The Failing Judicial System (2): The Futility Of Special Courts Ebun-Olu Adegboruwa, SAN

Special courts! That is the new refrain in town, for solving all the problems of the judiciary. Everyone wants a special court to handle special cases, due mainly to the failing judicial system that we are currently being confronted with in Nigeria. On July 2, 2019, the Chairman of the Independent National Electoral Commission, Prof. Mahmood Yakubu, called for the establishment of an Election Offences Tribunal, to try all criminal matters arising from the conduct of elections.

That will be in addition to the existing Election Petitions Tribunal already established under the Constitution, also for election related cases. Way back in August 2015, the former Chairman of the Economic and Financial Crimes Commission, Mr Ibrahim Lamorde, proposed the establishment of special courts to try corruption related cases. This has been re-echoed several times by the present Acting Chairman of EFCC, to which the Lagos State Judiciary assented in 2018. Just recently in November, 2019, the Comptroller-General of the Nigeria Customs Service, Col. Hameed Ali (Retd.), called for the establishment of special courts to prosecute smugglers. Some others have called for constitutional courts, while some others advocate for special courts to try AMCON cases, etc.

Speaking to judges at the All-Nigerian Judges Conference in Abuja last week, President Muhammadu Buhari capped up the demand for special courts when he called upon the judiciary to embrace the idea. He said:

“I will advise that the conference should, in its deliberations, consider how to create an efficient structure for the proposed Special Crimes Courts or the urgent designation of existing courts as Special Courts with competent and credible judicial officers in order to remove administrative bottlenecks in the judicial process.”

Can this be the solution to the myriad of problems plaguing the judiciary and the administration of justice generally? What it then means is that we will need special courts for corrupt persons, special courts for smugglers, special courts for sexual offences, special courts for kidnappers, some for terrorists, other special courts for electoral offences, etc. And the list goes on. Anyone who is dissatisfied with the extant court system will just run to the judiciary and demand for a special court. Of course this cannot be the solution to the many problems bedeviling the judiciary presently. In Lagos for instance, we are still contending for space for lawyers and litigants to sit down in the Federal High Court, built since 1973 just as a Revenue Court. So, what do we need to do? The first and most critical solution is funding, the second fundamental solution is funding and the third and most basic solution is funding, for the judiciary. Funding, funding and funding.

The Constitution envisaged a judiciary that is free, autonomous and independent, so as to be properly placed to deal with the excesses of government, the impunity of all officers of the realm and the wrongs committed by individuals and corporate persons. The President appears to be very much aware of this constitutional expectation, or at least so it would seem, judging by the detailed content of his speech. Should the courts still have any problem accessing funds that the Constitution says should be drawn on the first line charge of the federation account? Should the executive arm of government still have a say in the budget and finance of the judicial arm? Fair enough, the President has demonstrated his good intention for judicial autonomy through the bold and innovative provisions of the Financial Autonomy of State Legislatures and State Judiciaries (Fourth Alteration, No.4) Act of 2018, which cleared the road for the funding of the Houses of Assembly and Judiciary of the States, directly from the Consolidated Revenue Fund of the States. The Act has amended the existing section 121 (3) of the Constitution by stating that “any amount standing to the credit of the House of Assembly of the State and the Judiciary, in the Consolidated Revenue Fund of the State shall be paid directly to the said bodies respectively; in the case of the judiciary, such amount shall be paid directly to the heads of the courts concerned.” It is indeed revolutionary, for a sitting President to agree to grant full financial autonomy and independence to the other two arms of government.

However, there is still much more that the President can and has to do, as a matter of urgency, in line with his open declaration, very well stated in his speech above-referred, as follows:

“The government has been committed to a number of justice sector reforms such as review of extant laws and enactment of new laws that will improve the lives of Nigerians. Additionally, we have worked closely with the Chief Justice of Nigeria to ensure that judicial budgetary allocations are enhanced in view of the needs of the judiciary. I have strongly supported the increase in number of judges at High Courts, Appeal Courts and the Supreme Court in order to reduce the burden of the work placed on judicial officers. I will continue to do so.”

