Etiuzalle: It’s wrong to pass vote of no confidence on judiciary because of a few

Emmanuel Louis Etiuzalle is the managing partner, EUCCLES (Barristers, Solicitors & Arbitrators). He told GREGORY AUSTIN NWAKUNOR that it would be wrong to pass a vote of no confidence on judiciary just, because of the sins of a few.

Since the coming of President Buhari, the judiciary has been lampooned on several occasions for allegedly not doing enough in the fight against corruption, do you agree?

The allegation that the Nigerian judiciary is not doing enough in the fight against corruption is grossly misconceived. A judge or panel of judges sitting on a matter in a court of law acts on the evidence presented before him/them and no more. When you realise that we have a very weak police and inexperienced prosecutorial system, you cannot but agree with me that judges are not to be blamed for most, if not all the lapses in the overall administration of justice in Nigeria. This is not to say that we don’t have a few bad eggs, but it is wrong to generalise and pass a vote of no confidence on the entire judiciary just, because of the sins of a few.

The judiciary has always been on trial all over the world, and that is the essence of the appellate system in the hierarchy of courts, such that an aggrieved litigant, who feels dissatisfied with a particular court decision, has the option to go on appeal. Be that as it may, we must commend the Nigeria Judicial Council (NJC) for rising up to the occasion whenever there is a petition against any judge. In fact, if you listened to the news streaming last night, it was reported that the NJC has suspended a particular judge in, I think in Calabar, over a petition that was written against him and there are several petitions at the NJC that are pending for consideration.

Despite attempts by the judiciary to embark on self-cleansing, its efforts never seem enough as far as the executive is concerned; why?

When you talk about self-cleansing in the judiciary you are invariably referring to the NJC, which is the watchdog of the judiciary. In the dark days of the Abacha era, there was the Justice Kayode Eso panel, which recommended some judges for dismissal and some for retirement. It was the duty of the executive, which established the panel to come up with a white paper and implement the recommendation of the panel. We have to wake up to smell the coffee and tell ourselves the home truth about our society.

The executive, especially, the political executive, is largely responsible for the inability of the judiciary to properly function in accordance with its constitutional mandate. The President appoints the judges of the Supreme Court and the Court of Appeal, though, on the recommendation of the NJC. The same procedure is applicable in the state judiciary. There have been several unreported cases of executive rascality in appointment, promotion, transfer and discipline of judges in our courts. A very recent example was the experience in Rivers State judiciary, where the then-governor, Rotimi Amaechi, preferred a particular candidate as Chief Judge of the state to the candidate of the NJC, which is the body saddled with responsibility of recommending judges for appointment.

The only solution is for the executive to respect the independence of the judiciary and stop undue interference with the appointment process of judicial officers to feed their political appetite and the judiciary should be adequately funded to enable it live above board. There is a school of thought that believes that the executive starve the judiciary of adequate funding in order to keep it under government’s whims and caprices.

If you were to evaluate the performance of judiciary in the last one year, particularly, in the war against corruption, what would be your verdict?

The beauty of the performance of the judiciary in the last one year is the passage of the Adjudication of Criminal Justice Act 2015 (ACJA) by the Jonathan administration. Having said that, one year is evidently too short a period of time to give a holistic evaluation of the performance of the judiciary. However, you will agree with me that with the spate of arrests and investigations by the EFCC and the ICPC there has been a sustained trend of criminal prosecution in the last one year. Those who are complaining that there has not been any conviction in the last one year are, to say the least, guilty of hasty generalization because a system that has been fraught with long years of criminal prosecutions before convictions are achieved needs time to go through the novel provisions of the ACJA, the validity and suitability of such novel provisions needs to be tested in the courts before consolidating on any form of achievement. I can see light at the end of the tunnel in the current fight against corruption especially under the Buhari administration.

What will it take for the judiciary to surpass its current performance; how can it be assisted and what institutional reforms are necessary to bring the judiciary up to date with today’s realities and demands?

For any meaningful institutional reforms to take place in the judiciary, it has to start from the constitution itself, which is the Grundnorm of any legal system. I am very uncomfortable with the notion and idea of retirement age for judges; you see, judges, by reason of the nature of their job, ought remain in office as their physical strength and intellect may permit them. The American constitution provides that ‘judges shall hold office during good behaviour’. This is usually expressed in the latin maxim, Dum Bene Se Gesserit. This removes any threat or fear of intimidation in the mind of the judge in the discharge of his duties.

The institutions we have in place today are strong enough to help the judiciary enhance its glory not regain its glory, because it glory is not yet lost (as some have alleged in some quarters), but it will require judges like, Kayode Eso, Chukwudifo Oputa, Otutu Obaseki, Anthony Aniagolu, Ayo Irikefe to make it work. There is a strong and compelling need for a legal framework to support our judicial institutions.