Professor Itsejuwa Esanjumi Sagay, SAN, is an eminent law scholar and intrepid human rights activist of long standing. Born in Warri to Itsekiri parents, he attended Government College, Ughelli, from September 1954 to December 1959. He worked briefly as a Customs Clerk and later as Programme Operator with then Nigerian Broadcasting Corporation (NBC) in Ikoyi. He was among the first batch of students admitted into the Faculty of Law of the University of Ife in September 1962. He was the only student from a Nigerian university to pass out in Upper Second Division in 1965.
He proceeded to the Law School and was called to the Bar in July 1966 where he won the Willoughby Prize for the Best Overall Performance and the Sweet & Mazwell Prize for the Best Performance in Revenue Law.
In September 1966, he was employed Assistant Lecturer in the Faculty of Law of his Alma Mater from where he proceeded to Cambridge University for his LL.B in 1967 and a Ph.D in 1970.
He returned to Ife in 1970 and rose to be Professor in 1979 and Acting Dean and later, Dean of the Faculty of Law in 1979-1980 and 1981-1982. He was invited to be the first Professor and Dean of the Law Faculty in the University of Benin in 1982 and held the position till October 1986
Sagay, who became a Senior Advocate of Nigeria (SAN in 1998, has many publications to his credit, including Nigerian Law of Contracts, Nigerian Law of Succession, Nigerian family Law and Racial Discrimination in International Law.
Prof Sagay has fought for social justice all his adult life and since the early sixties, he has been in virtual depression over the state of affairs in his motherland.
Successive federal governments steered clear of his forthrightness but the dislike seemed mutual. He couldn’t stand them either.
Then came the Buhari Administration, and Sagay seems to have “fallen in love at 75”!
To The New Diplomat trio of Yemi Ogunsola, Lekan Okeowo and Immaculata Akam, the septuagenarian activist poured out his heart: “In fact, to tell you the truth, I never expected to be able to work with any federal government. I have ruled out federal government for ever. I turned my back on the federal government since the early sixties … So, to me, the Buhari Government is a big surprise that I didn’t think I would see in my lifetime. I am grateful to God for that.”
In this interview at his office home in Surulere, Lagos, Sagay, who heads the Presidential Committee on Anti-corruption, spoke passionately about efforts to save Nigeria’s soul from all manner of demons masquerading as senior advocates of Nigeria, Army officers, governors, bankers, INEC officials, herdsmen … journalists etc.
At the end of the chat came the realisation that though deep and true, some love are not blind…
Many Nigerians believe special tribunals should be set up to try corrupt persons in the ongoing anti-graft war?
Yes. There is a consensus already. And steps are being taken. It is still under discussion. But it is has not got to the stage where it will be evident.
How long will it take?
I can’t say. It’s a lengthy process; it goes through many stages. It goes to the House, then the state houses of assembly before returning to the National Assembly for final ratification. It’s a long process.
Can’t the process be hastened? Nigerians are eager to see culprits nailed.
No. it may take say one year. What the institutions working together have done to hasten prosecution is to, one, reactivate the criminal divisions in high courts and two, and identify judges to handle only criminal cases pending the establishment of special courts.
You described the verdicts recently delivered by the Supreme Court on Akwa Ibom and Rivers governorship elections as perverse? Can you expatiate on that?
When you say somebody does something perverse, the person knows something is wrong and does it. It’s deliberate wrongdoing. Something contrary to any reasonable and expected outcome
Anything the NJC can do to correct the situation?
Who are the NJC? NJC is really the Chief Justice of Nigeria. Of all the twenty-something judges that make up the NJC, only about five are not his appointees. That is one of the greatest drawbacks to discipline in the Nigerian judiciary. The chairman is always the current Chief Justice of the federation who himself can be guilty of misconduct. The other judges just carry out his bidding.
That was why the case of Justice Salami was such a tragedy. The person he was up against was promoted Chief Justice when the case was virtually over with Justice Salami being vindicated and the letter reinstating him about to be drafted. The tenure of the Chief Justice, Idris Legbo Kutigi, expired and the same man who was found liable now became the Chief Justice of Nigeria. He then got the NJC to reverse the decision. A situation where the Chief Justice is also chairman of the NJC should be stopped if we are going to have a system based on justice.
Buhari said recently that the judiciary was his main headache, you agree?
