Removal of ex-CJN, financial autonomy, virtual court sittings define judiciary’s performance
Nigerian judiciary has always been the arm of government that citizens usually look up to, in times of conflict as it is all over the world.
This is even more pronounced in developing countries where political conflicts that usually result in judicial adjudication is the norm. Whether the judiciary has lived up to expectation within the last one year of President Muhammadu Buhari’s second term is for citizens to determine, but what is clear is that the courts could fare better notwithstanding the circumstances. This is in consideration of the level of criticisms that the apex court has received in the last year, following its decisions on political cases. Each of the decisions has created more conflicts and ended up triggering the desire to further appeal by aggrieved disputants, had there been such opportunity.
The flurry of criticisms against the judgments of the apex court in recent times is alarming. This, some stakeholders attributed to what they described as “executive assault” on the judiciary in 2019, although the buildup started since October 2016, when judicial officers’ homes were raided by state security agents.
The sector and its stakeholders, including concerned citizens were jolted when the president through an exparte order of a quasi-judicial body (Code of Conduct Tribunal) dated January 23, 2019, removed the former Chief Justice of Nigeria (CJN), Justice Walter Onnoghen. That was the first time such would happen in Nigeria since 1975 when the country was under the military rule. The constitutionality of that action is still a subject of debate among lawyers and many believe the judiciary is yet to recover from such “executive assault” on the sector since the commencement of democratic government in 1999.
Notwithstanding all the odds, there is cheery news. The penultimate week, president Buhari granted financial autonomy to the judiciary by signing an executive order No.10 to enforce the 4th alteration of the constitution. This is for the implementation of financial autonomy of the state legislature and state judiciary. A presidential implementation committee was constituted to fashion out strategies and modalities for the implementation of financial autonomy for the state legislature and judiciary in compliance with section 121(3) of the 1999 constitution, taking into consideration all other applicable laws, instruments, conventions and regulations, which provides for financial autonomy at the state tier of government.
The order provides that “the Accountant-General of the Federation shall by this order and such any other orders, regulations or guidelines as may be issued by the Attorney-General of the Federation and Minister of Justice, authorise the deduction from a source in the course of Federation Accounts Allocation from the money allocated to any State of the Federation that fails to release allocation meant for the State Legislature and State Judiciary in line with the financial autonomy guaranteed by Section 121(3) of the Constitution of the Federal Republic of Nigeria 1999 (as amended)”. Based on the Executive Order, at the commencement of the Order, all States of the Federation shall include the allocations of the two arms of government in their Appropriation Laws. Article 6 (1) provides that “notwithstanding the provisions of this Executive Order, in the first three years of its implementation, there shall be special extraordinary capital allocations for the Judiciary to undertake capital development of State Judiciary Complexes, High Court Complexes, Sharia Court of Appeal, Customary Court of Appeal and Court Complexes of other Courts befitting the status of a Courts.”
Human rights lawyer, Ebun-Olu Adegboruwa (SAN), who commended the president for the action said it was not enough to grant financial autonomy to the judiciary, but also to ensure compliance with the rule of law through full and complete obedience to all orders and decisions of the courts. His words: “I urge the president to grant total autonomy to the judiciary by signing another executive order to all parastatals, agencies and departments of government to implement section 287 of the 1999 constitution by complying with all orders, judgments and decisions of the courts.”
Examining the sector within the last one year, Professor of law, Edoba Omoregie said the judiciary performed to the best of its abilities in the last one year, adding that whether it meets with the expectations of Nigerians is another matter. “In my view, there is so much more to desire about our judicial system. To that extent, the performance of the judiciary cannot be any better than the nature of the judicial system we currently operate. “For a number of reasons, I believe the judiciary can perform far better to meet the people’s yearnings for justice and its quick dispensation: First, the judiciary is working under a system of centralisation. The National Judicial Council (NJC) is the constitutionally created body which has overriding powers in the management, administration and finance of the judiciary in Nigeria, especially the superior courts,” he said.
