‘The role of executive in appointing judges should be completely removed’
The judiciary occupies a significant position in the administration of justice in Nigeria. Section 6 of the 1999 Constitution vests in the court all the judicial powers of the state. Thus, the role of the judiciary in the administration of justice is imperative and indispensable. An independent, efficient and well-funded judiciary is the foundation of the rule of law. A Senior Advocate of Nigeria (SAN), Mr. Abiodun Olatunji in this interview with Assistant Editor, Law and Foreign Affairs, JOSEPH ONYEKWERE, maintains that to achieve judicial independence, the executive must be completely stripped of the role of appointing judges. The new wig also sees a digitalized legal practice as the future of the profession. He also spoke on other interesting matters.
Will it be possible for the judiciary to have absolute independence devoid of any executive interference?
I honestly think that is the ideal situation but in reality, it looks practically impossible. This is so giving the constitutional provisions relating to the appointment of judicial officers in the country. When you look at provisions of section 231 (1), (2) of the constitution on the appointment of the Chief Justice of Nigeria and Justices of the Supreme Court, the constitution vests the power to make the appointment in the President on the recommendation of the National Judicial Council (NJC) subject to confirmation by the Senate. It is the same with the appointments of the President of Court of Appeal and justices of the Court of Appeal except that, the appointment of justices of the Court of Appeal, is not subject to confirmation by the Senate. Moving further down the judicial hierarchy, it is the President who also on the recommendation of the NJC appoints the Chief Judge of the Federal High Court subject to the confirmation of the Senate. The President also appoints all other judges of the Federal High Court but these are not subject to confirmation by the Senate. The President also appoints the Chief Judge of the High Court of the Federal Capital Territory subject to the confirmation of the Senate.
All other judges of the FCT High Court are also appointed by the President but not subject to confirmation by the Senate. What is clear from the Constitutional provisions in Section 231, 238, 250 and 256 is that it is only with respect to the appointment of the Chief Justice of Nigeria, President of the Court of Appeal, Chief Judge of the Federal High Court and Chief Judge of the High Court of FCT, that the legislative arm of government is given a constitutional role to play. More importantly, where the office of Chief Justices of Nigeria, President of the Court of Appeal, Chief Judge of the Federal High Court and Chief Judge of the High Court of the FCT become vacant, it is the President who makes appointment in acting capacity to these offices and those appointments in acting capacity are not subject to confirmation by the Senate. You can see from these constitutional provisions the enormous influence the executive wields on the appointment of judicial officers at the federal level. It is the same situation at the state level. The Governor appoints the Chief Judge of the State subject to confirmation by the State House of Assembly, while the appointments of all other Judges of the High Court made by the Governor of each state are not subject to confirmation by the State Houses of Assembly.
Apart from the appointments, it is the executive arm of government that provides for the funding of the Judiciary. The judiciary is not self-funding. Its budgetary estimates are prepared by the executive and laid before the legislature for appropriation. The executive as and when due disburses funds for its operations. These clearly are challenges to the independence of the judiciary. I am not in anyway insinuating that once the president or the governor appoints a judicial officer, the fellow automatically comes under the control and influence of the appointing authority. On the contrary, we have seen the courts handed down landmark judgments in this country, which went against the interest of the government. However, one will advocate that in view of the importance of the office of a judge in the administration of justice, we need to embark on a constitutional reform that will see the complete removal of the role of executive in the appointment of judicial officers. Once the National Judicial Council receives the list of persons submitted to it by the Federal Judicial Service Commission (State Judicial Service Commission) in the case of the States for appointment into the office of the Chief Justice of Nigeria, Justice of the Supreme Court, President Court of Appeal, Justice Court of Appeal, Chief Judge of the Federal High Court and Judges of the Federal High Court, the NJC being a body of eminently qualified Nigerians should make the appointment, which will then be confirmed by the Senate.
The same should be of persons to be appointed as judicial officers for the Federal Capital Territory and the States of the Federation. In the case of the states of the Federation, the appointment should be confirmed by the State Houses of Assembly. One will also advocate that the NJC should be the only body that exercises disciplinary control over judicial officers only subject to approval by the Senate where the fellow concerned is the Head of the Court at the federal level and by the State Houses of Assembly at the state level. Accordingly, paragraph 21 (b)(d) of part 1 of the third schedule to the Constitution should be amended to remove the words “recommend to the President the removal from office of the Judicial Officers specified in sub paragraph (a) of this paragraph” and “recommend to the Governors the removal from office of the Judicial Officers specified in sub paragraph (c) of this paragraph”
The current system of judges’ appointment in Nigeria is such that the governors of states have massive influence on who are appointed as judges. Most often, the governors do not allow the names of persons nominated for judicial appointment to be sent to the NJC for scrutiny, where such names do not include the governors’ anointed candidates. The consequence is that many of those who got appointed and who are mostly the governors’ candidates are highly deficient in integrity and job performance. Although Section 153 of the 1999 Constitution creates and vest in the NJC the power to recommend to the political leadership of the states from among the list of persons submitted to it by the State Judicial Services Commissions persons for appointment into judicial offices, where such names are not inclusive of the governors’ nominees, they hardly see the light of the day.
