Perspectives on issues in justice sector reform

The just concluded National Summitt on Justice 2024 organized by the Federal Ministry of Justice, in collaboration with other key actors in the justice sector- notably the Nigerian Bar Association (NBA), provided an opportunity for a reflection and introspection on the sundry issues that beset the administration of Justice in Nigeria, with a view to proffering immediate, short, medium and long term solutions towards a justice sector that delivers on its minimum expectation of engendering the principles of rule of law, human rights, social justice and equality.

One might say that the well-attended function is a testament to the progressive mindset that is now writ-large in the office of the Chief Law Officer of the Federation. Having been an excellent advocate, with a thorough understanding of the many issues that attend the justice process in Nigeria, Prince Lateef Fagbemi’s appointment as the Attorney General of the Federation and Minister of Justice by President Bola Ahmed Tinubu was easily one of the most appropriate of the administration. With less than a year in the office, he has clearly shown that he means business unlike some of the recent occupants of the office who it appeared at times, were oblivious of the enormous role it holds in setting and executing an agenda of national birth built on the strong foundations of justice and rule of law.

As the Chief Justice of Nigeria – Hon. Mr. Justice Olukayode Ariwoola, GCON submitted during his remarks at the Summit, “the pursuit of justice lies at the heart of our collective aspirations for a fair and equitable society. It is a fundamental pillar upon which the rule of law rests, and it is essential for the maintenance of peace, stability and social cohesion”.

However, our experience shows that a combination of constitutional, social and other structural factors has congregated to stymie the full potential of the administration of justice in Nigeria. To this end, the theme of the summit: Repositioning the Justice Sector in Nigeria: Constitutional, Statutory and Operational Reforms for Access and Efficiency could be said to have been instructive as it intersects the various dimensions of the issues in the judicial sector.

In this intervention, I intend to highlight, in numbered paragraphs, some of the recurring areas of concern requiring urgent attention from a practitioner’s point of view since we’re in the season of prognostication toward a more efficient and effective justice sector.

Appointment and Discipline of Judicial Officers

Concerns over merit and transparency in the process of appointment of judicial officers have in recent years put the judiciary in a bad light. Make no mistake about it, the office of the judge is arguably one of the most sensitive of public offices as it has the implication of inflicting outcomes that affect the liberty of citizens and also ability to modify the social, cultural and economic status of persons and or corporations. Thus, it is often said that judges must be beyond reproach like the wife of Ceasar – in a manner of contextualizing the pristine moral character required of a judicial officer.

It should be admitted here that even in the most advanced of democracies, political influence in the appointment of judicial officers has become part of the process. A veritable example in this regard is the United States of America where liberal and conservative sentiments shape the selection of judges and/or the constitution of its highest Court. As submitted by the learned author of “Judicial Process and Judicial Policymaking”, G. Alan Tarr on the incidence of the political character of judicial selection in the United States, “different selection systems may affect who exercises political influence, but not whether it will be exercised”.

Now, basic to our understanding of a fair trial are the notions of judicial impartiality and neutrality, or rulings unaffected by political consideration or by the identity of the litigants. However, where the process of appointment of judicial officers is punctuated by external influences and/or prejudice, it raises serious questions for the independence and impartiality of the judex.

There is currently a school of thought that argues that the appointment into judicial offices has become the preserve of children, wives, nieces, nephews and extended relatives of serving or retired judicial officers in Nigeria. The recent appointment of a son to the Chief Justice of Nigeria as a Judge of the Federal High Court and elevation of the wife of a former Governor of Rivers State to the Court of Appeal, amongst many other instances too numerous to explore in this essay, has given fillip to the case of this school of thought, ably led by Prof. Chidi Anselm Odinkalu. Up till today, there has been no official response to this criticism by the hierarchy of the judiciary.

Whilst the jury is still out on whether indeed these categories of candidates fit the bill of their appointments, the optics for the judiciary are not a positive one – and will continue to dent the perception of the judiciary in the public eye.

