matter, approached a Federal High Court, which prohibited the police from carrying out the illegal order of the chief judge. His Lordship was allowed by the NBA to intimidate the lawyer. The NJC cleared the chief judge but the matter was revisited when the chief judge ignored the advice of the NJC to transfer the cases to another judge. Based on the act of misconduct and other allegations of corruption, the chief judge has been removed. He was also arrested last week.
Many Nigerians were surprised that you were not on the side of the NBA, why is that?
The NBA is not always right with respect to the anti-corruption crusade. In 1984, the NBA asked lawyers to boycott courts to protest the trial of corrupt politicians by the Special Military Tribunals set up by the (Muhammadu) Buhari/(Tunde) Idiagbon junta. Gani Fawehinmi defied the NBA because lawyers were appearing before general courts-martial and special courts-martial, which were also constituted by soldiers. His name was recorded in a so-called black book. But when Mr. Aka-Bashorun became our president, he persuaded the NBA to remove the name because of Fawehinmi’s unrivalled public spirited role in the society. In the past, the NBA defended human rights and fought corruption. Even under the (Ibrahim) Babangida junta, the NBA boycotted courts to protest the disobedience of a single court order. But today, disobedience of court orders has become the order of the day. The human rights committees of the NBA were mobilised to challenge the violation of the human rights of the Nigerian people. I am only asking the NBA to return to the glorious era of defending popular causes. But I cannot be part of the NBA if it goes around assembling scores of lawyers to appear for other lawyers when they are charged with bribing judges. If you organise a press conference to issue threats over the arrest of judges accused of corruption, you simply parade the NBA as a pro-corruption society. There are other ways of defending judges in a responsible manner.
But don’t you think your criticisms of some judges could later come back to haunt you in the courtroom as some cases could go against you should there be a gang-up?
If I lose a good case, I will appeal to a higher court. A judge in the Lagos High Court once threatened to jail me for insisting on protecting the interests of my client. On the day set aside to carry out the threat, another judge met me at the car park and advised me not to apologise to his colleague as he had been warned to stop his bullying tactics. On getting to the court room, I was flabbergasted to see 45 lawyers who had turned up in solidarity. The judge was intimidated and was compelled to drop the contempt charge. I was then a junior lawyer. Now, I have put in over three decades of active legal practice. The system has even grudgingly admitted me to the inner bar. Seriously speaking, it is too late to entertain any fear. Indeed, I am encouraged to keep up the struggle by majority of judges who are incorruptible. I have also been encouraged by many lawyers, including Senior Advocates of Nigeria because they are suffering in silence. When you accuse the Nigerian judiciary of corruption, you are embarrassing the incorruptible ones. When you accuse all SANs of corruption, you are embarrassing the decent ones who will never bribe judges or pervert the cause of justice.
You said that the Nigerian Bar Association has information on corrupt judges and lawyers in the country. How do you know that?
I am a full-time practising lawyer. I was Secretary-General of the African Bar Association and former President of the West African Bar Association. I am involved in human rights work. So, I am in a vantage position to know what happens in the bar and the bench. In our bar meetings and other gatherings of lawyers, leaders always condemn judicial corruption. In the last 10 years, there is no president of the NBA who has not openly condemned judicial corruption. In his maiden speech last August, Mr. Abubakar Mohammed (SAN), the current NBA President, promised to make the legal profession unattractive to corrupt judges and lawyers. His immediate predecessor, Mr. Austin Aleghe (SAN), once condemned judicial corruption at a valedictory session at the Supreme Court. At the end of his speech, the outgoing Chief Justice, Honourable Justice Mahmud Mohammed, openly challenged Mr. Aleghe to submit a list of corrupt judges to the NJC. But he never took up the challenge. Before then, a former NBA President, Mr. J.B. Daudu (SAN), had openly accused election petition tribunals of selling justice to the highest bidders. He even proceeded to set up an anti-corruption commission. But apart from holding seminars and workshops, the NBA has failed woefully to adopt concrete measures to purge the legal profession of corrupt judges and lawyers. Two sets of cases, election petitions and corruption cases have continued to expose the nation’s judiciary to ridicule. Such cases are handled by senior lawyers, but some of them are compromised as justice is said to be sold to the highest bidders. The NBA leaders know all the corrupt judges and lawyers. The branches of the NBA also know them.
Is there something you know and not sharing? You also made it sound like you know some of these corrupt lawyers and judges?
