Omoregie: Scars sustained too deep to heal swiftly
Edoba Omoregie is a professor of Comparative Constitutional Law and Federal Governance. He is currently on leave from the University of Benin, with the National Institute for Legislative and Democratic Studies, National Assembly, Abuja. In this interview with Assistant Editor, Law and Foreign Affairs, JOSEPH ONYEKWERE, he insists that the legal system survived traumatic episodes in 2019, stressing that the healing process would be certainly slow.
• Supreme Court Must Be Free From External Influence, Manipulations
What is your assessment of the judiciary in 2019?
In my opinion, it was a very challenging and tumultuous year for the judiciary, especially in its relationship with the executive branch. Recall that 2019 was an election year, and the judiciary was exceedingly busy during the year with pre-election and post-election litigations, all of which tasked its institutional capacity and integrity to near breaking points.
The removal of the former Chief Justice of Nigeria (CJN) Justice Walter Onnoghen from office was traumatic for the legal system. But it survived. Did that say anything about the tenacity of the judiciary?
Has the judiciary really survived that traumatic episode? I don’t think so. As a matter of fact, that episode has put a blot on the institutional integrity and independence of the judiciary. Let me be clear, I believe what has happened and is still happening today to the judiciary is the result of the faulty recruitment of judicial officers over the years. So, it’s probably too hopeful or enthusiastic to suggest that the judiciary, or the legal system as a whole has survived the traumatic episodes of 2019. The scars are too deep to heal too quickly, except certain urgent steps are taken.
The process of recruitment into the judiciary, for instance, has been unduly politicised against the usual norm. It will take a lot of institutional reforms of the recruitment system, including a constitutional review to redress the situation and restore normalcy.
This reminds me of the warning issued by retired Honourable Justice Samson Uwaifo, in his valedictory speech delivered at his retirement on January 24, 2004. In that memorable speech, which he appropriately titled, “May the Supreme Court Never Become an Undergrowth,” my lord warned against the emerging problem of recruiting judicial personnel whose intellectual capacity and personal integrity are in doubt.
Although he focused more on the appellate bench, I believe his concern foretold what we are seeing today in the judiciary as a whole.
The composition of election petition tribunals was quite a tough exercise last year, which prompted the President of the Court of Appeal to recuse herself under pressure. Even the composition was criticised by the opposition parties for lacking transparency. How would you review those difficult moments? Were they needless self-injuries?
Actually, whatever issues that were raised over the composition of election petition tribunals relate to the challenges of institutional integrity of the judiciary at this moment of our national life. Of course, politicians are always itching to score a match on each other. Therefore, some of the agitations may be quite unfounded and tendentious. None of the complaints wound have mattered in the final analysis if the judiciary is not perceived as biased, or lacking in integrity. So, my earlier point remains relevant in this context. I think I would rather say that the judiciary, and by extension, the legal profession, have themselves to blame for the current low-esteem of the judiciary. After all, judges are first members of the legal profession, and the current system of recruitment, together with the process of recruitment itself are all the product of members of the legal profession. So, to that extent, you’re correct to say that the current difficulties are self-inflicted.
Some say that the judiciary is burdened by insufficient number of judges, especially at the Supreme Court. Do you see anything wrong with the recruitment process, or how can things be better handled?
Honestly, from several points that one interrogates the issue of recruitment to the bench, especially the higher bench, the entire system is flawed. This is why I suggested earlier that members of the legal profession have themselves to blame for the grim picture, which the judiciary faces. I have repeatedly maintained that the National Judicial Council is a needless body. It is actually a vestige of military rule and defeats the principle of judicial federalism.
It is the offshoot of the Advisory Judicial Council (AJC) created just after the coup of December 1983. The NJC is currently responsible for final recommendations for appointments to the superior court bench. Imagine a single body being charged with such tasking responsibility for all 36 states of the federation and all federal court appointments. Don’t forget that the Chief Justice of Nigeria (CJN) chairs the council. How can the CJN possibly, and in all honesty, sit in charge of all superior court appointments in the entire country? Besides, as a federation, states should be able to take exclusive charge of recruitment to each of their own benches without federal input. This was the position under the 1979 Constitution, when the Federal Judicial Service Commission was responsible for recommending appointment to federal courts, and the State Judicial Service Commission of each state was responsible for recommending appointment to state courts. That system should be restored for sanity to reign. Let each state determine what number of judicial officers suits their purpose, likewise the federal government. Under the current system, all superior court judges are ‘federation appointees,’ because their emoluments are determined by the Federal Government, a very clumsy system, which impedes the entire recruitment process into the judiciary.