By and large, the need to overhaul the extant appointment process cannot be gainsaid to improve its transparency-quotient and make it a more merit-based exercise that is shorn of external influences which largely is the case today. Achieving this, would require a downsizing of the powers constituted in the office of the Chief Justice of Nigeria. As of today, the CJN sits as a Lord of the Manor over the superstructure of the judiciary and literally determines who gets what, when and how.

By superintending over the National Judicial Council, Federal Judicial Service Commission (FJSC), National Judicial Institute (NJI) and Legal Practitioners Privileges Committee (LPPC) where the occupant has overwhelming influence, critics have argued that the occupant of such office might become too corrupted with power with implications for the accountability structures of the judiciary. These sentiments received impetus from no less a person than a former Justice of the Supreme Court – Musa Dattijo JSC (Rtd) who took the auspicious occasion of his retirement from the Court to make a strong case for a review of the over-bearing powers resident in the office of the CJN.

On the adjunct issue of discipline of judicial officers, one is inclined to give the National Judicial Council (NJC) a pass mark in this regard. The Council has clearly shown its zero tolerance for all forms of misconduct by judicial officers where petitions sent to it are found to be meritorious. But this is not to suggest in the least, that the judiciary as presently constituted is rid of all its bad eggs. Many judicial officers have the tendency to show their hand in political cases through an assumption of jurisdiction over matters clearly out of their territorial jurisdiction and/or issuance of controversial interim orders that make a mockery of the judicial process. This practice, has, to some extent been checkmated by the Federal High of Nigeria (Pre-Election) Practice Directions 2022, hence the reduced incidence of it during the last election season. It is our closing submission thus, that given the exclusive disciplinary powers of the NJC under the 1999 Constitution of the Federal Republic of Nigeria (“The Constitution”), the need for it to consolidate its disciplinary jurisdiction over erring judicial officers remains non-negotiable.

Re-thinking the Structure

No institution carries the burden of the fallout of our unitarist federal structure than the judiciary. This anomaly rears its head prominently in the appellate process – a situation born out of the Judicature Act in the Constitution. Whereas States are supposed to be autonomous and independent from the Federal Government, in matters over which the States could legislate, we currently have an unhealthy situation where appeals bordering on the most trivial of matters emanating from the States go all the way to the Supreme Court of Nigeria by dint of the provisions of Sections 241(1) and 233 of the Constitution.

For our Supreme Court to be indeed Supreme, we cannot afford such luxury. I think our democracy has matured to a point where the States should have their own appeal courts to hear appeals over issues arising from their States whilst only sensitive constitutional matters or hard questions of law and foreign policy that affect Nigeria as a sovereign entity get to be decided by the Supreme Court. I have argued elsewhere that in this year of our Lord, our Supreme Court should not entertain appeals over landlord and tenancy matters, declaration of title to land, debt recovery, or other everyday commercial transactions that emanate from the States. This is the American model, and for a country that mirrors the United States of America in size, structure, population and many more, I think it is an option we must now seriously consider.

Judgment Enforcement

Judgment enforcement lies at the heart of the adjudicatory process. The whole essence of going through the arduous process of litigation or arbitration is to be able to realize the fruit of victory. Where the enforcement process becomes strewn with hurdles, it leaves a judgment creditor with an empty judgment and further creates a culture of impunity by government, individuals and corporations. Worse still, it disincentivizes the resort to court as an effective and efficient agency of dispute resolution. Already, the implication of this is being felt in the tendency of persons to resort to unconventional platforms for dispute resolution such as the police and allied law enforcement and in some cases, ‘voodoo justice’.

Of particular concern in this connection, is the requirement under the Sheriffs and Civil Process Act for the consent of the Attorney General of the Federation or State before attaching public funds due to the State or Federation in a garnishee proceeding. This stipulation – a vestige of our colonial heritage, is a technical way of defeating legitimate claims in judgment enforcement against the State for obvious reasons. In an environment where political loyalty if not sycophancy rings loud, waiting for an Attorney General of the State or Federation – to give such consent, only compares to waiting for Godot in Samuel Beckett’s seminal fiction. I think it is high time this stipulation is removed along the lines suggested by the President of the Senate – Dr. Godswill Akpabio in his remarks at the summit that is to say, the institution of a fund by the Attorneys General for settlement of judgment debts where the State is not minded to pursue an appeal; which judgment sums must be paid within a 30-day period upon notice of such judgment debts.

