Nigeria Should Have Declined ICJ Jurisdiction On Bakassi – Former Cross River Attorney General

In Breaking News, Interviews, National News, Politics, Reports

By CrossRiverWatch admin

Nella Andem-Rabana SAN
Nella Andem-Rabana SAN

Apart from being the Attorney-General and Commissioner for Justice of Cross River State from 1999 – 2003, Mrs. Nella Andem-Rabana SAN had the rare privilege of being on the team of counsel that represented Nigeria in the controversial territorial dispute between Nigeria and Cameroon which resulted in Nigeria ceding Bakassi to Cameroon. In her discourse with May Agbamuche-Mbu, Jude Igbanoi and Tobi Soniyi of THISDAY NEWSPAPER, she explored the highlights of her tenure as Attorney-General of Cross River State including her experience as the first female gubernatorial candidate in the state amongst other paramount national concerns.

As a former Attorney-General and Commissioner for Justice, Cross River State from 1999-2003, what would you recall as the memorable highlights of your tenure?

Thank you for giving me the opportunity to share my reflections on my tenure as Attorney General of Cross River State between 1999–2003. Luckily, I worked with a Governor, Mr. Donald Duke who was not only visionary but also progressive. I was able to situate state objectives in the rule of law and the opportunity to put in place a sound legal framework to govern the various sectors of the state economy was in itself a uniquely memorable experience.
Being responsible for drafting and sponsoring some innovative and far reaching executive bills which were passed into law was also memorable. Some of such laws were:

(i) The Law returning mission schools from government to the missions.

(ii) The Law prohibiting smoking in public places.

(iii) The Law prohibiting the sale or purchase of alcoholic beverages by persons under the age of 16 years old which attracted international commendation and acclaim was most gratifying.

(iv.) The Law prohibiting the pasting of bills on public buildings.

With the 4th Republic came the 1999 Constitution which became the subject for the landmark constitutional interpretation in the Supreme Court and I led the legal team as Attorney General representing Cross River State to handle those cases.

(i) In ATTORNEY GENERAL OF THE FEDERATION v THE ATTORNEY GENERAL OF ABUJA STATE & 35 OTHERS (Resource Control). S162 of the 1999 Constitution was interpreted for the purpose of determining derivation. In the case of Cross Rivers State (CRS), the body of water within the archipelago of the Islands in Cross River State was deemed inland waters. Consequently the indices hitherto used to calculate the revenue accruable to the state was corrected and reviewed drastically upwards. I was awarded the State Honours Award in 2003 for this feat.

(ii) ATTORNEY GENERAL OF ADAMAWA & 4 OTHERS v ATTORNEY GENERAL OF FEDERATION & OTHERS which abrogated the dichotomy between offshore and onshore for purposes of derivation.

(iii) ATTORNEY GENERAL LAGOS STATE v ATTORNEY GENERAL OF FEDERATION & 35 OTHERS which resolved the controversy between the Federal Government and States over land ownership and town planning laws was also memorable.

Prior to 1999 the Nigeria/Cameroon matter was treated purely as a Federal government matter in which Cross River state had no direct involvement or record of proceedings. During my tenure, I insisted that the state be fully involved in the defence of the Nigeria/Cameroon matter before the International Court of Justice (ICJ) because not only would the indigenes of the state and the government bear the impact of the outcome of the dispute but the state government would be in a better position to source for vital documentary evidence from indigenes of Bakassi to promote the defence of the case.

During your tenure, the ceding of the Bakassi Peninsular to Cameroon was very contentious. The Greentree Agreement signed by President Obasanjo and President Paul Biya on the complex arrangements pertaining to the gradual withdrawal of troops from the Peninsula and a civil administration to be put in place thereafter was signed on June 12th 2006. As one of the advising Counsel in that case would you say that agreement has been properly implemented?

It is pertinent to state that I got involved in the Bakassi matter in 2000 after Nigeria had submitted to the jurisdiction of the ICJ filed and argued a preliminary objection which it lost. I was part of the Nigerian legal team as Counsel/Advocate from the year 2000 until the matter was concluded in 2002. I was then appointed a member of the Cameroon/Nigeria Mixed Commission mediated by the United Nations from 2002 till 2011. Without reference to the Nigerian delegation of the Mixed Commission, the Green Tree Agreement was signed between the Presidents of both countries. Although the terms of the Green Tree Agreement was supposed to be monitored by the Cameroon/Nigeria Observer Group on a regular basis, the true assessment of the implementation of the Green Tree Agreement can only be made by indigenes of Bakassi still resident on the peninsula.

You stated that it was regrettable that Nigeria did not utilise the Article 61 window to apply for revision of the ICJ judgment. Some senior lawyers have argued that Nigeria should appeal the ICJ judgement on Bakassi. Are there any possible grounds for appealing the decision?

