"OUR LEGAL SYSTEM IS KILLING THE ECONOMY" - Prof. Ernest Ojukwu, SAN

Prof. Ernest Ojukwu, SAN

Professor Ernest Ojukwu SAN is a legal luminary who has distinguished himself in legal practice, particularly in the field of Jurisprudence and Legal Sciences. In this interview with CHIDI MATTHEW NWACHUKWU , the legal icon discusses the sundry issues that are militating against legal practice in Nigeria and recommends
the requisite panacea.

You were appointed by the NBA president, Abubakar Balarabe Mahmud, to chair the NBA sub-committee on the future of the legal profession in Nigeria, what exactly is the committee’s terms of reference, and what does the committee seek to achieve?

Well, the committee’s terms of reference is based on the larger terms of reference given to the larger committee, which is called the NBA Professional Regulatory Reform Committee. Specifically, the terms of reference which concerns the sub-committee on the future of legal practice in Nigeria relates to the structure of the legal profession. We have a mandate to review the entire structure of the legal profession as it affects the system, and decide how the system or structure should be run from now on and in the future.

You are a seasoned legal educator, having taught at the Nigerian Law School for a very long time. What will you say is the core challenge militating against the Nigerian legal system?
The core challenge in the legal system is the teaching methodology. There are reasons people would proffer as the core challenge, but the basic challenge is the teaching methodology. We have strong challenge from how our teachers approach legal education.

You are touted to be one of the most eligible persons to contest for the NBA presidency next year, what will you say is your unique selling proposition?

If the opportunity comes and I’m asked to lead the organization, I think the most unique thing I’ll bring to the profession is to democratize the system, and empower the young lawyers and lawyers generally. That will be my focus.

Are you saying that the previous presidents and administrations did not focus on empowering young lawyers, because I know what the likes of Wali and Alegeh have done in the aspect of lawyers’ empowerment?

Yes. They are very commendable programs by past leaders of the bar brought to the system for the young lawyers, but those programs had been ad hoc, and not based on any strong foundation or system. My focus will be on the system. Some structural systemic change that will create a lasting program for the young lawyers.

From your perspective as a professor in law, what will you do differently to revamp the bar, if you succeed in winning the NBA presidency?

Well, the system change is already being put in place by the current president of the bar, A. B. Mahmud. Therefore, it will be easy to continue to manifest that intention, by moving on the path of this brave new bar. First, one of the major things we’ll require from the legal profession is to open up the system for public evaluation, and to also open the system to the lawyers because many of the lawyers are also uninformed about the system in which they operate. If you do those things, you would have set a new horizon for the legal profession.

There are insinuations that there is serious corruption in the bar, and the Special Assistant to the president on prosecution, Barr. Okoi Obla, has said that prosecuting the war against corruption is very difficult because those persons who have stolen from government coffers are able to hire smart lawyers to defend them in court, thereby stalling the process of bringing them to justice. If you’re in position to discipline corrupt lawyers, what would do?

