Sunday, July 18, 2021 6:42 pm
By Layi Babatunde, SAN
“Your laws are ineffective, when declared. Why? Because no system of control will work as long as most of those administering the law against an evil have more than a finger dipped into it themselves.”
Han Suyin, Chinese physician and writer Destination Chungking (1942)
Being called upon to deliver a paper as part of activities marking the Nigerian Bar Association, NBA, Ikeja Branch 2021 Law Week is both an honour and a challenge given the topic I have been asked to speak upon. The issue of corruption is as old as our country. We have never being short of seminars symposia and several fora of discussion on the debilitating subject of corruption and the incalculable harm it has done and continues to do to our country. Indeed, when the military first intervened in our country’s political affairs, the consequences which we still suffer from, their justification for the coup was captured thus:
“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.
The Home page of ICPC contains 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.”
According to the authors of “Corruption and misuse of public office”, 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.
Chijioke Kelechi Iwuamadi offers this explanation on corruption and its debilitating effect.
“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”. 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.
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.
The role of legal practitioners and the rules of professional conduct
It is important to preface this, with the relevant provisions of 1999 Constitution (as amended)
S. 15(5) provides:
(5) The State shall abolish all corrupt practices and abuse of power.
While S. 24 provides:
It shall be the duty of every citizen to –
(a) Abide by this Constitution, respect its ideals and its institutions, the National Flag, the National Anthem, the National Pledge, and legitimate authorities;
(b) Help to enhance the power, prestige and good name of Nigeria, defend Nigeria and render such national service as may be required;
(c) Respect the dignity of other citizens and the rights and legitimate interests of others and live in unity and harmony and in the spirit of common brotherhood;
(d) Make positive and useful contribution to the advancement, progress and well-being of the community where he resides;
(e) Render assistance to appropriate and lawful agencies in the maintenance of law and order; and
(f) Declare his income honestly to appropriate and lawful agencies and pay his tax promptly.
The legal profession is well regulated not only by legislation, but also by Rules of Professional Conduct. In this respect, one of the subsidiary legislation to the Legal Practitioners Act is the Rules of professional Conduct for Legal Practitioners. The current Rules were made on 2nd January 2007 by the then Attorney-General of the Federation and Minister of Justice / Chairman General Council of the Bar. This was made pursuant to section 12(4) of Legal Practitioners Act, 1990.
The Rules contain fifty-seven (57) Rules structured into seven major areas of the practitioners’ roles. They are:
1) Practice as a Legal Practitioner.
2) Relation with clients.
3) Relation with other lawyers.
4) Relations with the Court.
5) Improper Attraction of Business.
6) Remuneration and fees.
The Rules contain more than enough provisions to guide Legal Practitioners in navigating their ways against the corruptive virus of our time. We will select few of these Rules to illustrate this point. Rules 1, 14, 15, 16, 30, 31 and 37 are particularly attractive for our purpose. These Rules are on general responsibility of a lawyer; dedication and devotion to the cause of the client; representing client within the bound of the law; representing client competently; lawyer as officer of court; duty of lawyers to court and conduct in court; and employment in criminal cases.
General responsibility of a lawyer
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.
Dedication and devotion to the cause of the client
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.
Representing client within the bounds of the law
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. 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 endeavours 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.
Having regards to SS 23 and 39 ICPC Act and S. 192 Evidence Ct, 2011; a Legal Practitioner obviously, should not be a partaker in corruption schemes or endeavours, but instead report such crimes to the appropriate authority.
Representing client competently
A lawyer shall not –
(a) Handle a legal matter which he knows or ought to know that he is not competent to handle, without associating with him a lawyer who is competent to handle it, unless the client objects;
(b) Handle a legal matter without adequate preparation;
(c) Neglect a legal matter entrusted to him; or
(d) Attempt to exonerate himself from or limit his liability of his client for his personal malpractice or professional misconduct.
Lawyer as officer of court
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.
Duty of Lawyers to Court and Conduct in Court
A lawyer shall always treat the Court with respect, dignity and honour. Where the lawyer has a proper ground for complaint against a judicial officer, he shall make his complaint to the appropriate authorities. A lawyer who fails to comply with any undertaking given by him either personally or on behalf of his client to a court is prima facie guilty of professional misconduct. Except where the opposing lawyer fails or refuses to attend and the Judge is advised of the circumstances, a lawyer shall not discuss a pending case with a Judge trying the case unless the opposing lawyer is present. Except provided by a rule of order or court, a lawyer shall not deliver to the Judge any letter, memorandum, brief or other written communication without concurrently delivering a copy to the opposing lawyer.
