by Ikemesit Effiong
The widest power a judge has is the power of discretion – Okon Efut
To the informed, looking at the quote above, your mind will tend to zero to the word ‘discretion’. The probable reason why that would be the case will be because of another name which by hook, crook, design or by just doing his job – depending on whom you ask – has entered our political discourse, Justice Abubakar Talba.
In my experience, you will always meet that odd fellow who despite the ubiquitous presence of the mass media never seems to know what’s happening. For the benefit of those mild Akposes in our midst, I will briefly summarize.
On January 29, while sitting at the Federal High Court, Abuja, Justice Abubakar Talba, in the corruption case filed by the Economic and Financial Crimes Commission (EFCC) against John Yakubu Yusuf, a former assistant director at the Police Pension Office, who connived with others to steal N27.2 billion of police pension funds, delivered a judgment pronouncing Yusuf guilty (he so pleaded anyway) and sentenced him to a prison term of 2 years for each of the three offences to run concurrently with an option of a fine of N250, 000 on each count amounting to a grand total of N750,000. Mr. Yusuf paid up the fine almost immediately.
Justice Talba is probably the most notorious member of the judiciary at the moment. If he isn’t, he’s high up there on the list. A Google search will clock 225,000 results for him. What publicity! For a judgment that is just a month old? Some of our Nollywood celebrities will be hard pressed to compete with that kind of sustained spotlight. To add perspective to this, Omotola ‘Omosexy’ Jalade Ekeinde clocks 553,000 results – for over fifteen years of tireless work.
I will now diverge from the conventional train of unreserved disgust, bewilderment and utter shock that greeted the judgment by categorically submitting that we have very unrealistic expectations of our laws. I will explain why we should be more measured in our criticisms of our legal system in general and our judiciary in particular.
It is not rocket science, but it is simple arithmetic (in Bill Clinton’s accent).
Let me propose a simple mathematical equation:
Lawmakers + Section 4 of the 1999 Constitution = Our Laws.
Are you beginning to see my point now? Our legislators make our laws and as such their Number One priority will not be the ‘interest of justice and the rule of law’. Throw that philosophical sentiment out through the window. Their Number One priority is ‘their interest’. Do you ‘reasonably’ expect the crop of senators and representatives we’ve got to pen down stiff penalties for corrupt practices of which they are its chief practitioners? Get real… for at least a moment.
Another observation may suffice. In the equation above, did you see the ‘variable’ lawyers and judges? I bet you did not. Why you didn’t see it is that we (yeah, it’s my constituency) do not make laws, it’s that simple. Why then has the larger society stamped a negative stigma on the legal practitioner? We pride ourselves in earning our reputations as well as our fees. If we will be tagged as corrupt, complicit and indulgent of the mess that is Nigerian politics, at the very least, crave us the pleasure of dutifully earning that reputation.
I will give you three instances of the personal biases of our lawmakers solidified and masquerading as legislative enactments and hence subject to the operation of the rule of law mantra that states that we must obey and abide by the rule book.
Every law student from his or her second year Constitutional Law class knows that you cannot sue the government because your village has not had electricity since 1978, or because that road in your district in Lagos has now claimed more lives than armed robbers because of its world renowned potholes. Did you know that?
In Section 13 of the Constitution, it is the legal duty and responsibility of all organs of government to observe and apply the provisions of Chapter 2 of the Constitution. However, Section 6(6)(c) of that same document basically prevents the courts from dealing with ‘any issue or question as to whether an act or omission by any authority or person… is in conformity with the Fundamental Objectives and Directive Principles of State Policy set out in Chapter 2 of this Constitution’. In other words, the Constitution on the one hand says that government should do its work while on the other hand; it prevents anyone from ensuring that the government actually does its job. Did any lawyer or judge make that constitutional provision? No sir.
Another example would help us navigate this math class. The Lagos State Assembly enacted a new tenancy law in 2011. One of the more innovative provisions of this law is contained in Section 4. It states that it is unlawful for a landlord to demand rent in excess of six months from a monthly tenant and one year from a yearly tenant. It goes as far as making it unlawful for the tenant to offer to pay or pay such a rent! Laudable! Fantastic!
The intention of the lawmakers was to curb the menace of landlords demanding the popular two years in advance rent that has consigned many a tenant to a glorified form of slavery. We would have been applauding the Lagos lawmakers but for a proviso you will find if you back track a few sections and see bias screaming with a microphone.
Section 1 provides that Apapa, Ikeja GRA, Ikoyi and Victoria Island are EXEMPTED from the application of the Tenancy Law. It does come with the proviso that the Governor of Lagos may from time to time increase the exemption list of areas but importantly, it does not say that he can remove any exempted area from the list.
What do Apapa, Ikeja GRA, Ikoyi and Victoria Island have in common? Can you see the bacon clearly now? No, it is not Shoprite malls, it is the possibility of having a neighbor who is a member of Lagos’ political elite in these districts. All Lagosians know that. Even more sinister is having a member of the same elite as your landlord!
It is worthy to note that in legal circles, Lagos is overwhelmingly seen as the most progressive legal jurisdiction in the country. That simply means that the level of legal innovation in Lagos State far outclasses every other part of the country. It’s not like the tenants living along Isaac John Street in Ikeja GRA care anyway.
A final example will ensure you score an A Grade in my legal math class. In an obscure part of the Penal Code which has the force of law in the whole of the North you will find the offence of criminal trespass.
Criminal trespass broken down to its lowest common denominator would presuppose that say, if you enter another person’s property to commit an offence, intimidate, insult or annoy the owner of the property, or you entered lawfully but then you spiraled out of control, you’ll be guilty an offence.
Now, Section 348 states that the imprisonment for say, going to your boyfriend’s house and breaking his head with a bottle of moet, is a term of imprisonment ‘which may extend to one year’ or a fine of one hundred naira or both. Such sentences in law are known as discretionary sentences meaning that they essential rely on the judge to look at the facts of the case and decide if you merit the low end or the high end of what the law prescribes. And the facts may be widely different yet still fall under the same category of offence.
So for instance, in our hypothetical case, assuming the boyfriend does not die, going to prison for four to six months or even less may be appropriate. If you just went to your neighbours and threatened to kill him, but did no more than that, a fine option or a fine and say two or three months may be deemed okay.
However, if you forced your way into the compound, stole a whole barn of yams and vandalized property in the process, you’ll agree with me that the maximum term of a year and a fine will not be excessive.
The only catch with Section 348 of the Penal Code would be the ridiculous fine on one hundred naira. And if you think this is just a notable exception, you’ll be dead wrong. Open the Criminal Code and be blessed.
We can make the argument that Justice Talba did not exercise his discretion properly and that the EFCC lawyers did not charge Mr. Yusuf under the most stringent laws available, and those will be valid points.
However, we cannot escape the most important factor in the war against corruption and that is at the core of the conundrum of the judge and the lawyer, our laws are simply not biting enough. We are not the originators of our laws, we just simply operate it. It has always, and still is a delicate balancing act.
The punishment sections of our laws need to be ramped up to serve as a deterrent to engage in corrupt practices as against incentivizing the public expression of greed which is what it is seemingly doing at the moment.
While we go hard to work reforming our laws, can I just say one other thing? Please stop hating on the legal system. Imperfect as we may be, the buck does not stop with us. It stops at the desk of that legislative committee.