Tuesday 4 October 2011

A New Nigerian Judiciary Is Necessary By Jiti Ogunye

Jiti Ogunye
By Jiti Ogunye
The raging controversy and court litigation over the constitutionality of the “suspension” of Hon Justice Isa Ayo Salami, the President of the Court of Appeal ( PCA), from office by the National Judicial Council (NJC), and his “replacement”, in an acting capacity, by the most senior Justice of the Court of Appeal (JCA), with the connivance of the President of Nigeria, Dr. Goodluck Ebele Jonathan warrants that a more rigorous and holistic appraisal of the state of the Nigerian Judiciary be conducted.
The objective of this exercise is to expose the institutional failures of the Judiciary and proffer remedial measures. Truth be told, the Judiciary is broken in many ways. An episodic patch of the current crack will not do. A full scale rehabilitation of the crumbling Judicial edifice must be urgently undertaken by the Bar and Bench, with the help of the legislative arm of government.

The role of the Judiciary, as defined in the 1999 Constitution, and other governing Acts and laws, is very central to the survival of democracy and the attainment of its purpose in Nigeria.  This is so because it is the arm of government that wields the power of judicial review over the discharge of legislative functions and the exercise of executive powers. In this wise, it functions as the guardian angel over the other two arms of government, and thus ensures that their separate or joint operations are not only in strict adherence to the rule of law, but also that those operations do not destabilize or destroy the democratic order. It is also the institution that determines any question as to the civil rights and obligations of the citizens, declaring and enforcing rights, annulling or validating acts, awarding penalties, including custodial punishments, prohibiting or compelling private and public actions, and generally giving redress and remedies for actionable private and public wrongs.
In order for the Judiciary to effectively perform the above-stated role, however, it must be well structured, its rules and practice must be good, it must be well and rightly staffed, and it must be adequately funded. But beyond all these, corrupt judges must not populate the Judiciary. Here, we mean corruption of power, position and money. The Judiciary generally must not be regarded, perceived or believed to be pervasively corrupt. The Judiciary must be a temple of justice, a beacon of credibility, and a repository of integrity. No matter how well structured, properly staffed, and adequately funded the Judiciary may be, and no matter how good the rules governing its operation and practice are, once its actors are not regarded as credible men and women of integrity, the Judiciary can hardly act as the guardian of Nigeria’s democracy, let alone operate creditably as an honest enforcer of rights and a just redresser of wrongs.
 Although the Constitution is replete with many flaws and inadequacies, it, unambiguously, creates the Judiciary as a third arm of government under Section 6 of the Constitution. The Section defines the judicial powers of the Federation, stating that these powers are vested in the courts established for the Federation, under the Section. Chapter VII ( Sections 230-296) of the Constitution then provides elaborately for the Judicature, making provisions for the establishment, appointment of judicial officers, jurisdiction,, powers, constitution, practice and procedure of the federal and state courts, created under the Constitution. These constitutional provisions, the Acts and Laws of the States providing for the federal courts and courts established by the states, and the various rules of courts and several practice directions and regulations govern the existence and operations of the Judiciary. It is, thus, obvious that there are extant laws governing the Judiciary in Nigeria
As the Nigerian people continue to strive for a more qualitative representative government, the role played by the Judiciary in the last twelve years of civil rule ought to be critically examined with a view to identifying its structural problems, operational difficulties and ethical challenges, in order to make corrections and enhance not only the specific role of the Judiciary in democratic governance, but also its general function of justice delivery. If, as we often do to both the executive and legislative arms of government, we do a sincere check on the Judiciary in the last twelve years, we all will come to the inescapable conclusion that all is not well with the Judiciary.
The Judiciary, evidently, is hobbled by the prevailing structural arrangement and centripetal jurisdictional configuration between the federal and state courts- inherited distortions of our judicial system from the past military era. Just as calls are being made for the devolution of legislative and executive powers that are currently inordinately concentrated in the Federal Government, in favour of the states in the “Nigerian Federation” there is need also to devolve judicial powers that are currently inappropriately concentrated in the Federal Judiciary, in favour of the State Judiciaries. The unlimited jurisdiction of state high courts in the 1979 constitution, now limited in favour of the Federal High Court, the jurisdiction of which was expanded during the military era, carried over and preserved under the 1999 Constitution, ought to be restored.
