Posted by JUDE IGBANOI on
Only a few donor organisations have achieved so much as the Open Society Justice Initiative (OSJI) in the area of public interest advocacy, opening the society and strengthening democratic institutions. Chidi Anselm Odinkalu, Africa Director of OSJI took time out of a rather tight schedule to chat with JUDE IGBANOI last week.
You are the Africa Director of the Open Society Justice Initiative and you have been in that office since 2003. What would you say are your achievements, challenges, hurdles, so far and how have you surmounted them?
Change takes time. Our mandate at Open Society Justice Initiative is to facilitate, make possible the process of transforming legal systems, legal processes and justice systems to serve people better. In my case, I focus on justice system in Africa.
When you look at the damage that government has done to justice system in Africa over the past, since the period of independence and indeed possibly before that, because the justice system that were established before independence wasn't really meant for colonized people. So that you have a lot of work. And what we've tried to do is to focus on identifying few issues around which is possible to begin to demonstrate that if we do things right in can make change possible.
Now, one of the things we targeted in Nigeria for instance, we have taken the over lap between quick trial detention and legal aid delivery. We are trying to use legal aid to help address the problem of quick trial detention
My diagnosis is that the problem we've got is not necessarily one that judges can face, it's a problem of management. The institutions of the criminal Justice System are not able to manage their relationship and the result is that we have an over-crowding of detainees in prison. So, we are working now in four states, Kaduna, Sokoto, Imo and Ondo States to demonstrate that it is possible to set up systems to manage this properly. Cut down on the timid flow of quick trial detainees and energies, transform the turn around, time that it will take for a case file to move from police to DPP, from DPP back to the court and secure conviction or acquitted as the case may be.
As part of that, we are happy to set up later this year, an electronic management system for case file in the criminal justice system, is called (CRIMSIS), the criminal Justice Information in the system and make it possible for all states in Nigeria over the next two years to have an electronic tracking system for their cases.
Now the second thing that we focus on is the African Court on Human and Peoples Rights which is a Regional Court that has been discussed since 1960, since African countries became independent. And from the conference of Lagos in 1960.
We are working with the coalition of over seventy African organisations across about 43 Africa countries to make the court possible. And the treaties establishing the court have already come into force. It came into force January 2004 and we are hoping that the court itself can be established in the next six months.
The third thing, which is the international justice we've focused on to look at the epidemic of impunity in Africa. From Charles Taylor to Dafur, from DRC, to Central Africa to Northern Uganda and we are working with a network of lawyers around the world. And also in Africa to make it possible to stem this network of impunity that enables mass killing of Africans to go on without anybody being made to pay for it.
It's on record that OSJI found quite a lot of public interest projects, when you talk of organising public fora, you have been involved in training NGO staff on crucial areas. What informs the funding of the projects that OSJI does, how do you choose the programmes you fund?
Strictly speaking actually the OSJI is not a funding organisation. I like to tell my colleagues and friends. Many of my friends laugh when I say this, but what is it is that we are in a position as an institution when we have preferential access to money. It makes it possible for us to concentrate on initiatives and take on without having to go raise money to do it. By contrast, other organisations and groups have to get staff to raise money. So, we are operational. I see my self as a technician, as an activist, as a person paid to think about change and to help make change possible in the justice sector and legal sector. I'm not into giving money, but if it becomes necessary to find money to do the things that we need to do to make change possible, then we will find the money to do it.
So, when we have to work with other organisations to find money, we do that. But the entity within the Open Society Network that actually does make grants as such is known as (OSIWA) that is the Open Society Initiative for West Africa. OSIWA has its Headquarters in Darkar, Senegal with a Country Office in Nigeria. OSIWA is different but complementary to OSJI to the extent that we all belong to the Open Society family which is founded by George Sorros and endowed by him too. That's the difference. If people are looking for lot of money to do good things, to open up countries that are more democratic, to protect rights, the place to go to is OSIWA. If they are looking for ideas and technical support generally to achieve specific goals in reforming the justice sector, then the Open Society Justice Initiative we be the place to go to.
You spoke about change and justice. Justice Sector reform has occupied the front burners in legal discourse in Nigeria for the past few years now. In your opinion, as one who is passionate about change in that sector what area would you specifically advocate certain reforms in justice sector?
I hope this doesn't come as a surprise, but increasingly for me, the biggest issue that we need to address is the Supreme Court. That for me is the simple biggest issue that will unlock the system and I will tell you why. Take the example of the Bamaiyi and Mustapha case. It's been in court for how many years? Six years! Now, the reason it has been in court is that lawyers feel that they can lock up proceedings in the High Court, string out interlocutory appeals up to the Supreme Court and tie up judicial time and process. Clog up the High Court, clog up the appellate process, clog up the Supreme Court and the system suffers all those. And what happens? Substantive matters are not heard in the High Court, they don't get to the Court of Appeal, they don't get to the Supreme Court. At least to some extent, I've seen cases that have been in court for twelve years, fifteen years, and they haven't gone to trial, but there have been three, four interlocutory appeals.
