Judicial problems, judicial graft and judicial cleansing
As a matter of fact, the Judiciary arm of government is responsible for interpreting the law of the land, while applying it in situations where they are necessary; this makes the job of the Judiciary a very critical one. The law of the land constitutes the bases upon which judgments are ruled; it is therefore fundamental that its interpretation and application be carried out with absolute alacrity and meticulousness. The Nigerian Judicial System comprises of ‘the Body of Benchers’ and ‘the Bar’ itself. The Body of Benchers is a collection of the highest ranking legal practitioners in the country which is headed by the Chief Justice of the Federation. It also has as its members the respective Chief Judges of the States of the Federation and certain very reputable lawyers in the country, whereas the Bar is a body of all the barristers in the country. These together constitute the ‘Nigerian Legal Class’. The Nigerian Judicial System has come a long way, taking its origin from the colonial era. It was saddled with the responsibility of checking the activities of the Executive and Legislative arms of government. The Judiciary as a matter of fact, plays a very vital role in the development of the country considering the fact it is the mechanism that oversees to the usage and management of power in the country. If the power that is vested on the Executive and Legislative offices is not checked, the bulk of the citizenry will have lots of troubles and challenges to contend with.
The primary responsibility of the Judiciary is to ensure that the Executive and Legislative arms of government function within the ambits of the constitutional provisions made available to them. The Judiciary ought to stand isolated while performing its constitutional duty. It does not need any interference from the Executive or Legislature in carrying out its primary assignment. It operates independent of any external disturbances and functions with the constitutional power vested in its office. The Nigerian Judicial System has had lots of challenges to contend with. During the shambolic military era, the Judiciary was subjected to abject emasculation to the extent that it lost the substance to its name and only existed as a nomenclatural entity. To say the least, ‘the Judiciary sank into oblivion’. But with the advent of democracy came an organized political façade that accorded the Judiciary its rightful place as the watchdog of the polity. The importance of the Judiciary in any political system cannot be over-emphasized, hence the constitution provides for its absolute independence to enable it perform its sacred constitutional function without sentiments and reservations. In essence, the Judiciary is not answerable to any of the other two arms of government (Executive and Legislature) and reserves the veto power to speak for and foster the legal mandate of its jurisdiction. Let it be made point-blank that any political system without an effective and pro-active judiciary will show impinging signs of anarchy and chaos. That means, the absolute success and well-being of any political system is very much dependent on the efficacy of its judicature.
While trying to deal objectively with this topic so that all the facts that pertain to the present status of the Nigerian Judicial System are thoroughly highlighted, we shall be looking more at the lapses and current achievements of the entire system so that at the end, we would have treated the topic extensively in an unbiased light and to a conclusion where pragmatic measures for attaining a world judicial status are laid bare. The Nigerian Judicial System as far as its historical background is concerned, started out on a very excellent platform because during the colonial era when the British Government was desperate about establishing its ‘modus operandi and ethics of excellence’ in Africa, it had to ensure that everyone who must stand in the British Court to either advocate or solicit in any case must have received the optimum training from England on the rudiments and entire provisions of the English Law. And of course, the English Law was then the benchmark for determining the substantiality and authenticity of any other law or legal regulations.
The judiciary as an arm of government is very important but in Nigeria it is bedeviled with serious setbacks chief of which is corruption. As an arm of government, the judiciary is perhaps the most important, being the famed last hope of the ordinary man. The average citizen, dissatisfied with the actions of both the Executive and the Legislature, as well as with other citizens and institutions, has nowhere else to go and seek redress, except the judiciary, the former Chief Justice of Nigeria, Justice Mariam AlomaMukhtar, pointers to the rot that has persisted over the years; and which requires urgent cleaning, in the judicial system. Like other spheres of national life, the temple of justice is tainted.
It would be recalled that, the 2014 Conference of All Nigeria Judges of the Lower Courts organized by the Nigeria Judicial Institute (NJI) provided a useful platform for Justice Mariam AlomaMukhtar and Justice Mahmud Mohammed, to beam the searchlight on the sector once more. Justice Mukhtar pointed to the spiraling impunity of public officers to judicial pronouncements, poor welfare provisioning for judges and the paucity of facilities in the judiciary. In particular, the then Chief Justice took a swipe at the governors whom she said were responsible for the poor conditions under which judicial officers worked. She cited the non-compliance with the ruling of a federal high court on the enforcement of the autonomy of the judiciary. The former Chief Justice had noted that the impunity of public officers went beyond the question of indifference to court rulings, to levels in which courts were shut as a result of political squabbles between politicians. Bemoaning the poor welfare condition, she had cited instances in which judicial sessions had to hold in classrooms, town halls and rented apartments. On his part, Justice, Mohammed, indicted the prosecutors as being responsible for the delay of cases burdening the judicial review process and that special courts would not be the solution; rather it should be sought in the personnel managing the judicial process. It is instructive that the late Justice KayodeEsho, JSC, once decried corruption in the judiciary and recommended a purge. That problem has not been resolved even now, despite spirited efforts.