It is also plain that our courts of justice have varying operational difficulties, ranging from inadequate infrastructure, insufficiency of judicial and non judicial personnel, debilitating delay in hearing and determination of cases and appeals, inadequate emolument, and lack of a reliable research resource. The Judiciary is also beset by serious ethical problems, including an increasingly nepotistic mode of appointment of judges and elevation to the higher judicial benches, and cases of corruption and perversion of justice.  Just like the putrid nepotism that has taken over the award of the rank of Senior Advocates of Nigeria, where biological, filial and professional children of godfathers in the legal profession are now the preferred awardees of the rank of SAN by the Legal Practitioners Privileges Committee, appointment to the Bench and elevation to higher Benches are now dominated by unjust consideration. Disturbingly, determination of election petitions and litigations relating to  the investigation, arrest, detention or trial of prominent members of the political class, for corrupt practices, have offered the worst instances of judicial corruption, in recent times. Openly, eminent jurists and senior citizens are decrying the situation whereby corruption is eating deep into the heart of the Judiciary. We refer here to public opinions of Kayode Eso, JSC, Rtd., Uwaifo, JSC, Rtd., Kutigi, CJN, Rtd, and Afe Bababalola, SAN.
For their nefarious roles in these two classes of adjudication, many judges stand condemned. Since 1999, some judicial officers have been dismissed from the Bench on account of corruption, based on the recommendations of the NJC. Paradoxically, it is also in the determination of these two classes of cases that some judges have demonstrated admirable learning, courage and integrity, putting their lives and career advancement on the line, while ensuring that receivers and custodians of stolen electoral mandates are disgorged of their loots, and that corrupt officials of State and petty fraudsters are punished in accordance with the principle of equality of all before the law.
In the prevailing circumstances, we, therefore, propose that the Senate and the House of Representatives do jointly establish a well funded, five-member Judicial Reform Commission that will sit for four months to review all the disparate steps that have been taken in the past twelve years to reform the Judiciary at both the federal and state levels, critically examine and revise the laws, rules and regulations governing the establishment and operation of the Judiciary at both the federal and state levels, review the mode of appointment and elevation of judges to the lower and higher benches, and re-examine the process of appointment of chief judges of the high, appellate and supreme courts, evaluate the performance of the institutions that administer the Judiciary, address the serious ethical crisis that has engulfed the Judiciary, appraise the relationship between the law enforcement, security and anti-corruption agencies on the one hand and the Judiciary on the other hand, and make recommendations to the National Assembly on what needs to be done to reposition the Nigerian Judiciary for greater efficiency.
The Judicial Reform Commission should be imbued with all powers of the National Assembly to conduct public enquiries or hearings, including the power to summon any serving or retired judicial officer to appear before it to give testimonies or answer questions. The Commission shall submit a report, make recommendations and propose, through draft bills, amendments to the laws governing the operation of the Judiciary, including the relevant provisions of the Constitution.  Upon submission of the said report, recommendations and proposed bills, the National Assembly shall immediately amend the laws governing the operation of the Judiciary, including the relevant provisions of the Constitution. The aspects of the report, relating to indictment of serving judicial officers bordering on cases of misconduct, abuse of judicial office and ethical failures shall be passed to the NJC and concerned State Governments for further investigations and necessary disciplinary actions.
In view of the high degree of responsibility and independence that is expected to be exhibited by the  Judicial Reform Commission in the performance of this all important proposed national duty, we humbly recommend that the Commission comprise Kayode Esho, JSC, Rtd., Chukwudifu Oputa, JSC, Rtd., Muhammadu Lawal Uwais, CJN, Rtd.; Adolphus Karibi-Whyte, JSC, Rtd; and Mustapha Akanbi, PCA, Rtd. These five eminent jurists embody the proven integrity, the invaluable on and off the Bench experience, the national diversity and the plurality of views that are required to perform the task at hand.  Kayode Esho, JSC, Rtd had headed a judicial panel of enquiry the report of which led to the sanitation of the Bench very early in the life of this civil rule;  Chukwudifu Oputa, JSC, had headed the Hunan Rights Investigation Panel, the implementation of  Report of which was stalemated by legal challenges; Adolphus Karibi-Whyte, JSC, Rtd retired as the second highest ranking Justice of the Supreme Court, next to Muhammadu Lawal Uwais, CJN, Rtd; Muhammadu Lawal Uwais, CJN  had spent twenty seven years in the Supreme Court, between 1979 and 2006, the last ten as CJN, thus becoming the longest-serving Justice of the Supreme Court, and thereafter headed the Electoral Reform Panel; and Mustapha Akanbi, PCA, Rtd had voluntarily retired as the PCA before clocking the mandatory retirement age of 70 for court of appeal justices, after working  for the upgrade of the retirement age from the previous age of 65. He thereafter served as the pioneer chair of the ICPC, and just before leaving that position, he charged four Senior Advocates of Nigeria to Court for corrupt practices. Of course, after his departure, the case was squelched.