Now, the argument is that the Constitution entitles people to appeal as of right, on questions of law, that is true but it isn't the real issue. Who has the right to determine what is a matter of law. Is it the lawyer who wants to string the process of proceedings?, or is it the judge who should be determining what is the position of law? So, the interpretation of the relevant part of the Constitution is a matter of doctrine and the settlement of doctrine is a judicial issue. Lawyers can argue it, judges have to determine it.
Now, if we could deal with Supreme Court reform, by Supreme Court reform I mean cutting out interlocutory appeals, by introducing summary proceeding that makes it possible for the Supreme Court to say ‘this matter is not for us'. I do not see that the Supreme Court does it. Let's look at our Supreme Court Justices, we need to make better use of their time and resources, if we will unlock that, a lot of things will change.
The second issue is ethics at the Bar. The system is finished, we cannot hold anybody accountable for ethical infraction. Every legal profession is built on candour on the preparation of its professionals for honest dealings, for value for money service for their clients. Nigeria legal profession cannot lay down to that. so, we've got to transform fundamentally the regime of ethics at our Bar. If we get these two right, the third thing we should address and be able to deal with is the matter is privileges at the Bar. I think the idea is that we should have privileges is not a bad thing, it is to be encouraged.
The idea that we should have some recognition of excellence in any field of endeavour is one that is not objectionable but the idea that some how the only way in which excellence can be recognised is by stringing out litigation to the Supreme Court is objectionable.
So how else can it be done?
Appellate litigation is a skill, trial litigation is a skill, trial advocacy is a skill. Trial advocacy is the skill of a lawyer who is quick on the draw, who is a master of arranging and presenting facts. Appellate litigation is also a different skill area for the introspective lawyer, for the lawyer who is an analysts who isn't necessarily quick on the draw, but can seek a mass of material and present them in a wonderfully written brief. Those are two different skills. And now if you string out Supreme Court litigation, you jump the queue over the person who is wonderful at trial advocacy. The late Judge Kalma, Q.C in the UK at the English Bar was a terrific litigator at the trial level. Judge Kalma was the best of the lawyers of his generation. He was known as a great appellate litigator. Appellate litigation however, can also recognise other people who are specialised in appellate litigation. And the idea for instance, is to find ways of ensuring that lawyers who render value advocacy to their clients at all levels are recognised for their excellence in doing that and not just polarizing appellate litigation for the sake of it. This is linked to the idea of Supreme Court reform. And I mean it when I say if we do not sort out the Supreme Court reform, every attempt to deal with the reform of the legal system is not going to work, because you go into court and a judge gives you an adjournment, a lawyer who does not like it can appeal on that ground and string that out for eight, nine, twelve years. You go over. So, we really need fundamentally to transform the management of our appellate court system and rethink the supreme court and how its case notes are managed.
Another area of concern to lawyers in Nigeria is that of legal education. Right now, the four campuses of the Nigerian Law School are in a terrible state of decay one rot. Some have attributed the problem to universities which have bugged down with problem of cultism, some have no infrastructures, most of the universities do not have full accredition for their law programmes. Only a few are fully accredited. It's a whole lot of problems affecting legal education. In your view, how can legal education be improved in Nigeria, what is the way forward out of this decay and rot?
I like to think that the reform of legal education is not the problem. The new question is why should the states pay for the professional education of a lawyer who is not going to return to serve the nation, who is going to go into private practice? That is the fundamental question. A complementary question is what was the Council of Legal Education setup to do? It wasn't set up primarily to run Nigerian Law School. The Council of Legal Education was set up to regulate and standardise and certify the qualify of legal education. I think we have to go back to that basics. The main crisis we've got now is because the Council of Legal Education has essentially incorporated in terms of personality and functionality with the Nigerian Law School, that needs to change. How do we change it? There are several ways of addressing the question.
Let's do an economic analysis, think what we could do for legal education in Nigeria if we free up the money that was spent running the multiple campuses of the Nigeria Law School and simply develop law libraries, access to legal materials that anybody and everybody can go through. Then the Council of Legal Education can certify and license people who would provide vocational education for lawyers anywhere. They set exams which is what is done in other professions, they set exams, you can go through whoever the provider is, and of the period, you come to their Council to take your exams so far you are called to the Bar. You fail you go back and do it again. Now, we will free up a lot of money that is currently spent on infrastructures into programmes, into content developments, into curriculum developments, into legal research. Some of that money can the be given to the universities where academic foundations are laid. Some of that money will go into research and development for the legal profession in Nigeria. We define legal education to mean more than just bread and butter, it will mean access to qualitative education that is one thing we could do. To go back to the regulatory statutory functions of the Council of Legal Education.
