Moving Past Worn Rhetoric: Why CJN Needs to Declare ‘State of Emergency' in the Judiciary
This Article by Joseph Otteh and Dr. Adenike Aiyedun, is calling for a declaration of a 'State of Emergency' in the Nigerian Judiciary. It discusses extensively, the need for Judicial Reform, with their nine-point agenda to implement the required reforms
Overhaul Nigeria's Judiciary
At 57, Nigeria's Judiciary ought to have been a stable, strong and vibrant branch of government. But it is arguably not at this time, and a once proud institution now lives in the shadows of its past as it struggles to save a remnant of its tortured legacy. This must be time for sober reflection. But our Chief Justice, Walter Onnoghen, has assured us that the Judiciary will live up to expectation and promises, and it will no longer be business as usual. Our fear, however, and we say this respectfully, is that that language is all too familiar, but more than that, that the actions we have seen so far, are too little, and the time being spent to incubate more changes, are too “business as usual”, to deliver the results we need. We think that more can be done and should be done, to overhaul Nigeria's Judiciary and make it serve Nigeria in ways that meet public expectations of a truly independent institution, that is confident of the integrity of its members, as well as enjoys the confidence of the people it serves.
Time is of the Essence
Nigerians want to see more judicial reforms, executed with more speed and more urgency; we need more traction and more resoluteness, applied to the fight to transform the delivery of justice in Nigeria. We are constrained to worry that the current speed and pace of reforms, is not strong and vibrant enough and not creating the kind of momentum and impetus Nigerians are eager to see, neither is it galvanising change across the landscape, or demanding change from every constituent part of the Judiciary. Undoubtedly, the Chief Justice of Nigeria has a zeal to reform the Judiciary, but stakeholders in the justice system are not feeling the impact just yet. The Judiciary does not have the luxury of time, to enable it stretch a reforms plan over the course of many years, and for an institution in distress, it ought not take too much time either for far-reaching changes to be delivered.
We can look at other African countries to see how their own Judiciaries were revived, and particularly look to Kenya whose Judiciary was the object of much ridicule before 2011. After Chief Justice Willy Mutunga took over as Chief Justice in 2011, he embarked on a far- reaching programme of action to reform the Judiciary; Chief Justice Mutunga did not achieve all his reforms in one day, but he hit the ground running, and succeeded in overhauling a once- maligned institution into a respectable voice of the rule of law and a strong pillar of democracy in Kenya now. Only recently, the Kenyan Supreme Court annulled the just concluded elections and ordered an immediate re-run, as a testament that things are no longer the same in Kenya. It is time to acknowledge that the delivery of justice services in Nigeria is in dire straits, and nothing short of radical “tremors” can revive it back to health. We therefore, urge the Chief Justice of Nigeria to declare a state of emergency in the Nigerian Judiciary now! This will provide a rallying urgency to the change we passionately want now, not later.
There are a number of reforms that may take some time to implement and produce an impact, but there are also others that do not need a long time to berth; they can, and should indeed be initiated now, and where that is done, they can change the dynamics on the ground in remarkable ways. For example, Court delays, at both trial and appellate levels, are not inevitable, and human factors (more than the inherent features of trial dockets), contribute to the prolongation of trials in our courts. There are steps that can address these causes of delays immediately, and we have outlined some below. It behoves the Judiciary, therefore, and we urge the Chief Justice of Nigeria and the National Judicial Council (NJC), to adopt a three phase reform plan that will include programmes to be implemented in the short, medium and the long terms.
A Nine-Point Agenda for Reforms We urge the Judiciary to do the following immediately:
Reducing Court Delays
1.The NJC, should end arbitrary court closures NOW. Many Judges often leave their primary adjudicative assignments, to attend non- adjudicative, ceremonial functions, as it happened in the Federal High Court a few days ago when its Judges left their courts to attend the valedictory ceremony of the out-gone Chief Judge of the Court, Justice Ibrahim Auta. These “no-shows” have huge costs implications on everyone – litigants, lawyers and witnesses (some of whom may have travelled long distances to be in court). They also cause terrible delays in the hearing of cases, thereby creating frustrations for many court users, congestion of dockets, while they diminish public confidence in the administration of justice. Alternative schedules, can be found for non- adjudicatory functions.
2. End the practice of transferring Judges from one jurisdiction to another, before their cases are concluded. Judge transfers take a huge toll on the time for completing cases, and entail many cases starting afresh even where they may have been pending in court for many years, and are nearing completion.