Although, the above-named icons are old and may be unwilling to be drafted into the performance of yet another round of national assignment, the urgent need to bequeath a lasting legacy of a reformed judiciary to Nigeria should persuade them to accept to serve. However, the constitution of the Judicial Reform Commission should not be dependent on whether all or any one of them decline(s) to serve.
The Judicial Reform Commission should be empowered to co-opt a member each from serving judicial officers in the High Court, the Federal High Court, the Court of Appeal and the Supreme Court, and from the NBA. The co-opted members shall assist the Commission to fully appreciate the contemporary dimensions of the problem the Commission is mandated to help solve. The Commission should also be empowered to take all other incidental steps that are necessary for the effective discharge of its mandate, including empanelling and remunerating a robust secretariat of jurists, lawyers and law-academics to assist it in the discharge of its work.   
The Judicial Reform Commission will ponder many questions that for long have been agitating the minds of Nigerians regarding the Judiciary

Why can criminal charges not be brought against judges who are dismissed on account of engaging in corrupt practices and thereby committing criminal offences?  Why are judicial officers who are found to be corrupt and who in consequence are dismissed from the Bench not made to face criminal prosecution after removal from the Bench? Will such trials subject the judiciary to ridicule or vindicate it as an institution which uniformly applies and enforces the criminal law on the basis of equality of all before the law? 
Why does the appointment of judges not undergo financial intelligence scrutiny? Why are the bank accounts of judges and their spouses, children, relatives, and friends with whom they may have financial dealings not being disclosed like the case of members of the executive and legislative branches of government, and why shouldn’t the financial intelligence scrutiny  be ongoing?
Why are judges not being appointed more on the basis of solid erudite and ethical grounds, and not just to meet the need for geo-political balance or in adherence to the federal character principle? Should we not consciously promote a new credible appointment and promotion policy for the Bench, such that cronyism and dynastic succession do not become the norm in the Judiciary?
Why do we not amend the Constitution to allow for the full court of the Supreme Court to determine each and every matter that comes before the Court, and do away with the current practice where a panel of seven or five delivers every judgment in the name of the Supreme Court that constitutionally consists of twenty-one justices? Is it not time we revisited the issue of having a Constitutional Court of Nigeria, different from the Supreme Court of Nigeria, so that the envisaged Constitutional Court can deal restrictively with matters of disputes between the Federal Government and any of the States or amongst the States, or between the National Assembly and any other arm of Government, over which the Supreme Court currently exercises original jurisdiction, and so that the time of the Supreme Court can be dedicated to matters under its appellate jurisdiction, which currently “languish” in the docket of the Supreme Court for an average of three years?
How well do the NJC, the Federal Judicial Service Commission (FJSC), the State Judicial Service Commission (established pursuant to Section 153 of the Constitution), and the National Judicial Institute (NJI), established by the NJI Act, Cap N55, Vol. 11, Laws of the Federation of Nigeria, 2004, function? What are the structural, operational and ethical problems that are confronting these bodies, and can their performance be improved? 
Is it not about time we critically re-examined how the NJC consider the  nomination of persons for appointment to certain judicial offices, and the removal of holders of such offices, including the offices of all justices of Court of Appeal and the Supreme Court?  Should we not pay more attention to how the Judicial Service Commissions perform the function of recommending to the appropriate authorities the appointment and removal of judicial officers into and from judicial offices; and how the NJC generally exercises disciplinary control over holders of such judicial offices?
Are the powers conferred on the CJN as the head of the Supreme Court, and as the chair of the NJC, FJSC, NJI and Legal Practitioners Privileges Committee (LPPC) not too enormous and prone to despotic abuse?  Why should the CJN, under Section 5 of the Legal Practitioners Act, Cap. L 11, Vol. 8, LFN, 2004, be the appointer of eleven members (11) of the fifteen (15) member LPPC that dishes out the rank of SANs to whomsoever the body pleases? Why should the CJN be given the constitutional prerogative and exclusive power to appoint fourteen members out of the nineteen members of the NJC who are the only ones permitted, out of the twenty-three member NJC, to exercise disciplinary control over judicial officers all over the Federation, including fellow Justices of the Supreme Court? How can such bodies so dictatorially composed exercise any modicum of independence against the desideratum, whims and caprices of the CJN? How independent and free of executive manipulation is the FJSC comprising the CJN, PCA,  AGF, CJ of the Federal High Court, two lawyers recommended by the NBA but appointed  by the CJN, and two non-lawyers appointed by the President of Nigeria?  Have we not even reached a stage in which the composition of the NJC, the highest appointing and disciplinary judicial body in Nigeria, ought to be re-worked, such that there shall be no serving judicial officer on it, and such that it shall comprise only retired judicial officers in order that it be able to independently, fairly, competently and credibly perform its constitutional roles?  Will the appointment of the CJN outside the Supreme Court, constituted purely by a tribe of Justices that were elevated through the Court of Appeal to the Supreme Court, bring in any fresh air and provide a quick fix solution to the leadership failure at the Supreme Court and the NJC?
