Chijioke Okoli: ‘Appointment of judges needs to be a lot more stringent’
The recent suspension of the Chief Justice of Nigeria, Walter Onnoghen by President Muhammadu Buhari over alleged misconduct has inadvertently triggered more attention to the calibre of persons appointed onto the bench. Former chairman of the Lagos branch of the Nigerian Bar Association (NBA), Chijioke Okoli (SAN), in this interview with Assistant Editor, Law and Foreign Affairs, JOSEPH ONYEKWERE, says the condition for appointing lawyers to be judges should be more stringent. He also spoke on other related and interesting issues.
‘Does the Senate need the consent of all its members to file a case at the Supreme Court?
The way I understand it is that it is the National Assembly that should take up the suit. But I don’t want to go into that, because it will touch on whether they are empowered to do that or not, which borders on jurisdiction. I can tell you for free that the first thing the respondents would do is to look at the issue of jurisdiction and following that is whether the suit was properly instituted. We have a bi-cameral legislature in Nigeria. So before you even talk whether the leadership of the Senate can sue by consent of the majority or even all members, first ask if the action suffice for the present purpose. The court definitely will have to answer that. The Supreme Court has original jurisdiction in a dispute between the National Assembly and the presidency, but the question that arises is whether the Senate will constitute itself into the National Assembly, whether it qualifies to bring the action when the constitution says National Assembly. We haven’t heard that the House of Representatives is together with them. So, this is a live issue. But one thing I can tell you for free is that the presidency will be challenging jurisdiction. I would be hesitant to provide opinion one way or the other since I am not a justice of the Supreme Court, much less the Supreme Court itself.
What is your thought on the removal of the CJN?
My thought is that of great distress. I have listened to all manner of opinions, both informed, ill informed and completely uninformed. What you can take from this is that it has become less of law but unadulterated politics. I cannot see how any lawyer, properly so-called, who went to the law school will look at the way Justice Walter Onnoghen was purportedly removed and will not be scandalized. I am not saying that if there is any wrongdoing, it should not be punished. It must follow due process because without it, there is no law. Intertwined in the due process is also fair hearing. A lot of us don’t realize that even in heaven, God is a God of due process and fair hearing. They have condemned Justice Onnoghen in advance without even bothering to hear him. It is arrogance, evil and wicked. God that is all knowing, who knows from the beginning to the end and everything in between did not condemn Adam without a hearing. He put them at the Garden of Eden. When Adam had eaten of the forbidden fruit, God did not banish him outright. God gave him a hearing before pronouncing punishment. We need to pause a while and think about it. This is the same omniscient God, who knows everything! He caught them and still gave them fair hearing. But we that have very limited knowledge as individuals will not allow the process that would allow Justice Onnoghen for all it is worth to state his own side of the story. I have listened to all that people are saying. As Chief Justice, he does not have immunity, but he is in the position of first among equals. He is not just a justice of the Supreme Court either. You need two-thirds majority of the Senate to remove him. It is not in vain that they put it in the constitution. We are walking a very dangerous slope! The Chief Justice of Nigeria is the most powerful in the world. He affects the judgment of the Supreme Court far more than the Chief Justice of the US. Any case that comes to the US Supreme Court, all the nine justices sit. It is not a question of who the CJ wants to select or not. A case comes to the Nigerian Supreme Court; the CJN sets up a panel. The CJN who sets up the panel knows the leaning of his brother justices and chooses, who to select. You can’t apply to be so selected unlike in the US where it is automatic that they all will sit. So the power inherent in the office of the CJN is so enormous. Recall the case of Katsina-Alu and Salami. Katsina-Alu who was the accused and the head of the NJC got Salami removed, but NBA investigation vindicated Salami. The CJN is the head of federal judicial service commission, NJC and head of Supreme Court, where he can choose panels.
What you are saying may not be unconnected with the current crisis about the removal of the CJN?
