Ebun-Olu Adegboruwa, SAN
I have enjoyed the responses to this subject which seeks to address fundamental issues affecting the administration of justice in Nigeria. Many are very careful to speak openly about the judiciary in Nigeria because of fear of persecution and loss of patronage. My own hands are already on the plough and I cannot look back from speaking the truth as best as it can be said. Permit me to continue.
Uniform practice and procedure for the courts
This should not be so. In the United States of America, each State has its own mode of training and rules for qualifying lawyers for legal practice which accounts for separate Rules of practice and procedure. On the other hand, the Nigerian legal system is centralized for the training and qualification of lawyers. The effect of this on the justice system in Nigeria is that we have different court decisions on the same principles of law which are interpreted differently based on the unique provisions of the Rules of Court of each State. In matters relating to service of processes, joinder of parties or amendment of pleadings for instance, the common principles are well known but when you open the law reports, you will discover that you need to have all the Rules of Court of all the States of the Federation for you to be a Nigerian lawyer who can be said to be in active legal practice.
My Lord the CJN can and should inspire the heads of the various Courts across Nigeria to harmonize the rules of practice and procedure such that one can safely navigate through all the courts in Nigeria. It will also reduce the burden of judges, lawyers, law teachers and law students in research, avoid multiplicity of decisions on the same legal issue, minimize conflicting judgments and streamline legal practice. The confusion created in wading through multiple rules of practice of different States can be avoided. The other dark side is the predictability of law, which in itself helps to stabilize society. In practice, States in Nigeria have no power to set up their own Court of Appeal or Supreme Court, which means that all the different rules of practice and procedure of the different States would still fall to be interpreted by a centralized appellate system. The question then is this: why crowd a unitary appellate system with multiple rules of practice?
All the divisions of the Court of Appeal in Nigeria have one single Rules of practice, so too the Supreme Court. Judges from the 36 States operating these multiple Rules of Court are the ones to be elevated to the Court of Appeal and the Supreme Court, where they are now forced to learn and interpret Rules of Court that are totally different from their background. The only thing that should be unique to the various States is the fee to be charged for filing court processes but the Rules of practice and procedure of all the Courts should be unified for now, until such a time when different States have their own Law Schools, have separate Court of Appeal and even Supreme Court, if that will ever happen in Nigeria.
By law, enactment of Rules of practice and procedure for the Courts is the exclusive preserve of the heads of the various courts, including My Lord the CJN, who can and should facilitate a meeting of My Lords to deliberate on this issue in order to achieve uniformity. The contradiction of uniform training of lawyers, separate practice and procedure in the States and uniform appellate process is not helping effective administration of justice and it should be addressed urgently and holistically.
Appointment of judges
This process is very critical to the effectiveness of the judiciary, given that the foundation of any human endeavour is the manner of recruitment. So many persons, offices and institutions are involved in the process of appointment of judicial officers such that many are truly confused as to who has the onus of this onerous exercise. By Paragraph 12 of Part 1 of the Third Schedule to the 1999 Constitution (as Amended) the Federal Judicial Service Commission shall have power to advise the National Judicial Council in nominating persons for appointment into the offices of the CJN, President of the Court of Appeal, Justices of the Supreme Court and of the Court of Appeal, Chief Judge and Judges of the Federal High Court, Chairman and Members of the Code of Conduct Tribunal and to recommend to the NJC the removal from office of these judicial officers.
The same goes for the Judicial Service Commission of the States. What this means is that the FJSC and the SJSC are the primary organs of recruitment of judicial officers, albeit in advisory capacity, subject to the approval of the National Judicial Council. The NJC will in turn act upon the advice of the FJSC and the SJSC by recommending the said judicial officers to the President or the Governor for appointment or removal. By law, therefore, the NJC does not recruit judges from their primary places of enlistment. In practice, however, it is the head of the various courts that initiates the process of appointment since they also head the Judicial Service Commissions.
The factors that should be considered for this appointment should include character, experience, passion, sound health and sound knowledge of law. The practice with the LPPC in the process of appointment of SANs is to bench any applicant who has a petition pending against him/her. This should be a red flag in scrutinizing the profile of applicants who seek appointment into any judicial office, given that corruption and ethical issues have become the bane of judicial performance. The focus however should be on the Judicial Service Commissions, being the primary source of recruitment of judicial officers.
Once political, ethnic and religious considerations come into play in this process over and above merit, it will always leave us shortchanged. Beyond the geo-political classifications designed for this exercise to achieve equity, the issues of competence and character should be the primary considerations. Since he who pays the piper dictates the tune, any judicial appointment that is influenced by political consideration will most likely answer to political preferences.
This then leaves us with the National Judicial Council, NJC, which is the body saddled with the responsibility for the appointment and discipline of certain categories of judicial officers. The composition of the NJC shows clearly that judges are meant to appoint other judges, with little support from the Bar. Clearly therefore, it is still the CJN who bears the ultimate responsibility of the appointments, being the head of the NJC and leader of the Bench in Nigeria. There should be a filtration process to conduct background checks upon candidates shortlisted by the Judicial Service Commissions for appointment as judicial officers.
Harassment and intimidation of judges
It is gravely disturbing that some judicial officers currently groan under the heavy weight of intimidation and harassment by the executive arm of government through the security agencies, politicians, their relatives and even lawyers. There are two sides to this delicate coin; the need to checkmate all forms of abuses and corruption within the judiciary and the security of tenure of office for judicial officers. For whatever it is worth, any judge found wanting or who has descended into the arena of conflict to soil his hand in the course of the discharge of his judicial duties deserves to face the long arm of the same law that is meant for those who appear before him. Judgment should start from the house of law.
But that is as far as it should go. There must be prima facie evidence of some infraction to warrant the lifting of the veil of protection over judges. Judicial office deserves independence and autonomy and this should not be toyed with whimsically unless there are genuine reasons to do so. Sadly, there is a growing culture of fear being imposed upon judges in order to force them to handle cases involving the executive with bias and at times, trepidation.
The moment cases involving some law enforcement and security agencies are assigned, they immediately activate the blood pressure of the presiding judge. They will run a profile on him, his spouse, his children, his friends and associates, they will send subtle threats to him through the court officials, they will investigate his bank accounts to his knowledge and even dare him to rule against them. The same thing happens to lawyers who are unfortunate to appear against them in court. This should not be condoned in a democratic setting, least of all Nigeria, which prides itself as a continental giant. My Lord the CJN should conduct some clandestine investigation to confirm this very ugly trend and design measures to curb it immediately.
The judicial oath demands that judges should dispense justice without fear or favour, ill will or affection and they are to weigh the scale of justice evenly to achieve the judicial balance. No matter the status of the organization, once it is before the court, it has to accept the doctrine of separation of powers and independence of the judiciary. It is the same spirit with which we fight corruption that we must also condemn and stop intimidation and harassment of judges. As we punish corrupt people, we must protect the incorruptible ones or else in ten years from today, no judge will dare rule against the powers that be.