With the enactment of the Administration of Criminal Justice (ACJ) Act 2015, many believe the delays in dispensation of justice, especially in criminal cases, will be reduced. President Muhammadu Buhari and Vice-President Yemi Osinbanjo (SAN) have spoken on the need for more reforms. Lawyers have identified other areas that need transformation, reports Precious Igbonwelundu.
Since assuming office, President Muhammadu Buhari has repeatedly emphasised the need for judicial reforms that will aid his administration’s anti-corruption war as well as strengthen democratic governance.
The Administration of Criminal Justice Act of 2015 has addressed some problems, such as staying proceedings pending appeal, and cases starting de novo when judges are elevated to the Court ofAppeal.
These include ensuring financial independence for the judiciary, insulating it from political manipulation, reviewing the processes of appointment and removal of judges; addressing institutional limitations and incapacities, as well as ridding the judiciary of corruption.
Speaking on areas that need reforms, a Supreme Court Justice, Kudirat Kekere-Ekun, called for an amendment of the Constitution so that some cases can terminate at the Court of Appeal.
This, in addition to more deployment of Information and Communication Technology (ICT), she said, would reduce the Supreme Court’s workload.
Justice Kekere-Ekun backed suggestions that some cases terminate at the Court of Appeal, adding that a review of the constitutional provisions governing the jurisdiction of the Supreme Court is necessary.
“I am in full support of certain classes of cases terminating at the Court of Appeal. In my humble view, the amendment of the 1999 Constitution has added to the burden of the Supreme Court.
“It made the Supreme Court the final court of appeal in respect of decisions arising from Governorship election tribunals.
“Such appeals, by virtue of Section 285 (7) of the 1999 Constitution (as amended) must be concluded within 60 days from the date of the delivery of the judgment of the Court of Appeal,” she said.
She said the provision has led to an influx of appeals and has also affected other cases pending before the court, which are already overdue for hearing, but which had to be set aside while election related appeals are heard and determined expediently.
She also called for the use of more technology in court processes.
She said: “The global village is moving at a faster pace, the apex court of the most populous nation in Africa cannot be left behind. We must embrace information technology and take advantage of all that it offers along with alternative dispute resolution mechanisms, where possible.
“A reduction of the inflow of cases and more efficient management of the court’s docket will allow the justices to devote more of their time and resources to research, study, reading, consultations among themselves for the advancement and administration of justice.”
Justice Kekere-Ekun said for the Supreme Court to discharge its role effectively, the adoption of Information technology will allow for easy sharing of information.
She said it would also help to create a database for decided cases by all the courts and which will also be accessible by judicial officers anywhere.
In addition, she said ICT will facilitate communication between the justices, the registry and other administrative staff. According to her, the project is capital intensive and requires political will, purposeful leadership, and the commitment of substantial resources.
“It also requires training for the justices and upgrading the knowledge and skills of courts staff to enable them effectively manage the facilities.The leadership of the court is fully committed to this transformation.
“The role of the Supreme Court today should primarily be that of development of legal policy and to discharge the role effectively, its current docket has to be greatly reduced,” she said.
Worried by these challenges bedeviling the system, a former Chief Justice of Nigeria (CJN), Justice Dahiru Musdapha, during one of his presentations at the Nigerian Institute of Advanced Legal Studies (NIALS), enjoined the Judicial Reform Committee as well as other bodies which have been empanelled, to explore how best to fortify the independence of the judiciary, and insulate Judges from political manipulation.
Justice Musdapha considered several issues, such as Should serving Judges should continue to undertake ad hoc assignments, such as election petition cases? What are its implications for delays in handling regular cases? Will such assignments will make them vulnerable to corrupt practices?
He said: “Sadly, the judiciary in several states still goes cap in hand to the executive for funds. By section 162(9) of the Constitution, any amount standing to the credit of the judiciary in the Federation Account is paid directly to the National Judicial Council (NJC) for disbursement to the heads of Superior Courts, including those at the state level.