Acknowledgments are due to the judiciary for setting the pace for this paradigm shift in the case of CBN v Interstella Communications Ltd & Ors. (2017) LPELR-4394(SC) where the Court for the first time, modified the law by creating an exception to the consent stipulation in cases where the Attorneys General are parties and/or participated in the arrival to a parties-driven out-of-court settlement. That laudable feat now deserves legislative teeth and it is hoped that the National Assembly rises to the occasion.

The challenge of enforcement of judgment is however not limited to judgment debts against the State, it extends to other categories of enforcement options such as writ of fifa, writ of possession, warrant of possession etc. The often-convoluted processes and bureaucracy that characterize these streams of judgment enforcement can be frustrating even to legal practitioners much less the litigants who are not trained to understand the intricacies. These are matters over which the Heads of Courts in their respective domains should issue practice directions that meet the exigencies of today. A successful litigant should not spend a minimum of seven years at the High Court (where there is no appeal), and then spend half the number of those years to reap the fruit of his or her judgment.

Access to Justice

An essential instrument for the protection of human rights is access to justice. In its most elementary sense, it suggests the availability of courts with public access for dispute resolution and/or criminal prosecution. In this sense, it could be said that the country is well connected with a network of both federal and state courts available for service to an ever-growing population. The establishment of new divisions of the National Industrial Court as well as the Court of Appeal across many state capitals could also count for deliberate efforts in bringing justice to the doorstep of the populace.

However, beyond the physical sense of Court infrastructure, the dream of access to justice in its real sense remains distant and forlorn for other reasons. Notable in this regard is the snail pace of adjudication across our Court system. As of today, a civil action on breach of contract takes a minimum of seven years to be resolved. If it gets on appeal, it takes another five years and when it gets to the Supreme Court, eleven. On the whole, it could be said that the average life cycle of civil cases in Nigerian Courts is 23 years. Their criminal counterparts fare better with an average life cycle of eleven years across the three layers of our Judicial structure. A combination of a backlog of cases and inadequate judicial personnel has conduced to this outcome thereby making access to justice a scarce commodity. Added to the pressure put on the Courts to determine time-bound election cases, it thus emerges that our court system as we have it today only exists to satisfy elite interests at the expense of the common masses.

It has been advocated ad nauseam for special courts to be established with the specific mandate of determining election cases, with the judicial personnel drawn from retired judges of the High Courts where they’re still mentally and physically sound. This would serve the double good of efficient and time-effective adjudication. Another proposal on the table is to appoint more judges to our Benches as the quest for justice continues to fill the dockets of our Courts. All of these proposals are not without their drawbacks and positives. Thus, a careful balancing act is advised to achieve a synthesis that best guarantees the outcome that suits the urgency of now.

The Appellate System

Central to a court-based adjudication, is the opportunity of judicial review. Jurisprudentially, platforms for judicial review exist as an in-built mechanism to guarantee justice by subjecting the decision of a lower tribunal for review, by a higher body with a view to ensuring that the issues of fact and law constituted in the individual case, were properly resolved. Without prejudice to the reforms proposed around restructuring of our Judicature Act, it must be stated that the right of appeal donated by the constitution has come under serious abuse by both counsel and litigants. Of particular concern in this regard, is the right of appeal against interlocutory orders of a subordinate court.

In a long chain of cases, it has been admonished of counsel and litigants not to resort to frivolous interlocutory appeals that only serve to put enormous pressure on the judicial system, except in very rare exceptional circumstances. This admonition has seldom been heeded by counsel, unfortunately. This, however, may not be unconnected to the absence of a legislative framework proscribing the practice.

