The Unsatisfactory State of Our Justice System (5)
Access to Justice: Where are the Lawyers?
In this fifth, in a series of write-ups on the unsatisfactory State of our Administration of Justice System, Olawale Fapohunda and Onikepo Braithwaite, write that the legal profession should take an active part in justice sector reforms, by understanding the nature of the problem of access to justice and in striving for the solution. They argue that to do this, the profession will have to innovate and be more sensitive and responsive to the needs of Nigerians
IMeaning of Access To Justice
n a previous editorial titled ‘Saving the NBA from itself’, this Page, decried the dominant role of politicking in the governance of the legal profession. We said that, the frenzy over who leads the Nigeria Bar Association and the bitterness that often accompanies Bar elections, has led to the weakening of the role of lawyers, in facilitating and providing leadership to critical reforms for the transformation of our justice system. We said that if this continues, it would be not just to the detriment of the profession, but also to the detriment of our justice system. We identified Access to Justice as a key intervention area for the legal profession. Access to justice is a ‘catch-phrase’, that has been the subject of much discussion and debate. We define “Access to Justice” as Nigerians being able to engage with the justice system and make use of it, in a way that is accessible, meaningful, affordable, and understandable.
The Unmet Need for Legal Representation
The ideal that lawyers work to ensure that all can enjoy the benefit of the protection of the law, including those who are vulnerable by reason of limited means, limited education, their minority status or their gender, has long been a talking point within the legal profession. Regrettably, there has been too much talk, and not enough action.
The unmet need for access to justice has led, among other things, to an increase in the number of unrepresented poor and indigent litigants. No one can reasonably suggest, that we do not have enough lawyers in Nigeria. What we have is a tragic situation of too few lawyers working in the public interest. The legal profession has to help meet that need, if it is to retain the central position it now has in our justice system. If the profession is unable to provide that representation, it will not be long before the question is asked: ‘Why do we need lawyers?’
The Image of the Legal Profession
The process of political and social transformation in Nigeria, challenges lawyers in terns of the services they provide to the public. Lawyers have a strong influence, on how the public sees the justice system.
Our current reality is that, the public perception of lawyers and the justice system, is at low levels. The fact is that, majority of our people do not really understand the role of lawyers and the workings of the legal system, so they easily believe that lawyers are there only to serve the interests of the rich and powerful. Nowhere is this stereotype more pronounced, than in the discussion around the anti- corruption measures of the Buhari administration. It would seem that for most Nigerians, persons accused of corruption, should not be afforded legal representation.
This narrative needs to be reversed. The legal profession, should do more in terms of public education on the workings of our criminal justice system. Nigerians should know that the constitutional doctrine of ‘innocent until proven guilty’, is an important pillar on which our justice process lies. Nigerians, should also be aware of the systemic failings of our criminal justice system. That defence lawyers and Judges only come in at the end of a process of investigation, arrest and prosecution. Poor investigation and the absence of effective prosecution tools, including prosecutors who work under challenging conditions of service, are important obstacles to prosecuting corruption. We say this, without prejudice to the need for the legal profession, to respond to citizen’s perception that lawyers are only interested in representing high fee paying person’s accused of grand corruption. This perception gives the impression of a profession that is selfish, self-centred, and has lost touch with the concerns of Nigerians. It will be good to see Senior lawyers in their hundreds, representing some of the more than 40,000 awaiting trial persons in our prisons, many who have spent upwards of five to ten years awaiting trial, or poor individual communities, who are frequent victims of official highhandedness.
An Agenda for Self-Appraisal
There is broad consensus, on the need for the transformation of the legal profession. To achieve this in concrete terms, it is desirable that the profession urgently commences a process of internal self-appraisal. We suggest a number of practical ways of achieving this.
A New Vision
The current situation, where succeeding Presidents of the Bar Association, present the agenda for their tenure, as the agenda for the legal profession, is as unimaginative as it is unsustainable. There is the need for a new vision for the legal profession, that goes beyond electoral circles and fanciful lately meaningless terminologies.
We propose a Ten Year Strategy, for Transforming the Legal Profession. We need to change the way that persons who go into the legal profession, are educated and trained. We need to make sure that the legal profession, has some understanding and appreciation of the socio- economic and political situation of the many different people in Nigeria, particularly in terms of their gender, culture, disability, and religion. We need to make sure, that the legal profession can respond properly to the legal needs of all the people in our society, particularly the poor and vulnerable. Most importantly, we need to review the way that the legal profession works, and develop policies to protect people who use it and to make it fully accountable to the public.
The new vision, which we propose for the legal profession, is one that reflects basic constitutional ideals. The legal profession, should strive to achieve a system of justice that will - provide fair and equal access to justice for all Nigerians, regardless of their race, gender, marital status, ethnic or social origin, age, economic status, disability, religion, belief, culture, language or any other attribute; and ensure justice processes that are fast, effective and as cheap as possible. They should also be sensitive to the needs of all users, and understandable to all users.
Pro- Bono Service
Fundamental to the new vision we propose, should be a requirement that lawyers must provide pro bono services. Despite the adoption of a ‘Pro Bono Declaration’ for the legal profession in Nigeria, there is currently no focus on facilitating access to the courts for those unable to afford legal representation.
There has been a never-ending debate, on the nature of pro-bono services that is expected from the legal profession. Many lawyers have been vocal in their objection, insisting that given the current economic realities, the profession cannot be required to do so much for free. We are unable to agree with this reasoning. Practicing in the public interest, is the proper conduct for a profession sworn to uphold the rule of law. Public service, is one of the defining characteristics of a profession, certainly of the legal profession. And more than that, if the profession wishes to retain its preferred status before the courts, its exclusive right of audience, then it must show that the profession continues to lie at the heart of interventions, which strive towards providing access to justice to all.
Justice Sector Reforms
The ability of the legal profession, to contribute effectively towards transforming the administration of justice system, depends in large measures on the willingness of governments at the Federal and State levels, to support reforms in the justice sector.
In our previous write-ups, we have expressed frustration about the lack of progress with important reforms in the justice sector. From the judiciary to the police and the prisons, the inability of successive governments to undertake systemic reforms, has been disappointing.
The challenge before the leadership of the legal profession, is to generate an understanding of the need for change among key role players. The legal profession must now revisit its relationship with Federal and State Governments, specifically as it relates to reforms in the administration of justice. The Bar Association has till date, adopted a ‘constructive engagement’ approach, in dealing with Government on important reforms in the justice sector. Current realities, call for a change in approach from ‘constructive engagement to ‘aggressive engagement’. This means using all the tools at the disposal of the profession, to place concerns about the justice system at the top of national agenda.
“....Legal practice has an important context not shared by other occupations. Lawyers have a special position in society, not because they are loved or because they are particularly admirable people, but because they are responsible for the rule of law.” .... Lord David Neuberger, President, Supreme Court, United Kingdom
"NO ONE CAN REASONABLY SUGGEST THAT, WE DO NOT HAVE ENOUGH LAWYERS IN NIGERIA. WHAT WE HAVE, IS A TRAGIC SITUATION OF TOO FEW LAWYERS WORKING IN PUBLIC INTEREST"