I understand what Buhari was saying. Bringing corrupt people to book is a long process; it starts with investigation, then prosecution. At the end of the long chain is the judiciary. All that work can be wiped out by one perverse judgement. And we have had cases of compromised judges rendering the whole process a nightmare, a stalemate, with the cooperation of those I will call “rogue Senior Advocates of Nigeria” who have abandoned the ethics of their profession and have turned themselves to corrupters of the whole judicial system and elements and agents of frustration of prosecution of their clients. They have carried their campaign against prosecution of looters to the extent that they behave like accomplices of the looters, sharing in the proceeds of corruption — buying aircraft, sending their children to the best schools abroad. They are committed to wrecking any struggle for the eradication of corruption. This is where Buhari’s trouble starts; when these corrupters in the legal profession carry huge sums of money, mind-boggling amounts, to judges thus frustrating the prosecution of looters.
What reforms do you suggest to check this?
Some reforms have kicked off. I will start with the Administration of Criminal Justice Act, 2015 which has resolved a lot of the problems. What these SANs do in the racket between them and corrupt judges is to prolong the process of trial, through such a tortuous process that at the end, everybody forgets what it’s all about. First they challenge the jurisdiction of the court. About 18 months later, court rules it has jurisdiction, the SAN appeals, on jurisdiction alone, another three years goes. He loses and goes to the Supreme Court. It’s now about ten years. Prosecution fatigue has set in, witnesses have disappeared, some of the evidence can no longer be traced. The result is that lots of these looters have returned as senators, as governors… they are not bothered, they are still under trial but they are laughing at the whole country.
But the Act has made four provisions:
*A judge is compelled to hear both the jurisdiction issue (and any other preliminary objection raised) together with the main criminal case.
* If he gives any ruling, and the defence lawyer appeals for stay of proceedings, the main case must not be stopped, but must go on.
* Adjournments, where granted, should not last more than two weeks. And there must never be more than five adjournments in all. Otherwise, cases must go on from day to day until they are concluded.
* If a high court judge is promoted to the Court of Appeal, he does not automatically lose jurisdiction on cases he’s already hearing (as was the practice before), but must conclude all such cases.
For instance, in the case of Erasmus Akingbola of Intercontinental Bank, his case went on for about four years or so, was concluded, and the judge was already writing the judgement; then they promoted the judge. The case had to start afresh. It’s about the third judge now. The case hasn’t got anywhere. No more of that. Once a judge starts a case, he is compelled to end it, promoted or not.
This is a major, in fact, revolutionary action. And these SAN accomplices are complaining to the high heavens “Oh! It is a violation of fundamental human rights” all because it will no longer be easy to be sharing in their clients’ loot; the reform has cut the ground from under them — just to keep this country under the control of corruption and destruction. They have lost all sense of judgement. They see the whole world as a war about what they can collect from Nigeria… All they think of is how much they can get from Nigeria. What resources they can take over. It’s a war against Nigeria.
How many friends do you have among your fellow SANs?
They are all gone! Except Femi Falana and one or two others. They have been threatening us…in fact, a few days ago they went to Jos to pass a resolution that if any of us criticizes a judge or judgement, they are going to take disciplinary action against us.
Who do you mean by “us”?
Those of us who criticize, who are outspoken, who when we see anything wrong in the society will speak. But if because we speak, no judge would be prepared to take a bribe, these lawyers who cannot practice without bribery will fail in their profession.
What would you say on Rickey Tarfa’s trial over bribery offered a judge?
I don’t want to be specific. He’s a colleague with whom I have associated…on opposing sides, not together in a case. But let me make a general statement: Any lawyer who commits a breach of the ethics of the profession by going beyond normal defence to become a beneficiary of the crime of his client, through unprofessional conduct, should be prosecuted. For instance, lawyers who hold up cases for ten, eleven years are not better than the criminals they represent. They should be prosecuted. That’s where many of them make money. But we are prepared to meet them — head on. We shall now expose them. We know what’s going on.
Some allege that Buhari is critical of the judiciary because of his painful experiences with the judiciary in past elections.
Experience is the best teacher. He knows how it feels. I was part of the 2007 presidential election suit. It gave me an insight into what goes on. What I saw was sickening. Buhari has reason to say the judiciary is his problem.
What exactly did you see?
I can’t tell you. But I can tell you this: That judgement could’nt have been given in good faith. I give one example. The majority of the Supreme Court justices in 2007 held that it did not matter that ballot papers did not carry serial numbers! What they were saying was that the ballot could be carried from say Calabar to Enugu to Sokoto. That that could not void the election. No court can say that out of ignorance. A five-year-old would not be that ignorant. Something so powerful must have made the justices decide ‘we will do it anyway because what we are getting from it makes it worth it’. I know where Buhari is coming from.
But let me add this: There are many good judges. Many upright judges. It is a small clique of judges that is doing this. In fact, majority of judges are not in this evil league. But when you have a bad apple in a barrel of apples, all the other apples will get rotten. The harm they can cause is the harm a small needle can cause in a large body.
