Open Judiciary As Part Of Open Government

The need was identified and recommendation made to involve the judiciary in the open government process in Nigeria. It has been noted that a fundamental objective of the open government partnership is to combat corruption and enthrone transparency in Nigerian public institutions including the judiciary. Ensuring openness and public access to judicial records and to information about the judiciary is a sound starting point to achieving transparency and enhancing corruption combating capabilities in the judiciary. Generally public attention and reform effort is focused more on integrity and transparency of the executive functions of government, with little or no attention paid to the judicial functions of government as if the Judiciary itself is not part of public institutions for which transparent governance is necessary. It must be noted that the Nigerian Judiciary has been the recipient of numerous reform effort in the past. Ranging from targeted activities of the National Judicial Council (NJC), the Practice Direction issued from time to time by the Honourable Chief Justice of Nigerian (CJN) and other Heads of Courts, donor funded activities by development partners and the reforms initiated by the Honourable Attorney General of the Federation and Minister of Justice. All these commendable reform programs have been aimed at achieving diverse objectives but have been mainly focused on such other important issues as infusing technology into the judicial process, improving infrastructure and providing training for judicial officers, whilst issues of transparency and access to information and judicial records have remained largely untouched. The Freedom of Information Act 2011 (FOI Act) provided a veritable legislative backing to bring transparency and openness into the Nigerian Judicial process. The Act grants the people a right to access all records held by a Public Institution.

The FOI Act in section “30 (3) provides thus “ ‘Public Institution’  means any legislative, executive, judicial, administrative or advisory body of the government …”

Though the Nigerian Judiciary is within the contemplation and scope of the FOI Act, however, since the enactment and coming into force of the Act in 2011, little or no assessment has been made of the implementation of same by the Judicial Branch of Government. All efforts have been focused on the Executive and to some extent Legislative branch of Government. No guidelines have been developed, no directives have been issued and little or no effort has been made to establish Freedom of Information Units or desks in the Nigerian Judiciary. Thus, for the most part, the courts have been left to continue as if they are above the law or that the FOI Act does not apply to the Judiciary. The Nigeria OGP Secretariat and civil society advocates should as a first step utilise the Mandatory Publication Requirement (MPR) of the FOI Act to help the Judiciary reform its operation and enhance transparency, accountability and citizens’ engagement in its activities. The Judiciary as a public institution is by the combined operation of FOI Act Sections 2(3), 2(4), & 30(3) mandated to publish and widely disseminate (on its website, and offices and online) to the public all the information described in section 2(3) FOI Act. The Judiciary having historically been isolated from the Public as a specialised institution has not developed a public relations appetite and requires guidance (from the office of the Honourable Attorney General of the Federation and retained compliance and ethics technical advisors) through the Justice Sector Reform program on how to implement and comply with this FOI MPR and the open government partnership principles generally. Categories of Judicial Information and Records There are three broad categories of Judicial Information through which the required transparency, access to information and an open government principles could be achieved. The three categories of information relevant to judicial transparency are as follows:- Jurisdictional/adjudicative work of the courts. The transparency and access to information requirement in this category relates to the main function of the Judiciary – the actual administration of justice. The relevant information in this category may include transcripts, documents filed with the court (pre- and post-trial), trial exhibits, recordings, settlements, opinions, and dockets.  This information may be further categorized, for example, based on whether the proceeding is criminal or civil in nature, whether minors or adults are involved, or whether information of a private or intimate nature is involved. Administrative functions of the Courts.  This includes information about court budgets; personnel and human resources; contracts between the court and third parties for construction, maintenance, office supplies, or the like; and organizational matters. Information about the Judges.  This category includes information about salaries, personal finances, vacancies, disciplinary matters, selection of judges and assets and income declaration information. The FOI Act in section 2(3)(c ) (V) mandated the publication of information relating to the receipt or expenditure of public or other funds of the institution. This exhibits an understanding that transparency of procurement and contracting processes is highly relevant when it comes to the prevention of corrupt practices. The Nigerian Judiciary has been insufficiently proactive in furnishing the public with information relating to the budget process, its management, procurement activities and general expenditure of public and other funds in the exercise of its functions and powers. It has been noted that this lack of publicity and transparency in procurement are factors that, together with others, create spaces for arbitrariness and irregularities in the management of public funds, fostering opportunities for corruption. The OGP principles and the FOI Act make it mandatory that such information be provided without prompting by the public. The relevant information to be published (and regularly updated) should cover the four budget phases—formulation, approval, execution and evaluation. Information on the Appointment of Judges and Officials Another area that requires transparency is information relating to the recruitment in the judiciary. The process leading to the appointment of Judges provides a fertile ground for political interference in Judicial Independence, influence peddling and general corrupt practices. This process involves politically exposed persons like State Governors and Members of the State Legislature as well the President and members of the Senate of the National Assembly and the leadership of the National Judicial Council. Ensuring transparency, judicial independence and combating corruption must of necessity be promoted from the initial stages of the judicial function, beginning with the processes to select and appoint judges. In Nigeria the general perception is that many judicial officers ‘lobby’ for their positions and are thereby put under pressure and receive “illegitimate” request from those who helped them to gain the appointment or office. Openness and transparency in the selection process keeps the judges isolated from external influences. Furthermore public participation and a well-articulated and widely disseminated profile for the position enhance judicial independence. It is important that appointments be merit-based, result from public competition, and satisfy requirements for technical qualifications. To ensure transparency and citizens participation in this regard, the judiciary should establish, maintain and publish:-

1. The selection criteria indicating the standards and profile of judges or other judicial officers required.
2. The number of vacancies existing
3. A clear guideline for the objective evaluation and assignment of scores.
4. The schedule of the appointment process indicating all the stages -, from the call for candidates, up through the final selection of the candidate.
5. The list of applicants and their backgrounds.
6. How the general public (including the Bar Association and relevant civil society organisations) can take part in the process.
7. The time limit to cover the existing vacancies.

Of equal importance is information on assets and income disclosure statements. The requirement for public officials to declare their assets and make an income disclosure statement when coupled with the transparency and access to information initiative of the OGP process becomes a veritable corruption preventing tool. Its fundamental aim is to detect, prevent and enable the reporting of unlawful/corrupt enrichment. In view of the cherished principle of Judicial independence, there is a need to balance the requirement for transparency and the right of access to information by the public on the one hand with the fundamental principles of the right to privacy and security of the Judicial personnel. That balance would be achieved when the Open Government Partnership efforts at opening the judiciary addresses the following themes: Independence of the judiciary;  Fair and efficient administration of justice (including the public’s perception of the judiciary); Right to Privacy (including Judges and parties); Security of the process (including security of judges, parties, and third parties); and Public’s right to know and access to information.]]>