By the provisions of paragraph 21 of part one of the Third Schedule to the 1999 Constitution, the NJC shall have power to collect, control and disburse all moneys, capital and recurrent for the judiciary. At the federal level, the NJC can be said to have been able to carry out this function but the same cannot be said at the state levels, where the governors still control and determine allocations to the judiciary. Although section 84(2) (4) (7) and 121(3) of the 1999 Constitution on the face of it grants financial autonomy to the judiciary by providing that the recurrent expenditure of judicial officers of the Federation and States shall be a charge upon the Consolidated Revenue Fund of the Federation or State, there does not appear to be any provision in the Constitution that specifically ensures the provision of capital expenditure for the judiciary. Section 121(3) unequivocally states: “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 the courts concerned”. Most governors in Nigeria have observed this provision more in the breach.
In general, the factors militating against the independence of the judiciary in Nigeria includes the process of appointment, discipline, dismissal, security of tenure, funding and the general condition of service of judicial officers and personnel. Once a judge is appointed, the judge should feel safe in the belief that he would serve out his appointment in accordance with the provision of the Constitution. A Judge should not worry whether or not a decision he reaches will determine the security of his tenure. When a judge is confident that his appointment can only be determined in accordance with the dictate of the Constitution and the relevant laws, his decision will be as dictated by his conscience and not any external influence. The Constitution must be further amended to ensure that the judiciary has total financial autonomy. The Consolidated Revenue Fund of the Federation and of the States must be charged with capital expenditure of the judiciary and not just the recurrent expenditure. Governors should be compelled to comply with the provisions of section 121(3) of the Constitution. The executive arm of government should not play any role in the appointment of judicial officers.
If the judiciary is granted financial autonomy, who will be responsible for the award of its contracts?
By judicial contract I assume you mean contracts that are necessary for the smooth administration of justice and these will include such contracts like the maintenance of court premises, procurement and maintenance of facilities such as air-conditioning systems, electricals, computers, audio systems, e.t.c all of which are absolutely necessary for judges and court officials to perform their judicial functions optimally. The head of each level of court should handle the award of these kinds of contracts in close collaboration with Deputy Chief Registrars (DCR) of the court. The Head of the courts should take the final decision because at the end of the day, he will be held accountable for his decisions. However, constitutionally, it is the NJC by the provision of paragraph 21 (e) of Part 1 of the third schedule to the Constitution that has the power to collect, control and disburse all monies, capital and recurrent for the judiciary. What we have seen in practical reality is that the executive does all the capital expenditures and disbursements of the judiciary. I am not aware of any capital project undertaken by the NJC pursuant to this constitutional provision. Renovation of court premises should not be a project to be handled by the executive for the judiciary.
How do you see the election petition judgment between Atiku and Buhari?
I have not read the judgment so I cannot comment on the decision. However, being a unanimous decision of a five-man panel of highly qualified, cerebral, intelligent, experienced and noble justices of the Court of Appeal, the presumption must be that the judgment is sound and rooted in our electoral jurisprudence. On the petition itself, I think it is good for our democracy and the rule of law. By approaching the tribunal, the Peoples Democratic Party (PDP) and its candidate exercised their constitutional right to seek redress and to ventilate their grievances within the ambit of the law. This faith can be further strengthened by taking measures as I have advocated earlier to ensure the independence of the judiciary.
Administration of Criminal Justice Act was enacted to decongest the prisons and fast-track justice delivery, but there seems to be little progress so far. What accounts for this?
The Administration of Criminal Justice Act 2015 was enacted principally to promote the efficient management of criminal justice system, speedy dispensation of justice, protection of the society from crimes and the criminally minded, protection of the rights and interest of victims of crimes as well as protection of the rights of the defendants. The Act makes provisions for steps to be taken to decongest the prisons as well as fast-track criminal investigations and trials. For example, under Section 10 (1) of the old Criminal Procedure Act, which applied in the Southern part of Nigeria, the police could arrest without a warrant any person who has no reasonable means of sustenance or who could not give satisfactory account of himself. That power was severally and seriously abused by the police. There were several arrests that were unlawful. That provision has been removed from the Administration of Criminal Justice Act. There are several innovative provisions in the Administration of Criminal Justice Act to address the issue of prison congestion. If you look at the provision of Section 111, it requires the Comptroller General of Prison to make returns every 90 days to the Chief Judge and the Attorney General of all persons awaiting trial held in custody for a period beyond 180 days from the date of arraignment.
