Banire: NJC should curb judges’ recklessness to save the judiciary

Dr. Muiz Banire, SAN, is a constitutional lawyer and former Legal Adviser to the All Progressives Congress (APC). In this interview on Channels Television monitored by BIYI ADEGOROYE, he examined the recent mass release of treason suspects, judges’ recklessness and the need for financial autonomy to the judiciary in order to reverse the gradual loss of hope in the arm of government.

How do you see the release of those children arrested for treason, because one of your colleagues said a few days ago, that the Federal Government’s action was just face-saving, that ab initio, they had no case? Well, I’m not in a position to say whether they had a case or not. That is within the purview of the courts to determine. The police that arrested and charged them to court must have their evidence for that purpose and the court is the final arbiter in such a situation.

So, it is difficult for any lawyer to actually come to the conclusion that they had no case. All you can say is that from his perspective, or maybe he has seen the evidence, he has come to his own conclusion that this is not enough to sustain the charges before the court. That might make sense, but to come out to say there was no case, that might be a bit unsafe. But cases that have to do with treason carry capital punishment, according to the Criminal Code. Some have argued that the prosecution should not have been handled by the Inspector-General of Police (IGP), but the AttorneyGeneral of the Federation? That is a matter of choice to be candid. The police can handle it. They have lawyers there and a legal department and they have the power to prosecute. But the Attorney General of the Federation, of course, has the power to take over at any time, if he so deems fit. But the police can prosecute, whether it is treason or lesser offence. They have the capacity to prosecute. Could you educate us. There is ourage that these minors committed a crime and should face justice. How do you prosecute a minor in Nigeria, especially in the face of Child Protection Act and other laws? My position is simple. Technically, I think the police are wrong to have arranged the minors before the regular courts. Ideally, they should have been taken to Family Court which knows the appropriate thing to do with them. But strangely, this afternoon (Thursday), I was accosted by one of the prosecutors after reading my intervention, shockingly, I was shown the charges before the court, and I discovered that only two of them, out of over 70, were about 14 years old. Again, that was not known to some of us, even before my intervention, because from the charge sheet, which you can equally obtain from the court, it appears that about 68 of them are actually adults. The mistake the police made in my view was locking the two minors along with the adults and arraigning them before a regular court. That is the first thing. Secondly, I was shown a warrant of detention by the court for 60 days. Again, that saved the police from further embarrassment, because if a court ordered their detention, they (the Police) cannot be liable for any intransigence.

So, the normal way to arraign a minor, irrespective of the offence, even if it its treason, is to take such a minor before the Family Court. Of course, the mistake of the police does not end there in my view. We need to also escalate the situation to the judiciary itself. I would have expected the judge that heard the matter to have isolated the situation. He should have stepped down from the case and ordered the isolation of the minors and deal with the adults. That was not done, probably because of the inexperience of the court in family matters. But the truth of the matter is that I can see a progression. The condemnation has brought about an appropriate reaction from the police as an institution. Beyond the probe of the entire incident, because I will not condemn the legal department that handled the case, because nobody knows the entire law. I am sure lessons have been learnt now. The good news is that, quite unusually, the IGP, understandably, has now conveyed a workshop to enhance the capacity of both police lawyers and investigators on how to handle cases involving minors. Are the police excusable, because I have the charge sheet here and I can see the ages of the people. I can see people age 15, 17, about 30 of them, not two? Like I said to you, once they are minors, they cannot be taken before regular courts. That is indisputable. Again, let me hide behind the reality that nobody knows all the laws in the world, not even all lawyers or judges. Let me pardon their ignorance in that respect, but like I said, it is something they ought to know, but you can see that they do not know. I believe they have learnt their lesson, and that is why they are now conveying that emergency workshop. Do you really believe that the police were ignorant, looking at a legal document, a charge sheet, brought before a judge, confirmed by evidence of a prosecution counsel from the police, containing names, sex and age? Even if there is only one suspect there that is a minor, it is very crucial and fundamental, but now, we have more than one that are minors. To that extent, what I am saying is that they needed not to go to a regular court at all. If I were in their shoes, I would have isolated those that were minors. That is the legal error committed by the Legal Department of the Nigeria Police. Now, help us speak to the substance of the case. To what extent can a minor be charged for treason, especially in view of action and intention? Well, the position of the law is that such a minor is presumed not to have such an intention. It now becomes a herculean task for the prosecution to establish that the minor actually had that intention at the time he committed the alleged offence. So, the presumption is in favour of the minor as far as the law is concerned. So, the burden of proof rests with the prosecutor if he has the evidence. Don’t you think the police owe these minors an apology? There was a protest and some of us have participated in some. But protest is different from criminality. If you commit a crime in the process, then you are a criminal, and you will be tried appropriately. That is one distinction we must make clear.

