There are many interesting episodes in his life. To begin with, the circumstance under which he enrolled in school for formal education is indeed interesting. Sometime in 1949, Dahiru Musdapher as a young man was actually scheduled to travel East to the Sudan or Egypt, based on family traditions to further his Islamic education, as was the practice in those days in his part of the country, the North. However, his aunt argued that he was too young and frail to withstand the rigours of such long distance travel and insisted that he should be left at home until the following year.
While he waited, the young Musdapher would tag along with the older children who were then going to school in Nigeria. Since he was not registered in school, he would simply hang on a tree from where he observed proceedings in the classroom. This continued until, according to Mohammed Ibrahim, former director-general, the Nigerian Television Authority, NTA, who was then the head boy of the school, “teachers noticed that there was a young boy that kept answering questions asked in class from the branches of a tree and after a while he was invited in. So he did not actually enrol in the customary way.”
He spent only two years in the elementary school before moving to middle school where teachers were convinced that the young lad must have been memorising the dictionary, as his vocabulary was clearly outstanding! He was a voracious reader who devoured everything that came his way. And that would include law books. He was called to the English Bar in 1967 and the Nigerian Bar in 1968. Unlike most of his colleagues and seniors who opted for a career in public service from the onset, he chose to pursue a career in private legal practice together with the late Kaloma Ali in Kano.
Public service came to him when he was approached to serve as attorney general of the old Kaduna State, even though he is from Kano State. He accepted the appointment and served three successive military administrators from 1976 –1979.
In addition, Musdapher became a member of the Body of Benchers by virtue of his position and has remained one till date. As one of the longest serving members of the body, he has since been made a “Life Bencher.” In 1979 he was appointed a judge of the high court of Kano State by General Olusegun Obasanjo, then head of state and later confirmed as the first indigenous chief judge of the state as he took over from Justice R. Jones, a British expatriate.
A man of interesting parts, Musdapher is said to have never learnt how to drive a car even though he had owned one from as far back as the 1960s. He is the only child of his mother and he is married to Hajiya Hadiza Musdapher who is also the only child of her mother. Again, unlike most men of his time and age, he has only one wife and three children. As he retires after over 33 years of service, Musdapher, who became chief justice of Nigeria, CJN, in 2011, X-rays in this interview with the TELL duo of Dipo Onabanjo, deputy general editor, and Adejuwon Soyinka, associate editor, the challenges of the judiciary in Nigeria, including allegations of corruption against judges and the activities of the anti-corruption agencies such as the EFCC and ICPC, among others. Excerpts:
You became the CJN at a very critical time in the nation’s history. What has the experience been like, the way you found the judiciary and how you left it?
There have always been challenges lately in the judiciary like every other sector in the country. The main thing is that there are some problems that arose in 2010 and 2011 in the judiciary and the problems are still with us but we will be able to sort it out very soon. The major problem we have in the judiciary is the public perception. I did say the public must always be able to say what we are doing right and what we are doing wrong. But by and large, we will ensure we do justice to all manner of people who come to us. But here and there, we may find one or two mistakes of the mind or heart. I think the problem of the judiciary is not very serious. We get complaints all the time about corruption but we ask for evidence and we don’t get any. You accuse a judge of corruption without presenting evidence, what can we do? Sitting in a court, we try a lot of cases and we deal with evidence in the court. Without the evidence, nothing can be done. This is the problem. But sometimes these things are not done in the public. Most of the problems really affecting the judiciary are political; people are not satisfied normally in politics and we have to be realistic. In Nigeria these days, the stakes in political elections or issues are very high. We have to accept that as a fact, and anybody who aspires to become a leader in politics will ensure that, no matter how, he will achieve that ambition. And then in the process, if he does not win, the judiciary has been compromised; and if he wins, the judiciary is all right. That is always the problem. And it will always be the problem until we do away with the spoils of office and we reduce it to the barest minimum. I don’t like the idea of some people saying that it is the judiciary that determines who becomes the governor or president or member of the National Assembly and not the electorate. This is wrong and it has to stop.
From your years on the bench, what has been the nature of the influence from the legislature or the executive on the judiciary?
