By Ebun-Olu Adegboruwa, SAN
Sometime in September, 2021, Ogun State Judiciary organized a two-day Judges Conference in Abeokuta, principally to dwell on contemporary issues facing the judiciary. It was a very rich encounter, with Dr. Muiz Banire, SAN, leading the discourse. I was privileged to be part of the Conference, which turned out to be an eye opener, on the silent struggles that our judges are made to put up with in executing their judicial assignments. The other aspect of the Conference was the joy of seeing their Lordships digging it out heartily, at the Conference Dinner. It was good to move away from the trials, rulings and judgments, for once. From my own personal experience and encounter, I can tell you that it is not easy to be a judge and it is more difficult to function in that office, in present day Nigeria. A lot was said at the Conference and I would like to share with you my own little contribution.
It is a great honour to be found amongst revered jurists on the occasion of the 2021/2022 Ogun State Annual Judges Conference. As the country remains faced with threatening economic hardship, embedded corruption and heightened security threats against its citizens, the Nigerian Judicial System is not left out from the several expectations of the Nigerian masses. The instant topic for consideration “The Challenges of the Judiciary in Contemporary Nigeria” therefore comes at a time when a negative perception of the Nigerian Judiciary is pervasive (perhaps erroneously) among the common man in the Nigerian polity.
Going by the democratic system of government in operation, the powers of the Federal Republic of Nigeria are basically operated through three tiers of government, the Legislative, the Executive and the Judiciary. Amongst these three arms of government, it has been said that the Judiciary (our subject matter of discourse) is the closest and most accessible branch of government to the common man. As such, I believe this topical issue is one in which every right-thinking person and resident in Nigeria should consider himself/herself a concerned stakeholder. I therefore hasten to commend the organizers of this event for their thoughtfulness in selecting this timely topic and further hope that our joint engagement in this regard will be crowned with success for the benefit of the Nigerian society. Hence, whereas our discussion is a humble admission of the imperfection of our Judicial System, on the other hand the constant improvement and better operation of the Nigerian Judiciary can become a reality. In examining the instant topic, a thorough appreciation of the nature and role of the Nigerian Judiciary is needed.
THE NATURE AND ROLE OF THE JUDICIARY
It is common knowledge that the Nigerian judiciary is a creation of the Constitution of the Federal Republic of Nigeria (as amended). The term ‘Judiciary’ has been defined as the court system of a country. The learned authors of Black’s Law Dictionary, 8th Edition, define the term as follows:
“The branch of government responsible for interpreting the laws and administering justice. A system of courts. A body of judges.”
Thus, section 6 (1) of the CFRN, 1999 provides as follows:
“The judicial powers of the Federation shall be vested in the courts to which this section relates, being courts established for the Federation.”
The Nigerian Judiciary has also been classified as “the court and all those who work in the vineyard of justice.” This includes Tribunals and Inferior Courts established by the National Assembly or the House of Assembly of a State. By virtue of Section 6 (6) of the 1999 Constitution, the mandate of the Nigerian judiciary “extends, notwithstanding anything to the contrary in the Constitution, to all inherent powers and sanctions of a court of law” and “to all matters between persons, or between government or authority and to any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person.”
From the foregoing, it is evident that the most significant task of the judiciary is the adjudication of controversies through the application of law to a specific matter. The Judiciary is thus that arm of government vested with the judicial power to construe, interpret and apply the law with the ultimate end result of delivering justice in the society. In essence, the thrust of the Judiciary is to arrive at an end goal of justice. We can conveniently therefore boast that the judiciary is the foundation upon which democracy grows and develops, as it is the only organ that deals with the administration and dispensation of justice in a sovereign entity. Without a proper forum to resolve disputes between persons and persons, between persons and governments and between governments and governments, society will become a place fit only for the strong and mighty, where the rights and opportunities of the weak and feeble, will be trampled upon with impunity. We should therefore cherish and appreciate the role of the judiciary in stabilizing the society, generally. Thus, even at the height of military rule in Nigeria, the judiciary has never been shut down or scrapped, as was the case with the legislature and the executive arms of government.
As opined by IBRAHIM MOHAMMED MUSA SAULAWA, JCA in Sahara Reporters & Anor v. Saraki (2018) LPELR-49738 (CA) “by the very nature of its fundamental functions and role, thereof, the judiciary is the citizens’ last line of defence and hope in a free democratic society. Indeed, it is the line separating constitutionalism from totalitarianism.”
