By virtue of Section 292 of the 1999 Constitution, once a Nigerian lawyer accepts appointment to judicial office, he is not allowed to go back to full fledged legal practice upon his resignation, retrenchment, retirement or even dismissal from the bench.

In this interview with Vanguard’s Law & Human Rights, a member of the inner bar, Chief Mike Ahamba, SAN, traced the origin of this constitutional provision and highlighted its negative effects on the administration of justice and democratic governance in Nigeria.

The Constitution of the Federal Republic of Nigeria forbids any person who has held office as a judicial officer, on quitting that office, from appearing or acting as a legal practitioner before any court of law or tribunal in Nigeria. How do you react to this provision?

Section 292 (2) provides that a person who has held office as a judicial officer shall not on ceasing to be a judicial officer, for any reason whatsoever thereafter appear or act as a legal practitioner before any court of law or tribunal in Nigeria. In my own view, this provision is a Sword of Damocles hanging over the judicial officers who don’t like pressure and decide to resign. They are finished forever. So, they have to do everything possible to keep themselves in office until retirement. I have been criticising this since 1981. And I have not ceased to oppose it.

Shortly after Gen Muritala Mohammed came in the military putsch of 1976, the Chief Justice of the Federation, Dr Taslim Olawale Elias, was removed on radio on ground of ill-health. The same man was later found strong enough to become President of the World Court at the Hague. I also recall that the Chief Judge, Oyemade, Adewale Thompson and Justice Olu Ayoola, were also removed because the government of the day considered their decisions and judgments to be too anti-government.

I must add here that these three great dispensers of justice knew their onions and their removal was not on account of corrupt practices, inefficiency, or misconduct. That singular action by the Muritala administration marked the beginning of the decline in the number of competent lawyers going to the bench which has adversely affected the quality of judgments from the bench.

At what point did this provision become part of our law?

I became aware of this provision since 1979 Constitution came into effect. I became a lawyer in 1974. If it was in the previous constitutions, I cannot say now. But I’m talking about what happened during my own era.

In your own view, what do you think was the intendment of the framers of the Constitution who brought the provision in?

Remember, the military was in charge of the country pre-1979. They didn’t want anybody who could take steps not favourable to them. So, they say if you resign before hitting the retirement age because you don’t want to do it, you can’t become a lawyer. They have to make it there. That is why judges in the state see themselves as appendages of the governors while those at the federal level as the appendages of the Federal Government. This is very unfortunate. If that provision was not there, a judge can decide to resign if there were pressures on him to do what he doesn’t like. If you sack him, he picks up his wig and gown and goes back to court as a lawyer.

So, when you say he cannot act as a legal practitioner before any court or tribunal in Nigeria, that means if he ceases to be a judicial officer, then he becomes uneducated. He cannot get work anywhere where he can practice law anymore. I feel this is a very dangerous provision. This is because that constitutional blockade in itself engenders timidity, corruption, inefficiency, and decline in the quality of judgments among other undesirable attitudes on the part of judicial officers since they know they cannot revert to status quo. That provision should be deleted. They should limit it to judges relieved of their position on the account of corrupt practices so that the law does not allow him to come to the bar to corrupt the people.

Can we say that provision accounts for why many judges die soon after retirement?

Well, they have good pension at least in recent times. And now, they have good salaries. Nobody will want to lose any of those things by being recalcitrant. And if for any reason, you become recalcitrant, you can’t go back to practice what you have gone to school to learn. A lawyer can go back to court after being president. A lawyer can go back to court after being governor. You can go back. Nobody stops you from doing that. But if you are a judge, you can’t go back. You can’t even go to ordinary tribunal. And if you have no pension, that is a funeral. In my own belief, I may be wrong, that is part of the reasons some of them want to play the tune desired by the executive under whom they are serving. They don’t want to risk losing their job. None of them told me this but I believe that this provision constitutes a threat to good governance in our constitution. It is not convenient to judicial officers at all.

If that provision is amended in the constitution, what other benefits do you think it will confer on judicial officers?