Sadly, good lawyers in practice have become victims of judicial corruption. From time to time, I am bombarded with information by litigants who are victims of judicial corruption. I have never hesitated to report such complaints to the authorities if you provide me with information. Not too long ago, a President of the NBA informed me that the house of a particular Federal High Court judge was built for him by a leading construction firm in the country and that the mansion was worth over one billion naira. I tried to persuade him to take it up at the NJC since he was a member. His reply was “Femi, you know, I don’t have your courage to be able to take it up.” Since he gave me the name of the judge, I decided to take it up with the relevant anti-graft agency. It is the crisis of compromise and opportunism on the part of NBA leaders that has led the legal profession to the mess we are going through. You cannot have an incorruptible judiciary if the lawyers are corrupt. But some of us have resolved to identify and isolate the few corrupt judges and lawyers in our midst.
Some people have wondered why you are just speaking out about corruption in the judiciary now after some arrests have been made. What is behind it?
I have always spoken out against injustice and corruption. All the incorruptible judges know that I speak out and defend them. Decent lawyers equally know that I speak out for them. Apart from speaking out regularly, I meet with the relevant authorities to express concern over the growing rate of judicial corruption in the country. Because I insist that we rid the legal profession of bad eggs, I have recently been under pressure from my colleagues to compromise my stand. Unfortunately for them, I have been joined by younger colleagues who are men and women of integrity. Very soon, the public will be surprised to know that some of the petitions that have landed our judges in trouble were written and signed by young lawyers. Recently, I was involved in a case. Unknown to me, the senior lawyer on the other side and the trial judge were on regular telephone conversation to plan a common strategy against me. When the lawyer met his waterloo, many senior lawyers attempted to blackmail me. But I asked them if they expected me to clap for a fellow SAN, who had recorded a dubious victory against me. In 2003, a five-member election petitions tribunal collected money in Akwa Ibom State to pervert the course of justice. They were caught and dismissed. But the Court of Appeal refused to set aside a judgment that was purchased with the dirty money. At about the same time, two Justices of the Court of Appeal collected N12m bribe from a politician in Anambra State. Both Justices were dismissed from the bench. Again, the Court of Appeal refused to quash the fraudulent judgment. The NBA never protested such injustice. In the notorious case of Federal Republic of Nigeria v Chief James Ibori, the accused was alleged to have looted the treasury of Delta State to the tune of several billions of naira. He was also said to have attempted to bribe the then EFCC Chairman, Mr. Nuhu Ribadu, with $15m. Without any trial whatsoever, the Federal High Court dismissed the case and set the defendant free. But to the shame of our country, the same fellow pleaded guilty to a similar charge in the United Kingdom and was convicted and jailed. The judicial authorities never investigated what happened at the Federal High Court; the two leading defence counsel, who filed the application that led to the dismissal of the case in Nigeria are former NBA presidents.
You said the few lawyers with the courage to expose corrupt judges and lawyers have been stigmatised and treated like lepers by their colleagues. Would you say you are one of such lawyers or have you lacked the courage to expose corrupt judges and lawyers?
Of course, I am one of them but I cannot be intimidated by the gang-up of shady characters. None of my colleagues can intimidate me. They have left me alone because they know that I am standing on the rock of Gibraltar. But they are intimidating other junior lawyers. Luckily, the NADL has been revived to take up some of these matters. As a patron of the organisation, I am going to collaborate with the members to defend incorruptible judges and expose the corrupt ones together with the lawyers who act as conduit for them.
But do you think the Department of State Services had the right to arrest the judges in the gestapo manner in which it did?
Under the defunct military dictatorship, my house was raided several times by the Nigerian Security Organisation, which metamorphosed into the State Security Service (Department of State Services). The SSS also subjected my house to similar reckless invasions even though I never committed any criminal offence. In fact, on one occasion, my son, Folarin (Falz), asked his mother if I was a criminal because his teacher had taught him in the elementary school that only criminals were arrested and taken away by the police. Since he was only six years old at the time, he did not understand his mother’s explanation that my ordeals were politically motivated. So, I know what it means to be a victim of nocturnal raids by security forces. Beside my personal experience, I have always fought against the humiliation of all criminal suspects. While I cannot support the gestapo tactics adopted by security agencies, I have suggested that we take advantage of the experience of the arrested judges to put in place a common standard for the treatment of all criminal suspects in Nigeria. For the bar to be respected, it has to kick against the extrajudicial killing of criminal suspects in police custody, the brutalisation of journalists, workers and other citizens. I am asking the NBA not to limit the defence of human rights to judges and senior lawyers and other privileged people in the society. The NBA has over 100 branches. Each of the branches has a human rights committee. Let the committees be motivated to fight the brutalisation of criminal suspects throughout the country. Let them go to the police stations and prisons and set at liberty those who should not be there.
The NBA said the core mandate of the DSS is to guarantee internal national security. How does that translate into arresting judges?