Employment in Criminal Cases
Rule 37 is particularly relevant to us as lawyers where we have the misfortune of handling corruption cases. I recommend Rule 37 as a guide. It says:
(1) Where a lawyer undertakes the defence of a person accused of a crime, he shall exert himself, by all fair and honourable means, to put before the Court all matters that are necessary in the interest of justice, but he shall not stand bail for a person for whom he or a person in his law firm is appearing.
(2) Where the lawyer accepts a brief for the defence in a murder trial, he shall be deemed to have given a solemn undertaking, subject to any sufficient unforeseen circumstances, that he will personally conduct the defence provided his fee is paid.
(3) Where an accused person discloses facts which clearly and credibly show his guilt, the lawyer shall not present any evidence inconsistent with those facts and shall not offer any testimony which he knows to be false.
(4) The primary duty of a lawyer engaged in public prosecution is not to convict but to see that justice is done.
(5) A public prosecutor shall not institute or cause to be instituted a criminal charge if he knows or ought reasonably to know that the charge is not supported by the probable evidence.
(6) A lawyer engaged in public prosecution shall not suppress facts or secrete witnesses capable of establishing the innocence of the accused person, but he think make timely disclosure to the lawyer for the defendant, or to the defendant if he has no counsel, of the existence of evidence known to the prosecution or other government lawyer that tends to negate the guilt of the accused, mitigate the degree of the offence or reduce the punishment.
The role legal practitioners play in the implementation of anti-corruption laws
Leadership is all about service, selfless service. Lawyers are privileged to have been tutored in several areas of knowledge. They even hold the key to legal issues. So we must lead others in ensuring that Nigeria is not drowned by corruption. In 1979, Justice J. Ola Orojo advised us as lawyers on our role as leaders: his words:
Nigerian legal practitioners must be able not only to perform their traditional functions of catering for the professional needs of the citizens, of administering justice and manning the various legal institutions of the state, but they must also be involved in social change; they must strive to ensure a strict adherence to the rule of law and, among other things, ensure that the newly acquired political power is carefully watched and controlled so that it is not used to protect or perpetuate the status quo or class domination. As the watchdog of the people, they must, through their independence and total commitment to social justice, provide the necessary support to sustain an equally independent and fearless judiciary, the last hope of man for law and order, peace and progress.
As a law teacher/researcher
The law relating to corruption in Nigeria is presently at its evolutionary stage. Statutes, cases and rules are emerging. The lawyer is therefore expected to know the law, even where they are yet to be certain. So he plays the roles of a teacher and researcher. Specifically, the lawyers who are in the academics, particularly criminal law teachers and researchers are expected to extend their role of teaching and researching the law to the emerging area of law of corruption.
Therefore, the relevance of legal research to the fight against corruption cannot be under-estimated. The effective exploitation of information contained in any legal collection can always be attained by means of “Legal research”. The ability to perform legal research is one of the basic skills of a lawyer. Legal research and ability to “find the law” is a most useful weapon without which any given lawyer could survive and thrive in such an advertorial judicial system as practiced in Nigeria. Chief Theophilus Olakunle Dada, one time Librarian Nigerian Institute of Advanced Legal Studies noted in his Valedictory Lecture that:
The legal profession invariably requires certain basic skills such as the power of expression, the effective use of language coupled with dexterity in the art of advocacy. However, these vital attributes may not be fully attained without a proven mastery of the use of the tools of the trade as represented by law books, law reports, journals and periodicals. This in effect means that all members of the legal profession including the law teachers, law school students, post-graduate students and, most importantly, members of the Bar and the Bench should be involved in legal research as a matter of routine.
Policy Making and Administration
Legal Practitioners are generally not directly involved in policy conception, formulation and policy making. However, in some critical situations lawyers are either directly involved or form part of a team in government policy formulation.
Where legal practitioners are involved in policy making on corruption, it is important that they bring their legal knowledge to bear on such policy. One area that readily comes to mind is the complex subject of modern criminology. For instance, it may not be enough to make policy to fight corruption, it may also be necessary to understand the underlying factors in the crime of corruption. Thus, a legal practitioner with the knowledge of criminology may guide the policy making team on such issues as: physical and constitutional factors; mental factors in crime; psychology explanations of crime; personality theories about crime; social and cultural factors; the identification and measurement of crime, profiling of offenders; discretion in criminal justice process, and crime and community.