3. Judges' vacation time should also be reviewed. The Chief Justice said Chief Judges of States, have been directed to create special anti- corruption courts. But if Judges of these courts have to be away for about 3 months each year, not counting other “no-show” days, we may not see the expected changes in the time taken to conclude corruption cases. Judges handling anti- corruption cases should not go on extended, court wide holidays as other Judges, but arrange their own individual vacation schedules. There are countries that already do this. This will give a ring of urgency to the anti-corruption struggle, and the role of courts in that achieving that goal.
To Combat Corruption and Strengthen Judicial Integrity, Transparency and Accountability
4. The NJC's Judicial Discipline Regulations 2014 should be reviewed and strengthened now, to enable the Judiciary better fight corruption. The review should enable the NJC, act on anonymous complaints, protect whistle-blowers, collaborate with official anti-corruption agencies, to investigate allegations of corruption and reduce the overbearing evidentiary burdens placed on complainants of corruption, among other reforms.
5. The complaints systems of all courts - lower courts and superior courts - should be effective, robust and dependable. Corruption is a problem in lower courts nationwide, but many States do not have a credible or effective system for fighting corruption in their jurisdictions. The NJC should immediately direct heads of courts in State and Federal jurisdictions, to establish effective disciplinary regulations or guidelines applicable to lower court “Judges” and court staff, and get engaged more robustly in efforts to stamp out corruption from lower courts.
6. Develop a financial disclosure reporting system - used in some jurisdictions where all extrajudicial payments to Judges are self-reported, and Judges submit periodic financial disclosure reports.
Institutional Reforms
7. The NJC has, on occasion, looked away when the judicial appointment guidelines it made were flouted and sidelined. The Judicial Appointment Guidelines of 2014, were intended to strengthen the procedures for appointing Judges, and ensure that we recruit judges from the top drawer. Both the NJC as well as States and Federal Judiciaries, have flouted the letters and spirit of the Guidelines since they were made. The NJC must henceforth, stick to its own rules and not aid their subversion, as well as insist that judicial appointments to lower courts ensure that the best stock is selected, and that States develop judicial appointment guidelines that are transparent, competitive and merit-based. (This duty should be imposed on Chief Judges, as part of their administrative responsibilities of heading courts for which they are accountable to the NJC, while measures to ensure compliance are put in place). We must adopt a bottom-up approach, which requires appointing the best qualified people regardless of ethnicity, language and creed, as well as encourage broader public participation in the screening process of Superior Court Judges.
8. The Judiciary Needs to Build Consensus Around a Vision Statement: The Judiciary should bring stakeholders together, to develop a strategic reforms framework and plan, Now. The plan will represent the Judiciary's vision of how justice services should be restructured in States and Federal jurisdictions, from this time onward. The strategic plan will thereafter, form the fulcrum of our march forward. The implementation of that Strategic Plan, would be benchmarked against clear indices that will be used to measure progress. The Hon. Chief Justice, should create a mechanism to drive the realisation of that vision, and develop principles and measures of accountability across State and Federal lines. This is how a number of Judiciaries around the world, including some African judiciaries - Kenya, Uganda, Malawi, Rwanda, Tanzania, Swaziland and South Africa - have propelled their judiciaries, to deliver change.
9. Finally, to restore public confidence in the Nigerian Judiciary, reforms must target all courts and their leadership administration/management. The NJC, should use its constitutional powers to make broad policy to integrate States into a nationwide programme of justice reform, as well as provide the inspiration for the buy-ins of States.
Conclusion
We agree with the Chief Justice of Nigeria, that things should no longer be ‘business as usual' within the Judiciary, but think that a lot more can and should be done now, to enable Nigerians see and feel that business no longer thrives as usual in our courts. We may be losing time and momentum, in not seizing this opportunity to drive significant changes through. The time to act is now.
"THE NJC, SHOULD END ARBITRARY COURT CLOSURES NOW. MANY JUDGES OFTEN LEAVE THEIR PRIMARY ADJUDICATIVE ASSIGNMENTS, TO ATTEND NON-ADJUDICATIVE, CEREMONIAL FUNCTIONS, AS IT HAPPENED IN THE FEDERAL HIGH COURT A FEW DAYS AGO WHEN ITS JUDGES LEFT THEIR COURTS TO ATTEND THE VALEDICTORY CEREMONY OF THE OUTGONE CHIEF JUDGE OF THE COURT, JUSTICE IBRAHIM AUTA. THESE “NO-SHOWS” HAVE HUGE COSTS IMPLICATIONS ON EVERYONE – LITIGANTS, LAWYERS AND WITNESSES..."