Michael Kaase Aôndoakaa, SAN, is Nigeria’s former Justice Minister and Attorney General of the Federation from July 2007 to February 10, 2010. In this interview, he said states should allow judges to freely decide without intimidating them. He also said the Nigerian judiciary is grossly understaffed, not modernised. Aôndoakaa bares his mind on the changes expected from the new CJN, Justice Kudirat Kekere-Ekun, and his ambition to contest the governorship position of Benue State in 2027. Excerpts:
During your tenure as the Attorney General of the Federation and Minister of Justice, what were the most significant legal reforms you pursued and what challenges did you face in implementing them?
Why we vigorously pursued prison decongestion was because the prisons were completely overcrowded and that had to do with human rights violations. We felt it was important to decongest the prison, and we aggressively started by filing briefs to private lawyers to assist us. They go to defend accused persons to decongest the prisons. Also, we granted bail to those who could not meet the bail conditions, some as minor as N100, 000 but they couldn’t meet the bail conditions.
Some were offered sentences with an option of fine and the fine was just like N20, 000. So, we paid them off because the cost of keeping them was not economical and the state was feeding them three times a day. If somebody is going to stay six months and you are to pay a fine of N20, 000 for offences that are not a danger to society, such offences as trespass, we pay the fine to let the people come out. That was one of the challenges.
The next issue was the compliance with judgment debts by the government. It was a very challenging issue. We discovered that a lot of contractors and people had judgments against the government for breach of contracts and most of them borrowed from banks, executed government contracts that the government couldn’t pay, and at the end of the day, some of the banks went into liquidation and they had judgments, especially Armed Forces people who got judgments against them, but they couldn’t go near them for the execution.
So, we paid off such debts. We constituted a presidential committee, and I sought approval from the presidential committee headed by the Solicitor General with representatives from the Nigerian Bar Association, the police, the Independent Corrupt Practices and Other Related Offences Commission, and the Economic and Financial Crimes Commission. We scrutinised those judgments and we paid. We also made sure that all decisions of the courts were contentiously complied with. We don’t need to start looking at whether the judgment was good.
We brought in place a fact that once a court judgment was delivered; if you don’t like it, file an appeal. It’s not for you to stay in your house and say no. These were some of the major reforms because the wheel of government was driven by the rule of law, and the challenge we had when we said that government should be based on the rule of law was that people said we were protecting criminals.
“Corruption is not just the illegal taking of money. If it is about corruption, then it is the state organ that may be corrupting them by intimidating the judges”
How will you access the current state of judicial independence in Nigeria?
The people are quick to accuse the judges more on the side of corruption, but I don’t think the corruption is on the side of the judges. The corruption is on the part of the state. When the state intimidates judges… for instance what happened when the DSS invaded the homes of Justices was unthinkable and that was the beginning of the kind of fear that crept into the judiciary, and nobody was held responsible. That was most unfortunate.
You talk of judicial independence; you have a procedure for disciplining judicial officers. If you feel judicial officers have committed an infraction, you send the report as a state. The state can send a petition to the National Judicial Council that this judicial officer has done something wrong. After all, it is the state that appoints them. So, if you feel they are corrupt, then you initiate the process of removal by sending a request for their removal with the allegation to the NJC, and if they find out that the allegation is true, the judge will be removed.
In the night, the Justices’ homes were invaded. That has created fear and has affected the independence of the judiciary more than the corruption they are talking about because the judges now become worried that if they deliver a particular judgment, will they be free, will the DSS come after them? Will other security agencies like the EFCC or ICPC go after them? That’s the main problem.
It’s a bigger problem than any other problem; judicial intimidation. Once the intimidation of the judges is not there and they are allowed to interpret the law, corruption will be reduced. It is more serious than saying judges are corrupt. Corruption is not just the illegal taking of money. If it is about corruption, then it is the state organ that may be corrupting them by intimidating the judges.
You wake up as a judge in the night and you don’t know whether security people are coming after you or not, although it has not happened in this present Tinubu government and it is commendable. I believe the present Attorney General of the Federation will not be a party to that because he is a real law professional just like I was so he won’t condone that kind of aggression of the judges, but the intimidation of judges is supposed to be the main thing we should address. States should allow judges to freely decide without intimidating them.
Corruption has been a persistent issue in Nigeria. How effective do you believe the legal system has been in tackling corruption?
