The Role of Lawyers In the Fight Against Corruption, By Bolaji Owasanoye
A profession that fails to enforce ethical standards and rules of professional conduct will gradually decline until it becomes almost irrelevant in the polity. Furthermore, other professional bodies or touts will gradually infiltrate and take over some of its functions thereby diminishing economic opportunities for its members.
“A Mafia Godfather finds out that his bookkeeper, Guido, has cheated him out of $10,000,000. His bookkeeper is deaf. That was the reason he got the job in the first place. It was assumed that Guido would hear nothing so he would never have to testify in court. When the Godfather goes to confront Guido about his missing $10 million, he takes along his lawyer who knows sign language. The Godfather tells the lawyer, “Ask him where the money is!” The lawyer, using sign language, asks Guido, Where’s the money? Guido signs back, “I don’t know what you are talking about.” The lawyer tells the Godfather, “He says he doesn’t know what you’re talking about.” The Godfather pulls out a pistol, puts it to Guido’s head and says, “Ask him again or I’ll kill him!” The lawyer signs to Guido, “He’ll kill you if you don’t tell him.” Guido trembles and signs, “OK! You win! The money is in a brown briefcase, buried behind the shed at my cousin Bruno’s house.” The Godfather asks the lawyer, “What did he say?” The lawyer replies, “He says you don’t have the guts to pull the trigger!”
The role of all professionals in fighting any social ill is well recognised. The level of expectation of a particular profession depends on the nature of the social ill. A few years ago the Ebola scourge was on the rampage and the West Africa region was put on the spotlight but most notably Guinea, Liberia and Sierra Leone. When the virus was imported to Nigeria by a desperate ECOWAS diplomat, Nigeria bore a taste of the challenge. The whole nation was on red alert and a higher level of hygiene was advised. Hand shaking, hugging and body contact became threatened modes of greeting. The medical profession, comprising doctors and other support services, distinguished itself. Indeed, the first Nigerian victim and martyr of the times was a medical doctor who sacrificed her life to ensure the Ebola virus imported by the late Ambassador Patrick Sawyer and brought to her hospital was contained within the four walls of that hospital. Had the late Dr. Ameyo Adadevoh, due to personal considerations alone, allowed Patrick Sawyer to leave her hospital and spread his virus beyond its four walls, perhaps Nigeria’s story and history would be different today.
It is no longer disputable that corruption holds the ace for the current sorry state of the Nigerian state. Like cancer or the Ebola virus, it has eaten deep into the organs of national physiology, emaciating its victim to near coma until the election of President Muhammadu Buhari about 15 months ago. Buhari’s surgical procedures have however, so far, been resisted by a vocal minority of “native doctors”, suggesting somewhat hypocritically to themselves that the patient is not ill. And if ill, the sickness is neither terminal nor life threatening, or if life threatening, the treatment regime of assets recovery and prosecution of high profile cases and politically exposed persons are not the preferred treatments regime.
Lets take a primer of the symptoms – 24 out of 36 states are technically insolvent due to the same malady; one geo-political zone was almost lost to insurgency fuelled and escalated by same; also the dilapidation and non-existence of key infrastructure, in spite of increased revenue over the past 15 years. There was the depletion of national foreign reserves in spite of providential increase in revenue in the past 5 years, high youth unemployment and destruction of social safety nets etc., all due to corruption.
Recent revelations of mind boggling cases of corruption emanating from only two sectors of the economy so far have, however, kept most, but not all, ardent cynics and most probably collaborators of corruption, spell bound and grudgingly admitting that the role of corruption in Nigeria’s sorry state is not exaggerated but in fact understated.
However, like all cynics and self-fulfilling prophets, once cynicism and prophecy fly in the face of reality, the cynical prophet shifts to the next absurd conclusion that nothing will change and socio-legal chemotherapy will not work. Such a conclusion is fatalistic because if nothing changes the patient, the society, as we know it cannot and will not survive.
