Special courts and their place in the constitution

Recently, the Chief Justice of Nigeria (CJN) Justice Walter Nkanu Samuel Onnoghen, at a special session organized to usher in the 2017/2018 Legal Year and to swear in 29 new Senior Advocates of Nigeria, ordered Chief Justices to designate at least one court in their jurisdictions as special court solely for the purpose of adjudicating on corruption and financial crimes cases.

First of all, let me state that Justice Walter Onnoghen is a great patriot, who is concerned about riding the judiciary and Nigeria of corruption and corrupt elements. It is also apt to state that corruption, ethnocentricity and religious bigotry are easily the worst enemies, the bane, of the socio-economic, political and cultural development of Nigeria.

I also think that stiffer penalties need to be meted out to anyone found guilty of corruption and brazen nepotism.

But as much as the CJN did well by the proclamation, we must note that all the courts of superior record in Nigeria are established by subsection (5) of section 6 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). Subsection (4) paragraph (a) of section 6 thereof allows the National Assembly and State Houses of Assembly to establish courts other than those established by subsection (5) of section 6, provided such courts have subordinate jurisdictions to those established by section 6 (5). It would be clear from the foregoing provisions that only the Constitution and Parliament (Federal or State), not the CJN, Federal or State Chief Judges, can establish a court (of superior or inferior record).

Section 36 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) stipulates, inter alia as follows: “In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.” Please, note the phrase “…by a court or tribunal established by law…” Section 46 (1) of the 1999 Constitution unequivocally provides that “Any person who alleges that any of the provisions of this Chapter has been, is being or likely to be contravened in any state in relation to him may apply to a High Court in that state for redress.” No CJN or Chief Judge can change that or any provision of the constitution by denuding a particular High Court “within the jurisdiction of a Chief Judge” of powers conferred on it by the Constitution. Under subsection (2) of section 46, a High Court shall have original jurisdiction to hear and determine any application made to it in pursuance of this section…” That is the command of the uncommanded commander! It would, therefore, be the height of unconstitutionality for a Chief Judge to single out a particular High Court to try only corruption cases. You either establish new special courts or tribunals, subject to the provisions of section 6 (4) (a) or you leave the existing courts severely alone with their constitution-given jurisdictions; otherwise, you would be amending the constitution unilaterally.

The CJN should encourage the state and federal Chief Judges to computerize their court systems and give a time limit to the trial of corruption and financial cases, stipulating a more emphatic order in the practice and procedure of courts than is given in section 142 of the Electoral Act, 2011, that every corruption and financial matter must be given not just accelerated hearing and have precedence over all other cases but should be concluded within a specified time. He must then warn lawyers, through the NJC, against frivolous adjournments, otherwise, the CJN may have to import, into the “special courts”, some strange beings from the outer-space! “Special courts” should have no place in a democracy.