Nigeria’s Judiciary Must Renew Itself in 2018
IIntroduction t’s 2018, and as we settle into the year, we are reminded of unsettled business, unmet expectations, and deferred hopes of the previous year, which now bear with us into this one. Section 17(1) of our Constitution says that the social order of our State, is founded on ideals of Freedom, Equality and Justice, and that in pursuance therefore, the independence, impartiality and integrity of our courts as well as easy accessibility thereto, shall be secured and maintained. Until our justice system is able to function within these principles, and guarantee easy access to justice, we will continue to hold out hope, that someday, it will be well with us.
There is not much to celebrate at this time, and Nigeria’s judiciary is still seething from old, chronic pains. This period in our Judiciary’s history, has provided strategic opportunities to reinvent the institution of the Judiciary, and confront deep-seated cultures of inefficiencies and complacencies that ensnared our Judiciary for so long and brought it much reproach. How much have we utilised the opportunities?
In the last year, the Judiciary has revised the Code of Conduct for Judicial Officers, plugging some loopholes in the pre- existing version of the Code; the Chief Justice of Nigeria has also has instituted a Committee that is monitoring corruption cases around the country and ensuring that the cases are proceeding speedily. The CJN constituted a Committee to propose judicial reforms, and that Committee has finished its assignment. The question is: have we, overall, put our best foot forward in tackling the challenges and seeking out enduring reform? Added to that also, is this: are there outcomes that show improvements at this time? The overall picture, we could painfully opine, still appears dismal at this time.
What has changed? As we enter 2018, the administration of justice landscape remains nearly as parched, and the business culture of the courts remains, in many instances, just as debilitating and unsuited for the 21st century economy and civilisation in many respects. Corruption happens in courts, and it accounts for, as many have said, a major reason for delays. Inefficiencies created by courts’ own staff and processes – as well as others - cause many frustrations for court users, whether they relate to filing processes, getting them served, applying for records or getting fixtures for hearings.
Court dockets still progress at their accustomed pace and rhythm. Courts sit today, and tomorrow, the Judges are not sitting for one reason or another. Backlogs are increasing, and even the Judges are overwhelmed by their sheer volume. Given that the Nigerian judiciary is in an undeclared state of emergency, perhaps one will be permitted to hunger for a transformational programme that grates the entire judicial system to its very foundation, reboots and refreshes the entire approach to providing access to justice, and doing so with the “urgency of now”! That is yet to come.
Our peculiar challenges are, we are persuaded, not of the ramifications that will be resolved by a magic bullet, or a set of interventions that target the effects and not the causes, or limit themselves to an insular portion of their overall spectrum. Justice delivery processes and personnel performance, are organically linked to one another. If a Judge is ready to adjudicate on a case and the other party was not served because the court bailiff had not done his or her duty, the case will not proceed. And vice-versa.
Therefore, transforming the delivery of justice services, will require a broad and interactive regimen of actions able to redress the range of pathologies debilitating the justice system.
Let’s take for example, the idea of a Committee of estimable jurists, to monitor the speed of trial of corruption cases. If we manage to get corruption cases moving speedily, we may have done well, but, how about other cases? It’s the preponderance of these other ordinary cases, that often tilts public judgement of the justice system! Should we let these other cases, languish in the purgatory supervised by the law courts? Would we have strengthened our justice system institutionally as a result of the intervention of this Committee? If this Committee’s assignment is time- bound, what happens to the speed at which courts adjudicate corruption cases at the end of the Committee’s assignment? Is there another way to hold Judges accountable for the timely resolution of all filed cases, that is rather driven by a system capacitated and strengthened enough to ensure that all types of cases are resolved without attendant delays?
What is needed? We need a sharper, rounder and keener transformational vision to revive the true spirit of the Nigerian judiciary and win back the trust of the people, as well as realise the lofty aspirations of Nigeria’s constitutional charter obligating us to ensure an independent, impartial judiciary, and guarantee effective access to justice. We need a burning commitment to push such a vision. As Vice-President Yemi Osinbajo said at the swearing in of the current Chief Justice of Nigeria, this is “...a time, when, my Lord and Justices of our Courts, are called upon to resuscitate that confidence that the people of this nation want to have in the institutions of government and indeed, in the judiciary.
What then holds us back? Do we lack the means to be on our front foot to restore Nigeria’s broken justice system? Have we lacked the resources to mount a good fight? Those who have responsibility to manage the crisis have not attributed the pace of our progress to the scarcity of funds, which had been a very handy excuse in the past for the Judiciary’s poor performance. The Judiciary’s budget has seen a significant improvement in the last couple of years, and the Federal Government has pledged to support the Judiciary’s efforts to while. We cannot find much justification on that front.
What is it then? We think there is a gap that needs to close. Nigeria needs a judiciary that is made accountable to the Nigerian people, and a leadership that is accountable for its stewardship. This is lacking at this time. Unlike other branches of government, we do not have any means to appraise the
performance of the judiciary, enforce a demand for good governance within it, and change its office holders who we think have performed below par. Once appointed, judges enjoy office until retirement, exceptions made for bad conduct and incapacities: While the independence of the Judiciary is a good thing, any framework that confers power without accountability is faulty, and not a sustainable framework for progress. Our judiciary does not report to the legislature or the executive – or even the people. Our framework does not obligate the Judiciary to create innovative solutions for everyday justice problems – it only permits it to, if it wants. And if it demurs, that’s it for us, but not for it. We need to change this paradigm, as it does not serve us well. Too much independence is not such a good thing after all.
Who is needed? Justice reform is not a function of court administration alone. Courts are now making far-reaching judicial reform policies straight from the Bench, and this is a development we must also explore. Recently (2016) in R v Jordan, the Canadian Supreme Court revised and set down new timeframes within which the State (Crown) must conclude criminal cases. The court held that, delays in concluding the prosecution of crime suspects that exceeded 30 months were presumptively unreasonable and, with it, terminated criminal proceedings against the accused whose trial had exceeded that limit. In the aftermath of the ruling, the State dropped charges against other suspects whose trials had exceeded the ceiling set by the Court, forcing the Crown to change the way it works. This decision triggered the “search for solutions” as “..the justice system is being shaken to its foundations” said one publication. The Court said that the Canadian justice system, has a "culture of complacency and delay", and took part responsibility for that fault. The Supreme Court held that, participants in the justice system prior to that case, were not “encouraged” to take “preventative measures to address inefficient practices and resourcing problems”. Courts in India have undertaken many similar reforms from the Bench. We too, can judicialise policies of reforms to help transform our justice system. All hands, therefore, need to be on deck.
Conclusion Former Indian Supreme Court Justice, Krishna Iyer, railing against the Indian Judiciary’s outmoded judicial system at that time had said: “A functional close-up shows that the court zigzags towards its goal, faltering and floundering, and condemned to fail without radical restructuring, socially sensitised engineering, modernised methodology and perspective-based recruitment policy. Ballyhoo about issues like delays in disposals, docket backlog, long arguments, expensive and dilatory litigation, vagarious judgements and what not, are the syndrome to cure which are needed deeper diagnosis and daring remedies. At present, the Justice Process is iatrogenic, and breeds added injustice.”
This is true for the Nigerian judicial system as well. But, like India, we can begin to do more to repair this broken system.
Joseph Otteh, Executive Director, Access to Justice