Fighting corruption is not known to be a tea party because corruption by its nature plays true to type. It refuses to accept noble values and strategies set to displace it because those values are antithetical to its character. Thus corruption fights back using different collaborators and strategies. Where it is systemic as in the case of Nigeria, it pushes back through passivity or activity of various frontiers – corrupt politicians, collaborating businesses and professional groups, insensitive and selfish ￼elites etc. all indicating that there are more traitors in this powerful minority than patriots, more back stabbers than supporters. The strongest indicator of such push back is in the contradictory desire of those who wish to eat omelet without breaking eggs or go to heaven without tasting death. Such people say they wish to see corruption diminished but not by punishing looters.
Bearing in mind such a confounding dilemma, fighting corruption demands stamina and resilience. A strategy and determination to go the long haul claiming victory in silos of short, medium and long term impact, sector by sector focus and by separating the wheat from the chaff and isolating what works from what does not or will not.
Nigeria’s experience reflects that of other countries who have in recent times fought corruption, most notably Singapore, Botswana, Hong Kong, South Korea, Estonia, Georgia, Qatar, Chile, Uruguay, etc. just to mention a few. In each of these cases, political will and leadership example ranked first in the factors that changed the matrix. Next was pressure from citizens and the civil society on the leadership to continue to do what was right in the context of the society. In this group are professional bodies, especially role actors in the administration of justice, particularly lawyers and judges. Finally is the role of the international community typified by Liberia as an example of a positive outcome in anti-corruption campaign in post war effort. Our focus today is the focus on lawyers. However, I want to look at what has worked and what has not worked.
What Has Worked
1. Developing and implementing a credible strategy to guide the anti-corruption agenda in a way that articulates the objective of the state and its ability to realistically achieve its goals and objectives using short, medium and long term milestones. Such a strategy may select priority sectors or outcomes. In Nigeria, the return of stolen assets is clear priority for the government given the dismal level of state finances. This is not just by taking back from prebendal looters but also by blocking leakages in the system that hitherto enable illicit outflow of capital viz. eliminating ghost workers; avoiding double or over budgeting; reducing the cost of governance by reducing the size of government without sacking workers etc.
2. Securing the cooperation of all arms and all levels of government is important. This should not be assumed in systems where one or more arms or levels of government prefers the status quo and will actively or passively hinder the fight either due to fear of the searchlight coming its way or due to chronic insensitivity to the effect of corruption to the polity. Given present economic realities in Nigeria we must ￼accept that unless there is a paradigm shift there will be catastrophe.
3. Communicating the negative impact of corruption in a graphic and sobering manner to underscore the inevitability of a final outcome of the state failing if it does not fight corruption.
4. Unequivocal leadership examples to lead the fight upfront and by personal examples.
5. Independence of anti-corruption agencies from political interference and manipulation. What ACAs need is information about illegality. Thereafter they are left to use best effort and judgment to prosecute the anti-corruption war.
6. Transparency and oversight of the work of ACAs, especially in the absence of a Governing Board or management framework.
7. Improving the sanctions and enforcement regime in anti-corruption campaigns is crucial. It involves the commitment of all players in the administration of criminal justice, viz the prosecution; defence; judiciary; prison authorities. In this regard, however, the judiciary ranks far above other players in importance. In Botswana, the judiciary played a salutary role in improving the ranking of the country in anti-corruption initiatives. In Estonia, the judiciary was completely overhauled with new court systems created and all judges appointed anew.