In the same token, whether the Supreme Court should receive appeals arising from pure issues of fact alone, is a jurisprudential question that we must strive to resolve at once in order to decongest the dockets of the Supreme Court. Achieving this would require an amendment of the Constitution to delete Section 233(2) thereof which currently accommodates that right. The reason is not far farfetched: our Supreme Court must be a Court saddled with pure issues of law in the reasonable expectation that issues of fact or mixed fact and law would have been seriously laid to rest at the two courts below it. I am happy that some of these sentiments were echoed by the Senate President at the summit, to the extent that they require alterations to the Constitution to achieve the proposals suggested.

Remuneration and Welfare of Judicial Officers

Considering the nature of the office of a judge, attention to the welfare of the occupants of the office is critical in achieving the expectations of neutrality and impartiality that the office demands. Credit must go the President Bola Ahmed Tinubu’s administration which has made three instructive commitments towards enhancing the welfare of serving and retired justices of the Court. By ensuring a full complement of the Supreme Court Bench earlier in the year to 21 justices; signing into law the Fifth Alteration to the Constitution (No. 37) which has ensured uniformity in the retirement age and pension rights of all judicial officers of superior courts of record and efforts towards enhanced salaries and allowances for judicial officers, there is a sense in which it may be said that the age-long clamor for improvement in the welfare of judicial officers is receiving a much-welcome nod, even as so much more remains to be done. I only need to add that similar attention must be extended to magistrates, customary court judges, khadis, and other forms of personnel involved in the business of adjudication at the state level.

In discussions around improving the quality of our justice sector, we often forget this category of officers and the fact that they are even closer to the people and engage in no less a mandate than judicial officers of superior courts of record. This responsibility squarely rests on the State Governors and it behooves branches of the Nigerian Bar Association across the states as well as civil society organizations to mount pressure on the governors with a view to negotiating a fair bargain for this sub-category of judicial officers in its loose sense.

Digitization and Innovation

It is safe to say that as far as digitization and innovation go, our judicial and adjudicatory process is still very much in the stone age. In a 21st-century technology-driven society, there is no excuse whatsoever for the processes of our court system to remain the way they are today. The current analogue system which holds sway is not only a recipe for corruption, it hampers the wellbeing of judicial officers and further constitutes a factor in the slow pace of adjudication. Except for the National Industrial Court which has demonstrated a commendable commitment to leveraging technology in its processes, other courts in our court system continue to play catch up.

Images of judges taking proceedings long-hand; the requirement of transmitting voluminous pages of records of appeal; manual filing and payment system; in-person court hearings e.t.c, only portray an adjudicatory system lost in time and must give way to a new way of doing things.

The Lagos State High Court has shown a great example by full implementation of the digital filing system both in the State High Court and in the magistracies. Other States of the federation should look to the example of Lagos in achieving a digitization policy in their filing system. For their own well-being, we understand that some judges have had to personally procure the services of stenographers for their own court to assist in the recording of court proceedings in real-time. These concerns go to the issue of funding of the judiciary on the one hand, as well as accountability in the management of funds allocated to the judiciary which has seen commendable increment in recent years. By and large, the point is that to leapfrog our judicial sector for more efficiency, technology and digitization constitute a non-negotiable desideratum.

Training and Discipline of Non-Judicial Staff

The support system that non-judicial staff provide to the entire architecture of adjudication is often not spoken well enough. Our courts will barely function without a suite of non-judicial staff in the form of registrars and clerical staff to whose credit the administrative arm of the judiciary revolves. But what you find is that some of these staffers have become something of a god unto the system. It is so bad that even judges, litigants and counsel are now at the mercy of this constituency. For the most part, they are ill-trained and tend to be set in their ways. They interpret the rules of court according to their own understanding and foist their jaundiced interpretations on both counsel and litigant. Take for instance: whereas the court of appeal rules mandate that only 10 copies of the record of appeal should be transmitted by an appellant, however, the appeal sections of the High Court of the various states compel transmission of no less than 15 copies of often very voluminous records of appeal, at extra cost to litigants. In a particular division, that must not be named here, I learnt with great disgust, that appellants are made to compile as much as 22 copies of a record of appeal in total breach of the provisions of Order 8 Rule 3(1) of the Court of Appeal Rules, 2021.

