[INTERVIEW] ‘States Should Be Allowed To Appoint Own Judges’- Lawal Pedro, SAN
Former Lagos State Solicitor-General, Lawal Pedro, SAN, in this interview speaks on delay in justice delivery, why states should appoint own judges, including judiciary independence, EndSARS, VAT.
You were a public servant in the Lagos State Ministry of Justice (MOJ) for almost two decades. What was the experience like?
I got into the Lagos State Ministry of Justice just after my Call to Bar in 1986. My plan was to work there just for two years but I found myself working for nearly two decades there. Working there was a wonderful experience as I rose through the ranks to become a Permanent Secretary and Solicitor General in the Ministry. I was also lucky to have been rewarded with the honour of Senior Advocate of Nigeria, SAN, as a sitting civil servant. That was the first time any civil servant in Nigeria would be awarded with such an honour. That is different from those who came into the Ministry and became SAN. Lagos State Ministry of Justice is not a Ministry, it is a law office and perhaps the biggest and largest law firm in Nigeria and Sub-Sahara Africa. For any lawyer that wants to excel, there are opportunities there; for those that want to just be- alone, it accommodates; and for those that wants to be lazy and get paid 30 days after, it also accommodates them because it is a civil service. Some of us were really devoted to the work while others had the I-don’t-care attitude. MOJ developed me so much and I will ever remain grateful for the opportunity to have worked there particularly with ogas such as Hon Justice Nurain Kessington, Alhaja Wonu Folami, former Attorney General, Hon Justice Bode Rhodes -Vivour, Hon Justice Ayo Phillips,Hon Justice Doris Okuwobi, Mr Fola Arthur-Worrey Prof yemi Osinbajo,SAN, GCON and Current Vice President of Nigeria and Mr Ade Ipaye, the Deputy Chief of Staff to the President of Nigeria . I had a good time in the Ministry and some of those hardworking staffs I left behind are still doing great there.
What were some of the challenges you faced in the ministry as Solicitor-General and Permanent Secretary?
The challenges I faced was as a result of what you can call Civil Service mentality. As at the time I was appointed Solicitor-General, I happened to be one of the most junior directors. That meant I had seniors in age, at the bar and in the service before I was pulled to become Solicitor-General and Permanent Secretary. That was against the Civil Service rule which stipulates that the most senior director becomes Permanent Secretary. Understandably some persons didn’t like that but some knew I had put up a lot of industry to earn the promotion. Some who didn’t like me would smile at me but behind me, they were doing other things. They were also uproar after my appointment and some people said I got the appointment because I was a Lagosian, others said I was Prof Osinbajo boy that was left behind. But I will forever remained grateful to HE Senator Asiwaju Bola Tinubu who insisted on my appointment.The good thing that later happen was that few months after my appointment, my name came out as one of those awarded the Senior Advocate of Nigeria. That simply put the matter to rest because by virtue of my new status, I became the most senior lawyer in the Ministry.
Can you recall some of the major cases you handled for the state?
There are many of them but I will just mention a few of them. The case of Reverend King was one of them because as Solicitor-General, I was the coordinator of all high profile criminal cases then. I worked with the then Director of Public Prosecution, DPP, who is now a High Court Judge. The case of Major Hamzat Al-Mustapha which was boggled through petitions against the presiding judge, Justice Ade Alabi also comes to mind. When the matter started de novo and I led the prosecution, we secured conviction but regrettably the conviction was upturned by the Court of Appeal. I was also involved in all constitution matters for or against the Lagos State government in the Supreme Court. For instance the Ikoyi land dispute between Lagos State and the Federal Government and Hotel Occupancy and tourism case which we secured victory at the Supreme Court.
Despite global advocacy for the abolition of death sentence, Nigeria continues to retain death penalty in her status law. What is your position on death penalty?
I believe that death penalty has outlived its purpose and the status creating it should be reviewed. The question we should all consider is whether death penalty has served as deterrent to offence which it is created to cure. The answer is no. We should also ask ourselves whether it is of any value to the society. With due respect, the answer is also no.
As a country, I sincerely think we should have developed beyond this stage. Our prison centres should have developed beyond where we are today. We have vast land in the country where we can build new prison facilities and send these convicted criminals there to farm. In Epe for instance, there are island that can only be access through boat. We can build new prison facilities in a place like that and send them there. Whilst there, they can become useful to themselves and the society instead of just killing them because they have committed offences that attract death penalty.
For those clamouring that by abolishing death penalty, there will be no justice for the dead victim, the question they should consider is whether by killing the condemned person, will it restore the victim who is already death? I would rather advocate for the Islamic jurisprudence position of the issue which posit that for such action, the convicted person should be made to cater for the family of the person he or she has killed.