I told you from the beginning that it is all about politics. Is anybody in any doubt whatsoever that this thing is not about fighting corruption? It is raw and unadulterated politics. Federal government exposed Onnoghen’s bank balances. They want to tell me that an ordinary person will have access to that document? Meanwhile, the same CCB will tell people that they would not divulge such information. If they are really honest, let them scrutinize the account of all the judges. By taking out Onnoghen, they create the impression that he is the only judge who has large sums of money and began to lampoon him in the media without hearing him.
But some can argue that he was the one who refused to appear before the Code of Conduct Tribunal (CCT) to state his case?
It is not so straightforward. If you look at the totality of the constitution on how you can remove the CJN, it did not state that you would go to CCT. Prof Ben Nwabueze had pointed out what the CCT could do. The government said the man admitted he forgot to declare the assets. Under the code of conduct, that admittance should be the end. It is only when you lie that the CCT will prosecute you. The CCT is not a court; it is like a housekeeping platform. From what we are seeing so far, they have not told us that the monies are proceeds of criminal enterprise.
Is CCT of equal jurisdiction with high courts?
The CCT is not even a court, properly so called. It is an ordinary tribunal under the executive, under the office of the secretary to the government. So, we have a situation where a very subordinate organ of the executive arm can perfunctorily provide ammunition upon which the president will go ahead to sack the head of another similar co-equal organ of government. People keep talking about CCT, but it is not a court. You must have noticed that in the petition that was written, the National Judicial Council (NJC) said he (Danladi Umar) is not under its control like every other judge. That was why they referred the petition against him to the federal civil service commission.
Are you satisfied with the position taken by NBA in this matter, especially with regard to the boycott of court?
For me, it is neither here nor there. The NBA would have to express its displeasure one way or the other. I wasn’t at the NEC, when the decision to boycott courts was made. But not everybody would agree with it, however, we are looking at the symbolic nature of expressing displeasure. If you go into the nitty-gritty, I would say that the NBA leadership was derelict in the way and manner they went about it. NBA just announced it was going to boycott courts, but it is not the only organ in the justice administration sector. I am not aware that NBA wrote letters to the heads of courts. The fight is really not for lawyers but for the judges because if actually they can dismiss the head of the judicial arm like that, all other judges are relatively small flies. Judges are under obligation to hear cases. So, any lawyer, who chooses to stay away from court, the judge who sat is in order if he strikes out the case and the lawyer will be in trouble with his client. The more critical aspect is that they should have engaged Judiciary Staff Union of Nigeria (JUSUN). I can tell you for free that if the leadership of the NBA had involved JUSUN, there would have been total compliance. If a judge wanted to come to court and the courts are under lock and key, he would go back. But they didn’t do that. If they had wanted the boycott to be total, JUSUN should have been involved. JUSUN knows that there are a lot more battles it would fight in the future and that it would be in its own interest to be on the side of the NBA, but the NBA did not even bother.
What other option in your opinion was open to the NBA apart from issuing statements and the directive to boycott courts?
If we go by what is being written on papers, there have been some meetings between the Vice President, who by the way is a leader of the bar, a senior advocate and eminent professor of law, apart from being the former attorney general of the most important state in Nigeria, Lagos. What is happening is politics playing itself out. So, the NBA could go into discussions. It is an option. In this situation, the ground is shifting so quickly. So, you need to pause and look at a multiplicity of options. The boycott thing for me is more symbolic than real in terms of expressing your complete displeasure as to what has happened because it is a clear case of raw exercise of might. The presidency, in spite of repeated court orders about El Zakzaky and his wife, Sambo Dasuki as well as others that should be released, the government totally disregarded them. Suddenly a relatively non-judicial tribunal makes an order that is patently unlawful and it was swiftly implemented. What is so troubling about the whole thing is that this is the government that should be promoting law and order, traumatizing the psyche of the populace so much that due process really doesn’t matter. I can tell you that no court, worth its name can give you an ex perte order to sack or suspend from office the chairman of Okada Riders Association of Nigeria, not to talk of the Nigerian Union of Road Transport Workers (NURTW). And then a tribunal can purport to sack the head of the third arm of the government! This is ludicrous! Part of my worry in all these is that we are creating a monster of precedents and it is easier to learn bad thing than the good ones. What is being played out is beyond Onnoghen.