Omorogie described it as an undesirable situation. According to him, the effect of its existence is that every aspect of our justice system takes its bearings from the direction of the NJC, from appointment to disciplinary process. This, he said is wrong, because it weakens the ability of the judiciary to function efficiently and effectively in a federation. “State courts should be and must be independent of federal (or federation) courts in their management, administration and finance. This means that the states should determine what number of judges or judicial personnel they require to handle their justice system. I say this because currently the process of judicial appointments at the superior court level is dictated by the NJC using parameters, which include quota, etc.
“This is unhelpful and actually stunts the growth of the state judiciary because that level can only now grow depending on factors outside the control of the states. So, if Lagos State, force instance, wants more judges to be appointed to tackle its enormous caseloads, it must await the decision of NJC with the issues of quota, finance etc. considered. The result is that many states are today short of judges to dispense justice,” he said, adding that those are responsible for delays in court proceedings, with consequences for confidence in the justice delivery system.
Apart from suggesting that judicial appointments should be based on merit and proven ability, the professor of law said the judiciary must receive adequate funding to quickly update its capabilities of deploying technology such as virtual court sittings, to meet with best practices elsewhere. He pointed out that last year has seen increased doubts about the independence of the judiciary. “This may be merely perceived, but the reality appears to be that many Nigerians have little faith in the ability of judges at all levels, sadly, to be insulated from political pressures, or to insulate themselves from such pressures for whatever reasons.
“During the last year, we witnessed a number of judicial outcomes which defy the popular perception of justice. Lawyers are familiar with the notion that except the objective observer is able to walk away agreeing that justice has been done in a case; justice has actually not been done. The frequency of this ill-impression of judicial outcomes appears to have continued in the last one year. There are many instances of this, possibly the Imo and Bayelsa election petition decisions and probably even the recent Orji Uzor Kalu criminal proceeding are ready examples. In other words, there’s need for consistency in judicial outcomes in such a way that meets with minimum expectations and standards of justice. We didn’t see much of this in the last year,” he declared.
Lagos lawyer and human rights activist, Mr. Joe Nwokedi described the performance of the judiciary in the last one year as an issue of mixed feelings. At a certain point, he started, we appreciated the discharge of the judicial obligations of our judges and justices and at some other point, we become so confused as to the reasons for the decisions and judgments they give in respect of cases before them. “Notably, the judgment on Hope Uzodimma V Emeka Ihedioha is a judgment that will take years to reconcile or be in agreement with in many years to come at some quarters. Equally, the ruling on the Dollar bribery allegation against the governor of Kano state is another judgment that was not so appreciated within some legal sectors. Recently, the Case of F.G.N v Orji Uzor Kalu left so many issues to question. It wasn’t that the court erred in the judgment but the judgement was not explicit enough to give direction on how the judgment will be enforced with respect to all the defendants in the matter.
“However, it was that uncertainty that prompted Chief Uzor Kalu to hire many lawyers to storm the court again for a further interpretation of the judgement. This is not good for our judiciary. I mean, a situation whereby certain loopholes will be left open in any judgment. That was equally the case in Uzodimma V Ihedioha.
Generally, we cannot say that our judiciary has performed abysmally low in the discharge of their duties recently, but they have equally not been quite fantastic. We believe there is always a room for improvement and we pray for such in the near future,” Nwokedi declared.
For Kano based lawyer, Mr. Abubakar Sani the events in the last one year has seldom been more eventful and momentous. Two things, he said stand out: the removal of the CJN Onnoghen and the emergence of virtual court sittings (video conferencing) in the aftermath of Covid-19 pandemic. “Both will have long-lasting effects – particularly the latter, which, indeed, is still unfolding before our very eyes. We are little more than observers at this point, as the ‘movement’ seems to have a life of its own. The safest bet, for now, is to adopt an attitude of ‘wait and see’. However, another milestone was the decision in Orji Kalu’s case about the validity of section 367 of ACJA,” he said. Sani is of the view that the mischief, which that provision of the ACJA was intended to cure, will remain part of our jurisprudence – having to start a trial all over as a consequence of the elevation of a judge.