“However, a significant part of the funding requirements of state judiciaries, especially in the area of the provision of infrastructure and welfare of Magistrates and other lower court Judges, remain the responsibilities of states.
“The plight of the state judiciaries is compounded by the fact that, in spite of the best efforts of the NJC, the processes of appointment and removal of judges/security of tenure is the subject of political theatrics.
“Delay in the dispensation of justice remains a major challenge due, in large measure, to institutional incapacities in the area of infrastructure (especially e-infrastructure), inbuilt delay mechanisms in the law, as well as failings on the part of some Judges, the official and private Bars, law enforcement agencies, litigants and witnesses.
“The sobering reality is that if court backlogs grow at their present rate, our children may not be able to bring a lawsuit to a conclusion within their lifetime. Legal claims might then be willed on, generation to generation like hillbilly funds; and the burden of pressing them would be contracted like a hereditary disease.”
The needed reforms
A Senior Advocate of Nigeria and Queens Counsel (QC), Mr Oba Nsugbe, said the secrecy surrounding judges appointments must be stopped.
“We need to make greater efforts to completely demystify the system of judicial appointments in Nigeria from beginning to end,” he said.
Nsugbe said he once sought to know how to go about applying to be a judge in Nigeria, and to learn about upcoming vacancies, criteria for appointment and the process, but came up with no reliable information.
He interrogated various official websites for answers, read a number of publications, and spoke to people in the judiciary, and still got no useful information on how to be a judge.
His words: “The answers never seemed complete or exhaustive. This needs to change. In so important an area, you can never have enough clear, systematic information about what each and every stage entails – exactly what is needed of the applicant, when, who will assess it; how it will be assessed; who will be spoken to; against what criteria, etc. There needs to be more transparency about the appointments procedure. The lack of it acts as a disincentive to many aspiring judges,” he said.
A judge of the Delta State High Court, Justice Roli Harriman, in paper, said only a few states, such as Lagos, has any form of electronic recording of proceedings.
Majority of courts, she said, still use archaic equipment and judges write longhand, which is later reproduced by typists. “The use of longhand and typewriters obviously tend to delay justice,” she said.
Another factor, the judge said, is that little use is made of software designed for case management and legal research. This lack of tools leads to judges adjourning till further dates rulings they could otherwise have delivered immediately. “Apart from a few states, the acquisition of this software is not on the priority list of governments,” Justice Harriman said.
Delays, the judge added, even start from the filing process. “I am hoping a time would come when e-filing will take centre stage in the judiciary, a time when lawyers can, with a registered access code, file their processes and make payments online,” she said. Besides, it will not be out of place if court registries accept Point of Sale (POS) payments.
Lack of courtroom technology, such as video conferencing, is also a challenge. In criminal cases, a greater number of adjournments are due to investigating police officers being transferred to other locations or being sent on other assignments. Some witnesses are also reluctance to come to court. “If their evidence can be taken through video conferencing, then this would eliminate the delay,” Justice Harriman said.
The physical state of some courts also does not help speedier justice delivery. Some courts do not have air conditioning, and some courtrooms are like cubicles.
While stating his agenda for judicial reforms, Musdapha noted that it was imperative to explore ways to strengthen the provisions of laws and regulations, as well as the mechanisms for their enforcement.
He suggested that the Code of Conduct for Judicial Officers should expressly forbid Judges from giving extra-judicial advice to other branches of government, just as he stated that only paragons of integrity, the best and the brightest be appointed to the bench and elevated.
The former CJN envisioned a judicial system that is simple, fast, efficient and responsive to the needs and yearnings of the citizenry, which can be actualised by full computerisation of operations.
He suggested the amendment of Section 233(2) of the Constitution to compulsorily require leave of the Supreme Court before an appeal may lie from decisions of the Court of Appeal.
“This will engender a filtering mechanism that ensures that frivolous appeals do not continue to clog our cause list and thereby cause undue delays and backlogs.
