Cluster’s Draft Paper Presentation For The Summit Sector: Justice & Rule Of Law

 GOAL:

A justice system that inspires public confidence, keeps society secure and safe, and provides a conducive environment for smooth social interactions and a flourishing economy

Preamble:

The state of the judiciary in Nigeria is neither exciting nor enticing. As the third arm of government that is saddled with the interpretation of the law and the preservation of liberties, the judiciary in Nigeria has grown and transformed over the ages. Its impact on the affairs of man has become indispensable, both in the preservation of sanctity of contract, remediation of injury, regulating relationships among government, its agencies and governments and in all other spheres. One of the 8-point agenda of the P-Bat government is Rule of Law. Hence the place of judiciary is not only significant but crucial!

The recent democratic regimes have seen our judiciary plunged into abyss of dissatisfaction. Rule of Law to us means especially as enunciated by Dicey, ‘in the first place, the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness, or prerogative, or even of wide discretionary authority on the part of the government. Englishmen are ruled by the law, and by the law alone; a man may with us be punished for a breach of law, but he can be punished for nothing else. It means, again, equality before the law, or the equal subjection of all classes to the ordinary law of the land administered by the ordinary law courts; ‘the rule of law’ in the sense excludes the idea of any exemption of officials or others from the duty of obedience to the law which governs other citizens or from the jurisdiction of the ordinary tribunals.’

It is important that this country gets it right with the rule of law especially with independence of judiciary, else the entire structure on development falls to the ground. Of fundamental importance, if other branches of government would not be allowed to assume the status of a monster, is to ensure the existence and independence of the judicial authorities “so that their decisions are reached in accordance with law and not in submission to the wishes of government or upon other extraneous considerations. Chief Afe Bablola said, ‘The whole essence of the independence of the Judiciary is to ensure that those who man the judiciary would be able to carry out their duties without fear or favour, to enable them deliver judgments in all matters before them.’

Statement of problem:

This cluster examines the problems that disable the judiciary from effectively discharging a Nation’s eminently important tasks of fairly and impartially adjudicating disputes, protecting citizens’ rights and constraining the excesses of both the executive and the legislature. It offers suggestions for addressing the problems and inadequacies of the judiciary.

The listed are considered summed problems of the judiciary this cluster seeks to address:

1. Judicial corruption
2. Appointment of judges
3. Threats and intimidation of judges
4. Judicial independence
5. Delay in justice delivery

Policy Option:

Part of the National Judicial Council functions is to advise both the President and the Governors, appoint judges at the state and federal levels, discipline erring judges and nominate council executive members. This burden appears too heavy. There is need for the NJC to shed some of these functions to allow it function more effectively.

The constitution should be drafted to incorporate powers of the Governors of states to appoint Judges and if need be notify the NJC.

In 2017, a national policy on Justice was drafted aimed at reforming the dysfunctioning justice system and the judiciary. The police outlined the followings as root causes of the failures and inadequacies of the justice system:

Among the root causes of the failures and inadequacies of the justice system are the following:

• Lack of joint leadership and sound structures and processes for effective collaboration between the agencies and actors across the sector, making it difficult to address problems and challenges in a concerted manner and provide a common vision and direction for future development;
• The Poor capacity of many of the institutions of justice delivery, reflected in poor and dilapidated structures and facilities, poorly skilled manpower, and low level knowledge and application of modern technology, all leading to inefficiencies in justice delivery and little concern for transparency and accountability;
• Insufficient legal framework for functioning of some of the institutions in the sector such as the police and prisons, leaving them to operate with outmoded mandates, oblivious of the modern context in which they function;
• Unnecessary complexity, obscurity, and technicality in the law that obstruct justice, foster undue delays and allow abuse and manipulation;
• An over-restrictive penal and criminal administration system that relies heavily on custodial sentences for the punishment of offenders and makes little or minimal use of correctional and restorative justice measures, giving rise to overcrowded prisons, with little or no opportunity for reform of the inmates, and, not surprisingly, high rates of recidivism;
• Limited opportunity for the use of alternative dispute resolution methods that are less adversarial, and are cost-effective and user friendly, which could also help decongest the courts and engender more public confidence in justice delivery;
• Inadequate awareness of the law, human rights and the justice process among citizens, and their poor participation in law-making, resulting in high levels of tolerance for abuse of human rights and impunity and the proliferation of ineffectual laws that fail to be implemented;
• Poor accountability; and a performance management system that fails to sanction ineptitude, tardiness, corruption and abuse of office, or reward hard-work, industry, productivity, resourcefulness, diligence and probity.

Late eminent jurist, Justice Akanbi succinctly captured the life a corrupt judge as follows:

…He is an afflicted person—just like the carrier of the AIDS virus or kleptomania. He suffers from a deadly disease. To him, justice is not his primary concern. No. What matters to him is the corrupt money that is turned over to him by his partners in crime. His conscience is warped. His judicial Oath means nothing, and so he hardly realizes that he is an obstacle to justice according to law. In any case, by his nature, he is a stranger to justice, and if he is not caught in the act, he remains a perpetual obstacle in the way of justice until perhaps Nemesis catches up with him. Otherwise, he is unable to appreciate, let alone administer justice according to law.

Second is the dangerous and mischievous Judge who knows the law but prefers not to follow the law. He acts on whims and caprices. He assumes jurisdiction where there is none. He declines jurisdiction where there is. To him, judicial precedence means nothing. His motive is dangerous. His wig and gown are mere symbols of his ego. Again to this class of Judges, the judicial Oath is a mere cosmetic. Such a Judge is not only an obstacle to justice according to law, he is a danger to the entire Judiciary as an institution.

