Judicial reform is a crititcal success factor
Background
The 2-day National Summit on Justice 2024, organized by the Federal Ministry of Justice in collaboration with the European Union, the International Institute for Democracy and Electoral Assistance, the United Nations Children’s Fund, and the United Nations Office on Drugs and Crime; commenced two days ago (24/04/2024), is a welcome development. I commend the Minister of Justice and Attorney of the Federation, Mr. Lateef Fagbemi SAN for organising this important Summit. I also note that some days ago the President of the Nigerian Bar Association, NBA, Mr. Yakubu Maikyau SAN, stated that there will be focused discussions on judicial reforms during the upcoming 2024 NBA Conference. I hope that there will be sincere, honest, and forward-thinking deliberations during all the events, and more importantly, I hope that a strategy will be crafted for the betterment of the Judiciary in particular, particularly the legal profession and the generality of Nigeria in general. I believe that it is only when we fix our judiciary, that we can be able to truly fix our polity.
I am happy that there is a growing consensus amongst critical stakeholders with regard to the issues in the judiciary and the need for critical reforms. Indeed the positions taken by President Bola Tinubu (represented by Vice President Kashim Shettima), Senate President Godswill Akpabio, the Chief Justice of the Federation, Justice Olukayode Ariwoola, and the Minister of Justice and Attorney of the Federation re-echo the consensus about the malaise in the Judiciary. The consensus of the need for a reform of our judiciary is interestingly reflective of a position taken about 77 years ago by the late Chief Obafemi Awolowo, the former Premier of the Western region of Nigeria. In 1947, the late Chief Awolowo wrote that “Corruption is the greatest defect of the Native Court system.” He complained that not only did judges take bribes, people used their connections to enrich themselves and avoid punishment for their crimes. Does that sound familiar?
Accordingly, I am making this contribution as a patriotic Nigerian, a friend of the legal profession from which the judiciary sprouts and grows. I am also speaking on this topic as a critical stakeholder – being a litigant in ongoing or decided matters, as a Plaintiff or Defendant; where I have experienced first-hand, the impact of good and bad judicial practice, especially as a victim of miscarriage of justice.
Indeed, due to a lack of consistent, honest, and sustained evaluation, citizens’ engagements, and reforms; the judiciary has inadvertently and in some cases I dare say, deliberately become part of the problem rather than a solution provider for a better Nigeria in terms of the improvement of our democracy, fight against corruption, other forms of criminality, and the entrenchment of fairness, equity, and justice in our societies. The judiciary has sadly become an enabler/ promoter/ partaker of corruption, erosion of our value system, and degradation of our society, and part of the reason why the executive and legislative arms of government in Nigeria have been underperforming with no consequences.
Therefore, based on the aforementioned facts, I dare say that the inability of the executive and legislative arms to deliver the dividends of democracy in Nigeria is partly due to some of the shortcomings of the judiciary.
The judiciary should be able to play its role without fear or favor and not allow itself to be used to undermine the process of reforming our Country while ensuring that justice is served to all. While undertaking reforms, it is also important not to forget that the judiciary is also part of the Civil Service.
Challenges and ways forward
The best way to chart the way forward for the judiciary, is to dimension some of the key challenges bedeviling the Judiciary, because only then could we be able to develop a strategy and blueprint for Judicial reform in Nigeria. I humbly illustrate below and in subsequent episodes, what I consider as key challenges and “ways forward”, that must be addressed in order to reform the judiciary as a matter of national priority.
- Plethora of Exparte Orders and conflicting judgments are becoming anathemas to our polity
One of the classing examples of how the judiciary enables wanton corruption in Nigeria is the ugly trend how persons and organizations lean/ hide under section 46 of the 1999 Constitution as amended, to secure injunctions/ judgments to stop investigations, especially on matters of corruption, other forms of criminality, and even terrorism; to the extent that judges grant orders to stop statutory bodies from performing their constitutional responsibilities, which leave much to be desired. This is a serious issue that is becoming an anathema to the progress of Nigeria. In most of the cases where such injunctions or judgments are given, it is very clear that the prayers of the applicants are out of place at no moment. Additionally, some of the injunctions are granted in clear violation of the constitutional provisions given those Arms or agencies of Government, for example; the National Assembly in line with Sections 88 and 89 of the 1999 Constitution, or the provisions of the Acts of the EFCC, ICPC, Nigeria Police, DSS, etc. In any case, it is elementary to note that anyone trying to stop an investigation into criminal allegations is actually indicating that he/ she is trying to avoid investigation and possible prosecution, and therefore, such applications should not be granted by the honorable justices. This is because innocent parties will set the records straight and clear their names when they face an investigation. Unfortunately, we are all witnesses to this ugly trend which if not stopped, will certainly legitimize corrupt practices, and all forms of criminality including terrorism and acts that could threaten our territorial integrity. These are serious issues with potentially serious consequences on our polity, and should not be entertained by any well-meaning judges or citizens of Nigeria.
In addition, the ongoing practice by judges of cognate jurisdictions granting conflicting/ countermanding injunctions/judgments, especially in political and criminal matters.; in my opinion amounts to misconduct by justices and judicial officers. This is especially so when senior members of the bench (serving and retired Judges) have also re-echoed these concerns, so far, to no avail. I urge that these practices that bring disrepute to the judiciary should be estopped forthwith so as to reclaim the reputation and sanctity of the temples of justice (i.e. the Courts) in Nigeria and consequently give more respect and gravitas to the judicial pronouncements of our judges.
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Moreover, to put things in context, there are no lacunas in our laws regarding the principles of separation of powers, purviews, and causes of action, for statutory bodies e.g. arms of government like the National Assembly, law enforcement, regulatory and prosecutorial institutions. There are clear provisions of the Constitution of the Federal Republic of Nigeria, whereby the party or persons that are/are not satisfied with the decision/ action of the statutory bodies undertaking the investigation, could go to Court and seek protection and/ or redress. However, going to Court should be done only if the investigation is undertaken wrongly or concluded wrongly. But to pre-empt a criminal investigation with a court order to stop the investigation ab initio presupposes guilt and/or attempt to obstruct justice which in itself is an offense under our laws. Therefore, for honorable justices to stop or frustrate an investigation that may unravel corruption, criminality, terrorism or threat to national security is tantamount to promoting corrupt practices and other forms of criminality. Such injunctions/Orders have been frustrating the duties of the National Assembly, the Nigeria Police Force, EFCC, ICPC, DSS, the Military, regulatory bodies, etc.
Accordingly, on the basis of legal reasoning, the judiciary should allow and support statutory institutions to perform their duties, rather than prevent valid investigation or obstruct the principles of separation of powers that they- the judiciary should protect! Legislative, regulatory investigative, and prosecutorial institutions should be allowed to undertake their mandates as enshrined in the Constitution. If some judges continue the habit of forestalling investigations under the guise of fundamental human rights, as long as the investigation (civil or criminal) does not violate any constitutional provision; then that Judge, in my opinion, is supporting the obstruction of justice.
Based on the aforementioned, there is no provision to excuse/ settle or condone criminality under other laws and regulations of this Country. Consequently, I ask that as part of the Judicial Reforms, judges that engage in such sharp practices to the chagrin of the Judiciary and the legal profession should be stopped from doing so forthwith.
I will continue elucidating more of my insights and perspectives on this very important topic of judicial reforms in subsequent episodes.