What is impunity?

Legal dictionaries define impunity as exemption or protection from penalty or punishment. According to Wikipedia, impunity means “exemption from punishment or loss or escape from fines”. It goes further to state that impunity is especially common in countries that lack a tradition of the rule of law suffer from corruption or that have entrenched systems of patronage or where the judiciary is weak or members of the security forces are protected by special jurisdictions or immunities .

A lot of people wonder why some Nigerians are eager to obey basic rules of conduct once they step out of the shores of Nigeria, say to Western European countries for instance; but would flout similar rules at home. The difference is that due to the efficacy of the justice system in those countries, the likelihood of apprehension, prosecution and punishment is virtually certain while the opposite abounds at home. For this category of Nigerians (a small but privileged percentage of our huge population, I will insist) impunity reigns at home while the rule of law reigns abroad.

Let us examine a few areas of our national life and see how impunity is destructively gnawing at our very innards without fuss.

Elections

We have just gone through a nerve-wrecking electoral process which questioned the very essence of our being as a nation.

Today, many of our courts are engaged in the unending rituals of election petition adjudication leading to a development of needless and unhelpful jurisprudence, all because our electoral process is far from being transparent. A little scratch will reveal the presence of impunity. Year in year out, perpetrators of electoral offences go unpunished. In many instances they are never apprehended and where apprehended they are processed through the justice system and freed once the tendency they worked for gains political power.

The Bar appears disengaged while the criminal justice system is routinely abused in this manner!

Leading members of the Bar even join the clamour for there to be put in place an Electoral Offences Tribunal so that electoral offenders could be brought to justice – a mantra regularly chanted after every election as if the criminal codes do not capture these offences or that offences involved are not triable by the regular courts!

Murder is murder whether committed during electioneering campaigns or at any other time. Ditto for possession of dangerous weapons, and other violent conducts characterising our electoral process. Our criminal codes are sufficiently capable of capturing the essence of these unacceptable conducts unless we want to be hypocritical.

Human rights

When courts impose penalties for human rights abuses by law enforcement agencies and tax payers are made to compensate the victims via damages paid by the agencies and not the offenders who in most cases even continue their careers as if nothing went wrong, impunity is enthroned. It will be interesting to compute how much actually goes into settling damages imposed by courts against the Federal Government for human rights abuses annually. I have an inkling that the result would be very interesting.

The drug war

It is routine these days for flights in and out of Nigeria to be disrupted on account of the presence of suspected drug traffickers. Many Nigerians have met their untimely deaths in some less tolerant jurisdictions on account of drug trafficking. A review of our investigative, prosecutorial and adjudicatory approach to the drug problem will reveal a systematic perpetuation of impunity over the years.

A few years ago a Nollywood star was caught attempting to ferry hard drugs across our borders. She got off with a slap on the wrist; a light penal sentence with an option to pay a ridiculous fine, amounting to a seeming judicial endorsement of her illicit activity. Apparently encouraged, a couple of months after the sentencing, another Nollywood star, this time of the male specie, was arrested for a similar offence and he similarly got off.

Piracy

One area where impunity has also done grave damage this time with our Nollywood stars, musicians and other creative talents as victims is in the battle against piracy. While Nollywood and our music artistes have done so much to shore up the image of our country worldwide, the practitioners are routinely impoverished by the activities of pirates who are never brought to justice. Pirated works are openly sold in traffic for peanuts while the copyright owners battle with debt. In fact, part of the explanation for the involvement of some of them in drug trafficking is traced to this.

Administration of justice

I cannot consider various areas of impunity in our lives as a nation without touching home. We must not venture the thought that it is only through corruption that lawyers encourage impunity in the administration of justice. When frivolous applications are filed to frustrate trials, when unceasing interlocutory appeals are filed, when we totally turn professional ethics upside down all to satisfy clients, we as practitioners are engendering impunity.

When we look the other way while our clients jump bail, interfere with witnesses and in the conduct of our cases do everything to impede the flow of justice under an unbridled commitment to our clients, we encourage impunity.

And when we as judges grant unnecessary adjournments, delay rulings and judgments, fail to take control of our proceedings and apply extant case management strategies, we unwittingly encourage impunity.

The list is endless. The damage done by these offerings to the god of impunity had characterised several aspects of our justice system.

What then can the Bar do to remedy the situation?

The situation is not helpless, and the Bar is not powerless. In a military situation, that is, under a military dictatorship, the role of the Bar if not complicit is clear cut. However, in a democratic setting, the situation could be a bit complicated despite the seeming air of freedom.

Lawyers as ordinary citizens are entitled to their political biases, but political partisanship must never be ascribed to the Bar. However, where a government in power exhibits anti-democratic tendencies, it is easy to ascribe opposition tendency to the Bar.

The situation becomes even more critical when in a few days; a leading and highly respected member of the Bar takes office as the number two citizen in the country. In other words, the Bar must decide how to relate with a civilian government, having one of its leading lights in the topmost leadership – a situation without precedent in the history of the nation.