The impact of the failures in the justice system is enormous. It has tended to undermine public confidence and encourage lawlessness, impunity, easy resort to self-help and perversion of justice. The nation cannot afford to allow such failures to continue.

The import of section 214[1] of the constitution of the federal republic of Nigeria is that states constituting Nigeria is meant to be a complete government on its own with powers to make laws, enforce them and punish offenders through the judicial arm. Yet under the Nigeria legal system, the only institution saddled with the responsibility of enforcing law is the Nigeria police force, a federal agency. Therefore the argument for state police as argued by H.E Raji Fashola former Governor of Lagos State, is that every state that has the power and can give judgment through its state high courts and magistrates and make laws through its state assemblies and legislators must have the concomitant powers to enforce its law and police its state.[2]

Consequently, Section 215(4) of the Constitution which provides that:

Subject to the provisions of this section, the Governor of a state or such Commissioner of the Government state as he may authorize in that behalf, may give to the Commissioner of Police of that state such lawful directions with respect to the maintenance and securing of public safety and public order within the state as he may consider necessary, and the Commissioner of Police shall comply with those directions or cause them to be complied with.

The debate on whether the states should be permitted to recruit, train, fund and control own Police independent of federal government as obtains in the United Kingdom, Europe and United States of America is indeed very healthy for Nigeria’s democracy. However, with the structures of the police institutions across the nation which may make it difficult to cede those structures to states, it may be desirable.

Section 14 (2) (b) of the Constitution of the Federal Republic of Nigeria (CFRN) 1999, as amended, provides that “the security and welfare of the people shall be the primary purpose of government”. This responsibility to provide security for itself and its citizens permits the state to exercise certain forms of regulatory measures on society.[3]

Fiscal federalism

The ideology of fiscal federalism is to enable government focus on taxation and government spending to assist government operation at all levels. Nigeria has become complex in fiscal federalism that has undergone important changes since 1960.[4] Fiscal federalism is to ensure participatory governance.[5] Federalist systems of administration give people the chance to engage in the political process in their own communities, which strengthens democracy. Real sovereign decisions are made closer to the populace rather than in some far-off capital.

Revenue sharing features prominently in the intergovernmental relations in Nigeria. The current basis for revenue sharing of federally collected revenues among the federal government, states, and local authorities is the Revenue Allocation Act of 198 1 . With effect from June 1992, federally collected revenues that accrue to the Federation Account are shared among the three tiers of government with 48.5 percent to the federal authority, 24 percent to the states, 20 percent to local governments, and 7.5 percent to other extra-budgetary funds. The revenues accruing to the states are allocated by using a formula that takes into account a number of factors. The weights used in allocating the proceeds of the Federation Account across states are 40 percent, shared equally, to meet the minimum responsibilities of state governments; 30 percent, based on the size of the population; 10 percent, based on geographic size; 10 percent, based on social development needs; and 10 percent, based on the state’s internal revenue mobilization effort. A similar approach is used to distribute the local governments’ share in the Federation Account.[6]

The cluster asks, if Nigeria is rich to share excess crude revenue across the states and FCT, why do we borrow and become heavily indebted to nations who are ready to re-colonize our country?

Policy Recommendations:

• Immediate constitution of constitution review committee with a mandate on delivery dates (maximum six months)
• Increase the enlistment into the Nigeria police force (expand the Nigeria Police Academy capacity for recruitment)
• Improve on the welfare of judges, police and other security personnel
• Allow state governors powers to recruit judges

Implementation Template:

• Constitute committee on salary and wages of security agencies including the police
• Declare state of emergency on courts reform
• Within the first six month of adoption of this policy, each Implementing Institution and the Federal and State Justice Sector Reform committees will prepare an implementation plan of action relating to the interventions for which they are responsible. These plans should include baselines, periodic targets, timelines, budgets, allocation of specific responsibilities and other elements of good action plans. They should form a component of the overall justice sector plan of the Federal and State Governments.

Expected outcomes:

• A new constitution in 9 months, 2025.
• Improved security of the nation
• Improved minimum wages for security personnel

Conclusion:

The justice system plays a key role in ensuring safety and security by upholding the rule of law, enforcing fundamental human rights, resolving disputes, and sanctioning offenders. It also ensures democratic oversight over the security sector by holding security personnel and the state to account before the law. While the law empowers the justice system to play all these beneficial roles, achieving results in practice is hampered by a number of challenges.

List of cluster membership:

1. Professor Abiodun Amuda –Kannike SAN (chair)
2. Professor A’isha Sani Maikudi (vice chair)
3. Sir Chris Chikwelu Jnr
4. Chief Musibau Eyiowuaw
5. Musbau Lateef
6. Mohammed Adama Mrs
7. Job Odion Chioma
8. G.I. Ayodeji
9. Ademola Rabiu
10. Badr Mohammed Bashir (PhD) – Secretary

[1] The Nigeria Police Force shall be organized and administered in accordance with the provisions as may be prescribed by an Act of the National Assembly.

[2] Onwuzuligbo, D. (2012) Insecurity: Is State Police the panacea? Nigerian Pilot Monday, August 13, Available at http://www.nigerianpilot.com/index.php/crime, Retrieved on October 18, 2012

[3] Okechukwu, E.I., Anyadike, N. (2013). Security challenges and security votes in Nigeria:2008–2013.Kuwait Chapter of Arabian Journal of Business and Management Review.2 (8): 1.

[4] Fiscal Federalism in Theory and Practice, Michael Mered

[5] Fiscal Federalism in Nigeria: Empirical Review Pillah, Tyodzer Patrick 2023

[6] Michael Mered, Ibid

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