Funmilayo Odude, Legal Practitioner, Damod Law Practice

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It's time for the judiciary to reform itself 12 Feb 2019

These are undoubtedly trying times for the Nigerian Judiciary and the entire justice system as a whole. Until now, never has there been a time in Nigeria when the Chief Justice of Nigeria (CJN) and President of the Nigerian Bar Association (NBA) were facing charges in separate courts concurrently.
In the past two years, five judges have been charged with different corruption allegations. This has no doubt weakened the Judiciary as an arm of government. And without even conducting a poll, one can definitely say public opinion about the Judiciary is at its lowest ebb. Regardless of which candidate or party wins the 2019 presidential election, the Judiciary must be reformed and the onus of this reform is on the Judiciary itself.   

A lot has been said about the political undertones behind these charges – including the timing of the CJN's trial and whether due process is being followed. Most of the points made are indeed valid. It would indeed be naïve to think that the prosecution of judicial officers by the Muhammadu Buhari administration comes out of genuine efforts to reform the justice sector and eradicate corruption in the Judiciary.

Nevertheless, there is a need for the Judiciary to go from defending and protecting itself to re-empowering itself once again. The ease with which the Judiciary has been vilified under the Buhari administration is partly due to the culpability of lawyers and judges. Somewhere along the line, the Judiciary has been weakened. This is what has given the executive reasonable grounds to bring judges under the anticorruption radar.

Despite its travails, this is an opportunity to reform the Judiciary and the justice system. The Judiciary – along with the NBA (the head of the body of practicing legal practitioners in the country) – is best poised to reform itself. True reform of this arm of government cannot be done by external institutions. The judiciary must move from making bad precedents aimed at protecting itself to repositioning itself with an aim to advance Nigeria's democracy.

In my article in the January 2018 edition of Financial Nigeria, I had argued against the December 11, 2017 judgement of the Court of Appeal in which the Court unanimously struck out the charges filed against Justice Hyeladzira Ajiya Nganjiwa by the Economic and Financial Crimes Commission (EFCC).

The Judiciary is the most self-regulated arm of government. In its reaction to the DSS raid of October 2016, the NJC had noted that “from year 2000, when the National Judicial Council held its inaugural Meeting to 2016, 1,808 petitions and complaints against Judicial Officers, including Chief Justices of Nigeria, Justices of Supreme Court and Court of Appeal were received by the respective Chief Justices of Nigeria and Chairman of the National Judicial Council. Eighty-two (82 No.) of the Judicial Officers were reprimanded (suspension, caution or warning), by Council, in the exercise of its exclusive Constitutional Disciplinary power over Judicial Officers. Thirty-eight (38 No.) of the Judicial Officers were recommended to the President or Governor where applicable, for compulsory retirement from office; while twelve (12 No.) were recommended to the President or Governor as the case may be, for dismissal from office.”

I doubt the other two arms of government can show similar statistics with respect to disciplinary actions taken against their members. Yet, despite the above statement by the NJC, there is still a lack of trust with regard to the disciplinary process of the NJC. For instance, the Executive has consistently maintained that the NJC protects its corrupt members. Unfortunately, the NJC has not successfully debunked this allegation.

There is no way the NJC can gain the trust of Nigerians under the current system whereby it shrouds its activities in secrecy. Under the National Judicial Policy launched in 2016, the NJC barred media reportage of petitions and threatened that any reportage would be followed by a complete abandonment of such petitions.

But in this age of new media, media reportage can hardly be barred or even sanctioned. Only the traditional media outlets can be successfully regulated. It is, therefore, wiser to collaborate with the media than fight it.

A better approach would be to control the narrative by issuing press releases that are accessible to anyone desirous of finding out the truth about petitions or activities of the NJC. Failure to control the narrative is the reason the Judiciary is often left on the back foot only to provide rejoinders and counter-statements. It is time to do away with the notion that perception is not as important as reality. After all, one of our legal principles is that justice must not only be done but must also be seen to be done.

The NJC also needs to tackle the tendency of litigants and members of the legal profession to make false, pre-emptory, derogatory or invidious remarks or statements about pending cases or the judicial process. The fight against corruption cannot be effective if people make blanket and unfounded statements about the justice system or the judicial arm of government. Specific issues should be raised and backed by facts without denigrating the entire Judiciary.

Contemptuous statements against the Judiciary must be dealt with seriousness as Justice J. D. Peters of the National Industrial Court did when he summoned notable lawyer, Femi Falana SAN, who, in 2017, had reportedly described the courts as “supermarkets where only the rich do their shopping.”

Both the Judiciary and the legal profession have suffered due to unnecessary fraternization with the Executive arm of government. The Judiciary has allowed the Executive arm of government to get away with a lot, making it easier for the Executive to control activities of the Judiciary. The familiarity has now bred contempt.

A few examples capture the consequence of such fraternization. It is inappropriate for certain agencies of government to organize training and conferences for the Judiciary in respect of cases relating to those agencies. The EFCC and the Asset Management Corporation of Nigeria (AMCON) are among agencies that do this. This system whereby the Executive (a party in the proceedings) trains the law-interpreters on how to properly interpret laws made by the National Assembly is not only absurd but it also creates an appearance of inequality between these agencies and opposing litigants.

The Judiciary slowly ignored disobedience of its court orders by litigants, especially the Executive arm of government. Committal proceedings initiated to penalize disobedience of court orders, which is quasi-criminal in nature, is fraught with a lot of procedural bottlenecks, making it sometimes more difficult than even full criminal proceedings. We have created a system whereby it is quite easy to get away with disobeying an order of court in Nigeria, and there is growing legal precedents to back up such disobedience.

Given its silence over crucial national issues, the NBA has become almost irrelevant. Today, the NBA is incapable of commanding the fear and respect it once had, even among its members. The three-day boycott of courts ordered by the NBA in its opposition to the unilateral suspension of the CJN by President Buhari was only partly observed. The outcry about this administration's failure to obey orders of courts have been done by individuals and not by the body as a whole. As such, the outcry has been ineffective. The NBA, until its leadership 'came under attack' showed indifference to the growing culture of impunity. The group must re-prioritize its mission and re-strategize to become the voice of the nation's conscience.

The most important thing though is for the Judiciary to carry out true and lasting reforms with respect to the judicial process. The judicial process in Nigeria is fraught with bureaucracy, bad infrastructure and archaic laws. The Judiciary should weed out the corrupt, inefficient and incapable judges by itself.

The Judiciary and the NBA should actively seek to make the process faster, more technologically-friendly and more justice-driven. The NBA, in particular, has a duty to lobby for change of laws where such is necessary to achieve these objectives.

This current crisis in the Judiciary should not go to waste. It might not yield the fruits sought by the Executive but it can yield lasting fruits for the justice sector and Nigeria as a whole if we make the right calls in resolving it.