If we say that we are a federation, and indeed that’s the legacy bequeathed by our founders, we should operate our judiciary in the way other federations operate theirs, and in the way anticipated at the point of our founding. There is no logical reason for the current system than the unnecessary centralisation foisted by years of military rule. In effect, for the purpose of recruitment and reorganisation of the structure of our judiciary generally, I advocate a system of judiciary federalism, especially as practiced in the United States, particularly in terms of structure. With particular reference to the Supreme Court, I think the court is overburdened because it accepts all cases irrespective of the cause of action, no matter how mundane. This is why the court’s jurisprudential rigour has continued to be suspect. I advocate that the Supreme Court should be a constitutional court like its counterpart in many federations; taking on matters which relate to constitutional conflicts.
I believe that the membership of the court should be limited to not more than seven or nine justices, all sitting together as a full court in all matters like in the United States’ Supreme Court. The Supreme Court of Nigeria is a ‘packed’ court at the moment. This undermines its ability to dispense justice because in the final analysis, the court is virtually ‘owned’ by the CJN being the one who ultimately possesses the power to select justices that sit in every matter before the court. I believe justices of the Supreme Court should hold office for life except if impeached by the Senate for proven bad behavior, or upon voluntary retirement. The executive branch (or the president) should play no role whatsoever except in the appointment of justices duly recommended by the Federal Judicial Service Commission. All these will guarantee a more robust, intellectually vigorous Supreme Court free from the vagaries of external influence and manipulations.
How would you assess the management of election petitions generally? Were there striking upsets?
Well, election petition matters are deeply polarising. They are a major reason for current unflattering perception of the judiciary by the larger society. I think we should find a way to make our elections very credible, to avoid election petitions. Pending this urgent need, I think the limitation of time for election petition litigations is a big challenge for the judiciary. Perhaps, we should return to the old order whereby the judiciary had control over the time for concluding such matters, subject to the practice or instituting a legislative framework to accelerate such matters. This should not be a constitutional matter, as it is at the moment, because of the difficulty of constitutional alterations in such matters where the need arises. Concerning ‘striking upsets,’ I believe the Imo State Gubernatorial Election Petition can easily be cited as number one, and perhaps the only one, in this cycle of election petitions.
What is your assessment of the role of the Nigeria Bar Association (NBA) in the development of the Bar in the past one year?
The NBA has substantially remained the bastion of the legal profession, despite all the challenges facing the profession and the judiciary. I think the Bar can do more in terms of strict insistence on ethics of the profession. The NBA should seek more legal powers to discipline members for professional infractions. This should include judicial officers of the inferior and superior benches. The current system seems to be limited to lawyers alone, usually those who are involved in litigation practice. The Bar should spread its tentacles wider.
Personally, I believe the fact that a member of the profession is above board should be the most prominent ground for conferment of any privilege including the rank of SAN, far more than other considerations.
Furthermore, in 2019, I think the Bar could have done more in public intervention on pressing national issues in a more proactive manner. Going forward, the leadership of the Bar should consider having a very active and robust public intervention/response mechanism on national issues. The response system is rather sluggish and reactive at the moment, for the demands of our democratic system.
Are you satisfied with the legal training that students get from law faculties looking at the demands of the 21st century lawyering?
Speaking generally, there is no doubt that the current approach is well-founded, but needs to be strengthened. The legal profession is a very conservative profession with lots of tradition. Most of those traditions are still quite relevant and reinforcing.
However, there is need to fine-tune the methodological training tools to lay good emphasis on empiricism. This is a major missing link in training of lawyers in Nigeria at this moment. The current approach is based on doctrines, normative framework and analytical tools. These are all useful, but are essentially qualitative; and, some may suggest, too speculative for modern day needs. A solid grounding in empiricism would certainly strengthen the legal academy and aid in policy formulations and policy analysis, while creating room for a convergence in the works of lawyers and other disciplines.
Currently, the wall between lawyers and other professionals trained in empirical methods remains thick, yet in the 21st century such closed compartments are unhelpful to society. Going forward, I think there is a need to review the curriculum of legal training in Nigeria to include empiricism as a special study throughout the training period.
This is already happening in many countries, especially in Europe and North/South America, among others. There is no reason why we cannot key into this progressive and forward-looking approach.