Now, the second aspect of it is that during that protest, I remember one man who shouted that his entire pharmacy was looted and so on. So, to that extent, if the police have their evidence, honestly, I do not share the position of the presidency and by extension, the federal government in just leaving some of them to go home. Ideally, they should have been able to isolate them, do the proper thing, because we are not setting a good precedent. In fact, it is very dangerous that we are turning them into heroes, and this is an invitation to further chaos in the near future. You see, the government shouldn’t have responded in such a way that we are not able to evaluate the situation. For example, it is possible that the police have enough evidence to prosecute dome of the adults successfully. Immediately the AG’s office takes over, the evidence will be evaluated. And those that are culpable and they could establish such, those ones should have been arraigned properly., while in case of weak evidence, they will be set free. Even when there is a largesse in terms of amnesty, I would have expected that they would be spoken to and addressed appropriately to avoid anything that tends criminality in the nearest future. Otherwise, we might be setting a dangerous precedent, or might be demoralizing those policemen that have summoned up the courage during the protest to prevent criminality. We must always try to balance all these issues to avoid reacting rashly. I don’t believe that the processes that have gone into these, the police, the judiciary and the executive are such that we can celebrate at all. The way and manner we are carrying one and making heroes of them and dashing them things, we are just only baking another eventuality that will eventually consume us in the future.y Some have argued that since such magnanimity was displayed to them, some 119 of them, shouldn’t that be done to all of them, because though it was a protest against bad governance, they were waving other countries flags and calling for military take over? If that is the general allegation, I am sure that there were other issues behind it. For example, when we had our share of the EndSARS misadventure in Lagos, we lost so many property, including our courts and lots of historical documents, I think the first thing we should do is to draw the line between criminality and protests. I support protests 1,000,000 per cent. In fact, every government should be uncomfortable when there is no protest. People have a fundamental right to protest any day and the police have the duty to protest the protesters. However, no protester has the right to destroy private property or attack people. At that point, you have crossed the line and you must pay for it. if you go beyond protest into destruction of property, then that is criminality. I will not subscribe to the view that such people must be let go, because you will be setting a wrong precedent and emboldening them against the future. And on the other hand, you unwittingly are demoralizing the security officials, the police. It happened after the EndSARS, ask the people in Lagos.

For a long time, the police lacked the courage to even open their divisional headquarters. It was that bad, and they had to quickly change into mufti while going home. So, this is not good for the safety of all of us. So, for me it is a question of continuous balancing. If you commit criminality in the process of protest, of course, you must be charged and prosecuted. But if it is just simply protest, no, that one is not acceptable to anybody, and I believe that it must not be acceptable to the same government because they themselves would become protesters one day as they had been before. Under this government, the media and civil society groups have observed that the civil space continues to shrink, because if people move to protest, they are being arrested. Is this good for democracy? It is certainly not good for democracy at all. The space must be open, and widely so. People must be able to err their own view, because it is when they are unable to do this, they go into criminality sometimes. For me, it should be widened. The civil societies and even the Nigerian Bar Association did the same thing. We must continuously pursue this and have lawyers on ground should any of them be arrested. There are lots of lawyers now that are into these pro bono services, and I am sure they are available to offer their services. We must not allow the civil space to shrink, otherwise there will be danger for all of us. The judiciary has been on trial for a long time. Time and again, and unfortunately, the integrity of the judiciary is being put to test when it has to do with political cases… We have seen what happened in Rivers, Edo and Kano states. What do we do when it comes to conflicting judgments and issues where courts adjudicate on issues where they don’t have jurisdiction? Honestly speaking, I share your concern on the subject of conflicting judgments. The first thing we must all agree on is that there must be sanctions for misconduct. That has not been potent enough in my very strong view. Secondly, technology has come to stay and these things can be easily resolved through technology. Even in the Court of Appeal where we have several divisions, there is basic technology today where you give judgment in places like Taraba, Sokoto, where you can easily download and any judge adjudicating on similar matters can easily view it in Lagos. This is a very simple thing to do. Again, the reality is that, like you rightly said, it seems that people are even choosing their own jurisdiction now, politicians particularly. Such that in that jurisdiction, they say this is my own, and when I am there, I am safe, I get the desired judgment. The other litigant will go on his own and do the same thing. Again, it is a matter, I believe that calls for urgent attention and I want to believe that the Chief Justice of the Federation will take it seriously. I understand that there is a probe going on now, but my expectation is that we must make scapegoats of some people. We must sanction them.

Except we start doing that and people see that the National Judicial Council (NJC) is serious about it; I have the privilege of serving at the NJC for four years, and I know that we actually need to make an example of some of these people, who are conducting their affairs recklessly in the judiciary. This is because even some law school students will tell you easily what the jurisdiction of this court is as against the other. A judge cannot pretend to be ignorant of it even when some lawyers disguise it. I have advocated, in my intervention, that it is not only the judge that must be condemned, even lawyers, particularly senior lawyers that engage in these kinds of antics must be dealt with decisively. We all need to be deterred from misconduct and misbehaviour if the judiciary must remain the last hope of the people. It is dangerous for the judiciary to become a lost hope as described by one of our colleagues. If it is a lost hope, the only thing you see is an invitation to anarchy in the land and that is the end of the road for the society. So, something needs to be done. I am aware that something has been done in the recent past, but they are not enough because there have been no effective sanctions.