Nigeria: ‘Our Electoral Flaws Are From Mindset Not Laws’

Nigeria: ‘Our Electoral Flaws Are From Mindset Not Laws’

Professor Epiphany Azinge (SAN) is a former Director General (DG) of the Nigerian Institute of Advanced Legal Studies (NIALS).

He is currently a judge and member of the Commonwealth Arbitral Tribunal in London. He has been a law teacher for 39 years. He is also a member of the Legal Practitioners’ Privileges Committee responsible for the selection of Senior Advocates of Nigeria (SAN). He took time out as part of his 40th anniversary in the bar to speak on the Attorney General of the Federation’s (AGF) corruption allegation against the Economic and Financial Crimes Commission (EFCC), virtual court sittings, electoral reforms, among others.

What are your thoughts on the constitutional or administrative gaps in the investigation of the acting Chairman of the EFCC, Ibrahim Magu, and the petition by the AGF, Abubakar Malami?

More often than not, either in the course of putting institutions and agencies up in Nigeria, there are fundamental misconceptions that come to the fore, and in the process, people seem to lose sight of the fundamental basis of the existence of certain offices. In this regard, I have to speak of the office of the AGF and the powers inherent in that office. They are not just inherent, they are constitutionally prescribed powers. What it means in effect is that any agency or institution, whichever it is, that is involved in investigation and prosecution, must of necessity be amenable to the authority and influence of the AGF. He is the Chief Law Officer of the Federation. It is the only office that is constitutionally established: “There shall be an Attorney General of the Federation who will also be the Minister of Justice.” Any other office or ministerial position can be established, but this one is paramount and fundamental.

Going further in Section 174, it is this law officer, exercising his powers of nolle prosequi, that can institute, withdraw actions and even having withdrawn, can re-institute action as far as criminal cases are concerned. So, there is an agency that is also charged with investigation or prosecution, and you are finding it difficult to humble yourself before this constitutional provision that has charged a particular office with the responsibility of doing certain things. It is not a matter of personality conflict; it is a matter of knowing what is constitutional and what is not constitutional, especially in a democratic dispensation.

Do you subscribe to the call for the separation of the office of the AGF from that of the Minister of Justice?

Without doubt, long ago, we shared this position. Even when I was DG of NIALS, the issue resonated so much. Then, Mohammed Adoke who was the AGF, also made a presentation in that regard. Many people genuinely and honestly believe that we can gain mileage if we are able to break the office of the Minister of Justice from the AGF. The AGF becomes the professional body, while the minister becomes the political person and ordinary minister doing the functions of a minister with powers clearly spelt out, while the powers now expressed in the constitution still inheres in the AGF. So, two different persons, a lot can be achieved.

What is your view about how Magu was arrested?

My challenge is that I am still not in the know of all that transpired. I always like to speak from informed opinion. What I can only hazard as a guess is that, mark you, we are not dealing with an ordinary individual. We are dealing with the head of an agency who happens to be a law enforcement agent. He is still a serving police officer. What obviously might have transpired would be an amalgam of how the police ordinarily treat subordinate officers or officers accused of misconduct or what obviously is playing out now. We should even be happy that there was no shootout, because with the calibre of people following him armed with arms and ammunition, bullet proof car, thank God it did not get to that. Two wrongs can never make a right. There must be a level of civility we must inject into the system and tell the world that, yes, mistakes were made in the past but we are prepared to move away from those mistakes. I believe his lawyers should know what to do.

With COVID-19, there are calls for more technology in the judicial system, and the Supreme Court has ruled that virtual courts are constitutional. Was there any need for the concerns about virtual sittings?