a. Note the reported cases of drug convicts, who negotiated their way out of prison sentences right from court premises with the collusion of the prosecutors, defence and prison warders who were supposed to take them into custody;
b. Prevalent use of restraining orders by judges to tie the hands of ACAs from investigating, arresting or prosecuting suspects which is tantamount to giving judicial immunity to criminals. Until the heat was increased in the current fight against corruption, the prevailing assumption was that suspects could procure judicial immunity where the price was right;
c. Effective oversight of ACAs to avoid abuse of power and witch hunting
8. Effective legal framework to tackle all aspects of the anti-corruption campaign including the sanctions and enforcement regime to;
a. Investigate and prosecute offenders. Weak investigation and prosecution undoubtedly leads to poor results. However, a sensitised adjudicatory and justice system also recognises the effect of impunity in the medium to long term. Therefore, the courts strike a balance not to tolerate manipulation of the criminal justice system by any segment, no matter how influential;
b. Effective sentencing regime to punish offenders and assuage the society since every crime of corruption is against society;
￼c. Recover stolen assets. Hitting criminals in the pocket is important in the reform process. Having a robust NCB process with lower standard of proof alongside the full criminal process is also fundamental;
d. Punish abuse of CJA process by ACAs and defence lawyers who deride the system by grandstanding, thereby escalating a culture of impunity in the name of protecting or promoting the rule of law;
e. Punish judicial corruption with equal determination that indicates the absence of sacred cows;
f. Reverse the burden of proof through the use of unexplained wealth orders, especially for egregious cases of corruption. Existing legislations will be used more in the future to get suspects to explain the source of their wealth.
9. Creating effective framework of operational guidelines to punish offenders in a way that ensures justice is done to the state.
10.Effective information management system that enables the citizens appreciate the objective of the state and what it is achieving and what it is not achieving. Proper information management should help win converts to the fight against corruption rather than antagonists. For citizens to effectively participate, access to information is crucial. Leveraging on technology makes this achievable at least cost.
11.Information about the budget, government expenditures, contracting processes and public procurement are sine qua non in succeeding in anti-corruption efforts. Nigeria is not yet there but recent commitments by the country at the just concluded London Anti-corruption summit renews hope.
Specifically, Nigeria committed to:
a. Open Government Partnership Initiative making it the 12th African nation to join this partnership. The Open Government Partnership would ensure transparency in the management of natural resources and public funds as well as strengthen citizen engagement in the activities of government;
b. The Federal Government also committed to the Open Contracting initiative, an approach whereby transparency frameworks are applied to procurement systems in obligated countries. This initiative would increase beneficial ownership transparency. What open contracting does is that it ensures accurate and timely basic and beneficial ownership information is collected, available and fully accessible to those who have a legitimate need for it;
c. The Open Contracting initiative would involve the establishment of a public central registry of company beneficial ownership information and an Open Contracting Data Standards system. Beneficial ownership information can be used effectively to detect and fight corruption. Ultimately, this will help in identifying ￼several individuals that are hidden behind corporate vehicles, while laundering public funds in offshore territories as we recently found in the Panama Papers.
12. Escalating preventive measures in tandem with enforcement measures. Reducing opportunities for corruption is as important as sanctions and enforcement. Measures like TSA, eliminating opportunities for rent seeking by state agencies; reducing the size of government; cutting down frivolous expenditure, tracking down ghost workers, eliminating budget padding etc. all work as well as a good sanctions regime.
13. Improving on the character, integrity and pedigree of those appointed to public office or are elected into office, whether in private, professional and public sectors of national life. Ultimately, a key factor in diminishing corruption is the character of persons who occupy public office. If scoundrels dominate the landscape, fighting corruption will be a mere joke.
14. Strengthening civil society. This remains a key factor in any anti-corruption initiative. So far Nigeria scores well in leaving a voice with civil society but more can be done by regular information sharing.
What Has Not Worked
1. Inadequate legal framework. The lack of POCA, Whistleblower, and Witness Protection laws is a slow down to effective campaign against corruption.
2. Inadequate funding of criminal justice administration, generally affecting prosecution, judiciary and prison system. E.g. One Black Maria in FCT is a slow down for effective CJA. Whereas criminals are very organized the state often is not. Evaluate the legal representation in high profile corruption.