None that I remember. But it was much better in the olden days. I recall when Sir Tafawa Balewa (the late prime minister) had a conversation with Sir Adetokunbo Ademola (Nigeria’s first indigenous chief justice) over an issue; nobody could approach people like that to ask for a favour. It was unheard of. When I became a judge myself in 1979, I took over from a European as the chief judge of Kano State. Before now, judges do not apply to be made a judge. You are appointed and you take it up. During the Gowon regime, a judge was appointed and he refused and it caused a lot of trouble. So it was then that it was decided that before a judge is appointed, the head of court should first ask him whether he will be interested, so that he will not say he is not interested later on. But now, we had an exercise to appoint 12 judges of the federal high court recently, do you know what happened? We had over 200 applicants. It has never happened before. Of course people will lobby for their friends or relations to be made a judge. The idea before was to get the best brains anywhere and make them judges. But now, a lot of things have gone wrong.
As the chairman of the National Judicial Council, NJC, what do you think can be done to reverse the trend you just talked about?
We have put some mechanisms in place to ensure that we attract the best. Now, people suggest interview and test the intellect, attitude, character and integrity of the applicants. All that will be taken into account. We are not going to allow things to be done that way any longer. Henceforth we shall consider character, attitude, integrity and intellectual ability of anyone to be made judge. We have to shift and ensure we get the best.
What roles do lawyers play in creating the negative perception that judges now have as being corrupt?
Like everything in this country, judges and lawyers cannot stand aloof in the turn of events in the country. Unfortunately, a lot of the lawyers are to blame for what is going on. They have forgotten, in the past, it used to be that a lawyer holds his retainer to the general public or the court, society first before his immediate client. The rules and regulations of the court are really meant to help the court ascertain the truth in order to arrive at justice. Not to win a case by all means. You were not there; you do not know what has happened. Because someone has the means to engage the services of a lot of SANs, he will ask them to do whatever they can do that the case must not see the light of day. Lawyers should not behave like that. The attorney general wears two caps; his duty to prosecute on behalf of the government is not higher than his duty to see to the protection of ordinary citizens. But that does not happen these days. We try to tell people concerned the way and manner they should perform.
Will there be any factor that lures judges into corruption – like inadequate salary and lack of proper maintenance?
I don’t think so; I think they are well taken care of. Before, they were just like normal civil servants. I remember when they were appointed in the olden days, they had their own cars with drivers just like any other civil servants, until recently when they have special houses, cars, among others. Their pay is quite reasonable but where a person is corrupt, no matter what you give him, he will be corrupt.
From the time you assumed office, the word ‘reform’ appears to have been the most popularly and frequently used by you. Now that you are retiring, how much of these reforms would you say you have achieved?
These reforms have to be holistic. They take a lot of time and the time is very short. Some of these things we cannot do ourselves, we have to recommend. We just finished the constitution amendments, which will affect the workings of some of the courts. We cannot do it alone, it has to go to the National Assembly. Also there are amendments to the Supreme Court Act, the High Court Act, Customary Court, Sharia Court Act and other laws. All these have to have the blessing of the legislatures, either at the state level or the federal level. That takes a lot of time. You have to get experts. The whole world is moving away from what it used to be before. Unfortunately, we still stick to the old regulation. For instance, the criminal law operating in Nigeria has been there for over 100 years, with very little or no change, except in Lagos where they touched it a little here and there. In other places, it is the same thing. The newest law in the criminal law in the northern part of the country was made in 1959; it has little or no change at all. In the laws, you will still find that if you commit an offence, the punishment is 50 shillings or pounds. Nothing has changed. I took it in the reform to correct all these things. But reforms are a continuous process. I cannot say we have to finish it but my people who will succeed me will carry on from there. Another issue I didn’t talk about is the e-litigation. We are working on it too because it is done all over the world. We want to start in the Supreme Court to ensure that things are done a little bit faster.
Could you trace these challenges to the qualities of the legislature?
You can’t blame the legislature. Drafting legislation is an expert business. It has to be someone who is a lawyer and who is doing that. It is an expert that should propose legislation looking in to these rules and regulations and then find out that instead of doing justice, they are courting injustice. Ordinarily, as judges, we just sit down over what is brought to us because we are not engaged in legislation. We only apply the law as made by the legislature, as made by the executive. But right now, carrying on with all these problems in this country, we realise that as judiciary, we have to come along; after all, this is our country. We should not be living like a typical English judge in England, where nothing concerns him. We feel we should be concerned even about the state of the law.