At what point did the judiciary got it this bad to the point of becoming an endangered specie?
One of the good things that would come out of this crisis is that it would give us the opportunity to look at the ills of the judiciary and how to strengthen it. It didn’t just start today. The judiciary has been complicit over years. When DSS without much basis broke into judges’ residences, so many of us went about our ways and nothing much came out of it. As we are aware today, no charge has been brought against some of the Supreme Court justices. It is safe for me to conclude therefore that they have no case at all to answer. A Supreme Court justice is not just anybody. I am not saying if they are doing bad that you should not take them out all, because a corrupt judge is worse than an armed robber, but before you take out a judge and go to charge him to court, you should catch him with his hands in the proverbial cookie jar. The evidence should be iron-cast. My position is, if they had a serious case, why haven’t they charged them? Those who are running the administration of justice and bar leaders, including myself, need to start telling ourselves the truth with what is happening now. My sister silk, Funke Adekoya said we need a holistic review, the kind of thing we had during the time of Justice Kayode Eso. For me, part of solving the problem would be constitutional. There are limitations to getting NJC as presently constituted to properly superintendent over the judiciary. Let us tell ourselves the truth!
But some argue that the judiciary is the only arm of government with self-cleansing mechanism?
That self-cleansing is not proper enough with the NJC as presently constituted and that is part of the argument of the presidency on why they initially side-stepped the NJC. I consider the argument that NJC would not have acted on it imbecilic because Onnoghen did not write the constitution. He wasn’t the one who wrote how the NJC is to be constituted. You have to make use of the NJC. Some of us have been talking. If you google it, you will see my position on this issue. When Katsina-Alu and Salami had their problem, I said it in a published paper and at a certain forum that we need to overhaul NJC. It will require constitutional amendment. Where you have sitting judges to discipline themselves, there will be limitations, especially considering also that those who constitute it could have issues themselves. If the present government was thinking, with the kind of goodwill president Buhari had when he came in, he could have effected a constitutional amendment, particularly as regards the NJC. A far-reaching and lasting superintendence of the judiciary requires rejigging of the constitution of the NJC.
So what is your proposal?
A retired justice of either the Supreme Court or the court of appeal should head the NJC. I want to make it so broad so you can’t get to a situation where at a given time, you will say you cannot find a leading justice of the Supreme Court or court of appeal. You will also have a number of retired judges with more lawyers and lay people forming part of the body. If you ask me, people from the business community such as the chambers of commerce are the biggest consumers and the people who lose most when you distort justice administration. The quality of justice delivery in a given geographical space determines the level of flow of investment, not only foreign, but also local. You have some Nigerian businesses that decided to fold up and go to Ghana and other places.
Part of the problem lies in the justice administration because there will always be dispute. All over the world, foreign capital inflow looks at the dispute resolution mechanism and that is the problem that Nigeria has. So we need to have businessmen and lawyers on board the NJC. In a situation of lawlessness or where people lose confidence in the administration of justice, the profession or group that suffers most are the lawyers. We have already seen it happening with delayed cases such that people go to engage the army, navy and other security agencies when people owe them money. They now find a way of going to EFCC for matters that are civil in nature, cases that have no criminal element. When they take those cases out, it means that income that should have gone to the legal practitioners is lost. If those cases were resolved through the regular justice administration system, lawyers would earn income. There is massive distraught of the justice administration system and people are voting with their feet against resolving matters that lawyers would have resolved. Young lawyers are walking around now without much to do and it is going to get worse. It is in their enlightened self-interest to see that the system of administration of justice in Nigeria is fit for purpose. It is not more for judges. Judges have nothing to lose other than their prestige. Whether the people go to court or not, a judge is on salary and his allowances would be paid. But when people stop believing in the justice administration system, lawyers would be worse for it. But you can’t believe that NJC as presently constituted, when it comes to discipline of judges, they would ask the few lawyers that are there to excuse them. I don’t know what informed that. A lawyer of over 20 years experience, a senior advocate who could as well be the mate of the judges would be asked to leave not because the person has particular interest in the matter under discussion. So the system needs to be rejigged. In the cause of doing that, we have to ask ourselves the hard question about the mode of appointment of judges.