3. Poor oversight of work of ACAs with constant evaluation of internal corruption risks assessment.
4. Ineffective monitoring mechanism for major projects or initiatives leads to scandals., e.g. the prison decongestion project situated in FMOJ for a number of years gulped billions over a five to six-year period without impacting the prison situation. Systemic corruption entrenched within FMOJ and collaborating lawyers in private practice effectively truncated the project. NBA as a major stakeholder failed to play the role of a watchdog of the process in spite of its avowed commitment to CJA. Rather NBA leaders and former HAGF used the project as patronage for lackeys and supporters.
5. Inadequate manpower and absence of a coherent and strategic framework for capacity building for role actors, especially ACAs and the Judiciary. Note the work of PACAC in this regard.
￼6. Using half measures will ultimately lead to a reversal of fortunes. Reform processes must be holistic and cover all stakeholders. Focusing on persons rather than institutions will achieve temporary measures only.
The Role of Lawyers
Let me start by admitting that there is no universal approach to the obligations and responsibilities of lawyers when dealing with corrupt practices. Lawyers, like other citizens, should not carry out illegal activities. The traditional role of lawyers is that of the defender of justice and representative of individuals before the law, the fall-out from lawyers being involved in corrupt practices can be far greater than that of other professions, and rightly so. Indeed, any professional body that uses its special knowledge against society threatens the survival of society. Imagine if during the Ebola crisis, doctors and other health personnel adopted a self-preservation, self-centered tactic against the virus. Perhaps we would not be here today.
As I said in a previous lecture, “Lawyers by training are best placed to champion advocacy for law reform and protection of individual rights, open, representative government, consumer protection, economic development, social welfare etc. Lawyers have historically supported these ideals but have also been counterforces in other directions, including anti-democratic directions. In 1993, lawyers filed cases in support of the entrenchment of military dictatorship, the outcome of which set the country back several years. More recently, lawyers have filed cases designed to frustrate democratic growth and the 2015 elections or to prevent the inauguration of the new government. It is a moot point to ask if a lawyer has an obligation to override a client’s desire to pursue an anti- democratic position. But at the same time, lawyers do have ethical and legal responsibility not to abuse the process.”
The role of lawyers in the fight against corruption is therefore far greater than the role of land surveyors, architects, artists, geologists etc.
Since the adoption of UNCAC in 2003, the global community took a broader view of corruption, its definition, its part in fuelling other crimes like terrorism, trade in narcotics, human trafficking and instability of regions and the role of certain professional groups in fighting it. Thus across the world, legislative changes now take a far broader view of what would be considered a corrupt activity. Failing to report suspicious ￼activity and letting a client know that you have informed authorities about their behaviour are now considered part of the bundle of illegal or corrupt activities. It is these requirements that are having an important effect on lawyer-client privilege.
Legal privilege exists to protect a client’s ability to access justice by encouraging complete disclosure to legal advisers without the fear that such communications may prejudice the client in the future. The assumption is that full disclosure will allow for the provision of more comprehensive and appropriate legal counsel. However, recent global experiences with terrorism and corruption forced the international community to rethink the scope of this privilege.
First let us start by consideration of the ways by which the criminal justice system attempts to get the support of all citizens generally and professional groups in particular. Anti-corruption prevention is found in ‘hard law’, that is binding legislation and subsidiary regulations, and ‘soft law’, that is professional body principles and regulations and finally in judicial decisions.
Liability for hard laws is fairly straightforward. It is the liability that results from general criminal laws. Lawyers are subject to general anti-corruption laws and are not exempt. The attempt by a section of the profession to suggest that the effort of anti-corruption agencies to bring to justice senior advocates who have committed crimes, whether of their own volition or in the process of defending the right of their clients, falls within this rubric.
Where a lawyer acts in such a way as to be directly responsible for an act of corruption or acts as part of a conspiracy to corrupt, the lawyer can face liability as a “principal” offender. For example where a lawyer pays a bribe or actively arranges any particular corrupting activity in the course of practicing his profession. He is liable to prosecution under extant laws.