Unfortunate that is not applicable to our common law practice. We should be seriously considering restorative system of justice instead of just killing people who have committed capital offences. The irony of the matter is even laughable because though the death penalty status remains, no condemned inmate have been executed in recent time. They remain a burden to the country because tax payers’ money is used to feed them daily. We can make them productive to the nation and that should be the focus of reform in the justice sector.
Recently, the Chief Justice of Nigeria, CJN, summoned judges over conflicting judgments and improper granting of ex-parte orders. What do you think is the real problem with our legal system?
There is need for discipline among our colleagues. When some judges were summoned over conflicting judgment and grant of ex-parte motion, I felt that was not the solution to the problem in the justice system. I recall that when I left the MOJ and appeared before a judge in a private matter, the judge who was unaware that I had already left the ministry was shocked and confused because there was no matter involving the State before him. Obviously he did not read the newspapers or watch the news on television to know about my retirement from service. Benefit of doubt should actually be given to some of the judges that were summoned. I know that some of these judges actually try to insulate themselves from what is happening around them so they base their decisions on evidence before them. I think lawyers that present cases before the judges should be blamed for some of these controversial matters. Some of them know that an order had been granted in another court over same issue but would still bring same subject matter before another judge. In actual fact, the lawyers should take more blame of this issue of conflicting judgment than judges.
What particular areas do you think government should focus on?
Nigeria should spend more on security and justice. When that is done, you will see rapid development. There is no reason why a case should last more than 18 months in court. In the magistrate court, it should be six months. It is only then that investment will be drawn to the country. When anybody wants to invest in a country, there is bound to be dispute or breach of contract but we must have an effective justice system that would evoke confidence that such dispute would be fairly resolved. If a suspect is prosecuted and convicted within six months, most people who want to engage in similar crime will caution themselves. What is happening now is that even the suspect who is arrested for a crime will be the one urging the law enforcement agencies to charge him or her to the court because the know that the matter will remain there forever.
What do you think the judiciary can do to quicken justice delivery?
We don’t have to copy other countries blindly. We must look at our own peculiar situation and find a workable solution. For example, in as much as the constitution remains the way it is presently, Lagos State should have not less than 100 judges. The challenge is that the appointment has to go through NJC, and that is an absurd federal system. Why should the federal government be paying the salary of a judge of the High Court of a State? State should take care of their judges and determine how many they want. If I had my way, every Local Government in Lagos must have a High Court. How can one be leaving in Igando area and be going to Iganmu to do a case. There should be a High Court there with not less than three judges sitting there. That is the ideal case but how do you now ask the federal government to fund them. If you ask for 10 judges for Lagos, Federal Government will look at its budget and say they cannot afford to approve more than six. In some jurisdiction outside Lagos, the total cases in the entire court is not up to the list of one High Court judge in Lagos. Meanwhile the judge will collect same salary with his counterpart in Lagos. My suggestion is that the constitution should be amended to allow states appoint their own judges. There could be some form of control by a federal agency like the NJC but appointment, management and payment of salary should be rested with the States.
The jurisdiction of the magistrate courts should also be increased to free the High Court of some cases. There are over 200 Magistrates in Lagos State, so what are they doing; Landlord and tenant matters? To me, such cases should not be more than three months in court. There should actually be a Mediation Centre annexed to the Magistrate. So first hearing of cases should go the Mediation Centre. Once rent issues are sorted out there amicably, housing investment and development will rise. People are selling their houses here in Nigeria and buying in London because of the ease of settling rent related disputes. So we must change the system so that people can be encouraged to invest in housing.
Is judiciary independence achievable in Nigeria?
As far as I am concern, on paper, our judiciary is autonomous. Autonomy is independence of the judiciary. What is the core function of the judiciary? Dispensation of justice. Is anyone telling the judiciary not to dispense justice? So I believe they are independent on that. When you now talk about physical and financial needs for them to perform this functions, on paper they are.
As far Nigeria in concerned today, unless the constitution is amended, the judiciary cannot be as independent as it should really be. According to the constitution, the High Court of a state is being treated as an appendage of the Federal Government because the recurrent and capital expenditure of the High Court is with the NJC. So for the state which spend money on the High Court, it just an act of being magnanimous. By the constitution, what the state should concentrate on is the magistrate court and make sure they are well taken care of. It is same thing with the police. The federal government will buy operational vehicles for the police but it is the state government that repairs them.
So to me, the judiciary is substantially independent as far as the present Nigerian Constitution is concerned. If by delivering judgment, there have been no interference, then they are independent. But when you talk about financial autonomy, my question is; in which respect? If you look at our constitution on the issue of financial autonomy, it says money standing to the credit of the judiciary in the Consolidated Revenue Account shall be deducted for the judiciary. The question however is when is such money deemed to be standing to the credit of the judiciary? Is it when the budget is made? So assuming you have budgeted N100million for your Judiciary in your budget of N500million, and in the whole year, government could not make even N100million, where would the money for the judiciary be withdrawn from.