I believe it will enhance their independence of opinion. All of them will now believe that there is no one breathing on their neck. I remember sometimes ago, a governor of a state was said to have boldly vaunted that any judge who gives judgment against his government is doing that at his own risk. You see that type of statement? A governor could say that because he knows about this section. But if I were his Attorney-General, once he makes such statement, I will resign. Some however see political office as an enhancement. My biggest treasure is my wig and gown. That is what I do not want to gamble with at any cost. I do not want to do anything that will affect it. Any other thing can go as far as I am concerned because I can continue to practice law even until I am 100 years old if I have the strength to do it.

But a judge cannot be harassed anyhow now. I remember that in the course of my conversation with a senior judge on the concerns by right thinking members of the public regarding certain somewhat silly or political judgments by some judges or justices, he said a judge has the right to be wrong?

Yes, a judge truly has the right to be wrong but not deliberately. He has the right. That is why we have the Appeal Court. A judge is a human being. He can be wrong. But if it is deliberate against judicial oath, he can be sacked for it.

So, who should bell the cat now regarding the amendment of the constitutional provision you are advocating?

That should be by the National Assembly. They can alter that provision by just adding a phrase so that it will now read: A person who has held office as a judicial officer shall not on ceasing to being a judicial officer, by reason of corrupt practices or breach of judicial oath or any reason whatsoever. Something like that. They should just bring in that phrase. My argument has always been that if you don’t like the environment you find yourself, you can resign and go back to the court. But if you are forced to go out because of what is happening, and you do not want to be part of it, then you should be in a position to stand up for yourself elsewhere.

There was a Federal High Court judge who was sacked for corrupt practices. He could not come back to the court. I knew he would end up that way. There was a case I did before him at the Federal High Court. Somebody came to court and for five times but the court did not sit. On the sixth occasion, the judge came and remanded the accused person in custody. I called the judge. I got his number. I said this man has come before you five times, then, the sixth time when he came and you were around, you decided to remand him in prison custody when the purpose of remanding people in prison custody is to ensure that an accused attends his trial. He had come five times in your absence. Now if that man is not restored, we shall discuss this at the National Judicial Council. Anybody who engages in such conduct may not last on the bench. At the end of the day, he had to go because of another case.

My argument is that if the person has left the judiciary for reason of corrupt practices or breach of judicial conduct, he cannot return to the bar. If the person quits on principles, why should he not return to the bar? If a person retires normally at 70 years, he now wants to come to the bar, he has no respect for himself. So, it is a question of giving such person the free will to decide whether in honour he will want to go back to the bar but not to bar him from going back to the bar except where he lost his position due to corrupt practices or breach of the judicial oath. Once that happens, the punishment should continue.

When some judges retire, they set up consultancy firms. Is it right?

There is nothing wrong with that. They are not coming back to court anymore. You can actually open a consultancy office where juniors can come and ask you questions and ask you to advise them even in writing. And you advise them. You can also lecture in a university. But if you sign any document coming to the court, it becomes a nullity.

Sometimes when you hire a retired judge as a consultant in cases, such a judge consultant may have a link with the judge who will eventually decide the case now?

No. You dont sign your name on the document. Somebody is consulting you. You prepare a document for him to present somewhere. By the time the document gets there, your name is off. Except those that are doing the consultancy for corrupt practices. I have done an election petition where a former Justice of the Court of Appeal showed up. Naturally, he wants to show those who hired him that he has influence. And of course, it worked. You see. But at that time, there could be no appeal to the Supreme Court. So, I couldn’t do anything about it. But this is the kind of thing I see. If you come like that and show yourself, you have become a consultant for the purpose of corruption. Such a retired judge would be dealt with like anybody involved in corruption.

EFCC should pick him up. Somebody who decides to go or who retires normally but wants to continue to have something to do with the bar, should be allowed to do so. I wouldn’t do that if I were a judge and I had retired as a judge. I would rather be a consultant.

There were media reports that Imo local council poll was done by mere selection and not election.

It was not a mere selection. It was a mere publication of names who were said to have won across board. Those involved have taken the matter to court. If they now go before the tribunal and the court says from the evidence before us, there was election, what can you do? But you cannot say that is what the tribunal will say until you are there.