On the other hand, the lawyer may not be directly responsible for the act of corruption but facilitates or otherwise provides assistance to a principal offender; such a lawyer can be liable as an accessory or accomplice. This is particularly important given the nature of a lawyer’s role in a corrupt act.
In addition, a lawyer could also be liable for offences related to the ￼criminal act of corruption, such as money laundering offences where local laws include the requirement to report corruption activities. It is the reporting requirement that is a sticky point for lawyers.
In recognition of the critical role of lawyers in anti-corruption initiatives, the international community imposed a gatekeeper role on them. In 1990, the Financial Action Task Force (FATF), a body set up by the G8 countries, adopted a set of forty recommendations on money laundering. In 2001 the recommendations were reviewed, resulting in its May 30, 2002, Consultation Paper known as the Gatekeeper Initiative. The initiative proposed that some professionals, including lawyers act as ‘gatekeepers’ to the international financial and business markets by disclosing client breaches of rules, although such information was obtained in confidence, and not mentioned to the affected clients.
According to a 2003 ABA paper, the FATF recommendations could be summarized as:
• Extending certain anti-money laundering measures to lawyers, such as increased regulation and supervision of the profession;
• Increased due diligence requirements on clients;
• New or expanded internal compliance training and record keeping requirements for lawyers and law firms; and,
• Under certain circumstances, “suspicious transaction reporting” (“STR”) requirements that require lawyers to report to a government enforcement agency or a self-regulatory organization (“SRO”) information that triggers a “suspicion” of money laundering relating to a client’s activity.
As would be expected many Bar Associations rejected the FATF recommendations. However, ongoing conversation between FATF and Bar associations across the world led many Bar associations to adopt stringent internal control measures to cooperate with the international community, while some nations adopted statutory measures.
In Nigeria, by the Money Laundering (Prohibition) Act 2011 and the Prevention of Terrorism Act (PTA) 2011/2013, the Special Control Unit Against Money Laundering (SCUML) was established to monitor, supervise and regulate the activities of Designated Non Financial Institutions (DNFIs). Section 25 of Money Laundering (Prohibition) Act defines DNFIs as “dealers in jewelry, cars and luxury goods, precious stones and metals, real estate, estate developers, estate surveyors and valuers, estate agents, chartered accountants, audit firms, tax consultants, clearing and settlement companies, hotels, casinos, supermarkets, dealers in mechanized farming equipment and machineries, practitioners of mechanized farming, NGOS or such other businesses as the Federal Ministry of Trade and Investment or appropriate regulatory authorities may from time to time designate.
By the Anti-Money Laundering CFT Regulations for Designated Non- Financial Businesses and Professions in Nigeria of 2013, legal practitioners were included in the list of DNFIs, thus requiring lawyers to register with SCUML.
NBA successfully challenged this regulation and SCUML in a case filed 2013 against the AGF and CBN. The Federal High Court held that sections 5 and 25 of MLA could not be used against legal practitioners because SCUML and FMTI are not juristic persons. The Court upheld the provisions of Rule 19(1) of the Rules of Professional Conduct for Legal Practitioners, made pursuant to the Legal Practitioners Act and section192 of Evidence Act, which preserves confidentiality of Attorney-Client communication.
Rule 19(1-2) provides –“Except as provided under sub-rule (3) of this rule, all oral or written communications made by a client to his lawyer in the normal course of professional employment are privileged. (2) Except as provided in sub-rule (3) of this rule, a lawyer shall not knowingly –
(a) Reveal a confidence or secret of his client;
(b) Use a confidence or secret of his client to the disadvantage of the client; or
(c) Use a confidence or secret of his client to the advantage of himself or of a third person unless the client consents after full disclosure.
