Lawyers’ Role In Nigeria’s Anti-corruption Laws

Lawyers’ Role In Nigeria’s Anti-corruption Laws

Thursday, December 1, 2016 11:31 pm


Layi Babatunde

Layi Babatunde

By Layi Babatunde

It is with great pleasure and humility, that I accept the honour of your invitation to deliver the 9th M. M. A. Akanbi Public lecture in Honour of Hon. Justice Mustapha Akanbi, CFR; former President, Court of Appeal and pioneer Chairman of ICPC. It is only befitting that I take the liberty of this platform, to say a few things about the man in whose honour we have gathered. Many of us for good reasons, regard him as our teacher, father, mentor and with uttermost humility, friend. Hon. Justice Akanbi is no doubt a distinguished Jurist, philosopher and social crusader. The Wakili of Ilorin, remains an ever shining light, in the fight against corruption. Writing about the Honoree, the Emir of Ilorin and Chairman, Kwara State Council of Chiefs His Royal Highness Alhaji (Dr.) Ibrahim Sulu-Gambari, had this to say:

He is a very reliable man, consistent and constant like the Northern star. By being close to him, I was also privileged to be close to his father who was one of the leading Moslem leaders and scholars in Ilorin emirate. If you were familiar with the father, as I was, you will know that Justice Akanbi’s character is an exact replica of his father…

He is an accomplished man: a man of honour; a man of reliability and a man of truth who is always by the side of Justice. His pattern of life is worthy of emulation by young people, particularly those aspiring to occupy some leadership roles in legal practice. He is now one of the acknowledged elders whose advice is being sought in all spheres of life in Ilorin Emirate as well as the whole of the country at large.1

I need not say more; than add a short Bio-Data.
Hon. Justice Muhammad Mustapha Adebayo Akanbi was born on 11 September 1932 at Accra, Ghana, to Muslim parents from Ilorin in Nigeria. After completing secondary school he worked as an Executive officer in the Ghana Civil Service. He was also active as a trade unionist. Moving to Nigeria, he worked in the School Broadcasting Department of the Ministry of Education.

His Lordship obtained a scholarship to study law at the Institute of Administration, now Ahmadu Bello University, Zaria, followed by legal studies in the United Kingdom. He was called to the English Bar in 1963 and to the Nigerian Bar in January 1964. He joined the Ministry of Justice and became a Senior State Counsel in 1968. In 1969 he set up a private practice in Kano. In 1974 he was appointed a judge of the Federal Revenue Court (now Federal High Court), and in January 1977 he was elevated to the Court of Appeal Bench. In 1992 he was made President of the Nigerian Court of Appeal, a position he held until voluntarily retiring in 1999, well ahead of required statutory age of retirement.

In 2000, President Olusegun Obasanjo appointed Justice Akanbi as the pioneer Chairman of the newly established Independent Corrupt Practices Commission (ICPC). His Lordship again voluntarily left the stage upon completing his first term.

He joined the board of the Justice and Law Enforcement Reformation Organization, a non-profit organization that aims to eradicate corruption and poverty from the perspective of the Judiciary and Law Enforcement agencies. In 2006, His Lordship established the Mustapha Akanbi Foundation (MAF) in Ilorin, Kwara State, dedicated to strengthening civil society groups, governmental agencies and private business concerns and helping them imbibe a culture of transparency and accountability. The Mission Statement of MAF is “to make a difference in human society: to bring about changes, position changes that can improve the quality of lives our people in all field of human endeavour, changes that can enthrone justice, equity and fairness in the march to greatness; the sort of change that can make our people the pride of the black race and our country the haven of all that is good and decent in nature.”
It is an honour and a matter of pride to be appointed the Legal Adviser to the foundation

This lecture, no doubt is not just a lecture in honour of our beloved Justice Mustapha. It appears to me, to be one of the strategies of the Faculty of Law to further consolidate her increasing meritorious position, as one of the best institutions for moulding the next generation of Lawyers, that will do our Country proud. The recent performances of your students at the Nigerian Law School, show clearly, that the Law graduates from the Faculty of Law, University of Ilorin, belong to a class of their own. A class that speaks for itself, in terms of qualitative performances. I wholeheartedly congratulate the Dean, Lecturers and indeed all members of staff and students of this noble faculty. I know this could not have been possible, without the support of the Vice Chancellor, the Registrar, the Librarian, the Deputy Vice Chancellors and indeed the entire University of Ilorin academic and non-academic community. The credit is therefore extended to all of you. I wish you greater service to our great country, Nigeria, and humanity at large. Your task is to continue to build upon and improve on the solid foundation already laid. You cannot afford to lower your guards, nor afford to let the high standards you have attained, to be blemished. May your banner of academic excellence remain untainted.

