The Federal Government has set up a committee to produce a National Justice Sector Policy by October 14. The committee’s terms of reference include producing a policy that sets out a common vision of a fair and effective justice system that respects the rights of all. Lawyers have identified areas in need of attention. They told JOSEPH JIBUEZE their expectations.
In pursuit of justice and equity for all Nigerians, the Federal Government is set to sanitise the sector to make it fair and non-discriminatory. Already, it has raised a technical committee to redesign the justice sector framework.
The committee will review, harmonise and integrate ongoing reform initiatives in the justice sector and produce a National Justice Sector Policy (NJSP) by October 14.
Solicitor-General and Permanent Secretary, Federal Ministry of Justice, Taiwo Abidogun, said, while inaugurating the committee: “The policy would clearly define Nigeria’s political philosophy with respect to justice delivery, and provide a common policy direction for the justice sector stakeholders across the nation.”
The committee’s terms of reference include:
• To draft and submit a National Policy on Justice for Nigeria that sets out a common vision of a fair and effective justice system that respects the rights of all without discrimination;
• To undertake a review of past and present strategic framework for the justice sector in Nigeria, taking into account the fundamental objectives and directive principles of state policy that are laid down in the Constitution of the Federal Republic of Nigeria in so far as they relate to the Justice system;
• To present the approved draft at a consultative meeting aimed at seeking comments, further input and buy-in from a wider body of justice stakeholders; and
• To present the revised draft to a national justice sector summit in November with a view to adopting it as Nigeria’s national justice policy.
The committee has Prof. Mohammed Tabiu as chairman. Members are immediate past Chairman of the National Human Rights Commission (NHRC) Prof. Chidi Odinkalu, Director-General of the Nigerian Institute of Advanced Legal Studies (NIALS), Prof Deji Adekunle, Kefas Magaji, P.C Okorie, among others.
Urgent reforms needed
There is no doubt that the judiciary needs urgent reforms, especially in its regulatory policies. Analysts believe that a clear-cut regulatory policy will limit the discretion of individuals and agencies, or otherwise compel certain types of behaviour.
Experts say policies are generally best applied when good behaviour can be easily defined and bad behaviour easily regulated and punished.
Legal reform can be the driver for all other reforms, including reform of the economy. A true market economy cannot be created without ensuring both full guarantees of private property and transparent predictability for entrepreneurial activity, on the one hand, and sufficient reasonable legal control over economic processes, on the other hand.
Lawyers believe the policy should address the following areas:
Welfare of judicial officers
The judiciary’s budget in many developing countries, including Nigeria, is controlled by the executive. This undermines the separation of powers, as it creates a critical financial dependence of the judiciary. The proper national wealth distribution, including government spending on the judiciary, is a subject of constitutional economics.
Most states continue to breach Section 121 (3) of the 1999 Constitution, which stipulates that “any amount standing to the credit of the judiciary in the Consolidated Revenue Fund of the state shall be paid directly to the head of the courts concerned.” Only few states have instituted full or partial judicial autonomy. It is believed that if the judiciary is well funded, judges will be better remunerated and will reduce their need to succumb to financial inducement.
A major task before the committee is to find ways to end conflicting judgments. The late Justice of the Supreme Court, Niki Tobi, recommended that a mechanism should be put in place to ensure that once a judgment is rendered by a division of the Court of Appeal, it is immediately circulated to other divisions to engender uniformity and consistency in verdicts, especially in election petition cases.
It has also been suggested that the Court of Appeal should initiate an internal law report, either electronically or in print, to guide its justices.
The current rules of procedure, lawyers say, dwell too much on technicalities and must be reviewed. Rather than argue the substance of a case, lawyers spend time on arguments over due adherence to procedure, wasting precious time. A good case can also be rendered invalid if certain motions were served without a court’s leave, or certain documents were not signed, among others. This is an area is need of a clear-cut policy guideline.
