All posts by Yinka

The legal Bar and Bench on a flight of fantasy

photo-Yinka

Baseball is an American classic—similar to cricket in most commonwealth countries. In baseball, someone, a pitcher, throws the ball to an opponent—the batter, and the batter is expected to hit the ball. An umpire crouch behind the batter, watches the ball as it crosses the batter’s midpoint. The umpire gives the pitcher a zone that his ball has to cross in other to be considered a strike—a good pitch.   Often, a good pitcher throws a ball close to a 100-mile per hour or curve the ball as it passes through the zone to deceive the batter. As I write, Gorsuch is set to assume his seat as a Justice on the United States Supreme Court. That’s the highest judicial seat in the Country. During his confirmation hearing, Judge Gorsuch told the Senate Judiciary Panel, quoting from the Chief Justice of the same court that, like a baseball umpire, his goal and role is to call the ball in the strike zone.

Yes, that’s the role of a judge—to call the ball when it crosses the strike zone! What Gorsuch failed to say and, which those voting against his nomination understood, is that judges equally define those strike zones. The strike zones in human affairs are not abstract, they are organic, and like baseball, it changes based on many human factors. Two of the foremost researchers on how humans make decisions—two of the foremost that have studied how humans call the strike zones, Amos Tversky and Nobel Prize winner, Kahneman, told us how frivolous the very best of us call those strike zones or, make decisions. Jonathan Haidt wrote his most famous book titled, The Righteous Mind, to explain how instincts or, our passion, predominates over our reasoning. Scottish philosopher, David Hume, had taken a stab at how humans made decisions and concluded that reason is merely the “slave of the passions.”

There is nothing scientific or mathematical in how humans reach conclusions or judgments. First, we come to an instinctual or emotional conclusion, and when tasked, search for reasons to support our instincts. On a bright, sunny day, a beautiful girl passes by, our instincts turn into desire, and at the first opportunity, start the construction of how she should become a life partner. Even, on occasions, we dismiss any attempt to justify our instinctual conclusion, and dismissively say, “…that’s it, I don’t care.” There’s nothing special or different in how judges or lawyers reach conclusions. Legal practice and life experiences have established few parameters that underlie the basis of our professional instincts. Like others, lawyers and judges construct reasons to support those instincts. Seldom, the follies of our instincts become too obvious.

That, a rich or influential man does not go to prison is a well-established cultural paradigm—I get that! What I object to is an argument that crime is either poor or un-influential. I get it that the grandson of Justice Sir Adetokunbo Ademola, whom himself, is a judge of the Federal Court in Abuja, ought not to go to prison; what I don’t get is any argument that what Judge Ademola did was innocent and not criminal.

What insults decent senses is the argument that the prosecution failed to prove its case against Judge Ademola. No, the prosecution did not; the judge failed to understand the case before him! For one, the higher legal burden of proof—the proof beyond a reasonable doubt is an organic rather than a mechanical or scientific construct. It grows and shrinks depending on the judge. Like baseball strike zones, it depends on the batter and the umpires. Two, the standard of proof was not the appropriate burden that the prosecution carries at the Summary judgment stage. To summarily dismiss a case for the reason that the prosecution failed to prove a case beyond the reasonable doubt is a misunderstanding of the legal concept. At a summary level, a judge is restricted to considering if there’s any reason for judgment in favor of the prosecution, and this is a much limited burden. Judge Okeke failed in this regard!

Of a greater injustice is the fact that the judge required the prosecution to jump over an impossible evidentiary height. Judge Okeke required EFCC to point to a decision of Judge Ademola that the #30million that Attorney Agi gave to him tainted. The fact is that judicial decisions, either right or wrong, hangs upon a reasoning—and, such reasoning, often, was a basis for the case in court in the first instance. It’s axiomatic that litigants on the losing side of a judge’s decision, can counterintuitively point to his or her original argument as evidence. If, for example, Judge Ademola called a dog a pig because he received money to make the decision, it will still, nevertheless, be within the judicial discretion of Judge Ademola.