SPECIAL TRIBUTE TO OUR FOUNDING FATHERS IN THE LEGAL PROFESSION:
A paper such as this, will be incomplete without paying a well deserved tribute, to the founding fathers of our profession, the noble legal profession. I acknowledge with due respect, the contributions of the earliest entrants, particularly Christopher Alexander Sapara Williams, of blessed memory. As a guide to the future, a brief account of his life and contribution to the development of our country, will suffice

Although he was born on the 14th of July, 1855 in Sierra Leone, Sapara-Williams had his roots in Ijeshaland, Osun State. He was the elder sibling of Dr. Oguntola Odunbaku Sapara, a well-known medical doctor.

In 1871, he attended CMS Grammar School and later, the Wesley College, Sheffield, United Kingdom. Sapara-Williams was a law student at the Inner Temple, London, United Kingdom and after graduation, he was back in Nigeria where he started his practice on the 13th of January, 1888 in Lagos State (then the Lagos Colony).

On the 17th of November, 1879, he stamped his name in the annals of history as the first Nigerian lawyer when he was called to the English Bar. As an advocate, Sapara-Williams clearly distinguished himself and his knowledge of the customary law was indeed breath-taking. On the 30th of January, 1888, he joined as a member of the Nigerian Bar Association (NBA) and on the 30th of August 1888, (128 years ago), he enrolled at the Supreme Court, Lagos as the first Nigerian barrister. It will also interest you to know that from 1900 to 1915, he was the Chairman of the NBA, which remains till date, one of Nigeria’s most influential bodies.

It must however be noted that even though Sapara Williams was a pioneer in the field, there were some other contemporaries who also practiced with him. But owing to the very low number of lawyers as at that time, people with no legal training but were a bit literate and had a passing knowledge of the English Law were regularly chosen to work as attorneys.
Sapara-Williams handled popular cases such as Cole vs Cole and the Attorney-General of Southern Nigeria vs John Holt and Company. These were some of the most celebrated cases of the time and he also practiced law in Accra, Ghana.

Sapara-Williams also dabbled into politics and left his mark. He was the one who proposed that the ‘the present boundary between the Colony and Protectorate of Southern Nigeria and the Protectorate of Northern Nigeria be readjusted by bringing the southern portion into Southern Nigeria, so that the entire tribes of the Yoruba-speaking people should be under one and the same administration.’ Although Lord Lugard, the Governor-General did not support this move, his input to the final conclusion was more than slight.

He was also instrumental to the decolonization of the country. In 1905, he was in the United Kingdom where he made various proposals to the Colonial Office to make the necessary changes in their policies. Among others, he called for the construction of a training college for teachers in Lagos. And later, he also questioned the Seditious Offences Ordinances of 1909, which muzzled the press and clamped down on critics of the colonial authorities.

He stated thus: ‘Freedom of the Press is the great Palladium of British liberty … Sedition is a thing incompatible with the character of the Yoruba people, and has no place in their constitution … Hyper-sensitive officials may come tomorrow who will see sedition in every criticism and crime in every mass meeting’. Although the British still went ahead with the ordinance, making it a law, his voice was already heard.

His political and nationalist struggles did not end there. He allied with Herbert Macaulay to start the Anti-Slavery and Aborigines Protection Society in Lagos on the 30th of August, 1910. This gave Macaulay a stronghold in attacking the British imperialists. He died on the 15th of March, 1915. One of his profound pronouncement is that:

“The legal practitioner lives for the direction of his people and the advancement of the cause of his country.”

I believe, that the above, lays a good foundation and points the way to why as Lawyers “we cannot afford to give up”3 in the fight to rid our country of all the things that hold her down, particularly corruption.