My position that it is regrettable that Nigeria submitted to the ICJ jurisdiction on a matter touching its sovereign integrity and knowing that there was no right of appeal remains unchanged. I still maintain that it is regrettable that after the judgment of the 10th October 2002, Nigeria did not seek any interpretation of any part of the ruling within the six months window available in the ICJ rules. As you may recall, I was in the forefront of the agitation for Nigeria to apply for revision of the ICJ judgment before the ten year window would shut forever, if it could adduce fresh evidence and there was fresh evidence. This was Nigeria’s last opportunity to bring to the ICJ and by extension the world stage, the narrative of the plight of the affected populations in Bakassi. The International Court of Justice like the Supreme Court in Nigeria is a final court where no appeal lies. I therefore truly wonder whether anyone would seriously consider looking for grounds to appeal the ICJ decision.

Since leaving public service as Attorney General have you returned to full private practice?

Yes. I returned to active legal practice with offices in Calabar, Lagos and now Abuja after I left government. In the course of practice, I met the requirements for qualification to be considered for the rank of Senior Advocate of Nigeria so I applied and was conferred with the rank of SAN in 2009. I am also very active in the International Bar Association and Nigerian Bar Association. I was Council member on the IBA Committee on Energy, Environment, Natural Resources and Infrastructure Law and former Vice Chairperson of the NBA Women’s Forum. I am currently, a National Executive Committee member of the Nigerian Bar Association and Secretary of the NBA General Practice Committee. I am also a Bencher of the Body of Benchers. Although I returned to full time legal private practice I continued to engage in public service on a part time basis. I served on a number of Boards such as the National Boundary Commission, Federal Medical Centre, Committee on Cabotage Implementation. I also served on the Commonwealth Expert Group on the Elaboration of a Comprehensive Model Law Against Corruption (Standing Committee).

There are 3 female Supreme Court Justices and less than 30 female Justices of the Court of Appeal. Why do you think so few female Judges make it to the Court of Appeal and Supreme Court? And do you believe Nigerian Jurisprudence would benefit from more female Judges in the Supreme Court and the Court of Appeal?

The number of female justices in the Court of Appeal and Supreme Court is clearly disproportionate to the ratio of male and female lawyers in Nigeria. In fact, the ratio is incongruous. Statutorily, the maximum number of Supreme Court justices that may be appointed at any given time is 21. Yet, the highest number of Supreme Court justices ever appointed is 17. Maybe if the full complement of justices are appointed, the chances of more deserving female justices being elevated to the Supreme Court would also increase. This is more so because Federal Character and the need to reflect geopolitical zone representation have constituted strong factors which influence appointments. I believe very strongly that Nigerian Jurisprudence would benefit from an increase in female justices in the Court of Appeal and Supreme Court because of the added perspective that they would bring to bear on judgments. Although the quality of jurisprudence is a product of mastery of the law, advocacy and legal reasoning, perspective borne out of idiosyncrasy/mind set plays a significant role in the outcome of decisions. It is therefore highly desirable to have more female justices of the Supreme Court and I believe that if the maximum number of appointments are made in the Supreme Court it would increase the number of female justices.

After contesting as the Labour Party’s Deputy Gubernatorial Candidate for Cross Rivers this year, and experiencing first-hand the challenges of the electoral process in your home state under a mainstream party, what do you believe are the limitations in the electoral process that prevent greater participation of women in Nigerian Politics or even female political leadership on a national scale?

Arising from experience, I cannot say that there is any specific aspect of the electoral process that is discriminatory yet the manner in which Nigerian politics is played, women are constructively excluded or hampered especially if they want to take leadership roles. We play money politics not issues. This is a major handicap for women. INEC is yet to regulate and effectively sanction parties that exceed or violate the guidelines on campaign spending. The complex political campaign dynamics is another challenge. I would like to see more female Governors in the country.

At a Symposium on the Review of the 1999 Constitution in 2003 you suggested that Interlocutory Appeals all terminate at the Court of Appeal so that the Substantive matters can proceed without defeating the intention of swift justice administration. Today given the scandalous use of Interlocutory Applications to delay the prosecution of both criminal and civil suits, is it not time to canvass support for this and perhaps even more strident approaches to curtailing the dilatory tactics that interlocutory applications have come to represent?

I still stand by my position that interlocutory applications should end up at the Court of Appeal but where the application is with regards to jurisdiction, such an application should go to the Supreme Court. Where interlocutory appeals are strictly procedural such appeals should terminate at the Court of Appeal. Say for instance, admissibility of documents, amendment of processes, extension of time to file processes, an interlocutory injunction to restrain an event, leave to call additional witnesses should all be determined at the Court of Appeal. However, when the jurisdiction of court is being challenged such an appeal can go up to Supreme Court.
Delay in justice delivery is a festering impediment in our justice system and I feel that one practical approach to address the problem is by appointing more judicial officers and support staff at the federal, state and local government levels. In other words there has to be proportionate infrastructural development to accommodate judicial officers with corresponding facilities to reduce the number of cases for hearing per day. The appointment of legal assistants aid the quality of judgements but they do not affect the number of cases that can be heard on any day.