My suggestion is that judiciary should be asking for increase of their budget envelop. Most people who talk about financial autonomy have never worked in government so they don’t know how these things work. What is the percentage allocated to the judiciary in the budget? Ordinarily the budget ought to be splited into three since there are three arms of government but we know that the Executive have more responsibility, the Legislature makes laws and carried out some oversight functions while the Judiciary is there to dispense justice. I am sure the budget of the Judiciary is less than the budget of the Ministry of Works. That is where the challenge is. People should fight for increase in the budget envelop of the Judiciary instead. If for instance the Judiciary is having four percent of the total budget of a state, then they should be asking for 10 percent so that they can have more money to be able to carry out their function.
It’s about one year since the EndSARS protest and all the problems that came with it. What would you advise government to do differently to avoid reoccurrence?
Well to me, the EndSARS protest is now history and we learn from history. All the issues that made the EndSARS protest come to fore, have been with us for quite some time. It is just that few people could not take any longer and decided to stage a protest to hold the government to account. I believe that government is trying to address some of the issues raised by the protester through the various panels that were set up. We should allow the panels to conclude their works and come up with recommendations, after that, we can analyze them and also make suggestion.
The EndSARS protest is just an iceberg of the larger problem that is facing us in this country. The challenges in the country are much; poverty, unemployment, insecurity and many other things led to the protest. When you have graduates who cannot find job, then what do you expect from such idle youths? It a big problem and we must all join hands together to solve them. I also thinking the banking system in the country is not helping matters. Whether they cook their books, I don’t know but every year they declare huge profit after tax and use the profit to build structures and branches which they don’t need. Such funds should have been used to give out loans for investment and development. The entities that can actually save this country are the banks and the legislatures. Banks should investment in mortgage, give industries money to grow trade and low interest rates.
What is your take on the current battle between the federal and state governments on who should collect VAT?
If anybody says the federal government has no power to collect tax, that person is wrong. We have Trade and Commercial under the Exclusive Legislative List. So if any Trade and Commerce is being taxed by federal government, it is constitutional and right. But in hotels, restaurants, event places, federal government cannot come and charge vat in those places. It is the consumption tax of Lagos, for instance, that should operate there. All the three levels of government, Federal, State and Local Government have a bit of control on trade and commerce. So it is the trade within their jurisdiction that they can charge vat on. So Federal government doesn’t have business with somebody buying a bottle of coke in a supermarket in a state. Any state that makes vat law is doing so within the power derived from the constitution. The state tax in Ogun State was declared invalid because they were trying to impose tax on good brought into the state. If I were to advise any state government, I will simply tell them to forget about tax law but enact consumption tax which will achieve the same purpose. In fact that is where double taxation can be avoided because the area consumption tax will cover will not be the same area where federal government will go into.
The security situation especially in the South-east is becoming more alarming every day. Does it not call for concern?
I feel very concerned about what is going on in the east and everybody in Nigeria should really be concerned. The same way we raised the loudest voice about what happened in the North, should be the way we should raise a voice for what is happening in the east. We have been so divided in this country and it is working against us as a nation. I preach true compliance with the Federal Character Act because that is the only thing I think can safe this country if it is fully implemented religiously. IPOB, Oduduwa Republic and so many other agitations would not arise if Federal Character Act is in action in the country. Most people have not taken time to look at what the Federal Character Act prescribes for Nigerians. Even if we have poverty, with the principle of Federal Character Commission, at least we won’t have security issues. Look at what happened with the June 12 matter. At the height of the matter, it became a Western region problem alone. Now the chicken has come home to roast. We should not be looking at what is happening in the East and close our eyes because if it is not contained there, it is likely to also spill over to other parts of the country.
What motivated you to read law in the University?
I was motivated to read law by my role model and uncle, Hon Justice Muheeb Kotun who was then a Magistrate and later became a High Court Judge in Lagos. He was married to the sister to my father. He loved me like any of his children. Back then when I was 9 years and loved to play football, my family would always send me on errand anytime they are having a family meeting. On any of those meetings, the whole family would always wait till uncle Muheeb as we called him then, to come before the meeting can begin. I always wondered why he was so important that everybody would have to wait for him until my father told me that he was a magistrate. When I asked what it takes to become a Magistrate, I was told one would have to study law in the university first. Instinctively I decided I would become a lawyer so as to become important like my uncle. When he later learnt that I had gained admission to read law, he completely showered me with love and took me as his son.