“Nigerian law is excessively and destructively procedural. What it reminds you is 18th, 19th Century jurisprudence. There is no way we can make progress with a law that is as procedural as we have,” Prof Fidelis Oditah (SAN, QC) said.
Another SAN, Chief Godwin Obla, said: “We need to review our laws of evidence and procedure. We need to cut out a lot of the red tape in the administration of justice.”
For instance, Obla said trial is delayed when defence lawyers raise objections to the admissibility of certain evidence tendered by the prosecution.
“Imagine that I have three bags of evidence to tender. On each piece of evidence, a defence counsel can keep raising objection that proper foundation was not laid. That can be used waste judicial time,” he said.
He also faulted the practice of senior lawyers coming to court with over 30 lawyers and calling out their names while announcing appearance. “A lawyer comes to court with 30 lawyers and spends 30 minutes announcing their names. Why not just submit a list of names?” asked Obla.
Sort out jurisdictional logjam
The case law, based on judicial decisions, provides that a court’s jurisdiction can be challenged at any stage during a proceeding. This, experts say, is subject to abuse.
“The issue of jurisdiction can be raised at any stage. You see lawyers arguing that it is the livewire of a case and nothing can be built on nothing, in a case that is at an advanced stage. How can you curb corruption when you have built up such obstacles?” Oditah asked.
Clearly defined punishment for indolence needs to be set out. Laws and rules cannot be effectively enforced without willing judges to drive the process.
“A lot of time is wasted when you turn up in court in Nigeria and the judge is not there. In some cases it happens when you travel from one state to another. I recall going for a case in Port Harcourt and was told that the judge had gone for ‘early Salah,’” Oditah said.
Improve case management
An overly full docket is major cause of delay. Some judges have tens of cases listed for a day. Sometimes cases are adjourned because the list could not be exhausted. It is also not unusual to see a judge asking a prosecutor during a trial to hurry up or to conclude so that other cases could be heard. Legal analysts say it is wrong to make lawyers sit in court for hours listening to cases they are not interested in. According to them, this is an area in need of reform.
A policy on capacity building for prosecutors, investigators and lawyers is crucial. A human rights group, the Access to Justice (A2J), after a study, found that the Administration of Criminal Justice Act, first passed by Lagos State in 2011, was poorly implemented.
Notable among the causes of the law’s failure is a pervasive ignorance of its relevant provisions by security agencies, especially the police. The study shows that only 29 per cent of police officers in Lagos were familiar with the ACJ Law 2011 (as amended) or have received any formal training on its provisions.
Review cost regime
Legal observers believe there should be a policy on the award of cost. To them, a situation where N5,000 cost is awarded for a case that has lasted for over a year is unacceptable.
In some other jurisdictions, an application for costs will need to clearly demonstrate how any alleged unreasonable behaviour has resulted in unnecessary or wasted expense. This could be the expense of the entire court case or appeal.
Experts say costs ought to include time spent by litigants and counsel, travel expenses, the use of consultants to provide detailed technical advice, and expert and other witnesses.
According to Duhaime’s Law Dictionary, cost is defined as “a court order that the losing party in litigation must pay the successful party’s expenses plus an additional allowance, the latter as a contribution towards the winner’s legal fees”.
In addition to indemnifying a successful litigant, costs serve the following purposes: deterring frivolous actions or defences; to encourage conduct that reduces the duration and expense of litigation and to discourage conduct that has the opposite effect; encouraging litigants to settle whenever possible, thus freeing up judicial resources for other cases; and to have a winnowing function in the litigation process by requiring litigants to make a careful assessment of the strength or lack thereof of their cases at the commencement and throughout the course of the litigation, and by discouraging the continuance of doubtful cases or defences.
Legal experts have harped on the need to make judges’ appointment transparent rather than shrouding the process in secrecy. A professor of law, Oba Nsugbe (QC, SAN), said: “We need to make greater effort to completely demystify the system of judicial appointments in Nigeria from beginning to end…Uncovering information about how to go about it, upcoming vacancies, criteria for appointment, and the process of appointment was painstakingly difficult.”