Similarly, lawyers involved in the administration of anti-corruption laws and institutions must be seen to be competent and above board in the assignments.
Legal Practitioners serve as advisers to individuals, companies, governments and other entities. Where their advisory role relate to legal issues on corruption, lawyers must be guided by knowledge, wisdom, diligence and morals.
The prosecutor has a fundamental role of diligent perusing the case file before giving advice, drafting a charge, filing his case and commencing trials.
The power of the prosecutor is well-documented in the 1999 Constitution, the Administration of Justice Act 2011 and the decided cases.
We can only add a moral note. He must not be a persecutor. He must also not soil his hands by compromising his case.
Defence Counsel Role
The defence counsel in corruption cases must be guided primarily by Rules 14, 15 and 32, Rules of Conduct for Legal Practitioners in Nigeria. These Rules put emphasis on devotion to duty; strong respect for and compliance to all relevant legal principles and laws; and fair play and honourable means of achieving his aim of giving the best service to his client.
At this stage, it is apposite to refer to an opinion expressed by a Lawyer in Indonesia , which I share that: “In the fight against corruption lawyers are an important instrument because they are the key actors in our legal system, which is apparently not functioning properly. It is the lawyers who can contribute greatly to liberating our nation from corruption.
All the government’s efforts in the battle against corruption will fail if the majority of lawyers take an opposing stance or act as onlookers…
…lawyers should stand up and share the responsibility for combating corruption.”
Morality naturally comes to play here.
Advisory Role in light of Nigeria of our dream:
One area of our role as Legal Practitioners that I wish to emphasize is our Advisory Role as conscience of the Society and custodians of the Rule of Law.
At the NBA Ikeja Branch, we walk our talk, so please permit me to offer these advisory, with a view to assisting Nigeria’s anti-corruption bodies fulfill their mandate:
The EFCC Act vide S.6 enumerates the functions of the commission, one of which under S.6(e) and(f) provides as follows:
S.6(e) The adoption of measures to eradicate the Commission of Economic and Financial Crimes;
6(f) The adoption of measures which includes coordinated preventive and regulatory activities, introduction and maintenance of investigative and control techniques on the prevention of economic and financial related crimes;
6(p) Carrying out and sustaining rigorous public enlightenment campagn against economic and financial crimes within and outside Nigeria.
Under and by virtue of S. 6(b) of the ICPC Act the Commission is empowered: To examine the practices, system and procedures of public bodies and where, in the opinion of the commission, such practice, system or procedure aid or facilitate fraud or corruption, to direct and supervise a review of the practice
6(C) To instruct, advise and assist any officer, agency or parastatals on ways by which fraud, corruption may be eliminated or minimized by such officer, Agency or Parastatal
6(e) To educate the public on and against bribery, corruption and related offences; and
6(f) To enlist and foster public support in combating corruption.
S. 3 of the National Orientation Agency Act which provides for the functions of the Agency provide inter alia:
3(h) Orientate the populace about power, its use and the proper role of the Federal Government in serving the collective interest of Nigerians;
3(l) Sensitize, induct and equip all Nigerians to fight against all forms of internal and external domination of resources by a few individuals or groups.
Now, with the above legislative background, I invite our anti-corruption Agencies to focus, not only on the people that the Government is serving but also on the Government serving the people.
One major area of concern concerning the activities of some Federal Government Agencies is their penchant, to visit heads of Federal Courts soliciting for assistance on the disposal of their cases pending before the courts or to be filed.
With all due respect this is a prototype of systemic corruption which should not be encouraged, no matter the level of self righteousness of the cause of the practitioners of such despicable model of road to seeking Justice. This practice eats at the root of justice Administration in Nigeria having regards to S.36 (1) of 1999 constitution ( as altered )I therefore ask the ICPC to invoke its powers under S.6(c) of its establishment Act; to redirect the efforts of such Agencies particularly AMCON, who has on several occasions flaunted in National dailies the Pictures of its Chief Executive visiting Heads of Courts soliciting such assistance, capable of compromising and polluting the streams of Justice. That will be the day when Bank debtors will also form themselves into an Association visiting Heads of Court soliciting assistance on how their cases should be handled. Thankfully the courts have on a number of occasions resisted this patronizing and sometimes arm twisting approach to Justice Administration.