Is the NBA not aware that lawyers who wish to be elevated to the bench are mandatorily required to be screened by the DSS? So, if you allow an agency to screen you before appointment, can you turn round to question its locus standi if it decides to monitor your performance? If a judge collected money in an election petition and declared a wrong candidate the winner of a presidential or governorship election, it can lead to the breakdown of law and order. Can you say that has nothing to do with the internal security of the nation? In the instant case, the DSS wrote to the NJC requesting to interview some judges. Neither the NJC nor the NBA questioned the competence of the DSS to investigate the judges. It is so sad that some aggrieved persons who had sent petitions to the NJC had to ask the DSS to intervene because the judges involved were not investigated.
Former NBA presidents like Chief Wole Olanipekun (SAN), Olisa Agbakoba (SAN), are also behind NBA in its criticism of the action of the DSS, why then have you chosen this lonely path?
Chief Wole Olanipekun (SAN) and Olisa Agbakoba (SAN) are perfectly entitled to stand solidly behind the NBA in declaring a state of emergency. I respect both of them. But as a member of the NBA, I have the freedom of expression to ask pertinent questions on the purport and motive of the declaration of a state of emergency having regard to the facts and circumstances of this shameful episode. My path is not a lonely one as I represent the majority of lawyers and their clients who are being chased out of our courts because justice has been fully commoditised. The figures being bandied around are so scary. The dismissed Justice Kabiru Auta (allegedly) sold justice in his court for N197m. Justice Ladan Tsamiya had (allegedly) concluded arrangement to collect N200m to sell justice in one single appeal. A SAN recently charged N5m (allegedly) as his professional fee and N100m for the judge. Others are purchasing justice in dollars and pounds. Right now, many lawyers are being driven out of legal practice as they can no longer compete with the judicial tycoons that have taken over some of our courts. I just cannot fathom how the NBA can be issuing threats to protect judges who are alleged to have converted our courts to the last hope of very rich criminal elements. Or is the NBA still saying that a court where justice is sold for not less than N100m remains the last hope of the common man? When some of the bar leaders and I joined the legal profession some decades ago, you could predict the outcome of a bad case. Unfortunately, that is no longer the case in many of our courts.
What about allegations that the Federal Government went after the judges for political reasons, particularly as it relates to rulings on the matter of the former National Security Adviser, Col. Sambo Dasuki (retd.)?
I have confirmed that the residence of Justice Nnamdi Dimgba was illegally invaded by the security operatives. Since it was a case of mistaken identity, the Federal Government ought to tender a public apology to his lordship who I know as a man of unimpeachable character. Unfortunately, I have not established that the arrest of any of the other judges was politically motivated. Even though, I led the legal defence of the majority of military officers and soldiers, including those who were sentenced to death, I have condemned the disobedience of the orders of court which admitted Col. Sambo Dasuki to bail. One of the NBA leaders criticised me by saying that the suspect can be arrested as many times as possible. Can you believe that? But I have been vindicated by the ECOWAS Court, which has ordered the Federal Government to comply with the orders of its municipal courts.
Some Nigerians believe that if this or President Buhari is allowed to continue to act in this manner, soon enough, we will help create an unstoppable despot and dictator. What do you think about this assertion?
If we could defeat military despots, no civilian dictator will be tolerated by the Nigerian people. I don’t believe in the assertion that the arrest of a few judges is an indication that the state has become fascistic. In other words, there is nothing dictatorial in arresting criminal suspects accused of corrupt practices. We should stop using the rule of law to cover up grave economic crimes that have ruined our country. What you have described as gestapo tactics with the arrest of judges are the same methods that daily apply to common people by the police and security agencies in Nigeria. That was why I said that we should take advantage of the plight of the judges to put in place irreducible minimum standards for the treatment of all criminal suspects. However, I strongly believe that the legal profession owes itself a duty to adopt pro-active measures to remove corrupt lawyers and judges from the bench and the bar.
You recently called for the prompt investigation into range of dealings involving alleged diversion of public funds over the years by government establishments, including the Central Bank of Nigeria, under former governors, Chukwuma Soludo and Lamido Sanusi. Why are you just raising the issues now?
I raised them under the previous regime but they were not given any attention. After all, the regime could not differentiate between corruption and stealing. But since the Buhari administration is desperately looking for money to run the neo-colonial capitalist economy, I decided to request the Minister of Finance to ensure that the funds are recovered. The Federal Government knows that my demands are not baseless. More so, that the Nigerian Extractive Industries Transparency Initiative has written to me to confirm that $20.2bn was withheld from the Federation Account from 1999 – 2012. The confirmation was in response to a request I had made under the Freedom of Information Act. When Alhaji Sanusi Lamido Sanusi, the current Emir of Kano, was the Governor of the Central Bank, I took him up for paying N2.5tn to a cabal of fuel importers when the approved budget for fuel subsidy was N245bn in 2011. I got that figure from the report of the House of Representatives, which investigated the monumental fraud. We also had a running battle over his decision to turn the CBN into a Father Christmas when it donated hundreds of millions to all manners of people and institutions. I also asked that the loan of N600bn given as bailout to the banks in 2008 be recovered. So, I am not just raising these issues to stir any controversy.