Sapara-Williams

Sapara-Williams

However, as I rest the preamble to my lecture, I need to quickly share with my colleagues to be, the Law Students of this great University, the thoughts of Hon. Justice Ekundayo (of blessed memory) a Judge of the High Court of Kwara and Kaduna States, on the subject of personal development, particularly in the Legal profession and the future of our profession. This is partly what he had to say:

It is obvious that no University, Law School or other institutions for legal education or training can make a good lawyer of any person. They can give him information on what to do if he wants to become one. They can also succeed in building him into a super scholar, excellent researcher, and nice gentleman. Thereafter, the young man’s fate, as a professional, is squarely in his own hands. In other words, all a lecturer can do is to teach you the law, but what you do with what you learn is entirely up to you. At the end of a student’s days in the Law School, it is up to him whether he gets called to the Bar or to the bar beach.

Ordinarily speaking, there is no greater truth than the philosophical saying that no man can lift himself up with his own hands. Yet, paradoxically, this is, precisely, what a lawyer is expected to do. He has virtually to “lift himself up with his own hands” or forever figuratively lie on the floor. If ever he is to attain any great heights in the sphere of legal practice, he has to PLOUGH hard in the morning and water plentifully in the evening. As beautifully expressed in a poem, The Spanish Student: “The strength of thy own hand is thy salvation.” The fact that some other persons have become STARS in the firmament of legal practice should be a great encouragement to you as a young practitioner. As we were told in A Psalm of Life:
“Lives of great men all remind us We can make our lives sublime, And, departing, leave behind us Footprints on the sands of time.”

1.0 INTRODUCTION
Former president Olusegun Obasanjo, GCFR; was quoted as having once said that:
With corruption, there can be no sustainable development, nor political stability. By breeding and feeding on inefficiency, corruption invariably strangles the system of social organisation. In fact, corruption is literally the antithesis of development and progress…As we all know, corruption is a cankerworm that has eaten into the fabric of our society at every level. It has caused decay and dereliction with the infrastructure of government and the society in the physical, social and human angle. Corruption has been responsible for the instability of successive governments since the First republic. Every coup since then has been in the name of stamping out the disease called corruption. Unfortunately, the cure often turned out to be worse than the disease. And Nigeria has been the worse for it. Nigeria’s external image took a serious bashing, as our beloved country began to feature on top of every corruption index.

Before him, the plotters of the first ever Military Coup in Nigeria of 1966, announced to the world, the rationale for their action as follows:

“Our enemies are the political profiteers, the swindlers, the men in high and low places that seek bribes and demand 10 percent; those that seek to keep the country divided permanently so that they can remain in office as ministers or VIPs at least, the tribalists, the nepotists, those that make the country look big for nothing before international circles, those that have corrupted our society and put the Nigerian political calendar back by their words and deeds.

Further more, it has also being said that
“corruption has a significant negative impact on economic growth in Nigeria; it undermines the prospects for economic investment. By offering bribes to secure business, national and international companies undercut legitimate economic competition, distort economic growth and reinforce inequalities. Although the business (and the corrupt official) may gain in the short run, the bribe payment shifts money away from potentially productive investments. These noneconomic transaction costs keep the level of enterprise development low relative to those enterprises that are able to invest in growing their business. To generate national economic growth, businesses must use their capital resources productively. When capital is drawn away into non-economic transactions, this negatively affects enterprise growth as well as the marketplace in general. Corruption distorts growth incentives also by forcing out potentially better producers of goods or services. Since the majority of businesses in Nigeria are small and medium size enterprises (SMEs) who employ more than 90% of the workforce”.7 It is therefore not out of place to conclude that the large population of our unemployed, particularly the youths bears a direct correlation to our endemic corruption.

And as if to drive home the point, the home page of the ICPC website8 bears this troubling reminder:

“Corruption in Nigeria undermines democratic institutions, retards economic development and contributes to government instability. Corruption attacks the foundation of democratic institutions by distorting electoral processes, perverting the rule of law, and creating bureaucratic quagmires whose only reason for existence is the soliciting of bribes.”
2.0 DEFINITION OF TERMS
2.1 What is Corruption?