There are so many things to do. The first approach is education. There is a lack of education on ethics for the bar, and that will have to start at the university level, at the training stage. I’ll make sure that ethics is introduced as a course in LLB programs. As at today, for over 50 years of Nigeria, there is no university that teaches ethics as a course. So ethics would become a course at the university, that is one. Next is focus on training, then you move into the professional stage where people are now practicing. The major problem with the application of our rules for professional conduct and other ethical rules is that disciplining and ‘naming and shaming’ has a lot of implications. First, it’s based on what I’ll describe as the complaint system. If there is no petition against a lawyer, nothing happens to a crooked lawyer. Now, I proposed what I call Legal Services Commission Bill. If enacted, it will give the commission power to investigate any lawyer that has been rumoured to have committed any infraction on ethics. We will investigate and prosecute them. We will create a robust prosecuting system that is not based on just a petition or complaint system. We also think that one of the major setbacks in the enforcement of ethical rules against lawyers is the fact that we only have one disciplinary committee. The proposal is to have a legal regime that will allow us to create ad hoc disciplinary committees, many committees as we would need from time to time. There should not be standing committees. So, if you have a problem for example, in Calabar, you’ll panel a committee based on the criteria set up by the rule for disciplining people from around there, to go and deal with the matter or matters that have been identified. In that case, it is possible that at one point in time, we may have up to 12 to 20 committees working in the country at the same time. Now, when you do that, you publicize the result of the process. Whatever is the outcome, give it adequate publicity. If it is negative, it will have a way of deterring people from committing the same offence. Before this process of discipline, you need to open the system so that the consumer will know that we have a system for disciplining lawyers. The consumer is unaware of that system. So, you need to educate the masses about their rights against lawyers. Open the system so that the lawyers themselves will know how to represent the consumer before these disciplinary committees, in such cases. And also, cut short the time limit from the complaint, if there is any, to the determination of the disciplinary process. Now, it takes 1 year, 2 years or 3 years to complete one disciplinary process at the bar, and by that time, the consumer would have lost interest. And with the loss of confidence, the consumer ends up losing interest in the legal system, and the more people lose interest in the legal system, the more they take the laws into their hands, and that has given rise to lawlessness around us, where you see people burning other people on the streets just for stealing. So, you open the system to the consumers, open the system to lawyers, shorten the time process for discipline. Create many committees for disciplinary process, and publicize the result. That is one way of going about it. Then, continued legal education program focusing on ethics so that lawyers who must be required to relicense from time to time, either yearly or biennially, must be required within that period they are undertaking the continued legal education program, to take credits, compulsory credits on ethics. So, everybody continues to discuss ethical issues, challenges and dilemmas as long as they are alive. That helps in reducing the problem of infraction. That is for the bar. For the general system, the courts and so on, we need to set up strong monitoring process where we will have to send people to the court to monitor how the courts behave, discuss with the courts to make changes, take up measures to enforce the ones they are not able to do, and open the court system to the public to evaluate.

Talking about opening the court system for the public to evaluate, do you concur with the suggestion by some of your learned fellows to televise or air court proceedings that involve trial of corruption cases, so that people can follow them?

It’s ok if we are able to implement it, but that is not the reason why we have corruption cases in the country, the fact that it is not being televised.

No, they only wanted it be publicized so that the public would know the exact people who have been looting their collective inheritance.

Well, there’s nothing wrong with publicizing the process, but while there is an advantage to that proposal, there is also a disadvantage because our constitution presumes suspects as innocent, until proved guilty. Most of those media coverages end up in media trial, and some of the defendants may actually not be guilty. But you would have damaged them permanently in their life if you conduct the close media trial, and it is better we let go a hundred criminals than punish one innocent person, and a media trial which usually finds people guilty on the media is a major abuse to fundamental human right. So, we better save ourselves that trouble. The trial is already open to the media, why turn it into a circus?

Sometime ago, Barr. Okolo SAN said that a lawyer cannot be made to answer for any money he receives from his client, no matter how huge it is, that he is not required to probe the source of the money given him by his client, what’s your take in that?

Well, I’m not sure of the background to such a statement, but if it is based on the money laundering accusations, I don’t think it will be correct to insist that the lawyer cannot be investigated for money laundering. If it is just ordinary fees that is been discussed, then the SAN must be right. But like I said, I don’t know the background to the discussion, but if it relates to money laundering, it can be investigated no matter what you call it, and it will not be totally correct to just dismiss investigation because it is called ‘fee to any legal professional’. We have found that over the years, under economic crimes, fees have been the cover for money laundering. If somebody is guilty, he is guilty, not just because it is called fee. There are cases where it have been found that professionals, not only lawyers abuse the system, for example, the fees that you’re supposed to be paid personally are paid to the government, that can raise some issues relating to public fund. The mere fact that the fee looks excessive cannot be used to condemn a lawyer as guilty of money laundering. But I don’t you can just say you cannot investigate any professional just because what you said was transferred to him is called ‘fee’.