Further, a culture of extortion, euphemistically described as “mobilization” has become a pastime of some of these non-judicial staff, thereby projecting a negative perception of the judiciary as an institution. It is something of a miracle to go through their service without being blackmailed or cajoled to part with a tip.

There is also the very disturbing issue of lack of discipline and little training of non-judicial staff to enhance accountability on the one hand and to equip them with relevant skills for high-impact performance. Overall, the point being made is that perceiving the improvement of the justice sector only through the eyes of judicial infrastructure and well-being of judicial officers represents only a part of the whole. Given the comingled role of judicial and non-judicial staff in the complex whole that is the adjudicatory system, deliberate steps must be taken to instill discipline in the ranks of non-judicial staff and also optimize capacity building to abreast them with the proficiency required in their job for today’s realities.

The Role of Legal Practitioners

As one of the primary stakeholders in the justice sector, the role of lawyers can hamper or positively affect its performance. Two major allegations against lawyers have been one of facilitating the corruption of judges and also ill-advising their clients on the state of the law vis-à-vis the facts constituting a grievance. The latter manifests itself inter alia, in a win-by-all means syndrome thereby leading to resorting to unconventional means to achieve ‘justice’ for litigants.

Recently, a senior lawyer in one of the most prestigious law firms in the country was debarred by the Legal Practitioners Disciplinary Committee (LPDC) for a most abhorrent case of influence-peddling targeted at influencing judicial outcome.

Many lawyers interestingly are of the view that the victim’s conduct, in fact, represents the norm these days. In fact, it is the case today that certain lawyers and law offices attract juicy briefs not on account of their mastery of law, but on their ability to ‘reach out’ to the judge to broker favorable outcomes at a fee. These and many more dimensions of this obnoxious practice too numerous to exhaust in this piece, constitute barriers to achieving the reforms we collectively seek in the justice sector. It is heartwarming that it formed part of the last panel session at the Summit on the theme: Discipline at the Bar and on the Bench- The Case of Enhanced Disciplinary Powers, Performance, Management and Court Monitoring and it is hoped that the lessons therefrom will not be lost on the Bar, as a polity.

Conclusion

As Professor Wole Soyinka rightly observed in a seminal work, justice is the first condition of our humanity. It is so important in the attainment of an egalitarian society so much that where it is lacking, the foundations of anarchy and bestiality are erected. Achieving a society anchored on the timeless principles of respect for human rights, rule of law and social justice, requires a truly independent and impartial judiciary acting as the bulwark of the civil liberties of citizens. Against this backdrop, the recently concluded National Summit on Justice 2024 is a welcome response to the issues militating against a more efficient justice sector in Nigeria. But it would be illusory to suggest that some of the bold ideas espoused at the Summit were just being articulated for the first time by the esteemed panel of experts and audience. Most of the recommendations at the Summit have been re-echoed ad nauseum at various for a without steps taken towards their implementation. Indeed, only two years ago, the Olumide Akpata-led NBA and the Justice Research Institute in collaboration with the National Judicial Council and other stakeholders in the justice sector organized a similar summit with the theme: “Devising Practical Solutions Towards Improved Performance, Enhanced Accountability and Independence in Justice Sector” targeted at prescribing practical and actionable solutions to problems in the Nigerian Justice Sector.

A quick look at the communique issued after the summit reveals a striking similarity with the deliberations at the summit under reference in this essay and which are bound to form part of the communique to be issued by its organizers. The point thus emerges that our problem has never been the lack of ideas or proposals to move our society from where it is, to where it can be. Rather, it has been one of lack of will-power to implement reforms that strike at the heart of the deliverables we seek.

The Honourable Attorney General of the Federation knew well to assure delegates that the Summit would not be another routine talk-shop but one to be followed with an immediate plan of action to achieve the robust proposals made. It however remains to be seen whether those words will be matched with action in the weeks and months to come, as we continue to negotiate the actualization of a justice sector that is fit for purpose.

A Lawyer and Public Interest Commentator, Nkannebe can be reached via [email protected]