It is important for us in this lecture, to attempt to search for an idea of what corruption is all about. This of course, will be an attempt rather than a full-fledged adventure. The Chambers Thesaurus is helpful to us here. It sees corruption from the mirror of immorality. It also classifies it as a noun. It states that corruption means:
Immorality, unscrupulousness, impurity, depravity, degeneration, degradation, perversion, debauchery, abuse, distortion, dishonesty, fraud, bribery, subornation, extortion, sharp practice, vice, wickedness, iniquity, evil, criminality, villainy, contamination, pollution, rottenness; Nam graft. In its colloquial sense, it means: Wheeling and dealing, crookedness, shadiness, sleaze

Colin Nicholls QC, Tim Daniel, Martin Polaine and John Hatchard in their leading work: “Corruption and Misuse of Public Office” explain that:
The word ‘corruption’ is derived from the Latin word ‘corruptus’ meaning to break. Its derivation emphasizes the destructive effect of corruption on the fabric of society and the fact that its popular meaning encompasses all those situations where agents and public officers break the confidence entrusted to them.

The Oxford English Dictionary, defines corruption as the ‘perversion or destruction of integrity in the discharge of public duties by bribery or favour; the use or existence of corrupt practices, especially in a state, public corporation etc. It defines the adjective ‘corrupt’ as ‘perverted from uprightness and fidelity in the discharge of duty; influenced by bribery of the like; venal’. It defines the verb ‘corrupt’ in a similar way, except that it extends it to any duties, ‘public’ or not, and offers a further definition: ‘to induce to act dishonestly or unfaithfully, to make venal; to bribe’. It defines the verb ‘bribe’ as ‘to influence corruptly, by a reward or consideration, the action of (a person), to pervert the judgment or corrupt the conduct by a gift.

These definitions correctly emphasize the essence of corruption in its legal sense, which is the inducement to show favour, rather than showing of the favour itself. They also demonstrate the use of the word to cover acts other than what is popularly termed bribery. The restriction of the definition of ‘corruption’ to ‘public’ duties no longer reflect the state of English law, or of the most modern states. The absence of the restriction in the definition of the verb ‘corrupt’, reflects the extension of corruption to include all persons who are induced to act corruptly, whether in the discharge of public duties or otherwise. The fact that the restriction appears in one definition and is omitted from the other indicates a tendency, even in modern times, to restrict the use of the word to the acts of public officials, having regard to the public nature of the crime and the gravity of its consequences.

2.1.1 Types of Corruption
The United Nations, at a special conference held in Berlin, Germany on Countering Corruption as a prerequisite for reducing poverty, attempted to define corruption. In addition, the conference noted that there are variants of corruption. The major types identified are listed below.

a) Grand Corruption
Grand Corruption is an act of corruption at high levels of government that distorts policies and the functioning of a state. It enables high ranking officials to exploit the general public for personal profit.

b) Petty Corruption
Petty Corruption refers to the corruption of mid- and low-level officials in their interactions with a citizen. These citizens are often attempting to access goods and basic services such as schools, hospitals, and police departments.

c) Collusion
Collusion is a cooperation or secret agreement for a deceitful and illegal purpose.
d) Tied Aid
Tied Aid is aid, usually of financial nature, given to an individual or party under the condition that all or part of the aid is used to purchase goods for the person or party.
e) Coercion
Coercion is the act of making an individual or party comply with demands by using threats or force.
f) Institutional Corruption

Institutional corruption is essentially official corruption. This is because it is the corruption committed by officials of government institutions like ministries, departments and agencies. This type of corruption is fuelled by lack of strict supervision and control over public officials entrusted with providing services to members of the public. The officials exploit the weak system of control to swindle those they are meant to serve by asking for gratification for services or by making services and public amenities unreachable unless their hands are greased. Those who indulge in this type of corruption, range from junior, middle level and senior officials. Having tasted the forbidden fruit, such officials pray and wait for opportunity to be appointed or promoted to the headship of ministries, departments, parastatals or agencies to upgrade to grand corruption.

g) Systemic Corruption
Systemic corruption describes a situation where corruption and corrupt way of life have become entrenched in the socio-economic and political fabrics of the society or a nation. In systemic corruption, the practice has reached a routine way of life and so does not generate adverse reaction on those on whom it is practised. Under systemic corruption, all other types of corruption are rife and competes in ascendancy and pervasiveness. According to Robinson, under this system corruption is “routinized and accepted as a means of conducting everyday transaction” His Excellency, Prof. Yemi Osinbajo appears to be referring to the systemic corruption in Nigeria when he observed that “the main purpose of governance seems to be corruption”.

