Funmilayo Odude, Legal Practitioner, Damod Law Practice

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Where are the presidential manifestos for judiciary reform? 12 Dec 2018

In keeping with the provisions of Section 99 (1) of the Electoral Act, 2010 (as amended), which provides that, “the period of campaigning in public by every political party shall commence 90 days before polling day and end 24 hours prior to that day,” public campaigns for the 2019 general election began on Sunday, 18th of November, 2019. The two presidential candidates from the two major political parties flagged off their campaigns with the release of their policy documents.
The documents of the All Progressives Party (APC) candidate, President Muhammadu Buhari, and the People's Democratic Party (PDP) candidate, Atiku Abubakar, focus on virtually the same policy issues even though the strategies for addressing those issues differ. The overarching issues in the policy documents are security, anti-corruption, job creation, infrastructure, education, human capital development and poverty alleviation. Other presidential candidates like Kingsley Moghalu and, more recently, Oby Ezekwesili, have proposed policy solutions in the same areas but under different rubrics.

There is no doubt that these are very key issues to be tackled to get the country to our desired destination. Nevertheless, a lot of what has been promised by the candidates cannot be achieved without a strong and independent judiciary, as well as an efficient administration of justice. For example, a major aspect of every candidate's policy is revamping the economy – which is often delineated in job creation, improving the business landscape, encouraging entrepreneurship and economic diversification.

And suffice to say key features of a business-friendly environment must include efficient means of enforcing contracts, debt recovery and a speedy dispute resolution system. However, these frameworks exist in weak forms in the current judicial system in Nigeria. And hardly has any candidate in the next presidential election proposed policies to strengthen the Judiciary.

For a country that wants to promote entrepreneurship, our current system of resolution of disputes and recovery of debt is too expensive, tedious and time-consuming. A lot of people usually resort to using the police to recover their debt. Although this approach is considered faster and more result-oriented, it leads to the breach of fundamental human rights and fosters more corruption.

The recent creation of the Small Claims Court by Lagos State to handle disputes involving small sums (with a maximum cap of N10 million) is very laudable. With the Small Claims Court, litigants can represent themselves; the processes are simplified and conducted within shorter time frames. Since its inception in April 2018, there has been an avalanche of small claims of less than N1 million brought by small business owners who would otherwise have had no recourse due to attendant high costs of seeking redress through the traditional courts. There is, however, still the problem of the caseload of the magistrates handling these small claims courts.

Also, debates on revamping the economy fail to consider the negative economic impact of the huge number of youths who are languishing in various prisons, while awaiting trial. While this tilts more towards human rights and human development issue, its impact on the economy cannot be ignored. Therefore, reforming our criminal justice system should be a top agenda for the presidential candidates.
The anticorruption touted by the candidates cannot be effective without a strong and independent judiciary as well as an efficient criminal justice system. Despite the passage into law of the Administration of Criminal Justice Act (ACJA) in 2015, many corruption cases still take years to conclude. The ACJA contains many commendable provisions meant to ensure speedy criminal trials, including eliminating the grant of stay of proceedings for interlocutory appeals in criminal trials, provision for day-to-day trials, limiting the number of adjournments that can be requested by the parties, etc. The High Court of Lagos State, which is home to a large number of high-profile corruption cases, has had similar provisions in the law establishing it since 2011. If various inefficiencies still exist in the legal system despite the existence of these laws, the problem then lies in the infrastructure for enforcing these laws.
There should be certain expectations from the next administration with respect to the Judiciary and administration of justice. What should these expectations be? The first is financial autonomy and funding of the Judiciary. In 2014, the Federal High Court, Abuja declared that it was unconstitutional for the Executive Arm of government to interfere with the funds meant for the Judiciary. In a judgment delivered in respect of a suit filed by a former president of the Nigerian Bar Association (NBA), Olisa Agbakoba SAN, the Court, in its interpretation of the provisions of Sections 81(2) and 84 of the Constitution, held thus: That the remuneration, salaries, allowances and recurrent expenditure of the Judiciary, being constitutionally guaranteed charges in the Consolidated Revenue Fund of the Federation do not form part of the estimates to be included in the Appropriation Bills proposed by the President.
Thus, any amount standing to the credit of the Judiciary in the Consolidated Revenue Fund ought not to be released to the Judiciary through any of the authorities or offices in the Executive Arm. According to the Court's judgement, it is to be paid directly – and in whole – to the National Judicial Council for disbursement. This was a major victory towards ensuring the independence of the Judiciary.
Earlier this year, President Buhari assented to the Constitution Fourth Alteration Bill, which granted similar financial autonomy to the Judiciary at the state level and the state Houses of Assembly. By the provisions of the law, the budgetary allocations for the Judiciary in the states would no longer go through the budgeting processes of the Executive Arms at the state level. It would be transferred directly to the account of the Judiciary. This greatly reduces the power of governors over the Judiciary in their states and is indeed a very laudable constitutional alteration.
Having moved in the right direction with respect to financial autonomy, the next step would be to increase the amount of statutory allocation given to the Judiciary. Based on the Appropriation Act 2018 available on the website of the Budget Office, statutory transfer to the National Judicial Council for the year was N110 billion. It is a paltry sum to cover all the Federal Courts in all the states of the federation. In comparison, the statutory transfer to the National Assembly was N139.5 billion while the total recurrent expenditure (non-debt) for the Executive Arm of government, covering all the ministries, departments and agencies was over N3.5 trillion.
There has to be increased funding for the Judiciary. The government needs to appoint more judges and support staff, improve the welfare package of judges and also improve the infrastructure of the judicial branch of government. Apart from building better courtrooms, the provision of essential amenities such as transcribing and recording machines, video conferencing facilities and internet connectivity in the courtroom would greatly improve the judicial process, ensure speedier resolution of disputes and ultimately improve access to justice for the citizens and other residents in the country.
Serious contenders for the February 16th presidential election must make a clear-cut statement with regard to upholding the rule of law and the obedience to court orders and judgments. The refusal of the Buhari administration to obey the orders of local and the ECOWAS courts in the two high-profile cases of Sheikh El Zakzaky together with his wife, and former National Security Adviser, Col. Sambo Dasuki (rtd) makes this a serious issue.
We need to be assured that we would not have another government that would obey court orders and judgments only at its convenience. This is important for the enforcement of human rights in the country, the smooth operation of our democratic process, and boosting the image of the judiciary (which in the opinion of this writer is at its lowest ebb since our return to democracy). Having a government that obeys court orders and respects the rule of law is also important to encourage foreign investment in the country.
For a country that requires a lot of partnerships for infrastructural developments and seeks revenue from international sources, having an effective Judiciary is very essential for success. Government is a continuum. This is why the practice by new administrations of abandoning projects began by previous governments – or stopping contracts entered into by their predecessors – destroys investor confidence.
Corruption in any arm of government is inimical to growth and development. But the prevalence of corruption is especially dangerous in the Judiciary, which is commonly referred to as “the last hope of the common man.” The presidential candidates must provide lawful and result-oriented policies to tackle, fight, prevent and discourage corruption in the Judiciary.
As the campaign season for the 2019 election gains momentum, it is important not to forget the only arm of government whose members do not seek electoral votes. Even though they are not on the ballot papers, the issues concerning judicial officers affect the entire nation. Therefore, they should form part of our discourses at this time.