Independence Of Judiciary Programmed To Fail ——Adegboruwa, SAN

Mr Ebun-Olu Adegboruwa  is one of the lawyers recently conferred with the rank of Senior Advocate of Nigeria. In this interview, he shares his view on why the fight for the independence of the judiciary would be tough. He also spoke on other sundry issues.


World Day Against Death Penalty was marked last week. Considering the fact that governors are reluctant to sign death warrant, shouldn’t there be some form of respite for death row inmates in the country? Well, I have become sympathetic to the plight of condemned prisoners especially those awaiting sentence- to be hanged or to be shot according to how the judge directed. I have met with a death row inmate who was later pardoned. He narrated to me the trauma of awaiting death every day.  For him every day is death.  Once it is 2:00am, he will wake up because the worst thing that can happen to you is for them to wake you up and take you to hang. What those people go through can never be imagined and this was what led Dr Olisa Agbakoba, SAN to go to court. His contention was that keeping people awaiting execution is a form of torture. Of course the court didn’t agree with him up to this point, what they said is that they still have a right.

I totally accept the view of many of our colleagues who says that the people who are been kept in prison awaiting execution are under serious torture. Their rights are been validated every day, by the state while they are awaiting execution. And I think something should be done to ensure that, correctional strategies are employed to see that if they truly change, if the society can still benefit from them before they are executed.

 Selective prosecution, a dent on anti-corruption war — Ekwunoh(Opens in a new browser tab) FG recently changed the name of our prisons to Correctional Services Centres. Is this the solution to the problems with our prisons? I don’t think transiting from Nigeria Prison Service to Correctional Service Centre is sufficient to ameliorate the problems we have within the prison system. The challenge we have in the prison is the infrastructure.

 These are prisons that were built by the colonial masters.  The mind set then was to subjugate and punish the locals who are clamouring for independence.  Those prisons were built for the purpose of punishing.  The second issue is congestion. Most of those prisons have exceeded their maximum capacity three times. What is required in the prison is not all about documentary reforms. We should talk about the real infrastructure. How do you ensure that people who leave that place don’t go back to crime?

The greatest reform that you can achieve in a prison is through judiciary because the problem of Nigeria prison is awaiting trial cases. They constitute 80% of the population of the prisons. The people who have been convicted surprisingly are less than 30%. Some have been going to court for more than 9 to 10 years such that even if they had been convicted the period which they will spend will be lesser than that which they have spent awaiting trial. So many factors combine together to make it impossible to achieve any reform in the prison system. So if really you want to reform the prisons, you should start with the court, to ensure that courts are decongested.

 This way, those cases can be heard and then those who are free can be discharged. Those who want to be convicted can be convicted, when you finish with the court then move to the prison proper to rebuild it. You can’t have correctional prison facilities in the middle of town. At the time they built Ikoyi prisons, to the British, Ikoyi was a bush at that time. That location cannot achieve any expansion today because there are commercials buildings everywhere.  There is nothing you can do. You can’t demolish people’s houses. Government should look for other areas where there is land and build proper correctional facilities with recreation facilities and opportunities for learning.  There should be schools there and small scale empowerment system.  You can’t retain this old structure and expect to continue to reform peoples mind. It can’t work.

 So I believe that when you really want to reform the prison system, it goes beyond name change. Since his assumption of office, the Chief Justice of Nigeria has been clamouring for independence of the judiciary. Is there any other way that the judiciary can forcefully regain its independence? I doubt it for many reasons. Talking can help but not in the way that we are currently doing it. The judiciary deserves to be put in a state of emergency. Judges are actually weeping. Judges are unofficial members of the Bar Association so it is the responsibility of lawyers to take up the fight for the independence and autonomy of the Judiciary. The judge is a civil servant, and civil servants are only to be seen not heard. I have never seen any civil society where judge take up the struggle for independence, autonomy or issues of welfare. It is always the lawyers that pursue that course.

Unfortunately, the Nigerian Bar Association is factionalized. The problems in the general polity have also found itself into the Bar. Take for instance, the Justice Onnogen’s incident.  The NBA met and took decision to embark on a strike. The strike was not successful in states that were sympathetic to the then CJN, but states especially in the North that were sympathetic to the president did not comply with strike. The problem will probably continue since the politicians have also found themselves into the Bar. But what must we do?  I think that is becoming clearer. Senior lawyers must find a way to engage with those who are in power. Take this regime for instance; there are very many senior lawyers in the cabinet. They can actually work with the bar to achieve a society where the judiciary is independent. 

Unfortunately, independence of the judiciary cannot be achieved because there is a deliberate policy of the executive not to allow the judiciary to function. It is deliberate so it is not a matter of this Buhari’s administration. The reason is very simple. In any society, the executive is responsible for formulating and executing policies; the judiciary to interpret and the legislature to formulate and make laws.  But the executive come in contact with the people all the time. It is their actions that people feel all the time.  So invariably, 80% of the cases that find themselves up to the court are challenging the actions of the executive.

 So in that regard, the executive takes it as a point of duty to starve the judiciary of fund such that those who are challenging the executive impunity are been sent a message to say it does not pay you to go to court. They are invariably saying, ‘You cannot reverse what I have done. I control the court. If I cannot get through to them by giving direct instruction, I will frustrate them by showing that your case is not heard on time. There will be no electricity; I will not appoint enough judges. That actually is the underlining factor why the executive is not interested to allow the judiciary to have true independence. So where lies the solution to all this? It is rare for me to commend the president but I believe we should support his policies that all monies meant for state judiciaries should no longer go through the governors.

 So what am saying is that, if we team up with the president and ensure that, that law becomes effective and the judges have hold on their money, we have freed them from that dominion of the executive and that is  the first responsibility of the bar to ensure that the judges gets their money. The second solution is this; we must open a register and interact with the judges. The bar must rise up and speak with one voice for any judge who is a victim of any form of executive intimidation. As we are trying to force the executive to respect the judiciary, lawyers should respect the judiciary by refusing to partake in any corrupt.