As I said earlier, intimidation of the judges is the main issue. You could see what happened before, you never knew the position of the state in a particular matter, two cases which I will not mention the name went up to the Supreme Court, the Supreme Court confirmed the judgments of their sentences, and six months after, they were given a full pardon. So, you can see, it is a subtle way of intimidating the judges.
The country recently experienced a nationwide hardship protest called the #EndBadGovernanace, where some youths trooped out to protest the situation of the economy, and we saw security agencies arrest some of these protesters. What is the legal correctness or otherwise of the arrest of these protesters and the arrest of students from Poland during the protest?
I was not in the country. So, I will not comment on something I was not around to experience. Much that comes online, I am always careful about it because there are a lot of photo tricks, sometimes things happen here but they bring pictures of what is happening in other countries and interiors. So, I am always very cautious, and demonstrating is the right of every individual. I believe the government said yes, they can demonstrate but I think people who were arrested must have been people who went to the extreme, and the government was trying to balance the issue.
You must have seen what was happening in Kano. It was no longer the demonstration guaranteed by the constitution. So, in such circumstances, unless I see the facts, the government has the right to stop it and I read about those who were vandalising people’s homes, destroying people’s property, the government must protect, and the fundamental principle ensures that the government’s primary duty is to ensure the protection of lives and property where the right to demonstrate is exercised in such a way that it includes the rights and property of other individuals like the destruction that was going on in Kano, where people’s supermarkets were vandalised, destroyed, people’s homes and cars.
A non-violent demonstration is a right created in the constitution, but as an Attorney General, if I see people’s supermarkets and other property being destroyed, I have the right also to order security agencies to go there and stop the destruction of lives and property.
What are your thoughts on the Ogun Free Trade Zone dispute with the Chinese company that led to the seizure of the presidential jets?
First and foremost, there have been two treaties, which are a bilateral trade agreement between the Chinese government and the Federal Government and a 2001 bilateral treaty that Nigeria signed during former President Olusegun Obasanjo’s administration. It is still in force between Nigeria and China. Chinese nationals who invest here will be protected and their investment will not be arbitrarily seized by the government. It is the same way they say that Nigerians who invest in China will enjoy protection.
There’s a particular Article 4 of the agreement that indicates that the government cannot just wake up one day and say I am seizing this company, I am terminating this agreement, and in the agreement, they have made provisions for arbitration that in case there is a dispute between the contracting party in this case, Ogun State and the Chinese investor, are to explore diplomatic channel first.
Ogun State cannot go to have diplomatic channels with the Chinese government. The punishment for corruption is the death sentence. I wouldn’t know what Ogun State did but then, there’s another procedure for arbitration if Ogun State felt that there was an infraction. There’s another provision in the agreement that says they could go to court. So, Ogun State could have gone to court to terminate the transaction.
Luckily, it was a contractual relationship. So, Ogun State could have gone to the state High Court and said, ‘Terminate this transaction.’ I don’t know whether Ogun State went or not. It was said that the governor terminated the agreement because there were criminal aspects unless those criminal aspects were proven. If they are not proven, then it is a difficult situation for us.
The problem I have with old governments in Nigeria is that when you wake up in an agreement and say that there is criminality, there is a court of law for you to go to because you are a contracting party, and the contracting party is laid by the governor of that state. So, if Ogun State wakes up today and says, ‘I am terminating an agreement’, it means that Ogun State is a judge in its case, but I don’t have facts. I don’t know what Ogun State did.
The agreement is wide and something we should try to avoid in the future. The agreement said there should be three arbitrators, the contracting parties should appoint one and the Chinese people would appoint one. The two appointed arbitrators would appoint the third arbitrator. That was done but unfortunately, the clause for arbitration did not put the seat of arbitration, did not put the place of arbitration. That means that the arbitrators were at liberty to sit wherever they wanted.
The judge has no power to order arrest or compel witnesses or production of documents. So, it is the local courts, and in this case, they chose London, so it is the local courts in London that the rules will apply. Even the rules to apply were not stated clearly in the arbitration. So, it became difficult. The arbitration sat in London and gave a final award against Nigeria for compensation.
So, I think that is an argument that is pending, and one of the planes was released because it was discovered that the execution was done on the wrong property. The property executed enjoys absolute immunity and Nigeria has a right there to seek to recover the presidential planes because presidential planes are not used for public commercial business.
What do you think should be done?