Of the worst insult is Judge Okeke’s argument that the prosecution failed to prove that Judge Ademola received the #30million deposited into his wife’s account. In short, Judge Okeke refused to acknowledge, what in ordinary human experiences, is described as a marital asset. Judge Okeke cast out the first marital oath between Judge Ademola and his wife—the oath that joins both at the hip—that turns their separate possessions into a combined one.

Judge Okeke isn’t alone—the entire Nigeria Bar appears to be in toe with him. Reading from many of our so-called Senior Advocate of Nigeria and others within the legal community, arguing that Judge Okeke merely applied the law. No, he did not! In addition to applying the law incorrectly, he made his law up! He misapplied the burden of proof and created his own legal elements, both of which are consequential.

The fact is that each member of the Bar and the Bench owes more than a legal obligation to the law—each owes both moral and fiduciary duties to the great profession, and each member of the legal profession betrays the great profession. Again, strike zones in baseball change depending on the height of the batter and the person of the umpire. To argue that the burden the prosecution carries remain the same in all circumstances is a disservice to the great profession. Jesus Christ could have condemned the prostitute as the Judaic law demanded, and abandoned the identities of the accusers of the poor woman. He could have!—after all, he would have called the ball in the strike zones too, but He knew better! King Solomon could have called the ball in the strike zone and invoked the law of contract to sever the body of the poor, little boy into two before the warring mothers.

The legal profession takes a flight of fantasy, criticizing the executive and legislature for corruption and the failures of our polity. Laws are more than the substantive letters in the books—it includes the procedures in courts, and of greater input is the interpretation of the substantive letters. In the most celebrated case in the American jurisprudence, Madison v. Marbury, the US president in 1790 argued that his power under the constitution was broad. And, President Jefferson appeared to be correct under the Constitution and the court could not change the letters of the constitution. Notwithstanding, the court told the president that his power might be as broad, but that the court still retained the duty to interpret the broadness, and explicitly told him that he was wrong. That law cemented the role of the courts and the principles of separation of powers in the US, and for all times. These were judges that had the visceral and intellectual understanding of what was at stake. Judge Okeke does not, and he is significantly diminshed!

The court makes law as part of its legal, moral, and fiduciary duties!

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Ver. 1.3

Osinbajo–Come off your high horse!

The bond market is where governments and other institutions raise money to finance projects. For example, a government that wants to build a hydroelectric power station could sell internal or external bonds to raise money to pay for the power station. The government, with an eye on the returns from the power generation, promises the investors a certain percentage on their investment. There’s hardly anything mystical about this process: a bank or banks sell the bonds; Oga Sule, with some financial reserves, goes into the bank, and rather than a straight deposit or savings, he decides to buy the government bond. He gets a bond certificate, which he keeps till he needs his money to bury his long dead grandmother, at which time, he presents the paper to the government for cash.

Long story, Nigeria government cites to the oversubscribed bond that it sold on the European markets. According to information, Eurobond, as it’s called, guarantees a minimum yield at issue of 5.375%. The yield increases to 7% if Oga Sule is prepared to cash out in 2021.

First and foremost, Buhari’s government has now taken a loan and committed Nigeria to debt. Not long ago, the news reported that the Nigerian Congress refused the Buhari’s administration power to borrow money. Either the news was incorrect or Buhari has defiled the Congress, which I doubt, the irrefutable fact for all to know is that Nigeria is now committed a debt that we have to pay at a later time.

Second, the rate of returns guaranteed by the newly issued bond will top any other rates in the debt market. IMF would have given us a loan at less than 3% point, but Buhari turned down all the much needed structural adjustments that the Fund suggested. The World Bank, China and others would have done the same, but Buhari could not muster the political and economic clouts necessary to satisfy these bodies. In short, we’re paying dearly for our failures to acknowledge the realities of our situation.