The judiciary has not witnessed a turn-around and is still burdened by the corrupt influence of politicians as well as its own spawned bureaucratic ills. The task really is to surmount the identified problems. The judiciary was counseled on the need to be above board and cautioned against the exploitation of the contradictions in the judiciary as basis for perpetrating corrupt practices. In particular, the magistrates, who was described as grassroots judges, to be mindful of their actions and abide by the judicial code of conduct because their acts of omission and commission could have a domino effect on the society. In the words of Justice Mukhtar, “All your actions and utterances must be graceful and full of integrity. Your comportment must be judicial and impeccable. As judges closest to the people, and as the first gate to this heaven-like institution, you must bear in mind that people are watching you.” She also advocated impartiality as key to judicial legitimacy and advised judges to avoid religious bias and disrespect for the tradition of the communities unless in cases where such customary traditions are at variance with the basic laws of the country.
More important, it is to be reiterated that the judiciary is beset with numerous problems beyond the corruption issue. Additional thereto is the delay in prosecution of cases. Granted that the cause of delay is often traceable to the parties in court, or to the office of the public prosecution, the judiciary nonetheless needs reforms in ways that can breathe fresh air into the system and re-invigorate it by ensuring that the welfare of judicial officials is attended to. There is need also to ensure that judicial infrastructure across the country is improved, to aid the prompt dispensation of justice, while simultaneously curbing the impunity of public office holders who have over time denigrated the temple of justice. This task now falls squarely on the shoulders of the new Chief Justice Mohammed. The nation expects him to move from rhetoric to action.
Furthermore, it is apposite to refer to the 2015 annual conference/lecture of the St. Paul’s Cathedral, Diobu, Port Harcourt which focused on how the Nigerian legal system can be a source of hope and truly to the common man. It was centered on the menace of justice, corruption and continued dependence of the system on government, eminent legal luminaries as well as clergies and laities delivered lectures and speeches at the event. For instance, Sir Granville Abibo, a Senior Advocate of Nigeria (SAN) in his paper titled “The Nigerian Legal System and Endemic Corruption” said eradicating corruption completely may be a herculean task but could be achieved if a legal system that adheres to high standards of independence, impartiality, integrity and accountability is put in place. He noted that it is the direct duty of the judiciary to direct society to the attainment of truth and justice but that path of justice and truth is strewn with the hydra-headed problems of corruption and the interference of the government of the day in the judicial system of the country.The SAN insisted that the troubling legacies of corruption, executive control and manipulation of the judiciary continued to undermine the ability of the courts to effectively secure truth and justice. “These legacies create major obstacles to a fair trial in Nigeria. To this end, honest and impartial decision making, which is vital to the credibility of the judiciary, is relatively on the decline.”He identified the attitude of politicians who pay lip service to the independence of the judiciary so that it cannot play its constitutional role effectively as another obstacle to the attainment of truth and justice in Nigeria. Citing Section 17(2) (e) of the Constitution which provides that the independence, impartiality and integrity of the courts of law and easy accessibility thereto shall be secured and maintained. Section 121(3) of the constitution, he added, provides that “any amount standing to the credit of the judiciary in the consolidated revenue fund of the state shall be paid directly to the heads of courts concerned.” These provisions have been complied with more in the breach.
These provisions which received judicial pronouncement resulted in strike actions in various states. The judiciary in Nigeria has not attained the independence required to enable it achieve justice and truth with inhibitions. It is still seen as under the appendage or apron string of the executive. Also, the manner of appointments of judges and magistrates as well as the absence of financial autonomy in the true sense of it have raise the recurring question as to whether the independence of the judiciary is a myth or reality, and whether the constitutional provisions which guarantee the independence of the judiciary is no more than a slogan in Nigeria.These problems, according to Sir Abibo, have made it difficult, if not almost impossible, for citizens to realize the constitutional guarantee of justice which the judiciary ought to protect. As hydra-headed as the corruption malaise may be, with an independent and incorruptible judiciary, justice and truth can still be achieved because as he put it, “where there is a will, there can be a way.” As a matter of fact, corruption which is in all facets of our society and in our daily lives is a major obstacle to the attainment of justice and truth in any given legal system just as it is unavoidable a global and social phenomenon.In the Nigerian legal system, the menace of corruption has engulfed our governance to a large extent. The legal system of this nation can be propelled to ultimately achieve justice and truth when things that can make the system function optimally are put in place. Sustained judicial reforms as is on-going presently in Ghana and the weeding of corrupt judges and magistrates from the courts will pave way to attainment of justice and truth as it is said that “a corrupt judge in society is worse than an armed robber.”