Appoint more judges, build more courts, review the welfare conditions of judicial officers, to be in tune with the reality of our times, invest massively in infrastructure for the courts, in the area of power supply, research assistants, regular trainings and exposure for judges and judicial staff alike, automated court system and security for the courts.

But much of the solution also lie within the judiciary itself. The corrupt system of the registry of the various courts is frustrating justice delivery. Why will a court of justice be so starved that it cannot afford paper and ink to print out its own record of proceedings or the order made by a judge? Why should a litigant pay for the service of a process filed in court, be issued official receipt for it and then he is forced to pay thrice that amount to the court sheriff illegally, in order to get his case moving? How come the courts have not been able to regulate and curtail the glaring excesses of the registrars of court? Why should it take two weeks to obtain a copy of an ex-parte order granted by the court? Without doubt, there is need for an urgent overhaul of the archaic system of filing and service of court processes. This certainly has nothing to do with the executive or legislative arms of government but rather that the judiciary itself seems not ready for true and lasting reforms.

The rules guiding the practice and procedure of the courts require urgent tinkering to adjust the very wide discretions granted to judicial officers in the determination of certain principles of law, which has led to several conflicting decisions, even in the Supreme Court. Ever before the legislature woke up to think of regulating the proceedings of the courts, the judiciary on its own should have devised a workable means of concluding cases and abolish the frustrating practice of interlocutory proceedings that hinder the effective resolution of legal issues. It is profitable to collapse all objections into the defence and to jettison all forms of technical procedures that obfuscate the justice of any case. Surely, there must be something wrong with a system that permits appeals to the Supreme Court on narrow and technical points of law, lingering for decades, whilst the substantive issues that led to the court cases are not examined at all, let alone being resolved.

At the Annual Dinner of the Body of Senior Advocates of Nigeria held on November 30, 2019, the keynote speaker at the occasion, Dr. Christopher Kolade, addressed the very strange idea of special courts and concluded that in years to come, when our grandchildren ask us why we now have so many courts for different cases, we will tell them that the original court system failed us. The times have changed so tremendously that you wonder if the judiciary in Nigeria is following global trends. Alternative Dispute Resolution? Yes, but only for commercial cases, or how else do you ask an arbitrator to decide knotty constitutional questions or matrimonial cases involving custody of children?

And it is not enough to even just fund the courts without more. Section 287 of the Constitution demands that all persons and authorities in Nigeria should give respect to the orders and decisions of all courts in Nigeria. So, the President should not grant financial autonomy with one hand and snatch away the authority and integrity of the court with the other. Judicial independence cannot be measured by funding alone, but also in the willingness to obey and abide by all decisions and orders of the courts, as the integrity of the judiciary is better achieved through willful obedience to the orders and directives of the courts. In this regard, so long as Col Sambo Dasuki (Retd.) remains in custody against several orders of court for his release on bail, so long as judges are living under some mortal trepidation of persecution on account of their decisions, then the judiciary cannot be said to be independent, no matter the number of billions of naira thrown at the courts. No other time in our nation has the judiciary been so ridiculed than now, when a judge grants bail to a defendant, screens and approves his sureties and thereafter issues a warrant for his production in court to be released. Upon being served with the order for the production of the defendant, the executive arm of government then sets up its own procedure for the verification of the same sureties already approved by the court and will on that account alone, not agree to produce the defendant in court, in deference to the order of the court.

So, we truly don’t need special courts, as the panacea to the ridicule that the judicial system in Nigeria has become; it is sufficient for the President to match his words with immediate action, to appoint more judges, issue an executive order to all agencies of government to respect all orders and decisions of the courts and halt the profiling of judicial officers by security agencies, as that in itself constitutes a subtle pressure on the courts to do the bidding of the executive. If the judicial system is adequately funded and well reformed to be effective, it will take care of all cases, without special courts.