Former director-general of the Nigerian Institute of Advanced Legal Studies (NIALS), Prof. Epiphany Azinge (SAN) said one cardinal pillar of Administration of Justice is a speedy and expeditious resolution of disputes or adjudication. Thus, the truism that justice delayed is justice denied, he said is now challenged by the emergence of Covid-19. According to him, the virus undoubtedly has affected the speed in administration of justice because of lockdown amongst other protocols that include a ban on interstate movements and air flights.
His words: “There are other effects of Covid-19 on the justice sector. Criminal matters are largely suspended and the human rights of citizens have also been breached in that many arrested people have no avenue to apply for bail since the courts are not fully in motion. Judgments of most courts are hanging in the balance and so also the fate of many litigants. Happily though, we must commend the judiciary for judgments given in matters that are timeline and serious political and constitutional issues.
“The Supreme Court has done well in that regard. Kudos also to the CJN and NJC for engaging with important administrative matters like the appointment of judicial officers, especially heads of courts. To achieve these milestones in spite of Covid-19 is most commendable. The legal community is waiting anxiously to see the recommendations that will emerge from the report of the committee set up to chart the way forward for our Administration of Justice sector during these perilous times.”
Kenneth Ahia (SAN) said the administration of the justice system in Nigeria is one of the areas where the promise of a better judiciary holds. According to him, the administration of the justice system is one of those sectors that needed innovation to facilitate increased access to justice and to eliminate bottlenecks and undue delays on the road to justice. Before now, he said, the Courts in Nigeria were known to be overwhelmed and needed an intervention to reduce the stress on a judicial system bugged by a disproportionate ratio of cases to infrastructure.
He said: “What is more, the nature of the COVID-19 pandemic has made social distancing compulsory and such social distancing targets cannot be achieved in many of our courts in Nigeria which are usually overcrowded. Following the coming of the pandemic and as a measure to curtail its spread, public places, including all courts in Nigeria, were closed down except for few cases considered extremely urgent or time-bound. The Justice sector revolves essentially on what happens in the courts. Even in those cases considered extremely important or urgent or time-bound, the closure of the airspace and interstate boundaries simply means that counsel cannot attend to such cases where counsel, as in many cases, reside outside the state where the court is located. No counsel from outside Abuja can attend to matters in the Supreme Court.
“The closure of the courts, thus means that many lawyers are out of job with gravely disruptive consequences and it has indeed been projected that many firms may not survive this unusual development. Lawyers in states outside Lagos, sometimes make money more from Transport fee/ appearance fee paid by the clients for appearance each day in court. The lawyer will be hard hit as those incomes will dry up. With respect to criminal cases, it means that many persons awaiting trial but in correctional centers will wait for a longer time to have their due in court since the courts are closed and are unable to sit.
“As a further reaction to the pandemic, some courts have adopted virtual hearing vide zoom or Skype.The peculiar network issues in Nigeria is a challenge to this technological innovation which is not new in some countries although we should hope for improvement in that regard. Meanwhile the National Assembly is currently considering a bill to legalize virtual proceedings so as to ameliorate the danger to decisions reached thereby since the Constitution provides for a public hearing of cases.”
Ahia added that, even with this remote hearings, it seems that only applications, originating summons, adoption of addresses, rulings, judgments and appeals can be heard virtually, while trials with more than one witnesses, that would require others to go out of hearing for obvious reasons will not be achievable with virtual proceedings. According to him, the limitations of physical court proceedings: a system where the physical attendance of parties, counsel and witnesses is required in a courtroom is exposed at a time such as this when the major cities and their court rooms are under lockdown; to the detriment of urgent matters of paramount public importance.
Director, Access to justice, Mr. Joseph Otteh said the impact of COVID-19 on the Justice Sector exposed the justice sector’s failure, over decades, to invest in finding solutions to many of the system’s problems. Had the justice system done so, he quipped, it would have been much better able to cope with the physical social adjustments that society is demanding, following the arrival of the pandemic without seriously impacting the delivery of judicial services to court users.