Furthermore, the Court said sanctions contemplated by SCUML had been covered by extant rules regulating conduct of lawyers, thus the MLA regulations were superfluous. The Court refused to accept the submission of the defense that the purpose of the MLA and SCUML was not to monitor legal practitioners but their clients involved in suspicious transactions and that the legislation is a valid derogation from the fundamental rights preserved in the constitution.
The crux of the Court’s position is that FMITI and SCUML are not juristic persons, however, Sections 5 and 37 of the Nigerian Financial Intelligence Bill 2015 passed on June 2nd 2015 but which was not assented ￼to by President Buhari obliges lawyers and other DNFI to report suspicious transactions to the newly established NFIC.
Beyond this, the efficacy and efficiency of the internal mechanisms of the NBA for disciplining its own lawyers has been called to question. In a widely reported lecture by the former President of the Court of Appeal, Justice A. Salami was quoted as saying, “I wish the Nigerian Bar Association would have the will, ability and capacity to implement the recommendations of the Okpoko Committee that carried out NBA’s independent investigation into the Sokoto Case which led to my travails… Unfortunately, NBA which had a good report in its hands could not impose sanctions on members of your Bar that were indicted therein (probably because ‘prominent’ senior lawyers were involved)… Sometimes (and when it matters) some members of the Bar representing NBA on the NJC hardly stand up for the truth not to talk of speaking the truth.”
This scathing but unchallenged remark by Justice Salami reflects the general perception of lawyer and the NBA with regard to managing professional ethics and misbehavior by lawyers.
The Rules of Professional Conduct
The 2007 Rules of Professional Conduct for Legal Practitioners made by the Attorney-General of the Federation pursuant to s.12(4) of the Legal Practitioners Act are the extant rules regulating the conduct of lawyers in Nigeria.
Rule 1provides that a lawyer shall uphold and observe the rule of law, promote and Foster the cause of justice, maintain a high standard of professional conduct, and shall not engage in any conduct, which is unbecoming of a legal practitioner.
Rule 14 affirms the duty of a lawyer to clients. It says –
14. (1) It is the duty of a lawyer to devote his attention, energy and expertise to the service of his client and, subject to any rule of law, to act in a manner consistent with the best interest of the client.
Para 14(e) says, “Where he considers the client’s claim or defense to be ￼hopeless, inform him accordingly.
Paragraph 15 of the rules is very germane to the role of lawyers in the fight against corruption. It provides –
“15. (1) In his representation of a client, a lawyer may refuse to aid or participate in conduct that he believes to be unlawful even though there is some support for an argument that the conduct is legal.
(2) In his representation of his client, a lawyer shall –
(a) Keep strictly within the law notwithstanding any contrary instruction by his client and, if the client insists on a breach of the law, the lawyer shall withdraw his service;
(b) Use his best endeavors to restrain and prevent his client from committing misconduct or breach of the law with particular reference to judicial officers, witnesses and litigants and if the client persists in his action or conduct, the lawyer shall terminate their relations.
(3) In his representation of his client, a lawyer shall not –
(a) Give service or advice to the client which he knows or ought reasonably to know is capable of causing disloyalty to, or breach of, the law, or bringing disrespect to the holder of a judicial office, or involving corruption of holders of any public office;
(b) File a suit, assert a position, conduct a defence, delay a trial, or take over action on behalf of his client when he knows or ought reasonably to know that such action would serve merely to harass or maliciously injure another;
(c) Knowingly advance a claim or defence that is unwarranted under existing law, but he may advance such claim or defence if it can be supported by argument in good faith for an extension, modification, or reversal of existing law;
(d) Fail or neglect to inform his client of the option of alternative dispute resolution mechanisms before resorting to or continuing litigation on behalf of his client.
(e) Conceal or knowingly fail to disclose that which he is required by law to reveal;
(f) Knowingly use perjured or false evidence;
(g) Knowingly make a false statement of law or fact:
￼(h) Participate in the creation or preservation of evidence when he knows or ought reasonably to know that the evidence is false;
(i) Counsel or assist his client in conduct that the lawyer knows to be illegal or fraudulent; or
(j) Knowingly engage in other illegal conduct or conduct contrary to any of the rules.