Let's talk about the West Africa Sub-region which your organisation also has activities in. In the past one and half decade, there's been a lot of crisis in the West African sub-region. Talk of the war in Liberia, crises in Cote d'vior and now Togo is on the boil. How can peace be made to return to the sub-region? What is the panacea for the crisis in the sub-region in your perspective?
I wish I could tell you I have a quick fix, but the are not quick fixes. A major part of the West Africa problem is that our borders are porous. Our people are mobil. The Mandigo for instance are found everywhere in West Africa from Mauritania to Cameroon. The Fula, are everywhere in West Africa from Mauritania to Cameroon and Biya. The Hausa people are in Nigeria, Niger, Chad, and in Ghana. The Yoruba people are across borders. So, what you have was engraphic of international boundaries on to nationalities. And if we have been served well by the leadership of the sub region, we will not have been here, and so it is a complicated situation. Now, what can we do? I don't think there is any alternative to government treating their people well and decently. One of the problems is misplaced propriety. When you sit down to talk about developing West Africa or indeed developing most Africa countries, people will tell you how we need to get donors, we need to get funders. But nobody ever borrowed money to go to war in Africa. Charles Taylor did not borrow money to kill his own people, the Ivorians did not borrowed money to buy the guns they are using. No rebel management has ever borrowed money to fight wars. Why is that? You ask yourself that we fine it easy to find money to kill our people but we have difficulty finding money to save our brothers and sisters, to give them antinatal care, to give our kids the best of education, to set up credible electoral systems. We've got misplaced priorities and we've got to fix that. Any African country does not need vast sum of money to transform. And when you talk about looking for money, how much of our own money in capital flight, corrupt money that is taken out of the region, is much. The problems, is that our leaders are not interested in serving the people better?
Having said, this the reality is when you compare the West Africa of today with the West Africa of fifteen, twenty years ago there is vast improvement. There is no president in power in West Africa today who was there in 1990. And apart from Campaoure there is no President in West Africa today who was there in 1990, that is the major way forward. Kareku who was the president in 1990 in Benin Republic lost election and had to come back after winning again. So, we are making some basic progress, though it is slow but then change is not going to happen overnight.
The West African sub-region now has a Community Court, talking about the ECOWAS Community Court, which is now in Abuja. Initially there was skepticism over the jurisdiction of that court. The jurisdiction of the court has been expanded but Nigerian lawyers now seem to be complaining over the jurisdiction of that court, they seem to believe that the court has over stepped its bounds as a result of the some of the cases they are handling now. The court now looks like it is sitting in appellate jurisdiction over the Supreme Court of Nigeria. There are cases that are before the Supreme Court which are now before the ECOWAS court and people are complaining. So what is your view generally about the ECOWAS community court in Abuja?
The ECOWAS Court of Justice is a court of regional litigation. The ECOWAS project itself as it was set up in 1975 was a regional cooperation project and to defend effectively regional, political and economic integration. In 1972, after the report of Gowon Committee of Eminent Persons that revised the original ECOWAS treaty which then lead to the revised ECOWAS treaty of 1973. That means that that decisions of ECOWAS have domestic application automatically. That is something unfortunately that the leadership of Nigeria have not sufficiently explained to its people or indeed its Parliament. I've searched through, because precisely this is the subject matter of my doctrine work, and I've searched through everywhere to find out where Nigeria has passed legislation to make the ECOWAS treaty part of its domestic law, I've not seen. ECOWAS treaty is not part of Nigeria's domestic law and there is a gap there.
Looking at the ECOWAS Court of Justice, the problem I see is not in the jurisdiction, it is in the operationalisation of the jurisdiction. To begin with, the supplementary protocol which was adopted in Accra on January 9, this year now extends the jurisdiction of ECOWAS Court of Justice in two ways.