Specifically regarding the prosecution of crime and the current Federal Government Administration’s Fight against Corruption, section 306 of the new Administration of Criminal Justice Act was to be an invaluable weapon against the use of Interlocutory Applications to indefinitely delay prosecution of persons charged with graft offences. In light of the Supreme Court’s ruling to stay proceedings in the Senate President’s Code of Conduct Tribunal trial, does the ruling not set the precedent to return us to the status quo of wanton abuse of Interlocutory Applications which section 306 specifically intended to do away with?

In my opinion, the Supreme Court has neither set us back nor has it taken away the spirit and intent of Section 306 of the Administration of Justice Act. Like I stated earlier the distinction between procedural matters and jurisdictional ones forms the basis for determination of its course of appeal. The objective of the Administration of Criminal Justice Act is to prevent Stay of proceedings in procedural matters and abuse of court process. The Supreme Court in Saraki’s case is determining an Appeal challenging the jurisdiction of the Tribunal. Questions as to the competency of the Tribunal to continue to seat with 2 members. Whether the Code of Conduct Tribunal is vested with powers to hear criminal matters and whether a valid charge can issue from the Tribunal in the absence of an Attorney General being appointed at the time of issuance. Without a doubt these are issues that touch and concern jurisdiction and the Supreme Court has properly assumed jurisdiction.

Arbitration as an alternate dispute resolution medium is on the rise globally, perhaps because of the specific controls and advantages it provides to parties involved in disputes, especially those with a strong commercial basis. Given the problem of the delayed administration of justice in Nigerian Courts, can Arbitration redefine this problem into future strengths?

Arbitration should be encouraged to ease the pressure on our courts and judicial officers. Furthermore the fact that arbitration allows for resolution of the dispute without actually destroying the relationship of the parties makes it a viable option to litigation. It is usually quite gratifying to see the transaction continue to its logical conclusion when the dispute is clarified hence I would always recommend that all commercial disputes exercise the arbitration channel as a first option. However when it comes to the issue of avoiding the delay in the administration of justice as experienced in Nigerian courts the arbitral panel and sometimes even the parties still determine the pace of the process.

The NBA General Practice Committee, of which you are a member, scrutinises applicants for the rank of Senior Advocate of Nigeria and the 2015 list, (the first your committee processed) was commended for being transparent. Unfortunately only one female lawyer was on this list. What further measure would you advocate be put in place to ensure a wider and more level playing field for all applicants irrespective of gender or state of origin?

The guidelines for appointment of SANs as prescribed by the Legal Practitioners Privileges Committee and readily available to all aspirants, is not discriminatory. Any lawyer seeking to become a Senior Advocate of Nigeria must meet the minimum requirements laid down in the guidelines .The first hurdle is to have handled the prescribed minimum number of decided cases at the High Court, Court of Appeal and Supreme Court within the stipulated time frame and if a person does not meet that criteria such a person will not be shortlisted for office inspection and it is only after office inspection that my committee has the mandate to verify the suitability of the applicant only as it relates to suitability in terms of meeting its obligations to the Nigerian Bar Association. Incidentally, only one female was shortlisted; Mrs. Bimbola Akeredolu SAN and she was successful. The rule of thumb is that the more female lawyers apply and get shortlisted, the more women will be elevated to the rank of Senior Advocate of Nigeria. I look forward to seeing more women applying for silk. Becoming a Senior Advocate of Nigeria takes serious commitment ranging from handling a wide variety of cases, diligent planning, good chambers, being active in the affairs of NBA, paying your practising fees as at when due and remaining focused and consistent. More female lawyers should take up the challenge and not be discouraged if they are rejected initially. I applied a number of times. Resilience is key and women are resilient.

What is your assessment of the first six months of the administration of President Muhammadu Buhari? Is the government handling the fight against corruption effectively?

President Buhari’s administration has slowly but steadily taken the reins of power systematically uncovering monumental corruption which must first be addressed to give birth to a new social order. The fight against corruption, is most certainly on course. Never before have we witnessed detailed unabridged accounts of stealing being uncovered but we need to see disgorgement of the loot and punishment. I therefore hope that EFCC adopts a strategy that would streamline and target its investigation sectorally such that it can conclude prosecution of each person charged within 3 months.

Several members of the Bar and the Bench have complained that the standards of professional conduct have fallen drastically. To maintain the standard of practice at the Bar in the UK, the Bar Standards Board in England now imposes the duty to report misconduct which breaches professional ethics. The duty even goes as far as making it professional misconduct not to report the observed misconduct of other Barristers. Would a similar provision help to raise the standard of practice in Nigeria?

Whistle blowing can only produce positive results when a majority of those operating in the system have clear and similar work ethics. The standard of practice is determined by two separate factors the quality of training and Post Call Experience. We may need to assess the quality of training in our law faculties, quality of teaching staff, library facilities and of course the Law School training, post call, when admitted to the Bar, do we have a Scheme that ensures the continued legal education of lawyers? The NBA should have specific programs on ethics which every lawyer must undergo training on an annual basis failure of which would amount to a misconduct. Maybe when we have satisfied ourselves that there is a positive shift in the general psyche of lawyers, then we may be ready to put the responsibility of whistle blowing on lawyers.

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