Nigeria’s laws must improve to achieve judicial independence – Babalola (SAN)

George Olatunde Babalola (SAN) is a partner at Afe Babalola & Co., a Lagos-based legal firm. In this interview with Stephen Onyekwelu, he talks about his recent appointment as a Senior Advocate of Nigeria, outlook, and recommendations for the Nigerian legal industry in 2021. Excerpts:

If you were to create an agenda for the legal industry in 2021, what would it be?

The independence of the Judiciary will be a key focus for me. As the third arm of government, there is a need for independence from the executive and the legislature. This guarantees the doctrine of separation of powers, checks and balances that are required for our democracy.

Other areas that the judiciary should be independent of the executive are in the area of funding and the appointment of our judicial officers.

In my opinion and by the current arrangement under the constitution, the executive is still responsible for funding of the judiciary and the president and the governors are the appointing authorities of our judicial officers.

Finally, the National Judicial Council (NJC) responsible for disciplining judicial officers is not independent of the executive.

Looking at the Third Schedule of the 1999 Constitution, Part I, paragraph 20, the NJC is recognised as one of the Federal Executive Bodies, thus subject to the executive. This should not be so.

In conclusion, all stakeholders must come together if the independence of the judiciary must be achieved.

What are some of the predictions for the industry in 2021?

With the impact of the COVID-19 pandemic across the world, courts have not been fully operational. From my predictions, I see 2021 as a challenging year for the legal industry in Nigeria.

However, with the news of the vaccines that have been discovered, released, and being administered in the developed nations, there is light at the end of the tunnel.

On the positive side, the vacant positions or offices at various judicial hierarchies were filled towards the end of 2020. New Justices were elevated to the Supreme Court to fill the vacancies and new Judges were appointed to the High court of the Federal Capital Territory.

We also witnessed some judicial appointments by the relevant authorities to fill some vacancies in the High Court of some States. Even though this may provide more hands to aid the speedy dispensation of justice, the impact of COVID 19 as said earlier on, may overshadow some of the progress made.

Your areas of practice include election petitions, appeals up to the Supreme Court, Arbitration, among others. Can you share with us briefly your experiences in these areas?

I will focus on election petitions, which begin from the Election Tribunal and 95 percent of the time, will end up via Appeal at the Court of Appeal or Supreme Court.

The election petition is a special genre in different procedures, which is why it is regarded as ‘‘sui generis’’, possessing an individualistic character which is unique, only to itself.

It is unlike ordinary civil proceedings and governed by its own unique constitutional and statutory provisions.

Every stage of the petition is important from the filing of the Petition, convocation of pre-hearing session, the actual hearing of the Petition, and the delivery of judgment. It is time-sensitive as every stage is regulated by statutory time allotment.

There is a need for a lot of improvements in our electoral laws, particularly on the burden of proof which is usually placed on the petitioners.

Furthermore, it is my opinion that the legislature should review and amend the Electoral Act. This is because a legal regime that gives the Petitioners 14 days to prove allegations of corrupt practices in the whole country, state, senatorial district or a constituency cannot be said to be fair and just, as this is not possible and it is trite that the law does not condone the impossible, expressed in the Latin maxim ‘lex non-cogit ad impossibilia’.

Having practiced law for over 20 years, what has the experience been like for you?

I have been privileged to work with leading law firms and the giants in our profession, making my journey a very rich and rewarding experience.

I started my law practice in Lagos after Law School and National Youth Service, where I worked as a pupil lawyer with leading law firms in Lagos attached to great legal minds, and senior advocates of Nigeria, so I learned first-hand from them.

I learned the rudiments of practice, ethics of the profession, seniority at the Bar, courtroom advocacy, hard work, commitment, integrity, sacrifice, and relaxation. I learned how to be a gentleman, even though humble or unassuming, but still very versatile and a consummate advocate in the courtroom.

The interesting part of being a Barrister is that it gives you the opportunity to travel around the country and to know every state in Nigeria. I still travel to nearly all the states in Nigeria to handle cases.

I have also been privileged to practice in another jurisdiction, London, United Kingdom where I also worked in Law Firms. All these have led to a very rich, fulfilling, and rewarding experience.

You were recently conferred with the rank of Senior Advocate of Nigeria (SAN), how were you able to achieve this?

The foundation had already been laid over the years as stated earlier and the journey began over three decades ago. Like Oprah Winfrey said “The key to realising a dream is to focus not on success but significance, and then even the small steps and little victories along your path will take on greater meaning’’. The journey has been very rich, fulfilling, and rewarding but in it all, God is faithful and I give all the glory to God for seeing me through.

It is a great privilege for me. Achieving this feat in a few words required faith in God, hard work, commitment, dedication, focus, and great sacrifice both physically and mentally.

With the impact of COVID-19 and the changing landscape of court proceedings, what trends do you think would shape court proceedings in 2021? And do you think going virtual hearing would be sustainable?

Covid-19 has dealt a huge blow to every sector of the economy including the legal profession, but the Judiciary has been proactive and undeterred by the pandemic.

Throughout 2020, the judicial system functioned well, cases were heard and judgments delivered even in the face of the pandemic with necessary COVID-19 protocols put in place.

Virtual hearing of cases was introduced and it would be sustainable but not all cases can be heard by virtual hearing.

Can you share some of your plans as Senior Advocate of Nigeria (SAN) and how you intend to uphold the rule of law?

I intend to contribute more to the development of the legal profession in Nigeria by taking on challenging cases that develop the law or solve a complex area in law, cases that expose a novel point or area of law. I am always thrilled to take on challenging cases.

I also plan to contribute my quota in developing the teeming young minds in the legal profession. I intend to contribute my wealth of experience in supporting the efforts of the present Nigerian Bar Association (NBA) executives in this respect. I will contribute my quota in ensuring that the Rule of Law is strictly adhered to without relaxing in our relationship with the truth and sincerity of purpose.

What role have you played in justice dispensation, especially for the less privileged?

I handled a good number of pro bono cases both civil and criminal across the country. Interestingly, I handled a lot of criminal cases for the Legal Aid Council, pro bono, and 99 percent of the defendants I represented were discharged and acquitted. I still handle such cases in deserving situations.

You have been exposed to legal practice in Nigeria and outside Nigeria; do you think Nigerian Lawyers can compete globally?

Nigerian lawyers are well trained and they can compete and practice excellently in any jurisdiction globally.

Do you think the Nigerian Bar Association (NBA) has played its role in redeeming the image of the judiciary?

Yes, the NBA has played its part. However, in my opinion, the image of the Judiciary is being handled by the regulatory body set up by the Constitution, that is the National Judicial Council, and it is up to the task if given all the necessary resources.

As stated previously, it needs to be empowered to be more independent. This is where the legislature can do its part by reviewing and amending the law as appropriate.