(4) Where in the course of his representation of his client a lawyer receives clearly established information that the client has perpetrated a fraud upon a person or tribunal, he shall promptly call on his client to rectify it, and if his client refuses or is unable to do so he shall reveal the fraud to the affected person or tribunal, except when the information is a privileged communication; and if the person who perpetrated the fraud is not his client, the lawyer shall promptly reveal the fraud to the tribunal.
(5) A lawyer shall not assert in argument his personal belief in the integrity of his client or of his witnesses or the justice of his cause, but he may make a fair analysis of the evidence touching on those matters.
Furthermore, Paragraph 21 says that a lawyer shall not abandon or withdraw from a case except for good cause. Paragraph 2(b) and (c) give good cause as where the client insists on an unjust or immoral cause in the conduct of his case or persists against the lawyer’s advice and remonstrance in pressing frivolous defenses. The problem however is that it is not the clients who insist on immoral causes in the conduct of a case or push frivolous defenses; it is the lawyers.
In this regard, the most odious practice is that of causing delay in criminal cases.
Rule 30 of the Rules of Professional Conduct says –
Rule 30. A lawyer is an officer of the court and accordingly, he shall not do any act or conduct himself in any manner that may obstruct, delay or adversely affect the administration of justice.
This very important rule is most abused in administration of criminal cases and prosecution of high profile corruption cases especially against politically exposed persons.
Recently, the Supreme Court had cause in Dariye vs FRN (2015) 6 NWLR (pt.1467) 325 to castigate the counsel for the delay of corruption cases. Ngwuta JSC said –
“It is not the duty of learned counsel to resort to motions aimed principally at delaying or even scuttling the process of determining ￼￼￼￼￼￼whether or not there is substance in the charge as laid. In my view, this motion is a disservice to the criminal process and a contemptuous lip service to the fight against corruption. The tactics employed here is only one of the means by which the rich and powerful cripple the criminal process. There are cases where the accused developed some rare illness which acts up just before the date set for their trial. They jet out of the country to attend to their health and the case is adjourned. If the medical facilities are not available locally to meet their medical needs it is only because due to corruption in high places the country cannot build proper medical facilities equipped with state of the art gadgets. There should be no clog in the process of determining whether or not a person accused of a crime is guilty irrespective of his status in society. Let me trace the genesis of this appeal.
The trial Court, having considered the application before it, granted leave to the respondent to prefer the charge against the appellant. Upon his arraignment in July, 2007 appellant appeared to have seen no defect in the charge and joined issue on each of the 23 counts of the charge with the respondent. On the day slated for the trial to open, 13/11/2007, the appellant reversed himself, as it were, and filed an application urging the Court to quash the charge laid against him for the various reasons stated in the application. The trial Court heard the application and made a considered ruling dismissing same. Appellant appealed to the Court of Appeal and the said Court dismissed the appeal and affirmed the decision of the trial Court. Appellant then appealed to this court. Meanwhile, the case instituted in 2007 is yet to take off. In my view and in view of the facts herein, the sole aim of the appellant is to stall the hearing in the charge laid against him. Now the appellant has come to the last bus stop in his journey to scuttle his trial. Predictably, he may open another avenue to derail the criminal justice delivery system in his case. He is using the rules of law to fight the law for justice delayed, not to mention unduly delayed, is a mockery of justice. He embarked on this unnecessary long journey despite the fact that any mistake in the particulars of the charge will render the whole proceedings liable to be quashed at the end of the trial.”
The point of note here is that the defense counsel orchestrated on behalf of the accused the delay reprimanded by the court. The matter of higher regret is that the Court failed to specifically recommend counsel for discipline, especially in line with Rule 30 of Rules of Professional Conduct.