You said that the finance minister, Kemi Adeosun, had not taken steps to recover billions of dollars “either criminally diverted or illegally withheld”. Do you think this government lacks the political will to fight corruption to a standstill?
I wrote the Finance Minister, Mrs. Kemi Adeosun, to the effect that the government could raise up to $200bn from individuals and institutions which have illegally withheld funds from the Federation Account or criminally diverted the nation’s wealth. The minister acknowledged the letter but failed to act on my demands. Hence I petitioned the EFCC. As far as I am concerned, the administration has not mustered the political will to recover huge public funds from western governments and financial institutions. The money allegedly stolen by local politicians and military officers pales into insignificance when compared with the theft of tons of crude oil illegally shipped out of Nigeria by oil companies in the last 10 years.
Soludo has described your allegations as blatant lies, saying you goofed and that you should publish the details of the $7bn loan he gave out or publish a retraction and unreserved apology. Beyond the newspaper report you quoted, are there other details in your possession that you plan to publish?
I have dismissed Prof. Soludo’s demand for apology because it is baseless. Initially, he said that I told a lie by saying that he gave out $7bn to 14 banks. As soon as I produced the statement wherein the Central Bank of Nigeria, under his governorship announced that the fund was given to the banks, he turned round to say that it was a deposit and not a loan. At that stage, I challenged him to disclose the terms of the $7bn deposit and tell the nation when it was paid back to the foreign reserves. Prof. Soludo has not been able to address those serious issues. So where is the basis of the demand for a retraction and a public apology? Just recently, Mr. Henry Boyo, one of your respected columnists, raised fresh queries on the missing sum of $7bn from our foreign reserves.
Some Nigerians have described you as a loyalist of the APC, and that you are in support of many of the controversial policies of this government because you still hope to serve in the government some day. How would you react to that?
That is a cheap blackmail which cannot derail me from the struggle to free our country from tiny grip of imperialism and its local lackeys. I have consistently taken issues with the regime over the execution of neo-liberal economic policies. When we were fighting military dictators, did some fools not say that we were looking for cheap publicity? When I supported the EFCC under Mallam Nuhu Ribadu and the ICPC under Justice Mustapha Akanbi, was I looking for a position in the Peoples Democratic Party-led regime? Apart from the conditional support for the anti-graft agencies under the Buhari administration, which other policy have I supported to warrant such bunkum speculation? I have criticised the regime for begging western nations to repatriate our looted wealth instead of embarking on aggressive diplomatic and legal measures for loot recovery. I have consistently demanded for the release of soldiers, who were illegally convicted by courts-martial set up by military officers who diverted the $15bn earmarked for procurement of arms and ammunition. I have sued the regime over the illegal detention of citizens, including Sheik Ibrahim El Zakzaky and his wife. For taking up the case of the couple, the DSS has declared me persona non grata. I have accused the regime of grave human rights violations by not prosecuting the soldiers who killed 348 citizens and buried their dead bodies in Zaria last year, as well as the violent suppression of the agitation for the state of Biafra, the harassment of the Bring Back Our Girls Campaigners. If these positions have turned me into a loyalist of the APC government, so be it.
In the 1990s, judicial corruption assumed a dangerous dimension in the country. As the legal profession failed to arrest the ugly development, the Sani Abacha junta was compelled to set up the Kayode Eso Panel. During the proceedings of the panel, lawyers and members of the public submitted the names of corrupt judges. As soon as the panel submitted its report, powerful judges and lawyers convinced the junta not to sack the indicted judges. They succeeded, as the report was only sent to the archives. But as soon as civil rule was restored in 1999, The News Magazine published the report. Some top lawyers asked the government to charge the editors of the magazine to court for breaching the Official Secrets Act by publishing the report without authorisation. As counsel to the magazine, I wrote to the government not to cover up judicial corruption by relying on the colonial legislation that is in conflict with the freedom of expression guaranteed by the Constitution and the African Charter on Human and Peoples Rights. The NBA never demanded for the release of the report. However, the Olusegun Obasanjo administration released the report and sent it to the NJC for implementation. Based on the confirmation of the findings of the Eso Panel by the NJC, 47 judges were flushed out of the system. The judiciary was better for it.