“Look at the scenario; before now, nearly everything about how our courts functioned was dependent on time-wasting, expense-involved and many times, corrupt manual processes. If a person filed an action in court, someone had to physically go to court to do the filing, and also to return to court, again and again, to check whether the matter had been assigned, whether the casefile had moved to the assigned Judge, whether a date has finally been fixed for a hearing. The same thing with when you applied for, say, a certified process of the court. All of this entailed considerable physical movement, expense, and many times, extortion under different guises. Heads of the court knew this; Judicial Service Commissions knew this and the National Judicial Council knew this. How could they all have missed the opportunity – with all the technology that has been present – to do something to ease these burdens? A few courts, though, made important strides – and, in these respects, we may mention the National Industrial Court,” Otteh declared.
According to him, COVID-19 may just be both the wake-up call to the Nigerian justice sector, particularly the leadership of the Judiciary. The impact of the pandemic, he said has been massive with hearings unable to be conducted, except very urgent ones. For Otteh, the nation’s judiciary is now being tested again, and although the Chief Justice of Nigeria has given some crucial guidelines to help courts navigate this uncharted territory, heads of the court must rise to the occasion and ensure that all courts get back to a full business.
Lagos lawyer, Mr. Emmanuel Umoren said the Coronavirus disease has affected the legal and judicial industry such that the sector must learn to live with the new normal. He noted that the disease has made the sector to start to debate new Rules of Court and new technology that will make it possible to have a remote court hearing and work from home.
“There is a new word in the lawyers’ dictionary – Webinar. Until the pandemic hit us, I am sure less that 10 percent of lawyers in Nigeria knew of the existence of the word or its use. The Chief Judge of Lagos State, the Honourable Justice Kazeem Olanrewaju Alogba (CJ) was the first to produce a new Practice Direction to meet this new way of doing business or offering of judiciary service to Nigerians. However, before the CJ of Lagos came out with the Practice Direction, we had seen two videos of Court sitting remotely from the Federal High Court Sokoto and the Bornu State High Court sitting in Maiduguri. These two court sessions, though innovative, were not done in compliance with any new Legislation, Court Rules or Practice Directions,” he pointed out.
Anambra State Chief Judge, he said, also come out with a new Practice Direction, though it was not as detailed as that of Lagos State. “Thereafter, the Chief Justice of Nigeria (CJN), the Honourable Justice Ibrahim Tanko Muhammad CFR with the instrumentality of the National Judicial Council (NJC) issued a new Practice Direction titled National Judicial Council Guidelines For Court Sittings and Related Matters in COVID-19 Period for all Courts in Nigeria!
“This has been met with a lot of scepticism as to the constitutionalism of such Practice Direction. It must be emphasized that all the Courts in Nigeria are the creation of the Constitution of the Federal Republic of Nigeria (CFRN) as amended, by Section 6. The Constitution also gave both the Federal and each State Legislature the powers to create these courts. And the CFRN gave each head of these courts the powers to make Rules of Court for their courts. In this regard, it has been submitted by various jurists that all heads of court in Nigeria are co-equals in the matter of making Rules of Court and Practice Direction.
“So the Practice Direction issued by the NJC which has such sections using the word ‘shall’ on heads of courts and judges of different courts should be resisted. Another error that the NJC has not seen in its guidelines is that it even made rules regarding revenue made from the State High Courts. This is a great anomaly in a Federation.
It cannot be imagined how a Federal Agency, can make rules affecting the revenue of a State Government. This is despite the fact that the NJC carters for all the Judges in Nigeria, but the revenue collected by the State High Courts are State revenue,” he explained.
Suggesting that the National Assembly and the various State Houses of Assembly immediately pass a proper and forward-thinking Coronavirus Act/Law to enable the courts to amend their Rules in that regard, Umoren said in England, where Nigeria took her laws from and in Australia, the Rules made to meet the challenges posed by the Covid-19 pandemic were made pursuant to the Coronavirus Act, 2020. He, therefore, charged legislators to copy and pass such laws instead of going to copy a law passed in the 1970s in a country that had less development and judicial activism than Nigeria in the 1970s.