The National Judicial Council (NJC), in 2014, released guidelines that provide for call for expression of interest by suitable candidates, who wish to be appointed judges, including an advertorial to be placed on the website of state judicial service commissions, notice boards of courts and at NBA branches. But A2J alleged that the appointment of 25 new Federal High Court judges did not follow the guidelines.
“This rule was clearly not followed in the current recruitment process. Our investigation revealed that no such call for expression of interest by suitable candidates was made,” the group said.
Experts say there is the need to strengthen the disciplinary procedure. Chief Anthony Idigbe (SAN), believes there should be an external regulator for the profession. According to him, self-regulation has failed.
“We need an independent regulator for the legal profession,” he said, while urging the judiciary “to fight for” statutory regulation. Idigbe argued that the Legal Practitioners Disciplinary Committee (LPDC), for instance, may not be independent enough to impose sanctions on highly-placed lawyers because it is made up of jurists who may have vested interests or against whom a complaint is made.
However, the NBA President Abubakar Mahmoud, has vowed to address the issue of indiscipline among lawyers. He said in his unagural address: “With respect to regulation, it appears clear that the regulatory architecture of the legal profession is out of date and out of sync with modern day Nigerian realities and indeed, the size and complexity of the legal profession today.
“We must interrogate this and build a consensus on the direction to go. We need more rigorous and effective framework for establishing professional and ethical standards, reining in erring unethical lawyers and rebuilding confidence in the legal profession. In doing this we will look at current global trends and trends on the African Continent.”
The fact that the CJN also heads the NJC has been criticised. Former Court of Appeal President, Justice Isa Ayo Salami recommended splitting the two positions to avoid abuse.
He said: “It is only the NJC that has a serving head of the institution as its head and who has amply demonstrated how the arrangement could be thoroughly abused.
“In the circumstance, serious consideration should be given to separating the two positions as is the case with the police and the civil service.
According to him, it is difficult to ease out a CJN who fouls his seat while doubling as Chairman of the Council.
“The patronage the non-statutory members derive from him, such as appointment into the council and extension of their tenure makes them vulnerable and feel obliged to him and not to the body they are appointed to serve and are invariably prepared to kowtow,” Justice Salami said.
The Supreme Court
Observers believe there should be a policy that allows the Supreme Court to operate with flexibility. Obla said: “We can have one Supreme Court, but sitting in different geographical areas, there is nothing wrong with it. That is how the Court of Appeal started and it’s now decentralised in almost the 36 states. I believe that at the end of the day, the end of justice will be better serve if the Supreme Court can deal expeditiously with the cases that come before it.”
Experts believe interlocutory appeals should terminate at the Court of Appeal. Vice-President Yemi Osinbajo (SAN), in a paper, said: “There is need also to be clear and definitive intervention by the Supreme Court on notorious and recondite issues frequently deployed to delay trials.
“Issues of jurisdiction require one clear Supreme Court decision, which lays down the principles and the law. Some disciplinary actions may be required with the full backing of our courts to check counsels who in the face of clear authorities delay trials by raising such issues.”
On his expectations, Mr Ahmed Raji (SAN), said: “Such reforms should address problem of delays in our courts, conditions of service of our judicial officers, appointment of judicial officers, among many others.
“There should be a deliberate effort at promoting arbitration and other ADR mechanisms in resolving amenable disputes, most especially commercial ones.
“This will assist in decongesting the courts and make our jurisdiction attractive to foreign investors. The courts should be reorganised in a manner that will make the ADR friendly.”
Lagos lawyer, Tope Alabi said: “The proceedings of the court are very important. Judges should be compelled to use recorders provided for them. There are instances when judges would deliver judgments or rulings and when you apply for the certified true copy, what would be handed over to you is the edited copy. Some reasoning are either edited or missed.
“So, judges should be using tape recorders. Cost upward review should not be contemplated now. Courts also have our phone numbers and e-mail address. Anytime court would not be sitting, we ought to be informed a day ahead.”