‘Nigeria’s criminal justice system a disgrace’
Prof. Fidelis Oditah is a Senior Advocate of Nigeria (SAN). In this interview, he shares his thoughts on several issues in the nation’s justice system. Excerpts:
What is your take on Nigeria’s civil justice system? My opinion about Nigeria’s civil justice system is that it doesn’t actually work. Often, people say that there is a problem of access to justice, but my own limited experience of the Nigerian civil justice system tells me that the real problem is not access to justice but exit from justice. Cases stay far too long to be disposed of. The civil justice system is set up in such a way that certain procedures are interminable. There is a persistent misuse of interlocutory applications such that you can be embroiled in interlocutory skirmishes for a considerable number of years. But the most annoying aspect of the civil justice system is the widespread misuse of the so-called preliminary objections or the so-called jurisdictional challenges.
Of course in Nigeria’s civil justice system, every challenge, every conceivable defence is levelled jurisdiction, such that they will insist the issue is trashed first before the merits are considered; except proceeding brought by originating summons whereby the court takes the jurisdiction objection with the merit. In all other forms of proceedings, whether based on petitions or based on writ of summons, the jurisdiction is taken first, the ruling is delivered and that becomes a whole new litigation. Whoever loses goes to the Appeal Court and from there to the Supreme Court. And meanwhile, the case itself gets bogged down, because the case would not be tried until the question on whether there is jurisdiction is resolved. And oftentimes, it might take as much as 10 years because it goes from the Appeal Court to the Supreme Court on this same jurisdictional challenge. For many litigants that is just too long, and oftentimes, they abandon the proceedings. It is only very few people who are dogged enough to want to continue with the struggle after 10 years of delays and legal expenses. That is one big aspect that needs to be looked at.
How do we tackle this problem?
It would require the courts having to write new rules which say that just as it happens in the case began by originating summons; these jurisdictional objections should be taken alongside the merit. After all, in most of the civil procedure rules operating in Nigeria, the plaintiff is required to front-load their documents, issue his writ of summons, file statement of claim, file witness statement and submit the documentary evidence which is required. So the defendant who has a jurisdictional objection could file his defence, take his objection and the matter could be tried immediately.
But the Chief Justice of Nigeria gave a practice direction to judges to ensure that they have at least three judgments in a year. Don’t you think this is also a way of fasttracking the process?
I believe that specifying a minimum number of judgments to be written by a judge is like ticking the box; it doesn’t address the substance of the problem. It is a cosmetic solution. If I sit in Osogbo for example and I have between 50 and 100 cases allocated to me in a year and I can write rulings and judgments up to half of those cases, you will say that I am doing very well because I have done at least 50 per cent of the cases. But if I sit in a jurisdiction where I have about 200 cases allocated to me, and I write the same 50, you will say that I have only done 25 per cent of my job. So in percentage test, it looks like I have not done anything. The person who did 25 has done 20 per cent of his 50. I that have done 50 have done only 25 of my own 200.
Don’t you think that lawyers are major culprits in this problem?
Of course, they are the major culprits. Many judges are very lazy. Many of them don’t believe that they can give extemporary. If someone applies to me to amend pleadings for example, I could decide whether to allow it or not immediately and give you reasons for doing so. I don’t have to adjourn for one month to give you reason why the document would be admitted or not. Many judges are incapable of judging, they have no business in the bench.
What of the criminal justice system?
The criminal justice system is a complete disgrace. The prisons are over congested. The criminal justice system simply doesn’t work across board. Why does it not work? Oftentimes, the prosecuting authorities charge so many cases and the judges will tell you that their dockets are full and are incapable of finding time to handle these cases. In the case of minor cases, many people are kept on remand and they stay on remand longer than they would have served if they were convicted immediately. So the criminal justice system is a disgrace and entirely laughable. It has also been hijacked.
Who do you think hijacked it?
It was hijacked by special interests - politicians and rich people! They hijacked it and made it a subject of capture. And it is at every level of decision making. You have to really worry whether the judges understand the law or whether they have been captured by the parties involved in giving some of the erroneous judgments at every level of decision making.
But judges cite authorities before taking their decisions?
You have to ask yourself whether the authorities they cite support what they cite them for. The judges often misinterpret the facts; whether deliberately or inadvertently. And so you don’t actually know where incompetence ends and corruption begins. The issues are more complex and I believe that the process for the selection of judges needs to be looked at.
What’s your view on the ongoing national conference?
I have always been cynical about the national conference. I have always thought that it was unnecessary, that we have more pressing problems. My views in that respect have not changed. I do not believe that the national conference will achieve much. I do not believe that the timing is more auspicious and I do not believe that its agenda is one capable of succeeding. But having said that, I agree that it is good to talk; people have been clamouring for the conference. I do not believe that the conference is the panacea for all our problems. It is not going to solve the problem of corruption for example.
What is your view about the electoral system?
If the electoral process is hijacked and manipulated such that it no longer delivers on the wishes of the people, the result cannot be said to be representative of anybody. In terms of form and substance, there is no difference between a coup d’état and an electoral fraud. In either case, is the will of the people reflected? In one case, governance is obtained by force; the will of the people is vitiated by force. In other case, governance is obtained by fraud; the will of the people is vitiated by fraud. In both cases, there is a vitiating factor, whether it is force or fraud, the result is always the same. That is the challenge that we have and why we all have to be concerned about the electoral process. Unfortunately, in Nigeria the middle class don’t show enough interest in elections and politics. They should! These people who claim to exercise power on our behalf also expend our common wealth. So, in order to reform our electoral process, we must ensure that our electoral system is credible.
How would you describe recent call by INEC for establishment of electoral offender’s tribunal?
That is not the issue. Instead of Nigeria trying to solve its problems, it is trying to create so many specialised tribunals. The problem is not whether it is a special tribunal or not but the slowness with which the course of justice grinds. In other countries such as England, they don’t have special electoral offences courts. If someone commits electoral offence, you take them to regular courts because those courts work. You will get verdict in the time you expect. In Nigeria, the courts don’t work.