It is common knowledge that corruption has become a way of life in Nigeria, and that even the least officer in a public office can hold a person to ransom in order to achieve a corrupt end. Also, corruption has become institutionalized to the extent that non receipted phony fees are demanded and collected from prospective applicants shamefully including students, by several government agencies. This troubling scenario has created a vast field of partakers and victims of corrupt practices, high and low alike.

2.2 ILLUSTRATIONS OF TYPES, PATTERNS AND AVENUES OF CORRUPTION IN NIGERIA
.3f
(i) A dismissed/terminated/forcefully-retired Civil Servant is appointed Chairman or Director of an organisation owned by the same government that “punished” the civil servant
(ii) A business man” sets up a company in Kano and another “firm” in London, New York or Hamburg, imports from and exports to himself non-existent goods to transfer currency out of the country.
(iii) Electoral commissioners or officers are either unavailable for the filing of nomination papers by papers by particular candidates or they provide an insufficient number of voter-registration cards to particular constituencies.
(iv) Subsidiaries of multi-national companies declare huge profits to their metropolitan headquarters while publicly proclaiming losses in Nigeria.
(v) A Town Planning Authority routes a road through a political opponents landed property.
(vi) “Federal Character” is actualized by patronage to unqualified and incompetent cronies from various, sections of the Federation.
(vii) A Lawyer takes a fee from a convicted prisoner to appeal his case but neither files for the appeal nor return to the prison to see his “client” until the expiration of the sentence.
(viii) A medical doctor performs an illegal abortion for a young girl in his private clinic but rushes the dead body to his colleagues in the General Hospital and a non-incriminating death certificate is produced.
(ix) Another medical doctor issues, for a fee, a “sick-leave” for a very healthy employee to be excused from work for two weeks.
(x) The National Assembly deletes, from the enabling Acts, a clause that empowers the Code of Conduct Bureau to investigate/probe questionable declaration of assets.
(xi) Refrigerators, generators, furniture electric-kettles, etc “officially” purchased for the office are taken away for house-use.
(xii) A lecturer has the letter-heads of the Editors of major journals in his field of specialization and writes himself letters of acceptance of manuscripts for publication.
(xiii) External-examiners/assessors, for thesis-examination or promotion, are “suggested” by the candidates to be examined or assessed respectively.
(xiv) A printer gets an extremely over-inflated contract to supply stationery to an Hotels Management Board with the “understanding” that everyone, from the manager to the accounts clerk, will get his share of the “extra”.
(xv) Chairmen or Chief Executives of government institutions/ organisations/Departments approve the renting of their own houses to their institutions/ organisations/Departments at exorbitant rates.
(xvi) The market woman adulterates her yam-flower with cassava flower and pushes the bottom of the measuring tin inside to give the customer less than paid for.
(xvii) A Vice-Chancellor and the Chairman of the University Press has an arrangement whereby the Press “publishes” whatever he writes and the Chairman goes abroad on estacode allowance to see to the technicalities of the publication.
(xviii) To get your case called for hearing in Court, you must “see” the court-clerk; otherwise, you will be going to the court everyday without any hope of hearing.
The list is endless! Suffice to say, that the above list were compiled in 1983!

2.3 Who is a Legal Practitioner in Nigeria?
Who is a Legal Practitioner in Nigeria is a question of law. The Legal Practitioners Act defines a “legal practitioner” as follows:
“a person entitled in accordance with the provisions of this Decree to practice as a barrister or as a barrister and solicitor, either generally or for the purpose of any particular office or proceedings.”

The Act provides the following three ways in which a person may become entitled to practice as a barrister and solicitor.
(1) By having his name on the roll; or
(2) By a grant of warrant by the Chief Justice; or
(3) By virtue of being Law officer.
2.4 Anti-Corruption Legislation
The word “legislation” simply means “enacted law”.18 This implies that legislation are creature of a legislative body. In the case of Nigeria, legislation are either Acts of the National Assembly or Laws of a State House of Assembly.19
Anti-corruption legislations are therefore laws that provide for the prohibition, investigation and trial of persons who engage in “acts of corruption”.