You are loved and adored by so many young lawyers, judging by how they rally around you at every opportunity they have to meet you. Does that have any correlation with your status as a legal tutor?

Well, it is possible because I’ve been a mentor, not only because I’ve been a teacher. I’ve been a mentor to young lawyers over the years. I’ve been active in the bar. As a young lawyer, I was the secretary of the Nigerian Bar Association, Aba, I later became the chairman of the Nigerian Bar Association of the same branch, and by my 12th year at the bar, I had already presented a paper at a conference of the Nigerian Bar Association on ‘Executive Lawlessness’ in the country. So, I’ve had platforms through which I have not only grown and interacted with young lawyers, but as an older lawyer, mentored other young lawyers in and outside the classroom.

You were a very strong force in Aba during your hay days as a lawyer, what reforms did you institute during your days as the chairman of the branch?

Actually, my reforms started when I was secretary at the Aba NBA branch. Aba branch of the NBA became the first branch to employ full time staff in secretariats to manage the affairs of the branch, and we modernized the secretariat and the process of our meetings and sessions. When I became chairman, I instituted many maiden continued legal education programs. I also championed law reform as chairman of the bar in the state, and it was under my tenure that Abia State replaced all the statues we had borrowed from England, called ‘The Statutes of General Application’, some of them as old as 16 something. We now threw away those statutes and replaced them with 22 New Edicts for the state. It was under my tenure that such became possible.

Do you think that the previous NBA presidents have done enough to revamp the legal sector?

Yes, they have tried. They have done well. You know, you can never stop revamping, you have to keep oiling the system to keep doing well. So over the years, we’ve had very incremental growth in the function of the legal system generally, and not only from the national level, but also at the branch levels. Many branches have injected some new ideas within their own environments which some States have copied. We talk about places like Lagos, where they have also been part of law reform process since 2000. The national level also needs a lot of work to be done on the Public Interest aspect of laws in the country, even though some of the laws have not been fully enacted by the parliament, but there have been a lot of work done by the bar.

You are really passionate about injecting reforms into the legal sector, which is your quest for the Nigerian Bar Association presidency is a very tangible goal to pursue. Now, beyond achieving this particular goal of heading the bar, do you consider other extra-legal options such as politics?
No. I’m not a politician. My interest in heading the bar has been there since I was called to the bar. If I have an opportunity of leading the bar, that will be good for me and the system because I know that I’m going to bring a lot of new dimensions and a new horizon to the bar. I’m not a politician, and I don’t even intend to become one.

But hope you know that pursuing the headship of the bar also involves some form of politics?
Well, when the time cones, I’ll offer myself, and it is for the members to determine whether to accept me or not because it is going to be service, and you cannot force the system to accept service from you.

What do you think can be done to stop the continuous adjournment of cases in court in order to provide for the speedy conclusion of trials and delivery of justice?