In terms of subject matters, it enables the court to read through human rights complaints. In terms of litigants it will enable the court to receive complaints from individuals. Before January that year, only institutions and countries could sue before the ECOWAS Court of Justice. And basically as a rule of customary international adjudication, although it is not specifically embodied in the ECOWAS Treaty you go to an International Court which ECOWAS Court of Justice is, after you have exhausted the domestic levels. That effectively makes it appellate. It effectively gives the ECOWAS Court of Justice supervisory powers of sort over the national judicial system of all the fifteen ECOWAS countries. Now, what does that mean? It means that national judiciary have to be careful with the quality of people they send up to this court. I do not think that people really digested the implications. The judiciary, the legal profession have the opportunity to look. Most Nigerian lawyers I know have never look or seen the Protocol establishing the ECOWAS Court of Justice 1991. They do not know of the supplementary Protocol of this year, they certainly have not seen the Rules of Procedure of ECOWAS Court of Justice. But Regional Courts of Tribunal are not new and in Africa today, we have Regional Courts of Tribunal in South Africa, there are two of them, Court of Justice Southern Tribunal. We've got the East African Court of Justice in Arusha. We've got another Court of Justice in Bukina Faso, ECOWAS Court of Justice is part of them, regional courts in Africa and lawyers and judges have to be aware of this. Having said this, I've got to be honest with you that I have doubts as to the basis for which the ECOWAS Court of Justice decided to issue an interim order in election petition, I find that astonishing and puzzling. And I'm looking for the paper work in those proceedings and I've not have any. And I'm not the only lawyer who has gone to the court to search for the paper work. But it is troubling, the way the court has sought to assume jurisdiction in this particular matter. The other reason why it is troubling is this, the Supplementary Protocol of January this year says that the Protocol is only provisionally in force. It will substantively enter into force upon ratification by nine ECOWAS countries. As we speak, not one ECOWAS country his ratified.
I would have thought that before issuing an interim order in any proceedings at all, they are covered by the Supplementary Protocol where this election petition maters are. The Justices of the ECOWAS Court of Justice should have taken time out to give a considered view on their understanding of the expression. And without doing that, I think they do leave room for a lot of people to begin to talk negatively about the credibility of the Court. And I think they need to be aware of that, I need to address it.
The former Liberian president and warlord Charles Taylor is in Nigeria and this is against the wish of the Nigerian people, against so much protest from virtually all sections of the Nigeria society. And right now the America government wants Charles Taylor out of Nigeria. The Nigerian people are not comfortable with his continuos stay in the country. What is your opinion on this?
To begin with that, Charles Taylor is in court and there are those challenging Charles Taylor's presence in Nigeria. The court has admitted the Open Society Justice Initiative as an amicus curiae on the proceedings. So, I want to declare that we are involved in the proceedings. Having said that, I think the real issue here really is what is the value of a Nigerian life. That's the way I like to see the Charles Taylor thing. And I find it unfortunate to say the truth. Speaking as a Nigeria, speaking as a citizen of an African country and speaking as a human being, I find it rather unfortunate that at least at the governmental level, what people talk about is America is disturbing Nigeria to do this to Charles Taylor. It is not in dispute that the ECOWAS Heads of State and government verified that Charles Taylor killed over five hundred Nigerian soldiers, that is not in dispute. It is not in dispute that Charles Taylor personally ordered the execution of two very talented Nigerian journalists, Chris Imodibe and Tayo Awotusi. He made a widow of Tayo's wife and Chris's fiancee never got to get married to the man she wanted to get married to. That is also a fact. Notwithstanding all of these, we are very bothered about what other people say about Charles Taylor rather than what we can do to at least enable the souls of those who were killed at the instance of this fellow to rest in peace. I can't understand this, I honesty can't! I read the GUARDIAN Editorial, where it say Nigeria must not be blackmailed to handover Charles Taylor, and I was upset. This is the Guardian that sent Chris Imodibe to Liberia when he got killed. And the only thing Chris' family got after was Chris's salary for one month! We can do better! A Nigerian life has to be worth mope than just that. An African life is got to be worth something and until we get to the stage where we can feel upset as a people that somebody can do all of those and get away with it, we are not going to get anywhere. Let me ask a question and this is a question for every Nigerian, how many parents would give refuge to the man who raped their child? How many parents would give refuge to the man who killed their children? Why is it different for Nigerians after all, all of us as Nigerians share in the Nigerian humanity. Why is it that Nigeria cannot afford protection to average Nigerians. That is all! So, what I've got in relation to Charles Taylor is sort of rhetorical questions and our government must find a way of answering those questions satisfactorily for Nigerians.
Few people have wondered who Chidi Odinkalu is. Some have identified you with academic, as a Visiting Professor at Harvard University. A few others have identified you with human rights activitism. Some say you are a human rights practitioner and now many others have identified you with NGO, OSJI. so, who really is Chidi Odikalu?
I think that being qualified as a lawyer is a great privilege and in this country having a first degree in anything is a great privilege. After that, it's a great challenge putting one capability to use in a way that makes me useful to the society. Some area of practice and achieve greatness in that. I have chosen to find something in as many this as possible. I am your average Nigerian lawyer who has managed to retain a versatile interest in a range of issues.