“Again, on the appointment of Judges, we are also of the respectful view that there is considerable merit in the call to diversify the pool from which judicial appointments to superior courts are made.
“We are concerned by the declining intellectual depth and overall quality of the judgments of some of our Judges as well as the frequency with which some Judges churn out conflicting decisions in respect of the same set of facts.
‘’A wider diversity of experience will undoubtedly add quality to judicial deliberation in our courts.
“We must, therefore, embark upon reforms that address not only the present problems but also rollout the infrastructure that would enable us cope with foreseeable future challenges,” he said.
However, on the Criminal Justice System, some of the suggestions the former CJN made have been included in the recently amended Administration of Criminal Justice Act.
That notwithstanding, lawyers believe more reforms are needed in order for the judiciary to efficiently carry out its functions.
They argue that concerted efforts must be made towards decongesting the prisons and ensuring faster proceedings.
Renowned legal practitioner, Mrs. Funke Adekoya (SAN), said the government needs to focus on the investigative and prosecutorial areas of the Criminal Justice System.
She said: “On a practical note, the police needs to be properly equipped with resources and trained such that they can concentrate on investigating crimes before arrests are made, rather than after.
“Proper investigation will decrease the number of Awaiting Trial Detainees, some of whom are incarcerated because they have been unable to make bail while the police are still conducting investigations.
“The police should be trained in finger printing collection and analysis. All the biometrics collected from Nigerians through the BVN exercise and the collection of passports and drivers’ licences should be centralised and the police should access it to trace criminals.
“This will further decrease the time before arrest, and between arrest and trial.
“Only lawyers, trained in the art of prosecution should be allowed to handle criminal cases, and States that have not amended their laws in line with the Administration of the Criminal Justice Act, should be encouraged to do so.
“Lawyers in the Ministry of Justice need to be trained to enable them handle the various types of prosecutions which are now a feature of our criminal justice system, rather than farming out briefs to private prosecutors.
“The government also needs to review the jurisdiction of the courts. Too many frivolous matters are reaching the Supreme Court, such that the Judges are overburdened with issues that are not ‘cutting edge’.
“The Constitution needs to be amended such that all matters except death penalty judgments should require leave from the Supreme Court before they can be appealed to that court.
“Regular appellate jurisdiction should end at the Court of Appeal. The grant of leave should be based on public interest considerations [conflicting decisions of lower courts, constitutional issues, impact on legislation etc.”
Constituional lawyer, Fred Agbaje, said emphasis should be placed on prison reforms as well as fast track in hearing and determination of criminal matters.
He suggested that custodial sentencing for convicted persons should be deemphasised, just as he explained that convicts of lesser crimes, instead of outright jail, be given social punishment such as “sweeping Ikorodu Road for two weeks during the day under the supervision of a social worker or pay a fine!”
He noted the need for a review of stringent requirements a surety must meet to stand bail for an accused, such as the demand for land certificates in Ikoyi, Lekki, Ikeja GRA to be produced by civil servants from grade seven and above.
Agbaje said no accused person should be arraigned without the prosecution witnesses in court and failure by the prosecution to conduct and conclude the case after a stated number of adjournments, should warrant it being struck out.
He also suggested the need for reduction of appeals on interlocutory decisions through the constitution.
The Chairman, National Human Rights Commission (NHRC), Prof. Chidi Odinkalu, believes there is a need to be make the judiciary more accountable in appointment of judicial officers, as well as in jurisprudence.
“In the last quarter of a century, the judiciary has become a sinecure, part of the retinue of patronage in public life.
“Almost invariably, the path to judicial office now begins in the civil service and appointment to the Bench is increasingly viewed as part of the promotion structure in the civil service significantly dis-entangled from any rigorous considerations of integrity, professionalism, merit, values and temperament.
“The resulting narrowness of pool of judicial skills and intellect reflects in the quality of both organisation and some of the jurisprudence that comes out of courts and imbues our judicial system with a structural flaw that can only be addressed through structural intervention. The time is ripe for this,” he said.