Such return will greatly assist the chief judge in exercising his powers to release from prison those awaiting trial inmates who have been in prison for more than the maximum period the law prescribed as the penalty for their crimes. You also look at Section 296 of the Administration of Criminal Justice Act on the time protocol for remand orders. This section makes it mandatory that a remand order made by a court at first instance shall not exceed 14 days, but may be extended for a further 14 days on good cause. This particular provision addresses the issue of holding charges, which was prevalent before the enactment of the Administration of Criminal Justice Act. You also look at Section 396, which makes criminal trial to be on a day-to-day basis and where this becomes impracticable, parties are only entitled to five adjournments each. Each adjournment cannot be more than 14 days. This is necessary to ensure speedy trial and to avoid unnecessary delays. Interestingly, what we have seen in practice is that criminal trials still take long time to conclude.
There were times that adjournments were not at the instance of the parties but by the Court. We have also seen situations where trials that have almost been concluded by a particular judge had to be started de novo before another judge because parties expressed lack of confidence in the former trial Judge. These are the challenges. Still on prison decongestion, it is an understatement to say that our prisons are congested; the truth is that the state of our prisons is appalling; it is more of a concentration camp. I urge the comptroller general of prisons, the attorney general of the federation and the states and the chief judge of the high court of all the states of the federation to take advantage of the provision of section 111 of the Administration of Criminal Justice Act to immediately decongest the prisons by releasing those awaiting trial inmates who deserves to be released.
How in your view will the renaming of the Nigerian Prisons enhance prison services?
Renaming the Nigerian Prison Services as Nigerian Correctional Services is a right step in the right direction. Prisons are not meant to deform but to reform. Most inmates in Nigeria prisons come out hardened and readily return to their bad ways. As a Correctional Services, the officers need to be schooled in the new thinking of government that prisons are meant to correct and reform those who act contrary to the laws of the land and the norm of society. The living conditions in the prisons must be improved upon and adequate provisions must be made for the training of inmates in vocational skills. The government should also consider building new correctional facilities to reduce over-crowding in the existing ones. I will also add that the courts, especially the magistrates should be bold and firm to take decisions to strike out cases where the prosecution appears not diligent in the prosecution of the accused persons. This will also help to decongest the prisons.
There are diverse views about law office management, but preponderance of opinion favours partnership for the purpose of sustenance. What do you think?
I am one of those who subscribed to the view that partnership is a better option for legal practice and practitioners. In partnership, partners pool resources together to achieve the same goal. Most of the successful lawyers in Nigeria today are into partnership. I am a partner in Abdullahi Ibrahim & Co. The firm is one of the first 100 law firms in Nigeria and we are doing well. We have partners in the firm who are experts in divers areas of law ie election petitions, commercial transaction, arbitration and mediation, banking and insurance, maritime, aviation, energy law, property, etc. It is unlikely that a sole proprietor will be able to handle all these areas of law expertly alone. But in a partnership, this can easily be done by attracting partners who are experts in the various areas.
Junior lawyers are poorly remunerated. How can this be addressed holistically?
I honestly think the individual practitioners can best address this issue. Lawyers don’t have a Trade Union that can agitate and negotiate on behalf of the junior ones. The Nigerian Bar Association is not a Trade Union. It is an association of lawyers who have their individual opinions as to what they consider as adequate remuneration for their junior ones. It is ridiculous and disheartening however, to learn or hear that some law offices or lawyers paid their junior ones poorly. We must be interested in the welfare of our juniors. The junior lawyers go to court to appear on behalf of clients, they prepare court processes and generally prepare the rough work for us the seniors to fine tune. We must show more than passing interest in their welfare. They should be adequately remunerated and catered for. The future of the profession belongs to them. For us at Abdaullahi Ibrahim & Co., the welfare of our lawyers are of paramount importance to us and that is why I have been able to remain and rise through the ranks. It will interest you to know that I joined the firm after my youth service and I have remained with the firm since.
In the area of continuing legal education, how can we enhance the training of young lawyers and create opportunity for the professional development of all lawyers?
It is an understatement to say that the future of the legal profession is digital. No doubt, the legal profession is gradually moving away from the analogue age as technological advancement, which has implications for legal practice emerges. Thus, practitioners both young and old must continually update themselves with new development in technology as it affects the profession. Continuous legal education in terms of regular attendance of seminars, conferences, workshops, etc that are designed to update lawyers on the practice of their profession must be encouraged and where practicable made compulsory. Firms should make adequate provisions for this and also encourage their lawyers to attend. Firms should pay for the Conferences, Seminars and Workshops etc. The payments should cover registration fees, feeding, accommodation, transportation, etc. this will encourage lawyers especially the young ones to attend and the benefit derivable therefrom will definitely accrue to the firm in terms of improved productivity and up to date knowledge of developments that affect legal practice and the legal profession.