That Nigeria’s debt was oversubscribed is because investors could not get the same rate of returns from any other sovereign fund, period! It’s not a reflection of our economy. Yes, like any drug, the euphoria from the excess money in the hands of Buhari’s government could present the illusion of economic recovery; the real pain is when it has to be paid back.

Debt is good if it’s properly utilized for real capital projects, but unfortunately, Buhari’s government that failed both the political and economic muscle to push adjustments is not the right candidate to trust to utilize debts in a constructive manner.

Nigerians want to hear their government borrowed money to build a new road or bridge or power plant—not salaries.
qz.com
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Ver. 1.3

Buhari and the Betrayal of our Revolution

Months before the 2015 Presidential election, Buhari was scorned as an ex-dictator and unapologetic Islamist. Many of us, pseudo-journalists, flooded the social media arguing against the presidency of a dangerous man. The revered Wole Shoyinka wrote a blistering piece cataloging the misdeeds of Buhari’s past administration and his subsequent involvement in the Nigerian space.

That was before Alamieyeseigha was rumored and announced to be a recipient of Nigeria’s highest award at the Centenary celebration of England annexing the Southern and Northern Nigeria. Before Patience Jonathan—yes, the wife of the President, hijacked our private and institutional spaces, and rather than empathy for the mothers of Chibok girls, she derided them; before before Michelle Obama was forced to lead the campaign to force our government out of silence when hundreds of our beautiful daughters were kidnapped. Before it became clear that the PhD Stella Oduah claimed was fake. Before Lamido Sanusi told us of possible financial impropriety involving the NNPC, Diezani Alison-Madueke, and others, and in spite, Jonathan administration attempted to silence the story to oblivion. The list of ‘befores’ that predated our collective desire to boot Jonathan out of the presidency is inexhaustible. It became clear that Nigerians needed a break from the past—that our Union was being threatened and in comatose.

How do we break from the past and where do we head were two rational questions, but each of the inquiries proved beyond the paygrades of even the more accomplished among us. The political climate was rife with a Northern presidency—but, who among the known possibilities could we rally behind. Atiku, a well-known thief and fugitive from US’ justice, clamored for our supports, as well as others less known. Tinubu, a Southerner, with a well-established ambition to hijack the national purse and empty the darn thing, rallied around his cabal of political charlatans to re-present Buhari to us. Ordinarily, Nigerians would have seen through the charade, but our urgent desire to do away with Jonathan proved too murky for us to see through.

And, that was how Buhari stole our future. He became our hopes in the absence of any evidence to lead us through the smog. All the liabilities that made Buhari toxic didn’t disappear—the retroactive application of capital punishment didn’t disappear; the 52 suitcases that cleared through our Customs without inspection were not returned; we didn’t request any additional information against Buhari’s political naivety that scuttled any economic recovery in 1983; so many questions that hanged over Mr. Buhari. Rather, in Buhari, we began to see a titan against corruption—which has rightly eaten us to comatose; we began to see a tenacious fighter—taught through experience and personal discipline. In short, we built ourselves into a cult of Buharist—perpetuating a messiah to lead us through the fight of Armageddon. Almost two years into his administration, we’re not only stuck in Armageddon, but Buhari also appears to have absconded and dashed our hopes.

How do you tell Nigerians to look inward during this period of economic and social upheavals when at the first opportunity to bail out, you bailed out! How do you reinforce that Nigerians are capable when you rather trust your life to a foreign doctor at a foreign clinic than Nigerian trained professionals? Yes, we may not be able to solve your particular kind of problems, but that is how millions of us live our lives. I couldn’t begrudge you for fighting for your life, I could only have hoped that you would have used your fight for a higher and greater goods.

In almost two years of your administration, Nigerians are reduced to peddle rumors of your administration’s fights against corruption; we hardly have any real and direct news from you. When billions of money are not discovered in a house, we hear the news that some other individuals have returned money back into government’s coffer. Again, it is good if some rogues return the money, but is it true? And even, if it is true, the larger questions of our courts’ systems and the efficiencies of our prosecutorial teams are yet to be addressed in any meaningful way. While fighting corruption was central to you allure, Nigerians have other problems, and your administration has failed.