Opinion is sharply divided as to the equality of application and enforcement of the rules against all lawyers in Nigeria. As Justice Salami said in his speech quoted above, the NBA could not sanction its members because ‘prominent’ senior lawyers were involved. This is the problem killing the legal profession. The selective application of sanctions on lawyers. Whereas young lawyers who err are easy prey, the seniors who commit more egregious offences against the profession are almost deified and rewarded with membership and chairmanship of important NBA committees.
This same attitude is carried by some lawyers to the prosecution of high profile cases whereby some suspects are almost deified and encouraged to defy the administration of criminal justice. In the words of Nweze JSC in the same case
“I have noticed a most worrisome trend in recent times, affluent Nigerians, particularly, the politically-exposed citizens of this great country, imagining that they are above the laws of the land, have perfected some awkward and graceless tactics of delaying their trial when they run into conflict with our penal statutes. The appellant in this appeal falls into this category.”
NBA’s successful challenge of SCUML so far notwithstanding, lawyers have an obligation to cooperate with the government’s anti-corruption initiatives and put its own house in order. So far, the public perception of the Bar is not one of antagonists of corruption but of ally. The challenge is achieving a balance between the personal economic interests of lawyers, national interests and so called professional to client duties.
The inability of the legal profession to cleanse its ranks has a multiplier effect on the justice system. It is from the ranks of the legal profession that judges are appointed. If the system is unable to successfully filter and punish persons guilty of professional misconduct, the nation cannot develop. The prevalence of petitions and allegations of corruption against judges is a direct reflection on the quality of legal profession.
In Nigeria, persons of questionable character continue to beat the system to be appointed to positions of integrity not just into the judiciary. Furthermore those indicted by reports or even judgments of court are appointed and elevated to higher positions or retained within the system thus diminishing the integrity of the entire system.
￼Lawyers with questionable characters, pedigrees and integrity, who are notorious amongst peers as persons who specialize in subverting justice or colluding with others to subvert justice, diminish the integrity of the profession in particular and the nation in general. Unfortunately, some of such are celebrated as senior lawyers who win awards and privileges. Some aspire to and are elevated to the bench.
The paucity of sanctions against criminals, especially politically exposed persons in our law courts and even within professional bodies speaks volumes of our perception of accountability and integrity in the polity.
As I said earlier the role of lawyers in the fight against corruption is far greater than the role of other professionals. The passage of the Administration of Criminal Justice Act 2015 reflects society’s concern at the delay in the administration of criminal justice. As a result a number of provisions in the statute are designed to eliminate delay. Unfortunately, the singular biggest threat to the success of the legislation is the unchanging attitude of lawyers to the letter and spirit of the law. Lawyers appear oblivious of the intent of the law.
Unfortunately, some judges continue to tolerate the dilatory tactics of lawyers rather than enforce the spirit of the law fully. Refusal to recognize the import and impact of the legislation and continued attempts to delay progress of criminal cases, especially corruption cases, is a gross violation of Rule 30 of the Rules of Professional conduct and ought to be severely sanctioned without equivocation.
Integrity and ethical professional conduct takes last position where there is a culture of silence. One of the biggest challenges facing Nigeria is a culture of silence that makes corruption thrive in professional circles and in the larger society.
This culture is a conspiracy of silence that by unspoken formal or informal consensus members do not mention, discuss or acknowledge a problem or pretend to mention or discuss it in a tokenistic manner that indicates a high level acceptance or tolerance of the malady within the group. The practice may be motivated by positive interest in group solidarity or by negative impulses such as fear of political repercussion or social ostracism.
A profession that fails to enforce ethical standards and rules of professional conduct will gradually decline until it becomes almost irrelevant in the polity. Furthermore, other professional bodies or touts will gradually infiltrate and take over some of its functions thereby diminishing economic opportunities for its members.
Bolaji Owasanoye is Executive Secretary, Presidential Advisory Committee Against Corruption (PACAC).