The bottom line however is this; when a government goes into contracts, it should check whether the foreign countries have a bilateral trade relationship. For instance, we have a bilateral trade relationship with the United Kingdom. So, if a company from the United Kingdom is investing here, we should be careful. You don’t just wake up and say, ‘I terminate the contract.’
First, you have to liaise with the Federal Government and the federal Attorney General to find out the extent of the prospect created by the bilateral treaty. Ogun State cannot just wake up and terminate a contract between them and a Chinese company knowing full well that the Chinese government has a bilateral treaty with Nigeria to protect the investments of their individuals and companies in Nigeria, the same thing with Nigeria.
When you file a motion or an application for recognition and enforcement in a foreign country, you must serve a Nigerian lawyer. So, when they served them and they saw that these were presidential planes, what did they do? The court will not just grant you an attachment. In this case, we are talking about crime.
So, what was our defence? The lawyers appointed by Ogun State might not have even said anything and that is why we are where we are. It is a sad situation but there’s hope that our planes will come back because the Chinese investors were unfair by not telling the truth that these were presidential planes.
The Nigerian criminal justice system has faced criticism for inefficiencies and delays. What reforms will you recommend to address these issues?
When we talk about the Nigerian criminal justice system, when you look at the American criminal justice system, there are delays. Go to Brazil, and sometimes it takes 10 years. Nigeria’s criminal justice is not delayed in the manner that we are talking about. First, the judiciary is grossly understaffed, it is not modernised. Judges are still recording proceedings with their hands.
How would you expect a judge to have 20 cases on the cause list? He is a human being. How can he record all those 20 cases? Sometimes all he can take is three or four. These are proceedings that sometimes take 20 witnesses, and the judge is going to record everything, after that he is going to write judgment in other jurisdictions, recording is now done electronically.
As you are speaking it is recording automatically. I think one judge of the High Court bought his own. He records his proceedings electronically and you can’t fault when he’s done with proceedings. If you want he will play the recording for you to hear. He bought the equipment in Canada. Why don’t we replicate that and do that for the whole of the judiciary so that we don’t need to waste so much time?
The government should increase the number of judges and improve their welfare, but I have to say this government has been quite good. It extended the tenure of judges at the High Court, and the next thing now is to incorporate the magistrates as judicial officers because we are also talking of state police, and we cannot have state police when the Magistrates are civil servants.
“She has always been there, and she knows what to do. She’s one of the best brains. She has seen everything that is involved”
What are the changes you would want the new CJN, Justice Kudirat Kekere-Ekun to bring to the judiciary?
She has always been there, and she knows what to do. She’s one of the best brains. She has seen everything that is involved. The quality of judges being appointed should be thoroughly vetted.
What are the major ethical challenges facing the legal profession in Nigeria today and what steps should be taken to address these challenges?
We have a lot of it but the ethical issues in the legal practice are on the side of lawyers, but the Legal Practitioners Act has been doing quite a lot. We’ve seen a lot of lawyers being debarred, their names struck out either for two years or struck out for life. We have been most active in trying to instill discipline. The most crucial thing is discipline in the profession. The profession is not show business. You must abide by the rules and decorum of the profession.
How will you evaluate the state of human rights protection under the Nigerian law? Are there specific areas where you believe the legal framework needs strengthening to safeguard human rights?
No. The protection of human rights has always been a constitutional issue because we have constitutional protection under the fundamental human rights in our country. That is the beauty, and it is time for us to be proactive. Those who violate people’s rights should be personally held accountable and I have seen judges do it. We should take the constitution very seriously, and the fundamental human rights provision in the constitution should be treated as sacrosanct because no country will have a constitution and treat the constitution as if it is a mere suggestion.
What happened to your ambition to contest the governorship position of Benue State? Are you still interested in running for that office ahead of 2027?
I have been very active in legal practice; my pursuit for governor was not for personal gain. I had my master, President (Umaru) Yar’Adua. He had a seven-point agenda and within a short period, he stayed in government for two years and seven months. You saw how the country was turning. That was my dream, to be one of the main apostles of driving the government of rule and law. I wanted to have the opportunity to pursue the seven-point agenda within the state and see how it would be because he did two and half years.
During President Yar’Adua’s time, you cannot be detained, you will be arrested but you cannot be detained. There was sanity, no court would give judgment, and you would say you would not obey. Nobody, no contractor got a contract and was not paid because the minister of justice must be satisfied that the ministry that would award a contract had sufficient funds to ensure the contract was completed without litigation.