The role of the judiciary can therefore not be over emphasized being the stabilizer in a political system wherein it plays a divine role as the guardian and custodian of the Constitution. The Judiciary is further invested with the power to checkmate the other arms of government by compelling the legislature to act within its constitutional limits while performing its legislative duties and on the other hand subjecting the State (that is the Executive) to the Rule of Law. Accordingly, Justice Chuwudifu Oputa (JSC) once opined that:
“The judiciary is the guardian of our Constitution, the protector of our cherished governance under the rule of law, the guardian of our fundamental rights, the enforcer of all laws with or without which the stability of society can be threatened, the maintainer of public order and public security, the guarantee against arbitrariness and generally the only insurance for a just and happy society.”
Under the scheme of things, it is right to posit that only a court of law has the power and the right to say authoritatively and conclusively what the law is and once a court of record has spoken then its pronouncement however perverse or blatantly wrong it may appear to be, establishes the law. As such, Section 287 of the CFRN, 1999 is instructive in in this regard. It states thus:
“The decisions of the Supreme Court shall be enforced in any part of the Federation by all authorities and persons, and by courts with subordinate jurisdiction to that of the Supreme Court.”
The same goes for the Court of Appeal, the Federal High Court and the High Courts of the States and all other courts of record. The Judiciary thus occupies a very important, significant and strategic position in the Nigerian state. It is the bastion of the people’s hope, as it offers a formidable panacea to the sufferings and predicament of the masses. It is the desire of the general public that justice must be done at all times and be seen to have been done. It is thus obvious that whenever the Judiciary failed to play its stabilizing role in the Nigerian democratic state, democracy is bound to be threatened or truncated.
It is no wonder therefore that the Constitution, under Section 17 (2) (e), stipulates that the independence, impartiality and integrity of courts of law, and easy accessibility thereto shall be secured and guaranteed. In all I cannot agree less with Appadorai in his book, The Substance of Politics, where he surmised the essence of the Judiciary thus:
“…nothing more nearly touches the citizen than his knowledge that he can rely on the certain, prompt and impartial administration of justice. The Judge, therefore, fulfils an onerous function in the community.”
THE CHALLENGES FACING THE NIGERIAN JUDICIARY
Having fully appreciated the magnitude of the centripetal role that the Judiciary plays in our nation, there is no doubt that the Nigerian judiciary is plagued by a myriad of problems ranging from institutional to personnel problems, poor facilities, to inadequate financial provisions and procedural to constitutional problems, by which the former is being limited in its performance. These problems and challenges have been the subject of numerous meetings, debates, court actions and even industrial strike actions. It is therefore expected that greater members of my audience are familiar (if not more familiar) with the challenges rocking the Judiciary. To buttress this point, whilst taking a swipe at some of the key challenges thereto, I will humbly consider suggested solutions to the said challenges.
i. Appointment of Judges
For me, the challenges of the judiciary take a leap from the process and mechanism of appointing judges in the Judiciary. The current system to which there is no iota of transparency or public scrutiny of the candidates for judicial appointment is not something we should continue to engender. The present system, being not transparent, seems not to follow merit. Persons selected for judicial office should be individuals of integrity and ability with appropriate training in law. It was however just a while back when the President of the Nigerian Bar Association, Mr Olumide Akpata, decried the poor performance of candidates enlisted for appointment as Court of Appeal justices. As the President of the Nigerian Bar Association, he sits in the meetings of the National Judicial Council, the body saddled with the responsibility of appointment and discipline of judicial officers. He was reported as saying that: “The whole proceedings appeared more of an old schoolboys meeting and that important legal issues that were occasionally put to the nominees could not be answered”.
The reality is that anything hidden in the dark is subject to contamination. As it stands the process of appointment of individuals to the bench is bedevilled with lobbying, begging and invasion by several political interests. In several States, it is said that virtually all first class Obas, Emirs and kings have their slot for which they reserve their candidates for judicial appointments. Expectedly, a shoddy screening of applicants for any position in the Judiciary leads to shoddy results and conclusively a shoddy bench where the appointees are not only indebted to their god-fathers and lobbyists for such appointment, but remain available instruments to be influenced in the Justice delivery system of the nation. After all, he who pays the piper must surely dictate the tune. Chief Afe Babalola SAN rightly captured this menace as follows:
“When appointment of men and women to the bench is premised on extraneous considerations such as god-fatherism, political connections, religious leanings, “federal character” (without any regard for merit and competence) and monetary inducements, the ultimate victim is JUSTICE. The society is bound to suffer and bear the brunt of the consequences of having incompetent judges on the Bench.”