Professor Fabian Ajogwu SAN, of Kenna Partners, shares his views on the whistle-blowing policy, how to improve justice administration, corporate governance and ease of doing business.

Source: The Nation, 15.05.2018

What is your view on whistle-blowing policy?

First of all, any good society should run on whistle-blowing; that is what a good neighbour does, he or she is encouraged to dial 911 and tell the Police about suspicious character in the neighbourhood.

In the context in which it has been employed by the Federal Ministry of Finance, it is again something to commend the government and the Minister for. I believe that it is a good thing to encourage people to speak up on things they have observed. My contribution would be that in most societies or institutions, the whistle-blower needs to be protected so as not to expose the whistle-blower to subsequent recrimination or harm.

Are there challenges around the policy?

Some wonder if the five per cent income from whistle-blowing is a normal income upon which the whistle-blower could be taxed as personal income tax. The following questions then arise; is he going to make it part of his personal income or is there going to be another legislation or framework that helps him not to be exposed for reason of declaring or filing tax returns based on those things? However, there could be abuses of the whistle-blowing mechanism, such as providing false information to the authorities leading to a waste of resources or inflicting misery or agony on a wrong suspect. There should also be some mechanisms to discourage such negative behaviour.

How can justice delivery be sped up?

The justice delivery system consists of many components.  First, the rules of court; the statutes that are applicable. Second, the administrative issues in the courtroom, filings, record keeping, and document management and so on.  Then we must examine the management of the case system. All of these affect justice delivery system. Nigeria has essentially borrowed the procedural system of justice from Britain and that system focuses more on procedures.

Claims may be lost if one does not comply with the procedural rules. Britain from where we borrowed the procedural system has also reformed theirs to focus more on the substance rather than the procedure. So, one of the things that will help is a reduction in procedural bureaucracies to get things done.

So, how do we improve justice administration?

Why will you file 15 copies of a document, for instance, before a court? It is a burden of storage space, and it creates a frustration of search. Whenever trade and commerce is increased, there is the potential for dispute. Courtrooms in the 1980s aren’t the same as in 2018, the reason is the increase in the volume of cases, number, quality and sophistication of disputes. Nigeria must look at reforming the rules and leveraging technology. It is my belief that we need to take a holistic approach to reforming the justice delivery system to eradicate delays or at least, minimise them. In any system where you cannot determine your dispute within a short time, parties are wont to either take laws into their hands, or simply just lose hope in that system of dispute resolution.

What is corporate governance connection with economic and Gross Domestic Product (GDP) growth?

Corporate governance is about providing leadership, behavioural governance structures to an institution to ensure that it meets its basic objective of delivering returns to the shareholders, and meeting the needs of other stakeholders. Every company has a silent 30 percent shareholder and that shareholder is the Federal Inland Revenue Service (FIRS). Corporate governance in Nigeria is regulated by several codes.  The primary code is that of the Securities and Exchange Commission. Other codes include the Nigerian Communications Commission (NCC) code, the PenCom code and the insurance industry code. All these codes have one thing in common: they place a duty on the directors of a company to ensure that the resources of the company are used properly and managers of the company are objective and accountable.

How do Alternative Disputes Resolution mechanisms (ADR) influence the ease of doing business?

One of the things that investors look for in any environment is integrity of the legal system in terms of its ability to determine their disputes fairly. Just the same way the current administration is paying a lot of emphasis on the ease of doing business, making business more efficient, is the same way that the investor also craves for the ease of determining disputes. It is almost like a twin pack; it needs to go with the ease of doing business because if you do the business and things go wrong, your next need will be to determine who is right or who is wrong as quickly as possible. Now here comes the importance of time tested alternative disputes resolution mechanisms and the prime among them is arbitration.

How has the practice of arbitration developed in Nigeria?

The practice of arbitration in Nigeria has come of age, but is not where it ought to be considering that we have had the Arbitration and Conciliation Decree, which is now an Act of the National Assembly since 1998. After 30 years, many things have changed in the world but we are still using the same Arbitration and Conciliation Act. It is due for reforms because a lot of decisions have come up that have shown from other jurisdictions that they need to change a few things for expediency and efficiency.

So, the first need in that sector is to amend the Arbitration and Conciliation Act. The process is ongoing but we do hope that it won’t remain ongoing but will be concluded preferably this year. Now when we get it right with arbitration, obviously the advantages are numerous. They are much quicker, you can conclude hearings in a day or two, and you could give awards within two months to three months. The preliminaries are resolved electronically through e-mails, filing is done electronically by mails. Where the parties agree, there is no undue publicity, so it is done in private, and parties are obliged to maintain confidentiality of it. You will then see that the environment enables efficiency.

Recently the Federal Government made a policy statement to enhance the ease of doing business in the country. What is your reaction to this?

Reducing the bottlenecks in doing business not only helps the investor, but also quickens the revenue cycle for government and for the investors. The sooner you can get your license, the quicker you can start transacting and remitting those transactional taxes like Value Added Tax (VAT), and Withholding Tax.

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