To be honest, I am happy that the Supreme Court spoke, and once it has spoken, that is the position as it is. So, it is to give validity, justification and legitimacy to what people have been debating over a period that seems to be the underbelly of what the Supreme Court has done now. I was of the view that virtual proceedings ought not to and cannot be unless and until there is a tinkering with the constitution. I have not seen the judgment and I would not know how they addressed some of the issues that seem to flow from the constitution, but we definitely defer to their wisdom, knowledge and expertise, and we want to imagine and believe that the judgment must have been well informed, analytical and well researched, and to that extent, we believe that they have done the right thing. The fear has always been that our constitution is unequivocal in saying that the court should sit in public except in specific instances, maybe security and what have you. Could we take a virtual proceeding as a public hearing? That is the critical issue. I don’t know what the answer is, but ideally, what I can posit at this point in time is that the virtual proceeding the Supreme Court seemed to have endorsed must now be one that would be equivalent to public hearing.

The past 40 years for you have been filled with achievements in law. What memories do you have to inspire young lawyers?

My journey through law has never been one of individual accomplishment and self-glorification. It has been one of steadfastly and strenuously trying to touch lives, groom and mentor others. I find fulfillment in the number of people I have impacted in the last 40 years. It can be more, but I peg it at between 15,000 and 20,000; class by class. I enter a class in the first level and you see people who are so empty and bare, and by the end of the year you now sit down with the same people and you are now trading law; whether it is Nigerian legal system or constitutional law, nothing gives you greater joy. That is the greatest accomplishment that I take away from this journey. Whether I rose fast to become a professor, whether I made a PhD in two years or achieved this and that are all personal. Or when I go out to conferences and seminars and the audiences are captivated to listen to you and ask relevant questions, the joy is immeasurable. So, opening up new vistas, trying to move from one aspect of law or another and making yourself and expert and authority that people can easily make reference to you or refer cases to gives you a lot of fulfillment. It is not a matter of the number of cases you won. For me, this journey has been something fundamental and profound in recognising that if you touch the lives of people, you have planted something you cannot control in them. Wherever they are they remember you with a lot of affection and love.

As a member of the privileges committee, I keep telling people that we are almost about 120,000 to 140,000 Nigerian lawyers, but we don’t have one per cent; dead or alive, as SAN. Even if we are 500, I can tell you that 300 or 200 are already deceased. It shows that there is a lot of space. For any lawyer who feels motivated and sufficiently inspired to break into that one per cent, you must stoop to conquer, you must settle down, work diligently and assiduously, and maintain a high level of integrity.

The quality of law education in Nigeria has been of concern. What is responsible?

When you progress in your career, you come to understand that the number of failures is not a reflection of the quality of the teaching. So, I don’t want to go into how well were they thought or should law school just be a one-year affair or should you allow people to go through this process for two years and then you give them an examination to see how they fare. How good are students coming? Like computer class will tell you, garbage in garbage out, it is from the secondary schools.

To me, the standard of legal education has not fallen, but at the lower levels, and obviously it is impacting negatively on people who come into the law faculties. How do you cure that? I always tell people, let us make law a graduate programme as is done in the US.

There are concerns about the flaws in our elections despite the human resources we have in electoral laws… Everything seems to be wrong in that regard. Take for instance, I took a PhD in electoral law before I was 30 from London, believing that we were coming home to rejuvenate and reinvigorate all that we had in order to set on another journey. But when I came back and saw the way things were done, I said, “No, this is a jungle and it may be in the best interest of some of us not to get engaged or entangled with what we are seeing.” Hence, nobody seems to ask me and I am volunteering the information now, some of us said, “Never with politics”.

The challenge is that no matter how well they tinker with our laws, when you have a mindset, law becomes meaningless. For instance, they will say, “Election is coming up in Edo; we are going to rig it.” So there is already a mindset. What is applicable? What law are you? Through series of electoral umpires, I have been pushing for constituency delimitation as is prescribed by the constitution; that it should be reviewed every 10 years. We would write, they will ignore. Public financing of elections is there in the constitution. Who are the people financing elections? Do they declare their donations? Have you ever seen any audited account of the cost of an election? The law regulates all these things, but the umpire is not interested.