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Why jurists want constitutional recognition for magistrates as judicial officers in Nigeria

By Joseph Onyekwere, Godwin Dunia (Lagos) and Abba Anwar (Kano)
09 August 2016   |   2:57 am
We are calling on the Nigeria Judicial Commission and other relevant bodies to cause the National Assembly to amend Section 318 of the Constitution of the Federal Republic of Nigeria, so that we can be part of the judicial officers...
Benjamin Obiefuna Nwabueze

Benjamin Obiefuna Nwabueze

We are calling on the Nigeria Judicial Commission and other relevant bodies to cause the National Assembly to amend Section 318 of the Constitution of the Federal Republic of Nigeria, so that we can be part of the judicial officers, in line with the functions and discipline of our job .”

So read an extract of the communique issued recently by Magistrates Association of Nigeria, at the end of their 26th Biennial National Convention, asking for the amendment of the Nigerian Constitution in order to accommodate them as judicial officers.The new leader of the body, Sa’idu Safiyanu Umar, giving vent to the agitation, called on the National Assembly to as a matter of national interest, help in revisiting the existing position, where Magistrates were not seen or regarded as judicial officers by the constitution.

Magistrates also want the federal and state governments to quickly implement the already existing provisions on full financial autonomy to the judiciary, as another fundamental way of reflecting the true separation of power as enshrined in the Constitution.Apart from asking that they be recognised as judicial officers, the Magistrates are demanding that those found qualified among them, be given priority when it comes to appointment to higher bench.

They urged all the 36 state governors and the Federal Capital Territory, Abuja to improve the working conditions of the Magistrates, and to also provide for functional vehicles as well as accommodation, so as to enhance the efficient productivity and integrity of their members.

“We are also appealing to the state governments to allow our members rise to 17 apex grade level, as it is in the FCT and other states of the federation. That will prevent our stagnation, ” the statement added.

But why are Magistrates not recognised in the constitution as judicial officers?
Eminent constitutional lawyer, Professor Ben Nwabueze (SAN), said even though the constitution makes no express reference to Magistrate Courts and does not include them in the definition of judicial officers in Section 318, it does not imply non-recognition.
Nwabueze who contributed in drafting the constitution explained why the Magistrates are not expressly captured in the constitution.

He said: “There is a policy decision based on what is appropriate to a Constitution and the need to avoid prolixity by overburdening it, which dictates that the Constitution should be used only to establish the superior courts of records leaving it to the Legislature (The National Assembly and the State Houses of Assembly) to establish such inferior courts as the circumstances of each state may require or demand.

“The relevant provisions of the Constitution are based in this policy decision – see Section 4(6), (7), and (8), Section 6 (5)(k); see also the Exclusive Legislative List items 57 and 68.

“Section 6 (5)(k) for example, refers to ‘such other courts as may be authorized by law to exercise jurisdiction at first instance or on an appeal on matters with respect to which the House of Assembly may make law’. The inferior courts like Magistrate Courts which the State House of Assembly is authorized by Section 6(5)(k) to establish are , in addition to the superior courts, established directly by the Constitution and listed in Section 6(5) as superior Courts.”

Former Chief Judge of Lagos state, Justice Ayotunde Philips, said the status of the Magistracy might not be unconnected to the fact that they are the lower court. However, the former Chief Judge supports the view that magistrates should be included in the constitution as judicial officers.

Her words: “I don’t know the reason why Magistrates are excluded from the constitution as judicial officers, maybe because it is a lower court. I am of the view that they should be included, though the high courts have wider jurisdiction than they do. I support the idea of amending the constitution in order to accommodate them as judicial officers. That is my position!”

Also of the same view, the second vice president-elect of the Nigeria Bar Association (NBA) and former chairman of the Ikeja branch of the association, Monday Ubani, said the agitation is justified, considering the volume of work the magistrates perform.According to him, virtually all criminal court cases start in the magistrate courts and more than 90 per cent will be completed there depending on the circumstances of the cases.

He said Section 11 of the Magistrate Court Law 2009 states that each magistrate shall have jurisdiction throughout the state, while Section 12 states that “civil and criminal jurisdiction shall extend over any territorial waters adjacent to the district in which for the time being, he is exercising jurisdiction as well as over inland waters whether within or adjacent to such district.”
Ubani said: “Considering the role of the Magistracy in the trial of cases, it is important to visit the provision of Section 6 CFRN 1999, which expressly provides for the judicial powers.

“ Section 6 (3) specifically mentioned courts to which the section relates in Subsection (5) (a) to (i) of the Constitution that these are the only superior courts of record in Nigeria.

“Despite the fact that the Constitution does not expressly mention the Magistrate Court as a court of records, this power can be derived from the House of Assembly, which enacts the law that creates and empowers the Magistrate Courts to adjudicate on matters. The Magistrate Court is referred to as a court of summary records.

“The draftsman was right to have given the power to the House of Assembly or National Assembly as the case maybe to establish the Magistrate Courts of States and FCT because they are courts of first instance and can accommodate certain laws that require exigencies. “For instance, traffic offences, laws prohibiting land grabbing etc.”

In his reaction, a Senior Advocate of Nigeria(SAN) , Chief G. Adetola Kaseem, stated that, unlike the High Court, Industrial Court, Appeal Court and the Supreme Court, which were created and recognized by the Constitution, the Magistrate Courts were created by the states in accordance to the numbers they desired.

According to him, the Magistrate Courts are considered as inferior courts not because their decisions are not effective or cannot be effected, but because they are subject to review by other higher courts.“They are courts, which are only recognized by the states where they are located.The Magistrate Courts have what we call residual jurisdiction limited to the state they are located and cases that carry capital punishment cannot be handled by Magistrate Courts.”

He added that another point that distinguishes a Magistrate Courts is that appointments are handled by the states.
However, Kaseem stated that Magistrates can be regarded as judicial officers as a matter of fact, since they are part of the judicial system.

“What Section 318 said is specific, but it does not mean that they are not recognized in the constitution as judicial officers because they are statutorily recognized since the same constitution empowered states to create them with limited jurisdiction,” he argued.

On the appointment to higher bench, the senior advocate stated further that not all the Magistrates will have the privilege of moving to the higher courts as judges. He also said Magistrate deserves improved working conditions as a matter of necessity, in terms of adequate welfare packages, security and a secured future, since they try sundry criminal matters.

He said: “Anybody who dispenses justice sworn to an oath and every judgment he gives, he makes an enemy.”Similarly, a lawyer in Afe Babalola Chambers, Lagos, Peter Olomola, said Magistrate Courts are lower in rating and that the fact that they are created by the states does not make them anything less as judicial officers, adding that Magistrates play important role and should be accorded the honour, constitutionally.