Would you then trace the challenge to the quality of training of lawyers?
I will do that, the training, the quality of training and also the ‘I don’t care’ attitude of most of the people in the Ministry of Justice. Like we have the National Law Commission, it has been established. You can ask them what they have done in all these years, almost next to nothing. Similarly, there was no necessity to have the EFCC (Economic and Financial Crimes Commission) and ICPC (Independent Corrupt Practices and other offences Commission). It is the work of the police. Crime is a crime; the police are supposed to arrest and investigate crime and prosecute. But it was the failure of the system that necessitated the need to say that why don’t we fast track and have another agency and now it has resulted to the same problems.
Would you then canvass for the merging of the two anti-corruption bodies, ICPC and EFCC, or outright scrapping as proposed by a federal government commission?
What is the necessity of having the two bodies doing the same thing? I know the other one was into money laundering and economic crimes while the other is on corruption. It is the matter of the police to do, and what law even stops the police from investigating any crime?
If you look at James Ibori’s case, many consider it an embarrassment for that kind of politician to be jailed outside the country.
The issue is on appeal, so I do not want to take a decision on the decision of the federal high court judge who discharged him. I think the matter is still on; it’s on appeal. So I don’t think it will be right for me to go into it. But, generally, we will find that the procedure is a little bit different. I understand that in London when Ibori was confronted, they gave him soft landing. That is plea bargain – or they went into negotiation. I think that is not available in Nigeria yet, except in Lagos. I believe there has to be a law, which will authorise the prosecutor, to say all right reduce the sentence [and] agree to one thing or the other. But our procedure here is different. Even the investigation is not good enough. You find a situation where since 2006, someone was arrested and he has not been allowed to even take a plea; that is, going to the court for the first time where they will ask you ‘did you do it or not’. That has not been done. Unfortunately, this is the case: many people will be arrested and taken to the court, investigation will stop and nothing will happen. So when the investigation ends, the lawyers from the other side will start appealing. Even the EFCC Act says an appeal should not stop the judge from continuing the trial, but what happens is that the judge himself will stop the case for the matter to go on appeal, then it will take three years before the matter is finally determined. What we are trying to do now is to ensure that this thing is no longer happening. We have streamlined them.
You blame the anti-corruption agencies for poor investigation whereas these agencies also blame judges for frustrating them.
How do you frustrate them? A judge will come and hear the cases based on the evidence before him, not the public sentiment that was put there. In the issue nowadays, you think it is everybody that is charged with criminal offence that has committed the offence. We have our own rules and regulations; you have to prove the case beyond reasonable doubt. So people who do not know the fact will jump into conclusion that the judge is doing this or that. And this is wrong. He has to look at the evidence brought before him and not the personal knowledge outside or what someone reads in the newspapers. The frustration, I found it difficult to understand, if at the end of the day the judge decides the man is not guilty, then appeal; all you have to do is to get the documents and go to the higher court. There are cases that if you make a mistake in the case, you can call to introduce further evidence. That is the issue but the problem is that you said the police don’t do the work properly, then you introduced the EFCC and you have the same police investigating and prosecuting. That is the problem.
Looking at the EFCC under Nuhu Ribadu, many believe the man tried his best to get many people jailed. And probably now, can we relate the quality of the agency to that of its leadership?
That is right. No doubt about it.
What you are saying is, if we have a proper person who could confront corruption as head of EFCC, we will notice a remarkable difference.
It can be done, no doubt about it. I can’t see any judge when the proof is so clear then he comes to mess it up. It is not possible but sometimes you find that the lawyers at the other side, either by superiority or intelligence, sometimes take undue advantage of the terrible situation and cause a lot of havoc either to the judiciary itself by asking for unnecessary adjournment. That was why we say that you have to carry on and finish it once your case has been fixed for a criminal matter. As a matter of fact, on Monday I swore in 12 new judges of federal high court. Some of them will be put to try these criminal matters. And this is what they will do all the time. Then I have to warn the prosecuting agencies that they get all their paperwork together, so that they can continue and prosecute. They will not be doing any other work except the high profile matters.
While you were at the apex of the bench, how many judges did you get punished for certain offences.
Unfortunately, I get a lot of petitions, [no fewer] than 100 every week since I came in. All of them I look at them, it is either the case is a mere accusation and people write petitions on almost anything they think of. But the evidence to prove the case of corruption, for instance, was never available. We never got any. Nobody will come and say either Judge A or B received anything from the other side. So what do I do? Nothing.
