Presiding over the affairs of the Nigerian judiciary at this time must give anyone nightmares or keep them awake all night. The judiciary has never witnessed, in all of its years, anything close to its present anguish, and to inherit a baggage so surreal in its proportions, and wrenching in its form, is sometimes a cruel way to mark the pinnacle of one’s career.
It is a lot better now, where he has any doubts, for the present incumbent to abdicate the office of chief justice than to begin to serve in it, because serving in it, at a time like this, is telling the world – “I will get into the trenches and work this out”. This won’t be pretty to resolve at all. It will not be easy to transform the business culture of an institution too acculturated to living in its own bubble, its universe that’s vastly disconnected with the planet in which suffering people, the struggling plurality, yearning for hope and a future, live.
If the new but acting chief justice accepts this responsibility at this time, he must carry the cross, and take the entire judiciary with him to Golgotha, the place of the cross, and there, crucify everything that has contributed, in one way or another, to the judiciary’s desolation and the blistering deflation of its image. That is saying he will need to reinvent the wheel, for nearly about everything of how the judiciary has functioned to this time, needs to be reconceptualised going forward.
The chief justice will need to create bold packages to address the two or three areas where the judiciary’s fault lines have exposed and harmed it the most – integrity, competence and efficiency. To do this, however, it is important to create reforms that cascade across federal and state lines, understanding that, even though federal judicial institutions such as the National Judicial Council (NJC) do not have direct powers over state judiciaries, what state courts do directly impact the perception, accessibility, quality and adequacy of the justice system generally. Therefore, all chief judges of states must be accountable to the NJC towards ensuring that they push hard for reforms in the delivery of justice by their courts and do not weaken the reform chain.
Strengthening integrity and defeating corruption
The present system for protecting judicial integrity is weak and needs to be strengthened, notwithstanding efforts to do this through the Judicial Discipline Regulations 2014, and the 2013 and 2016 National Judicial Policy(ies) respectively. We respectfully suggest that the chief justice ensures the NJC adopts a more proactive disciplinary policy that is not petition-based alone, to give the judiciary more freedom to act where no one does.
The NJC should also be able to act upon anonymous complaints, and offer protection for whistle blowers; collaborate with official anti-corruption agencies to investigate allegations of corruption and reduce the overbearing evidentiary burdens placed on complainants of corruption among other reforms; adopt policies that obligate the heads of courts in state and federal jurisdictions to establish effective disciplinary regulations or guidelines applicable to both lower court “judges” and court staff and ensure that the system of assigning cases to judges is more transparent and is possibly controlled by an independent, automated process.
The chief justice should further ensure that complaints of misconduct against judges trigger investigations that explore whether elements of criminal behaviour are present within, or are tied in with the alleged misconduct. Where such elements are present, criminal investigations can be launched by crime agencies.
The NJC should also develop a financial disclosure reporting system (used in some jurisdictions where all extrajudicial payments to judges are self-reported, and Judges submit periodic financial disclosure reports) and develop a lifestyle-triggered audit mechanism for judges where living standards appear unmatched by wages as was done in Kenya.
Reforming courts’ performance systems for better efficiency and accountability.
Court delays, at both trial and appellate levels are not inevitable, and human factors, probably more than the inherent features of trial dockets, contribute to the weariness of trials. When all Federal High Court divisions across the country close down following the unfortunate death of a judge of the court, or when judges are transferred at will, and the cases they are handling have to start afresh, we find human factors playing a troubling role in delaying the conclusion of cases. The NJC can take care of the delays caused by human intervention – they are the low hanging fruits – and pre-empt them, so that it can concentrate on dealing with more difficult causes.
In addition to this, the NJC needs to clarify and insist fiercely, that adjudication is the primary function of judges, and prohibit adjournments, with fair exceptions, from being predicated on judges attending to other official or non-official assignments. The council should also ensure that performance assessment indicators are extended to cover broader aspects of the judicial function, such as whether judges are complying with time standards, sitting punctually, performing administrative tasks expeditiously and that court staff are discharging their own duties conscientiously.
In addition to this, the council should request chief judges to ensure that lower courts and their staff are subjected to performance evaluations as well and that all courts have effective, robust and dependable complaint systems that ensure complaints are treated speedily, impartially and fairly.
The council should also ensure judicial appointments into lower courts nationwide are transparent and merit-based and chief judges should demonstrate that the appointment process into courts meet the criteria the NJC has itself adopted for higher court appointments.
A major crisis of public confidence
The October events and their aftermath have redefined Nigeria’s judiciary and how people look at, and see its members. However, this is not the only time a nation’s judiciary has suffered a major crisis of public confidence.
Going forward, Nigeria can draw from the experiences of other countries that have passed through similar turmoil and emerged from rubbles of despair and disillusionment to become strong pillars of justice and democracy. Kenya is one such country. Until 2011, its judiciary had bumped along the bottom and earned a staggering loss of public confidence. After Dr. Willy Mutunga took over as Chief Justice in 2011, he embarked on a far-reaching programme of action to reform the judiciary, and succeeded in overhauling a once-maligned institution into a now respectable voice of the rule of law in Kenya.
Nigeria’s judiciary can also emerge from this darkness and represent a beacon of regeneration, resilience and hope for Nigeria but the road ahead is rough and tumbling. It will need to be navigated with persevering resoluteness of purpose. We wish the acting chief justice Godspeed in this endeavour should he decide to walk that road.
Otteh, is the director, Access to Justice
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