How do we deal with these people considering the structure of NJC?
You can only act based on evidence. Already one of them, Justice Yinusa, has been reported to the NJC. When that begins to happen, we are on the right track.
What exactly is a defence lawyer trained to do? To ensure his client gets off with the lightest sentence possible or to ensure that justice is done?
It is not the business of the lawyer to ensure justice is done. Nor is it his business to ensure there is injustice or fraudulent judgement. His duty is to defend his client within the ambit of his professional rules. And those rules say you must defend based on the facts that you know, that are available to you. So, if you have a client that tells you he’s not guilty, that he’s only being framed up, and you believe him; you can defend him on that basis. But the minute you are aware that your client is actually guilty, you are bound to plead guilty on his behalf and you tell him so. If he refuses, then you can rescind your relationship with him.
But what we are having today is a situation where lawyers get head to head with their client, saying ‘we know you stole bags and bags of money, how do we get you out? How do we pull wool over the eyes of the judicial system so that we can share in the money? That is unethical. That means those people are not fit to operate as lawyers. That’s the problem we are having now.
You once attempted to go into politics. If you find yourself as president of Nigeria today, what would you do?
Let’s put it this way. I find President Buhari rather gentle on wrongdoers… a bit detached, allowing things go at their normal rate. I would have been more activist, more proactive. For instance, recently he removed the heads of various parastatals. I would have done that within a week of coming to power. These are people appointed by the previous government. It was proven they were loyal to that administration. Even now, some of Buhari’s appointees are not loyal, not personal loyalty to him, but loyalty to the cause, to change, to cleansing and sanitising the present society.
Do you mind mentioning names?
No. I will mention one. The present INEC chairman. In my view, he is either totally incapable, inept, inefficient or he is unconscious of his job or he must be someone who is planted—mistakenly. Why do I say so?
In Akwa Ibom, Rivers, most PDP states, the governorship elections have been invalidated. Part of the basis of invalidation is that card readers clearly show that there were gross over voting; that what were recorded in favour of PDP candidates were more than double what the card reader showed. And it is the card reader that really shows that you are voting.
Now, the Supreme Court seized on card readers, among other things, as excuse for upholding these obviously very, very grossly, shamefully defective elections. They claim that the card reader did not have a legal status in the electoral system, that it is the voters register (which is easily manipulated by anybody) that is recognised. Who gave them that excuse?
People engaged by INEC to represent INEC went to make a case before the lower court and the Supreme Court that cognizance could not be taken of the card reader because it does not form part of the legal apparatus under the electoral system. They said card readers should be disregarded. Since the judgements of the lower courts were not tied to the voters register, but to card readers, the Supreme Court upheld the flawed elections. All the while, this INEC chairman was looking.
All he needed do was to, after the first stage, debrief those lawyers and replace them with lawyers who have integrity and are committed to electoral justice, credibility, and make the case that card readers are the saviour of credible, free, fair elections, card readers which have become the hallmark contribution of Nigeria to elections. Nigeria has become consultant to other developing nations because of the card reader. But INEC lawyers went to destroy the legal effectiveness of card readers. The INEC chairman was there moping. If he was not one of them, he was totally incompetent. If I were the President, I would have removed him by now.
What’s your take on the CBN handling of Nigeria’s currency and economy?
People walked into the CBN with large suit cases, Ghana-must-go bags, pack them full of dollars and walk away. Somebody went in and took $47million cash! How do you carry cash like that over simple instruction from a single individual. Does anybody need to be told that somebody somewhere allowed the money to be taken who is not fit to be there? It can’t happen in any country no matter how primitive.
Why has Buhari not fired him?
I have not seen Buhari to ask him.
Do you need to see Buhari to ask him, you could call?
My guess is that it is to allow his cup to be full. You heard the federal government has instructed that the supply of dollars to bureau de change be stopped? Why do you think that order was given? Your guess is as good as mine.
Can the Ekiti governorship case we revisited?
Yes. By law. The losers, APC, Fayemi have a right to apply to the Supreme Court to reopen the case, in fact, overrule itself on the grounds that the judgment was obtained by fraud.
Can you disclose some of your committee’s recommendations which were not followed by the Buhari government?
No, no. Haa! I can’t.
What kind of Nigeria do you hope to see in the next few years?