There are about 3 or 4 things that can be done, and they’ll be effective. Some are long term, and some are short term. First, we must change the way we teach law at the universities and at the law schools. As at today, the Nigerian legal education sector has still not captured the goal for legal education. We don’t know why we are teaching law. We need to discuss and capture the goal for teaching law. So far, what I’ve assessed is that we are just teaching law for people to get a degree and come out. We don’t think of legal education as justice education. We need to teach legal education as justice education, and if you teach legal education as justice education, it will most definitely affect the manner of practice. So now, we are not doing that. We are only practising law as cut and nail – just get the result. We don’t care about the effect on the economy. We are killing the economy, the legal system is killing the economy by the delay because it if we don’t have a robust and fast legal dispute settlement mechanism, investors will not come here because that’s the first thing they look for, how they’ll settle their differences when they bring their money, and even we the Nigerians internally, we don’t have confidence in the system anymore. Even lawyers are afraid of taking their cases to court because they know it will take ages before they complete trial. So, we need to change our legal education to justice education and change the way we teach law, that’s our first leg. It will start manifesting. It may not be immediately, but it will manifest. Can you imagine that we have an average of 7000 law graduates from the universities every year, and from the law school, about 5000. We bring out about 5 – 7000 lawyers every year, and they have no connection with justice education, and these 5 – 7000 lawyers are the people who will emerge as magistrates, legal practitioners, state counsels, prosecutors, attorneys general, teachers. Between 5 – 15 years, they’ll take over the system, and yet, they have not undergone justice education. That’s the first thing we must do. Then, the next one is that we must take the training programs to judges, magistrates and the lawyers who are already in the system. We must retrain them. Even if we don’t retraining everybody or getting everybody to adapt, we can at least get a sizable number of people to change their perception of justice. The next one is that we must pursue a constitutional amendment. The acting Chief Justice of Nigeria recently made such remark as a fundamental basis for altering the landscape of justice in Nigeria. The constitutional amendment will focus on delay trial. Anything that can be done to reduce delayed trial will need to be done through the constitution, by cutting some jurisdictions of court, by removing some aspects of dispute resolution from certain courts, and so on and so forth. The other one is to get the heads of our courts to constantly review the rules, whether it is Criminal Procedure Rules, or Civil Procedure Rules. By doing so, they’ll adapt to new thinking from time to time. They’ll have to do an evaluation of the system. The system itself has to agree democratically open itself for evaluation by the public, so that they’ll know what we are doing wrong and use it to make new rules that will adapt to the modern system of justice delivery. And then of course, one aspect of that which we’ll need to bring into the system is the use if cost in civil trial. As of today, our cost regime does not help to stem the tide of delayed trials. The cost is very small. If we have a system that insists on pay for the real cost of delay of trials, people will be deterred from causing delays, such that if you ask for an adjournment, even if your reason for adjournment is genuine, the adjournment will be granted, but you’ll bear the cost of that delay. When you have paid the repartees for coming to court, for flying aircraft, for lodging in a hotel, when you have calculated all those costs and put on the defendant, next time that defendant, even if he has a genuine reason for delay, will prefer to make an alternative arrangement for the case to go on, rather than pay that kind of cost, and of course we have to firm up our disciplinary process and ethical rules. We should firm that up and punish those who purposefully delay trials because it is a violation of human dignity, and abuse of the rule of law. If we firm up our disciplinary process, it will deter lawyers from causing delayed trials.

You once told prosecutors during the workshop training at the Ministry of Justice not to be emotional about prosecuting cases, that a prosecutor must not get judgment for all the cases they prosecute. What does it really entail to be emotional about prosecuting?

You know, because if the basic problem with our training, there are no psychological assistance for our young students in school. There’s no counselling, and of course our education is not justice education. When our law students become lawyers, once they are briefed by one side of a case or dispute, they immerse themselves in that side as if it is a do or die affair, ‘we must win at all cost!’, and ‘we must win at all cost’ leads you to emotional breakdown and unethical conduct. Because you want to win at all cost means you must change the law, you twist the law, you must twist the process, you must hide evidence, you must do many wrong things to win at all cost, once you become emotionally involved. You are not supposed to be just technical because you are human being. For you to do well in anything, you must have some interest in it. There is a level of emotion that is involved, but it should not be on the extreme to lead you to unethical conduct or breakdown of your health. So, that is why I caution young lawyers particularly if they are prosecuting. And I’ve seen many of them prosecuting emotionally such that they have to hide evidence because they don’t want to lose, even when they know the case is bad, they’ll find a way to patch it up and win at all cost, and that is unethical. In fact, it is clearly an abuse of the rule of law and justice. So, those are the kind of things we need to bring in while training them, to make them professionally detached, but of course interested and focused in their business.

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