3.0 LEGAL EDUCATION AND THE MAKING OF LEGAL PRACTITIONERS
The legal profession in Nigeria derives its origin from the English legal system and legal profession, which were introduced into this country in the second half of the nineteenth century.

The process of developing legal education in Nigeria began with the appointment by the federal government in April 1959 of the “Committee on the Future of the Nigerian Legal Profession”.21 The terms of reference of the Committee were, inter alia, “… to consider and make recommendation for the future of the legal profession in Nigeria with particular regard to legal education and admission to practice.”

The Committee’s report was published in October 1959 and after close study and consultation with the legal profession, two Acts were passed to give effect to the Committee’s recommendations. These were the Legal Education Act 1962, which provided for legal education for admission to practice, and the Legal Practitioners Act 1962, which provided for the comprehensive regulation of the legal profession.

The Legal Education Act 1962 established a Council of Legal Education charged with responsibility for providing suitable legal education for persons seeking to be admitted to practice law in Nigeria. In pursuance of this, the Council established the Nigerian Law School for the purpose of providing a systematic course of professional training suitable for a legal practitioner in the fused legal profession of Nigeria. The Legal Education Act 1962 was repealed in 1976 and replaced by the Legal Education (Consolidation, etc.) Act 1976 which revised and consolidated the previous Act and amendments. The Act had since been further revised.

The present legal system of legal education is, briefly, the acquisition of an approved law degree or equivalent qualification, attendance at the Nigerian Law School and obtaining a qualifying certificate therefore. Subject to good character and a citizenship qualification, the applicant is called to the Bar by the Body of benchers.
The Legal Practitioners Act 1962, on the other hand, established the General Council of the Bar, and made provisions, inter alia, for entitlement to practice law, professional discipline, remuneration of legal practitioners and the keeping of accounts and records of clients’ money. The Act was repealed in 1975 and replaced by the Legal Practitioners Decree 1975 which was a consolidating Decree.

From the above historical sketch (in the opinion of Justice J. O. Orojo), it is evident that the Nigerian legal profession cannot easily get away from its past completely. This is made more so by the fact that all legal and judicial institutions in this country are either derived from or influenced by English law and the English legal system. It will, therefore, be appreciated that there had to be constant reference to these English legal institutions in building our own system.

The Nigerian Law School has come of age. As A. Ordor and F. Oniekoro put it:
Over the first four decades of its establishment, the Nigerian Law School evolved from being an optional training centre for a few foreign-trained lawyers to a professional academy, grooming, qualifying and ushering thousands of lawyers into the legal profession in Nigeria. Its curriculum progressed from a narrow syllabus offering a limited choice of subjects on procedural law to a wider range of courses, aimed at developing comprehensive lawyering skills used in and out of court. Significant changes have occurred in subject content, teaching methods, class sizes and student participation frameworks.

But the issue of morals and character is beginning to threaten these achievements this naturally takes us to the issues of Ethics and Morals later in this lecture.

3.1 Controlling Organs of the Legal Profession
The principal organs which control and regulate the legal profession are the Council of Legal Education, the Nigerian Bar Association, the General Council of the Bar, the Body of benchers, the Legal Practitioners Privileges Committee, the Legal Practitioners Remuneration Committee and the Legal practitioners Disciplinary Committee.
Before Nigeria attained sovereign status on October 1, 1960, there was no formal system of legal education locally. The training of members of the legal profession in Nigeria was undertaken, as was the case in many Commonwealth African Countries, principally in the United Kingdom. The required qualifications consisted of a call to the English, Irish or Scottish Bar or qualification as a solicitor in these countries. This arrangement was in consonance with the then colonial status of Nigeria whereby, the inhabitants of a colonial territory were required to obtain the professional qualification prevalent in the metropolitan state as the only means of gaining admission into the profession.24
The body of benchers was established under section 3 of the Legal Practitioners (Amendment) Acts of 1976 and 1977 as a body of legal practitioners of the highest distinction in the legal profession in Nigeria. It is charged with the responsibility for the formal call to the Bar of persons seeking to become legal practitioner. Its membership includes the highest judges in the land, Attorney-General of the Federation and of the states, and distinguished members of the Nigerian Bar Association.
By virtue of its composition and powers, the Body of Benchers is in a unique position to influence the course of legal education in Nigeria.

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