Adesina: Don’t blame judges, restructure system

Mr. Dele Adesina is a Senior Advocate of Nigeria (SAN). In this interview with KAMAL TAYO OROPO, he said the problem of the judiciary is symptomatic of the structural defect of the country and until it is addressed, judges cannot do much in accelerating the system of justice delivery.

Against the backdrop of anti-corruption war in the last one year, why has the judiciary come under criticism for not doing enough?

Without any hesitation, whatsoever, I believe the judiciary has been performing its roles rather creditably well under the constitution. And not just in anti-corruption case, but also, in every case brought before it. I believe the judiciary has been dispensing justice without fear or favour. I’m not oblivious of the impression from some sections of the public that the judiciary can be faster than it is, currently. But as somebody, who is intimately involved in the practice of law before our courts, I’m fully aware of the hindrances confronting the system, both attitudinal and systemic.

I firmly believe that until we deal with these hindrances, we cannot have a speedier administration of justice than we are having currently.

The problem in the main may have been with us for a long time; and as much as we have highlighted them, there has not been much decisive attempt in solving them and so the problems remain.

In specific terms, what are these hindrances?

When I talk about attitudinal and human problem, I’m referring to a situation where, in the 21st Century, judges are still recording proceedings in long hand. They are still recording proceedings with pen. How far can they run or operate with such a system?

In the days of armed robbery tribunals, and even in the election petition cases, we have automatic recording systems. The judges only took note of mainly critical points, while the automatic recording devices record verbatim, everything that is said by the lawyers, judges, witnesses and what have you. In this case, you would find out that the proceedings of the armed robbery tribunals were faster. Also, the proceeding before the election tribunals were faster.

The law states that election tribunal cases must start and finish before 180 days before the tribunal trials, and 50 days before the appellate court. There is an attempt to curb delay in hearing election petition cases, but unfortunately, it also came with its own attendant problems of injustice. This is so, because justice rushed, is also justice denied. And so, we have not really found a concrete way of addressing the problem.

So, if we put a tag on the trials of these anti-corruption cases and say, ‘hey, it will now be started and completed within six months.’ That is 180 days. But how far can you guarantee that, knowing that this is a case of criminal justice system that must not only be seen to be fair and just to the society alone, but must also be seen as fair and just to the accused person.

If we do not deal decisively with the delay in our justice system, either civil or criminal, we will keep complaining. However, the systemic problem is even more crucial and more compelling.

Some of our courts, particularly in Lagos, Abuja, Port Harcourt, have average of 30 cases per day –– to just one judge. Most of the judgments that are coming out from these courts; at least 75 per cent, will go on to the Court of Appeal. At least, not less 80 per cent of the judgments emanating from the Court of Appeal, end up at the Supreme Court.

Now, we have what I would describe as a triangular system of our judicial system. At the base of the triangle, you have the trial courts, comprising state high courts in the 36 states of the federation, and the Abuja. You also have the Federal High Court and you have the Industrial Courts and so on. Now, let us assume for the purposes of argument that all these courts amount to between 2,500 to 3,000 at the base of our judicial triangle, as you move up, you get to the appellate courts and the leading one is the Court of Appeal, which has only 16 divisions. So, appeals from about 3000 courts go to 16 divisions of the Court of Appeal. Appeals, as much as they could be, would come from these Court of Appeal divisions, seeking input from the Supreme Court, which is at the apex of the judicial triangle. This is what we mean, when we say systemic problem.

The competition that this has brought in, in itself is, inevitably and unavoidably too, delaying in our hearings. The human beings that are managing this system can hardly do much; they do not have more than 24 hours a day, anyway. And we cannot stop any aggrieved litigant who may want to appeal against the judgment of a High Court from going to the Court of Appeal, neither can we stop them from going to the Supreme Court. So, at the Supreme Court and the Court of Appeal, it has become the game of first come first serve; and you join the queue for your turn. This is 2016; there are still cases of 2011 in the Supreme Court waiting for their turn. So, until we deal with this situation, we would keep complaining.

In the light of this situation, don’t you think it is best to have special court, specially designed for corruption cases?

I have not been fully persuaded in favour of special court. Even if you have special court at the base of our justice system, which is the trial court, would the appeal also go to a special Court of Appeal? Are we going to have a special Supreme Court? So, we are still scratching the problem on the surface and shying away from the fundamental problem. The best thing is to address this problem in holistic manner.
Yes, how specifically?

This is a Federal system of government we are running. That is, Nigeria is a federation. But until, through the provisions of our laws and the practice of those laws, we genuinely practice true federalism, we will continue to move round and round in a circle. Speaking specifically on the issue of the judiciary, I have not been able to see the reason why we would be having a federal system of government and we will be having a partial unitary system of judicial system. What we have, as far as our judicial system goes, is essentially unitary, a situation where you have state high courts, but most of its responsibilities are now going to the federal high courts and the federal high court cannot cope.

Secondly, if the states can have the state high courts under the constitution, there is no reason, whatsoever, they cannot have state appellate courts as we have in the United States of America, where we borrowed the executive presidential system of government we are operating. If we have state High Courts, the state Appeal Courts and the state Supreme Courts on issues that are not on the exclusive list of the government at the centre, our justice administration would be a lot better and more efficient. We would have begun a fundamental move towards practice of genuine federalism. We should limit the powers of the federal high courts only to matters of exclusive legislative list.

We must even go further, we must x-ray the exclusive list and take out many items, which in the first place has little to do with the government at the center.

For instance, there has been a lot of complaints regarding the prison system. That our correctional centers are not adequately taken care of and are often over-populated. Why cant the prison system be decentralised so that we have state prisons? You have state prisons and then you have federal prisons. These are part of fundamental issues dealing with our structural make-ups.

So, until there is a holistic restructuring, the problems of the judiciary will continue. Restructuring the judiciary must form an integral restructuring of the nation.

Bearing in mind that the restructuring is a constitutional matter, is there a way the executive can bypass the tedious route? Or should there be another national conference to tackle the issue?

They are pure constitutional matters. But the executive can flag off the process through the introduction of executive bill to amend the constitution. I have been lamenting so much about this constitution. Those areas that are unitary in nature should be taken out and made federal; then we would be talking.

Are you saying addressing the supposedly structural defect may not necessarily require convocation of a national conference?

I will be the last person to canvass for any other national dialogue, because we have had more than enough. In 2005, we had a conference under the Obasanjo-led administration. In 2014 we had another under the Jonathan-led administration. These conferences were populated by Nigerians and we have read so much about their reports, all we need to do now is to look at the reports of those two conferences and those that affect the state of the nation –– the matter of restructuring of the nation –– be taken to the National Assembly, through an executive bill. The process can be short-circuited without going through another process of dialoguing and spending several billions of naira.

Any government that takes the bull by the horn in really making this nation federal, in deed, in law and in practice, will be leaving a legacy that will address several problems at the centre.