Eternal vigilance is the price of liberty, the tendency for a popularly elected government to descend to autocracy is real if no one monitors to ensure that lines are not crossed. It is the task of the Bar to do this.

Specifically as regards tackling impunity in the emerging scenario, the activities of the Bar must be multi-faceted. I have identified two key areas in this presentation.

Direct action

Observations were made on electoral offences earlier on. The Bar must objectively challenge the Attorneys General at both the state and at the federal levels to prosecute electoral offenders and monitor the use of their powers of nolle prosequi. A committee of the Bar could subject tenures of the attorneys general to scrutiny even after leaving office, so that where the powers of nolle prosequi had been abused, appropriate sanctions could be imposed on such former attorneys general.

Furthermore, corruption in the justice system is a recurring decimal. Uprooting it is impossible without the Bar playing an active role. Hardly can you find a case of corrupt practices involving judges without the participation of lawyers.

The active role envisaged goes beyond monitoring and blowing the whistle where necessary. It must include decisive punishment for members of the Bar found culpable. This is one area the Bar has fallen abysmally short. Examples are legion but I will cite a few.

Not too long ago, the career of a brilliant judge in Lagos State warming up to take the number one position in the state judiciary was cut short on allegations of corruption. He didn’t act alone; members of the Bar involved in the act were neither queried nor punished for their roles.

A few years later, during the (Chris) Ngige saga in Anambra State, a judge sitting in Enugu ordered the removal of Dr. Ngige, then Governor of Anambra State. He was removed from the bench but the member(s) of the Bar who filed the processes before him never got questioned nor punished.

We cannot in this regard forget the case which led to the termination of the careers of Justices Opene and Adeniji of the Court of Appeal. Till date the lawyers involved were never disciplined.

The bar must stop playing the ostrich. Stamping out corruption from the justice system is not the sole business of the National Judicial Council. The leadership of the Bar must ensure that the impunity of its ranks in this area comes to an end. Enough must be enough. It is hypocritical to point fingers at other sectors while condoning worse within the house.

Also, the Bar needs to pay more than passing interest in public prosecutions. It is not enough to criticise the end product when the entire process could have been monitored and placed under the searchlight to ensure there is no hanky-panky. The Bar must rise up to the challenge of identifying and monitoring high profile public prosecutions on behalf of the Nigerian public.

We must expand the scope of professional misconduct to include the manner a legal practitioner handles his brief if indeed impunity is to be challenged. A senior member of the profession recently related his interaction with some members of the legal defence team of the convicted former governor earlier mentioned. He wanted to know why they allowed their client plead guilty when they could have gone ahead with the full trial. The answer he got was simple: Had they refrained from the course of action taken, they would have been answerable to the Law Society. My hope and prayer is that very soon the quality of discipline within our profession in this country will attain that standard.

As for the bench, we can only hope for the strengthening of the current efforts of the National Judicial Council, inclusive of a total overhaul of the judges performance evaluation methodology.

Legislative advocacy

The Bar must be unrelenting in the quest for a system of justice that guarantees speedy and efficient dispensation of justice. The existing system must be continuously engaged and reformed towards ensuring that the innocent is protected while the guilty is tried and appropriately punished. Every criminal defendant must have his day in court.

Sentencing has been a sore point in our adjudicatory system. A few years ago when a former Delta State Governor was convicted in the United Kingdom, operators in that system accurately predicted the length of sentence on the strength of the sentencing guidelines existing in that country. The imperative of a well articulated sentencing guideline can never be over emphasised.

The Bar must take the lead in the advocacy that would bring this to life.

The fight against corruption cannot be won without appropriate legislations. It is noteworthy that the Bar has been very vocal in ensuring that certain legislations with supposedly injurious implications for its professional activities are shut down. That shows good vigilance. The next step however is for the Bar to be in the forefront of innovative legislations existing in other climes which would ensure that the nation is freed from corruption. After all we all are victims of this scourge.

Corruption is largely a lifestyle offence, deprived of the proceeds, offenders are incapacitated. The Bar must accordingly be in the forefront of the enactment of necessary proceeds of crimes legislations to assist the anti-corruption agencies and society at large in taking back what was wrongfully stolen from us. Failure to do this might lead to the perception that lawyers are conniving to perpetuate corruption in the polity. I pray this never happens.

Transparency and accountability are ingredients of the fight against corruption. The Bar was in the forefront of the Freedom of Information Act at the federal level. The battle in this regard must not be considered won until the legislation is domesticated at the state levels. The Bar must take up this challenge without further delay.

The Bar in Nigeria has a leading role to play in exterminating impunity from the polity, ignoring the task will not make it disappear. The time to act is now; we must rise to the challenge.

This is an excerpt from a public lecture delivered by Justice Oyewole, a Justice of the Appeal Court, at the 2015 Alao Aka-Basorun Memorial Lecture held recently in Lagos

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