There is this widespread perception that senior lawyers like you are the ones corrupting the judges?
I think it is unfair to say that senior lawyers are corrupting judges. I am not holding brief for anybody, but I will be less than honest if I say that there are no senior lawyers who play hanky panky with equally dodgy judges. When I read some judgments, I cannot situate them within the law and facts of such cases. And you will not but conclude that may be, some extraneous considerations came into play and you have a lot of such in the political arena. That is the truth of the matter. Some of the judgments don’t add up. Having said that, it would be unfair to use the misdemeanour or the malfeasance of a few to tar the entire bar or the bench. But I think the honest lawyers should come out a lot more now to, not only provide themselves for appointment but to speak out. We have people who for the fear of not ruining someone’s personal integrity, keep quiet and allow a fellow who lacks the technical know-how, the integrity and requisite experience get appointed onto the bench. With what is happening now, it has come to a point where we can tell ourselves the truth, that we must really scrutinize those to be appointed judges. During my interview for SAN, I made the point and I repeat it. How can you make the condition for the award of senior advocate more stringent than that of a high court judge? Before you are awarded the rank, they will put out your name to the world to come and tell them why you should not be SAN. Part of why I don’t argue too much is because I was the chairman of NBA in Lagos. There was no month I didn’t receive a complaint against several lawyers. My point being that if anybody feels cheated by his lawyer, the person should have known where to go to but they will wait until the person is nominated for SAN. We can say it is justified as a final check, but what is not justified in my view is that those who are going to be appointed judges, who will wield the power of life and death, you don’t subject them to similar checks. In some places like the United States, even though I’m not advocating that, they democratize it such that the public votes for judges. So the appointment of judges needs to be a lot more stringent. We treat symptoms without looking at the problems. They say they a want special court for anti-corruption and all that. What that means is that they want a special court because the existing judges do not measure up. That is the admission. But we should have a situation that anybody who is a judge should handle anti-corruption and any other matter. If you stretch the argument further, so it is the less qualified judges that would be dealing with blue-collar cases? They would preside over murder cases, armed robbery, rape and others. There is something fundamentally wrong in saying we should create a special court with special judges. Whoever is made a judge, whether a magistrate or high court should be a special human being. If a judge is doing divorce matter, he should do it beyond reproach.
I think the idea is to create specialization among the judges so they can become authority in those areas just as we have the National Industrial Court with judges specialized in handling labour matters.
That creates a problem. One of the biggest institutionalized problems of the administration of justice in Nigeria is the specialized exclusive jurisdiction given to federal high court. And you want to create some more? The majority of the cases that go to the Supreme Court border on jurisdiction. They never allow the Supreme Court the time to develop substantive law. Jurisdiction breeds great confusion even among senior advocates. You see a case and you keep wondering whether it should go to the state high court or the federal high court. You see a law report and you cannot distinguish the facts in essence and they are both from the Supreme Court. One will say it is the federal high court that has jurisdiction and the other would say no, it has no jurisdiction. So you do a case after 15 to 20 years at the state high court and the Supreme Court says it is the federal high court. So everything you have done in the past years turns to nothing. This is the major problem. When we did not have these divisions in those days, you see the Supreme Court discussing substantive areas of law and not splitting heads over jurisdiction.
Are you advocating that we eliminate the issue of jurisdiction in our jurisprudence?