What of how the NJI, under the superintendence of the CJN, discharge its mandates, relating to the promotion of efficiency, uniformity and improvement in the quality of judicial services in the superior and inferior courts, including continuing education for all category of judicial officers and organizing conference for all Nigerian judges: and the issue of probity and accountability in these institutions? If the NJI is discharging its functions creditably well, will its leadership be currently reeling in a crisis of confidence arising from an allegation of perpetration of a large scale corruption, so much so that a Senior Advocate of Nigeria is currently litigating against the continuation of the head of the NJI in office?
The proposed Judicial Reform Commission will seek answers to these and other questions from Nigerians.
To those who may entertain the fear that the Judicial Reform Commission that is being suggested may impinge on and affront the federal principle, since both the States and the Federation have their respective Judiciaries, we beg to differ. The Judiciary in Nigeria is essentially one body, albeit with many parts. All the Courts in Nigeria are either expressly created by the Constitution or allowed to be created by it. Our Courts apply one Law of Evidence and one Sheriff and Civil Process Act. The Criminal Code Laws and Penal Code Laws of the Southern and Northern States are essentially the same and they all derived from the same common origins- the Criminal Code Act and the Penal Code. So also are the Criminal Procedure Laws and the Criminal Procedure Codes of the Southern and Northern States, which all derive from the same origins- the Criminal Procedure Act and the Criminal Procedure Code. 
Nigeria has one Law School and one Bar, where the operators of the Judicial System acquire their professional training and where they practice before they are appointed as judges. The disciplinary process of Judges, at the federal and state levels, is one and the same. The civil procedure rules of the high courts are almost uniform, even before the new requirement of front-loading court processes. All criminal and civil appeals from the high courts in regular matters lie to the same Court of Appeal and from thence to the Supreme Court of Nigeria. Under the doctrine of stare decicis and judicial precedent,  judgments and decisions of a higher court, in the judicial hierarchy, is binding on all the lower courts, when determining the same issue previously determined by the higher court,   irrespective of whether the lower and higher courts are in the same State of the Federation or not. And Nigeria operates a uniform penal system. In these circumstances, a Judicial  Reform Commission, with a broad, national mandate to look at the structural, operational, ethical, funding, staffing and other challenges of the Judiciary,  a Commission which shall seek the constructive views and opinions of retired and serving operators of the judicial system, the legal profession and the public in general, and make recommendations to the National Assembly on how to legislatively remake and revamp the Judiciary, is the most ideal at this point in our nation’s history.
And so, we urge that a new Nigerian Judiciary is urgently necessary. A  Judiciary where our judges are distinguished by their robust legal knowledge, good character and industry and where they are famous for their experience, discipline and integrity. An incorruptible Judiciary. A Judiciary that is not constrained in the discharge of its functions by lack of infrastructure and inadequacy of facilities. A Judiciary where judges guard, jealously, their independence and uphold the rule of law. A Judiciary where chief or head judges  and other judges will not be beholden to the heads of the executive arm of governments and special interests in society for making or influencing their judicial appointments. A Judiciary that is not plagued by the legitimate but disruptive strike-activities of its administrative and non-judicial workforce. A Judiciary where judges are not traumatized by the meager emolument they receive, and humiliated by the paltry retirement benefits and pensions they are paid after their judicial service. A Judiciary that speedily but properly adjudicates all cases that are brought before it within a reasonable time. A Judiciary that will do more in punishing acts of judicial misconduct and cases of blatant acts of corruption on the Bench. A Judiciary where no judge will unjustly give, in favour of any current or former occupant of public office, accused of engaging in corrupt activities, an order of perpetual or life immunity to investigation or prosecution. A Judiciary that will not have to engage in election petition cases for ever, because elections will largely be free, fair and credible; and if judges have to determine election petitions, they will be above reproach, and will not be frontally accused, as it is now very common, of demanding or receiving bribes. A  Judiciary that  re-dedicates itself to do justice between the poor and rich, the high and low, the weak and strong, the powerless and powerful, the unarmed population and the armed forces, the police and the citizens, the people and the government, the employee and the employer, the woman and man, and the young and old.
A Judiciary boasting of judges in whom we trust, even as we continue to trust in God.
       
        Ogunye is Principal Counsel, Jiti Ogunye Chambers, Lagos Nigeria

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