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Ver. 1.3

Our Hijacked Revolution

In 2012, the world witnessed Egypt’s Arab Spring.  Young men and women matched at the Tahrir Square to protest the economic and social injustices under the Mubarak’s regime.  The revolutionary fervor rented the air while the world watched.  It quickly became clear to Mubarak that the military was not going to kill the revolution; he had to abdicate the throne in shame.  The interim government that came to power acceded to the demands of the revolution for a free and fair election; it quickly scheduled and supervised the election.  The Moslem Brotherhood won the election.

Revolutions take time, energy and much more!  As Michel de Montaigne wrote, “the fruits of public commotion are seldom enjoyed by him who was the first mover; he only beats the water for another’s net.” Chris Hedges noted that revolutions can be crushed by force, or hijacked by individuals or other movements that betray the revolution.  The revolution against Pharaoh that was started by Moses was completed by Joshua after more than 40 years in the wilderness.  The men and women that threw Mubarak out of office did not match for the theocratic bend of the Moslem Brotherhood.

Months before the election in Nigeria, many of us turned to the social media as we never did before to campaign for change; friendship was defined along political lines.  Many of us that never participated in partisan politics or belong to a political party matched for a political party and remitted money to the account of our favored candidate I Buhari.  In the end, we achieved a feat that had never been attained in Nigeria or even anywhere in Africa before—we changed government from one party to another and without a spill of blood.  Days after the Presidential election, after it became crystal clear that Buhari won, the excitement of our successful revolution, so we thought, rented the air.  Many of us expected the return to the Garden of Eden—the rebirth of a modern Nigeria where corruption and sycophancy would become a feature of the museum.

Little did we remember to protect our hard earned victory or, that revolution can, at times, be hijacked by individuals.  If we were mesmerized beyond any real understanding of the depiction of Snowball and Napoleon by George Orwell’s “Animal Farm.,” we, at least, could have learnt one or two lessons from the trio of Lenin, Trotsky and Stalin.  We ought not to be surprised by Saraki, Tinubu, Dogara or Atiku.

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Ver. 1.3

Greece’s Stance is Consequential

In 1983, IMF imposed conditionalities on Nigeria. These are set of austere measures, supposed to facilitate the repayment of Nigeria’s external debt. A major point of the austerity measures was for Nigeria to privatize her economy. The argument was that privatization is the only way market efficiency is possible. Buhari, the current president, was Nigeria’s military Head of State at the time. IMF refused to assist without Buhari adhering to all the austere measures. For months, Nigeria’s economy remained paralyzed. Babangida cited the inability of Buhari to reach a consensus with the IMF as one of the reasons for his coup. Other nations that have defied the IMF since then haven’t fared better.

This, is the reason that the stance the Greeks have taken matters. It’s of interest that the two major stumbling blocks to any agreement between Greece and its Creditors are for the Greeks to raise their retirement age above the current 55 years and to raise taxes. The retirement age appears to be the most important. Why?

Life spans in most European countries have increased. Most statistics has plugged it at around 78 years. As such, a Greek that retires at 55 years has another 23 years to collect retirement benefit. Interestingly, most retirement plans are held by private institutions under the privatization mantra of the ’80s. The longer a Greek lives and collects retirement benefit, the less profit the private institutions holding Greece retirement portfolio makes. This is a bridge too long to cross for these big boys, so, Greece stance is untenable. After all, other European nations have increased their retirement age to facilitate adequate profit for these big boys. Even, in America, you’re not qualified for a full retirement benefit if you retire anytime before your 67th birthday. So, I have about ten years to collect retirement benefit rather than the 23 years in Greece.

Greece’s stance is consequential; it’s a new world economic reclassification. Would Greece lead the new world as it led the old? Could Karl Marx be right after all when he predicted the destruction of capitalism by Capitalism?

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Ver. 1.3