No, what I’m saying is that we should minimize the issue of splitting courts and clothing them with jurisdictions like the NIC because there are matters straddled with some parts in those courts and some in the other. So, which court would you now go to? We didn’t have these problems when we had unlimited jurisdiction of the state high courts.
Which means in essence that it is not only all about specialized courts, there is also this jurisdictional confusion between the state high courts and the federal high court?
That is part of what this specialization would bring. To achieve this specialization, we don’t need a special court. It should be left at the discretion of the chief judge to create them as divisions like we have in England. The specialization can be created in-house so it doesn’t create these jurisdictional problems. There are times you look at a matter, you will notice that it pertains a bit to labour, and you will say it is NIC matter and then, it pertains to company law issue, you conclude that it is a federal high court case or simple contract issue and you will be in a quandary. You ask yourself, where do I go? But if we had only one court with different divisions, we would not find it difficult going to the court.
There is an aspect of the issue you have not raised. Part of the reason for creating those courts is not just for specialization. For instance, the Investment and Securities Tribunal was created to handle very speedily stock investment disputes that are not supposed to linger for years like in regular courts.
All those can be resolved too by addressing the issue of multiplicity, court infrastructure and appointment. Since the pay package of judges has increased significantly over the past few years, we have a lot of people going there. Part of what is delaying proceedings is because a judge is not as seasoned as he ought to be. When I started practice in 30 odd years ago, one of my favourite judges was Justice Ilori. Ilori was in charge of his proceedings. When you have a judge who masters the procedure, you move quickly. In England that we modelled our system upon, you can’t be a judge without being a QC. Those are masters. There is no quota system there in the appointment. 70 to 80 per cent of judges in England come from Oxford and Cambridge.
Their sectionalism in England borders more on which school you come from. Those are not the only school where they read law, but people are not begrudging the fact that they source their judges from those two. But here, we say no, we have too many people from your state; therefore, we must take from this state whether the fellow measures up or not. Sometimes, the quality of the intellect of the judge being put up is so wide off mark.
Recently some senior advocates were shortlisted to be appointed to the bench. Do support the idea?
That is one of the things we must do if we want to energize the bench. We have to make it easy for truly qualified private practitioners to be so appointed. Prof Nwabueze was the one who declined to go to the Supreme Court during the time of Shagari. Had he gone there, that is the oracle himself. There are some cases that you needed to have been a trial lawyer to understand when they come. It cannot be compared with someone who never practiced law. Maybe he pushed papers in one ministry, from there became a magistrate or customary court judge, became court of appeal judge and came to the Supreme Court. There are certain cases that when they come in, he or she cannot understand but a fellow who has been a trial lawyer will grasp it because he has had extensive practice. So we need a balance.
Will you support the idea of creating divisions of the Supreme Court so as to take justice closer to indigents who do not have the means to pursue appeal up to the apex court in Abuja?
No. I don’t subscribe to that. I don’t think we need to create divisions. What I am not averse to, is a return of what used to happen in the 70’s when the court held in sessions. It could for a week schedule their cases occasionally to sit in Port Harcourt, Enugu, Lagos and Kano. What I think we should even do is to reduce the workload of the Supreme Court to only conflict between the states and the federation and other constitutional issues. My proposal is that regular cases, even of pure law, if the court of appeal disagrees with you and you still feel bitter, there will be final appeal to the same court of appeal comprising all other justices, except those who first heard the matter. That will reduce the number of cases that go to the Supreme Court and we also have to reduce the number of Supreme Court justices accordingly.
A retired justice of either the Supreme Court or the court of appeal should head the NJC. I want to make it so broad so you can’t get to a situation where at a given time, you will say you cannot find a leading justice of the Supreme Court or court of appeal. You will also have a number of retired judges with more lawyers and lay people forming part of the body
One of the biggest institutionalized problems of the administration of justice in Nigeria is the specialized exclusive jurisdiction given to federal high court
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