We should realize that the era of the king can do no wrong is long gone and has no place in our Constitutional Democracy. To that extent, I believe it will help the attainment of the goals of our anti-corruption agencies to make amends, where they have found themselves on the wrong side of the Law. For instance, the Supreme Court has held that the EFCC has no business getting involved in Debt recovery disputes – See: DIAMOND BANK PLC V. OPARA & 2 ORS. (2018) 3 S.C (PT. II) 50 @ 77 para. 5-20 where the Supreme Court held that the EFCC, the Police and other security Agencies are not debt recovery Agencies. The Rule of Law presupposes, that no one is above the Law and perverting Justice is in itself corruption. Lawyers who petition the EFCC and other Security Agencies over Simple debts matters with no Criminal content such as forgery should themselves desist from the practice which gives the Bar and those Agencies a bad name.
Part of the problem making things seemingly unworkable in Nigeria is the failure, reluctance or unwillingness of public officers to discharge their duties as required by Law. Imagine for a moment if the NOA has been alive to its duties relative to its functions stated earlier particularly under SS. 3(h) & (l) (Supra). All the agitations in some parts of the Country on marginalization cry, perhaps could have been greatly minimized.
Another kind of sting operation – I will strongly recommend a different kind of “sting operation” to our anti-corruption Agencies particularly the EFCC and the ICPC. The sting operation I will recommend is one that is converse from what presently operates. Fish out good public officers and honor them publicly as a matter of routine . It is important we show the world that not all Nigerians are corrupt.
The somewhat prevalent feeling for instance, that all Government officials are corrupt need to be disabused to encourage more buy into in who the anti-corruption war.
Anti-Corruption is a war to be fought by all – See: S.6(f) of the ICPC Act and 6(p) of EFCC Act.
To the Bar – since charity begins at home, we as Legal Practitioners must seriously work at putting our house in order. That is the only way we can be an example to the larger community. The NBA Politics is fast mimicking all the vices that beset our National Politics – money and Ethnic politics. The Bar to secure her independence must work at financial independence instead of relying on donations by Government and politician. We should stop making financial demands on aspirants to NBA elective position.
These are vices that swell corruption of the worst kind which perhaps explains why our politics especially at the National level is almost becoming a venture for the rich. Too much financial demand is being placed on the contestants which often turn out to be counter-productive. If a contestant for the office of National president, for an example, is expected to sponsor every branch law week, this will result in a huge overhead, which should be avoided. If we continue in this manner, we would have lost our independence, which is a mandatory requirement for fighting corruption.
Conclusion: I wish to end this paper with these two Quotations on the Judge and the Lawyer.
Oputa, JSC (of blessed memory) on the Judge:
Conscience comprehends honesty and moral rectitude. Both virtues should form the badge of a good Judge. They should be his uniform. It is a calamity to have a corrupt Judge. Money they say is the root of evils. The Judiciary is not a place to make money. There is no doubt the salary structure and conditions of service in our Judiciary both need complete and total overhaul. Our judges deserve the minimum of comfort to enable them perform their arduous duties attaching and pertaining to the judicial officer. But the poor conditions of service are no excuse for any Judge to be corrupt and dishonest, for one thing, no one is forced to go to the Bench. And no one should go to the Bench to amass wealth, for money corrupts and pollutes not only the channels of justice but also the very stream itself. It is thus a calamity to have a corrupt judge. The passing away of a great Advocate does not pose such public danger as the appearance of a corrupt Judge on the bench, for in the later instance, the public interest is bound to suffer and elegant justice is mocked, debased, depreciated and auctioned. When justice is thus bought and sold then, there is no more hope for society. What our society needs is an honest, trusted, and trust worthy judiciary.
Prof. Itse Sajay, SAN on the Lawyer:
A heavy responsibility devolves on a legal practitioner by virtue of his profession. He is not only an officer of the court who assists in the administration of justice; he is also the defender of the rights of the citizens and custodian of their confidence. In the course of his duties, he risks coming into conflict with the state and even sometimes with the court. He must maintain the rule of law and avoid putting himself in a position where his personal interest will conflict with that of his clients. He must act honourably, for the profession is “the honourable” profession.
*This piece by distinguished lawyer Layi Babatunde, SAN, was excerpted from a paper he presented at the Alao Aka Bashorun Memorial Lecture on 15 July, 2021 as part of activities marking the 2021 Nigerian Bar Association, Ikeja Branch Law Week.