Was it Obama or Clinton who spoke of building strong institutions and not strong personalities? But I have a qualification to that. We need a strong personality to build the strong institutions to straighten out the country. That’s what Buhari has come to do. Buhari represents a strong personality, an upright man, a man of integrity, of total commitment to uprightness in the running of government around whom everybody can rally to build strong institutions. He came at the right time. If he had lost the election, I don’t think Nigeria would still be existing. A country cannot run on water, it must have some money. But these locusts have virtually devoured everything we had. What he’s doing is gathering what is left, conserving what he’s having and trying to put them into basic areas that will take us out of this horrible hole into which we are stuck. And maybe in the next three or four years, we gradually develop a culture of service to the state as a priority rather than service to ourselves in which we first divide the resources among ourselves before giving the leftover to the rest of the country. That is the kind of culture he’s introducing.
Talking of “political corruption”, why are we practicing unitary government under the pretence of federalism?
I am one of the most intrepid advocates of true federalism. In fact, about 60% of my writings and research are about true federalism. I am absolutely unhappy about our constitution and therefore government because it is skewed towards a unitary system. This is a unitary system. It has a covering of federalism, but it’s really unitary.
Absolutely fraudulent. I have done a lot of research… Up till when oil was discovered in large quantity, the northerners wanted the loosest federation possible. In 1953, they even brought a motion that would have so decentralised Nigeria that the federal government was to be a mere agency, not a government. Now, this “love” for Nigeria that has made them more and more unitary is because of oil. The northern strategy is simple: ‘Let the federal government control everything, the resources, especially oil, control power, control money, everything. Since we are in the majority, let’s find a strategy of controlling that federal government. With that, we control everything. And they have sustained that since 1960.
Do you see Buhari as someone who can address these anomaly?
Buhari is not as intransigent as you think. I see Buhari as someone who is receptive to good suggestions .That’s why I disagree with you on Fulani herdsmen. It was under Jonathan that the whole thing became rampant. It’s not a new thing.
But the attacks have been going on and Buhari hasn’t said much
Jonathan did nothing and said nothing and he is from the South- South.
I agree, but did Jonathan have the balls to do anything? Could he do it? What about Buhari?
Under Buhari, something is being done. The Minister for Internal Affairs, Abdulrahman Dambazzau, has said he’s going to take measures to stop them. He has issued a release to that effect. So, this government is listening. I don’t think it’s a northern thing as such. These Fulani herdsmen are a threat to the North itself. They are the ones doing all the stealing of cattle and so on. They have killed as many northerners as their brothers have done in the South. They are being arrested. Dambazzau has promised to do something about it. If he fails, it doesn’t have a good implication for this government.
Investigations show that security men in Plateau State are being induced by some northerners who own the herds to look the other way when these Fulani herdsmen (who often come in army uniforms and bullet-proof vests) attack the villagers. A policeman from the South who refused to play ball was almost killed by his compromised colleagues. That kind of crime is going on there…Why should some Nigerians be privileged to slit Nigerian throats and go scot-free?
It is not acceptable, they would rape the women and kill them… It is so terrible.
Why can’t this government go after these herdsmen the way it is going after pipeline vandals?
I agree with you entirely that government must treat them as terrorists like Boko Haram. They are a potential Boko Haram. They are terrorising the Middle Belt and the South. I will criticise this government if it fails to tackle the herdsmen menace.
Why is it that when crimes are being committed by northerners, their elders never speak up against them like Niger Delta elders were outspoken against Niger Delta militants? Boko Haram for instance. Hardly any northerner spoke against it — until the attacks spread from churches to mosques.
You are very right. They were all quiet. In fact, they were making some remarks that tended to give moral support to Boko Haram. But when Boko Haram started attacking their own people, they woke up. They are not objective.
There is this group in the North calling for amnesty for Boko Haram, what’s your take on that?
Madness. They are mad. And they should be disregarded. I don’t have any other word for them. That’s why I don’t have patience for Amnesty International which is more interested in what is done to Boko Haram by the Nigerian Army than in the devastation Boko Haram has done to the country. To me, Amnesty International has no credibility. That’s why I say Buhari is a very gentle person. I didn’t know he was so gentle. If I were the president of this country, within 24 hours, Amnesty office would have been closed; every Amnesty official would have been flown out permanently. I will not offer any explanation.
What word can I use for Boko haram…? Bestiality? Animalism? …I’ve never seen people so bereft of feelings… You go to a place, see innocent people who don’t know anything, you just kill all of them!
And some international organisations will say ‘Oh yes, those killers should be defended; they have a right’ —to kill and devastate.
Your general advice to us all, briefly…
Life makes sense only if you add value to the existence of others. A life of living to eat is a useless life. Jesus was a poor man from a poor home. Yet, today his name is in the mouth of everybody. What matters is your positive contribution to your community, your society. People like Ghandi, Mandela… It’s not their money, or the houses they have in Trinidad or Dubai. At the end of the day, this frenzy of stealing, looting, killing are all useless…