Could it be that the judges that are accused are only smarter?
(General laughter) …I don’t know because I wasn’t there.
That brings us to the case of Justice Ayo Isa Salami. The NJC suspended him and now the same NJC under your leadership has ordered that he be restored to his position, and this has caused a lot of confusion. What is your advice to Mr President?
This problem is a little complicated. First, the matters are in court and I don’t want to pre-judge the issue. In fact, I got a letter this morning that myself and the NJC might also be sued. So I don’t want to pre-judge the issue. But what I know is that NJC of which I am the chairman, with 20 members, sat down and made a decision and we communicated the decision to the President, in view of the earlier decision that was made by the same NJC. The President has the two decisions with him; it is left for him to take one decision or the other. In his wisdom, according to what the attorney general has stated, he is waiting for the courts to dispense with the lawsuits on the matter before taking a decision.
Talking about reforms, some of the things you have done and some that are still in the pipeline, do you have any regrets?
I have no regrets whatsoever. I tried the best I can for the improvement of the system. I agree public perception has been low. At times I try the best I can to ensure that we take up our responsibility. But the fact is that every Nigerian wants to win any case he has in court, whereas the issue is that there is a need to practise law with a sense of decency and sense of decorum and sense of justice. We will be able to identify and flush lawyers that are bad eggs in the system. Judges do not misbehave without the assistance or connivance of the people who are in the legal system.
It is regrettable that we have not seen many cases of lawyers punished for certain infractions as members of the bar?
No, it is being done all the time. It is much easier to do, because a client’s money will be missing somewhere and something will be done and so on. But unfortunately, with judges, I don’t know why evidence is not forthcoming. In meetings in the NJC, it takes most of our time discussing this. In fact, some of the reform agenda we have over corruption, we have created a division to monitor and ensure that judges are above board even where people are reluctant to give evidence. We are not saying there are no bad eggs but somehow it is very difficult to fish them out and punish them.
How do you see the way the CJN is appointed to that position? Some say the appointment by the President, although subject to the recommendation of the NJC, is still faulty; that it does not give the CJN enough room to do justice as he would have loved to?
I don’t know. Once you are appointed, you are appointed; if they want to get rid of you, the procedure is always very stringent, unless there is something very wrong. But I can’t see how the fact that you are appointed by the legislature or the executive stops you from doing the work you are supposed to do. If you can’t do your work as you are supposed to do, as an educated person with a sense of decency, you should go away.
Even if there are threats to your survival?
Oh, yes. I was a commissioner of justice during the military. In those days, we would tell the military governor off and we would be there. It’s unfortunate that such is not happening now again.
If you look back, are there things you wished you had more time to do?
Of course, I wish I had more time to sit down and do my work properly and allow the reforms and some of the things I initiated take off properly But I don’t claim to have all the knowledge or sense of decency, my colleagues will carry on from where I stopped.
Would you then advocate an extension for the retirement age of justices at the level of the Supreme Court?
For myself, I am retired and I will go away. Quite honestly, the older, the more mature they would be to handle issues. What should a person above 70 years be afraid of? When you retire, your pension is equivalent to your salary, why should you be afraid of saying what is right?
How does it feel being a judge, especially when you preside over cases as serious as murder and for which the death sentence can be passed?
You feel like doing justice. Sometimes you feel God has chosen you to do what is right for the society. But once you start to feel like you are now honourable this or that, that is where you will get into trouble and this is unfortunately what we are getting. In 1980, I went for a meeting in America and one judge from Nigeria was angry that they didn’t put honourable justice in front of his name when he was addressed. And I wondered, what is the whole purpose of education?
What does retirement hold for you?
I will go and rest. May be write a book or two, then pray to God to give me a better life in the years ahead. That is all I am expecting.
Have you thought about your successor, some say you have recommended somebody?
No, I don’t recommend anybody. I don’t appoint. The constitution states that any person who has 15 years at the Bar can be made the CJN by the advice of the Federal Judicial Service Commission to the NJC and the NJC recommending to the presidency and the president appointing such and sending the name to the Senate for confirmation. So these are the processes of appointing a CJN. So, it is not for me to say A, B or C will become the CJN. Who am I?