In her paper still on the Nigerian Legal System, Barrister Rosemary Inko-Dokubo disclosed that the Nigerian legal system is based on the English Common Law and legal tradition by virtue of colonization and the attendant incidence of reception of English law through the process of legal transplant. The English law, she said, has a tremendous influence on the Nigerian law, citing section 45(1) of the Interpretation Act which provides that the common law of England and the doctrines of equity and the statutes of general application which were in force in England on January 1, 1900 are applicable in Nigeria, only in so far as local jurisdiction and circumstances shall permit.She defined corruption as the abuse of bestowed power or position to acquire a personal benefit, pointing out that corruption may include many activities including bribery and embezzlement of funds. Government or political corruption occurs when an office holder or other governmental employee acts in an official capacity for personal gain.Quoting an economist, Ian Senior, corruption is an action to secretly provide a good or a service to a third party so that he or she can influence certain actions which benefit the corrupt agent has authority. Daniel Kaufmann of the World Bank expanded the concept to include ‘legal corruption’ in which power is abused within the confines of the law – as those with power often have the ability to make laws for their protection.In Nigerian constitution, this is called the immunity clause.
Barrister Inko-Dokubo classified corruption as petty, grand and judicial corruption. Petty corruption occurs at a small scale and takes place at the implementation end of public services when public officials meet the public; for example, the exchange of small improper gifts or use of personal connections to obtain favour. Grand corruption is defined as occurring at the highest levels of government in a way that requires significant subversion of the political, legal and economic systems. Such corruption is commonly found in countries with authoritarian or dictatorial governments but also in those without adequate policing of corruption.
Judicial corruption refers to that related to misconduct of judges and magistrates through receiving or giving bribes, improper sentencing of convicted criminals, bias in the hearing and judgement of arguments and other such misconduct. Judicial corruption emanates from the system of appointment of judges where the governor or president of a state or country appoints and the judge will not have the will to refuse any request made to him by the governor or president. This is a matter of he who pays the piper dictates the tune.
In his keynote address, Bishop Ignatius Kattey described ‘legal’ as anything done according to the ‘law’, which takes different forms and issued by the legislature or common decisions from the courts. When a law is in a statutory form, it tends to be prescriptive and detailed as against the descriptive, which has to do with the law of nature. Prescriptive laws are civil and criminal law which is concerned with law as a system of rules that tends to order human behavior.While criminal law deals with crimes or offences, which act through the police, court penal system and prosecutes and penalizes offenders, the civil law governs the relation of persons to each other, provides solutions through compensation, enforcement and restraint. By Bishop Kattey’s interpretation or concept, the law, with respect to the legal system, is an institution that is established for the good of humanity. This, according to him, buttresses the fact that our legal system should be accorded respect as a hope not the last hope of the common man.
He quoted Robert Egbe as saying “our problem is actually the will power to implement the laws even as enacted. Enforcement is difficult and as long as we don’t enforce our laws, even if we make death the penalty for corruption, you will find out that the institutions will not even apply it.” YisaEneyramoh, a writer of law and society also argued that corruption in the judiciary cannot be wiped out until all hands are on deck. “Contrary to the much talked about corruption in the Nigerian judiciary, only 64 out of the 1,020 judges serving in the Supreme Court have so far been punished by the National Judicial Council (NJC) for various offences bordering on corruption between 2009 and 2014.”According to Eneyramoh, “corruption in the judiciary cannot abate unless and until the Federal Government stops regarding such criminality as the family affair or a private matter for the judiciary.” Said Kattey: “As a church, we desire to play our role in harassing the integrity of the Nigerian Legal system rather than condemn this institution, and to derive and proactively add an inspiration to our members who work in this capacity; and to the nation at large that the Nigerian legal system can be a veritable tool to human and societal development. But this can only be made possible when we take a leap to promoting truth, justice and learning to adopt “the benefit of doubt syndrome.”Barrister Florence Haminala said it is possible to deliver judgement against a case that involves the government but noted it was a dangerous decision unless the judge would be prepared to write his will. The society must rise up and condemn the ills in the country’s legal system, she stressed.
For the Nigerian legal system to function effectively and dispense justice and truth in the courts there is need for transparent appointment process for judges and magistrates, merit and competency, rather than ethnicity taking a center stage, Care must be taken to appoint vibrant, competent persons of integrity and competent judicial officials to the bench. According to Charles Hungles: “An honest, high minded, able and fearless judge is the most valuable servant of democracy, for he illuminates justice as he interprets and applies the law.” Corrupt judges must be wiped out of the system.