REFORMS IN THE NIGERIAN JUDICIARY (PART 2)
The twin doctrines of Judicial Immunity and "Res Judicata" remain constraints to corrective action for judicial orders or conduct resulting in manifest injustice. The latter inhibits self-correction while the former (as interpreted by culprits) fosters impunity. Lawyers' answer of quickest resort is the Constitutional remedy of Appeal notwithstanding its obvious limitations (see infra) The fundamental principle is enshrined in the common law mantra: "Nullification is the usual and natural consequence of disobedience" (to statute etc)
However, the popular answer to blatant injudicious conduct nowadays is Petition to the National Judicial Council. This is founded on the common law right of citizens to Petition the Crown for relief or remedy in respect of any matter whatsoever. Since the doctrines of judicial independence and separation of powers hold sway in our jurisprudence, common sense dictates that judicial affairs be superintended by judicial authorities. Employee's conduct or misconduct must be reportable to the employers or its agents in view of the doctrine of vicarious liability. But most importantly matters of justice are of primary societal interest especially since adjudication must be open and citizens and taxpayers have and are presumed to have stake (sometimes "locus standi") in the even handed administration of justice. Without this cheap but effective remedy, one wonders how challenging the work of law enforcement would have been in view of the frequency with which abusive interim and other orders are being churned out by the Courts.
The reported act or abusive verdict is screened administratively within statutory parameters outlined in the Constitution, Judicial Code of Conduct and common law rules with a view to ascertaining compliance. Outcome of violation could be as small as a censure or reprimand or as serious as outright dismissal from office and recommendation for prosecution.
The rot in the judiciary reached a crescendo during the tenure of corrupt Military Dictators (1985-1998) Prior to this period, there had been a purge of the entire Public Service (including the Judiciary) in 1975. Because they exercised supreme dictatorial legislative, executive and judicial powers through Decrees, prominent Nigerians inundated the Military Dictators (Ibrahim Babangida and Sanni Abacha) with Petitions over judicial matters. The positive effect however was that the Sanni Abacha Junta set up of the Eso Commission (after his predecessor chickened out on the issue) which probed serious allegations of Corruption in the Judiciary and made useful recommendations. However, the indicted corrupt Judges got the Report subdued for ten years so that by 2002 when Nigeria got a President willing to implement its recommendations, eighty per cent of the affected judicial officers had retired or resigned from office or as in one case successfully got their names deleted from the sanction list. The few that stubbornly and arrogantly clung to office despite being indicted received the recommended sanctions. The Commission made many other useful recommendations but the angry Nigerian populace was interested only in the sanction of corrupt judges.
The inalienable time-honored citizens’ remedy of last resort for blatant injustice is a court action notwithstanding its limitations. The cases are numerous but the Moshood Olugbani case wherein the Court of Appeal found the Judge liable for abuse of judicial power for blocking citizen’s business Bank Accounts without fair or any hearing and for no just cause remains epochal because it happened during the Ibrahim Babangida corrupt military Dictatorship. Court action is perhaps the ultimate if not the most potent weapon of defense against the frequent abuse of the power of summary conviction for contempt of court. In spite of admonitions from Appellate Courts, High and Inferior Court Judges continue to inappropriately exercise the power of contempt against litigants, witnesses and counsel. In one case, Kessington J ordered arrest of Chief F.R.A. Williams SAN (the most senior lawyer and distinguished leader of the Bar) for forum shopping. Judicial Authorities had to intervene to save the day. How then do we curb the frequent humiliation of lawyers by Law Enforcement if Judges cannot act with professional restraint in matters concerning their colleagues at the Bar?
Section 9 Code of Conduct for Public Officers (Schedule 5 Part 1 1999 Constitution) titled “Abuse of Powers” expressly prohibits abuse of power by Public Officers. Apart from administrative discipline by the National Judicial Council (employer) above civil liability for flagrant abuse of judicial authority by judges has always been upheld subject to the operation of the constitutional provisions for judicial immunity. Provisions similar to ours had been passed in 1871 by the U.S. Congress. Section 1983 of Title 42 provides as follows:
“Every person who, under color of any statute, ordinance, regulation, custom or usage of any state or territory subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity or other proper proceeding for redress.”
(See generally Dr. Abimbola Olowofoyeku’s books – “Suing Judges” and “The Law of Judicial Immunities in Nigeria”).
It is imperative that exposition be made of some contemporary manifestations of injudicious conduct to sensitize/enlightens the judicial authorities in particular and the entire profession in general for meaningful discussion and remedy. Some of the mentioned practices assail the integrity of the entire judicial process. The frequent incidence of mob justice and self-help in contemporary Nigerian society is indication of loss of public confidence in the entire judicial process and this exposition is necessary to facilitate efforts to arrest the patent societal dissatisfaction, enable personal evaluation or at least to appreciate the public perception of judiciary.
On the public perception of contemporary Nigerian Criminal Justice system we borrow the graphic narrative of Georgia (USA) Supreme Court Justice Charles L. Weltner, in observing that: “a person who has been through the system and is contemplating a crime probably views things as follows:
1. “If I do it I won't get caught”
2. “If I get caught I won’t get prosecuted”
3. “If I get prosecuted I won't get convicted”
4. “If I get convicted I won't go to prison”
5. “If I go to prison it won't be for very long"
The moral in all this is that judicial officers must be cured of the idea that security of tenure and judicial immunity means that they can get away with brazen misconduct and illegality.
Conduct in Curia
1.Unduly long adjournments on the excuse of heavy work burden
2.Inadequate recording and/or falsification of record of proceedings.
3.Entertaining proceedings in-spite of statutory or constitutional prohibition and despite party’s Jurisdictional objection.
4. Intimidation of parties, witnesses and counsel.
5.Seizure of court record/case file to delay/frustrate appeal.
6.Grant of stay to frustrate own judgment without adequate hearings.
7. Abuse in the assignment/transfer of case files.
8.Abuse of power of committal for contempt of court.
9.Making orders in vain
10.Juggling of cause list/callings case out of turn.
11. Patent descent into the arena/conflict of interest.
How much of the above list is remediable by appeal? The law grants presumption of regularity finality and validity to a superior court decisions and maintains in favour of the judge a presumption of good faith for his judicial acts even if capricious injudicious illegal or out-rightly stupid.
Remedy of appeal in addressing injudicious verdicts and conduct has provided inadequate for the following reasons:
1. Only interested parties may appeal. See S.323 1999 constitution.
2.They take too long to get heard.
3.They are only concerned with matter on the record hence grimaces, gestures, sighs, groan and other asides do not appear on the record.
4.They are expensive.
5. Some trial judges regard it as an affront while some appellate justices decline to adjudicate on conduct of the lower court.
6. Parties are bogged down by stringent rules governing the right and the procedure thereof.
7.Appellate judges tend to be unduly legalistic and rarely base their decisions in the appeal on the conduct or misconduct of the trial judge but on the verdict.
Appeals are mainly about errors of law and remedies are limited. Injudicious conduct is inquired into only in so far as the right of fair hearing has been contravened. Findings of fact are rarely adjudicated.
Review other than by way of appeal has been used to avert imminent monumental injustice in the following cases which occurred during Military Dictatorship:
1. Release of 12 Juveniles sentenced to death by firing squad for armed robbery by Lagos State High Court in 1990.(Moshood Olugbani J)
2.Release of convict when high court judge who tried his case was alleged to have visited him in hospital and apologized to him (Okoro Idogu J.)
3.Setting up by the Federal Government of Review Committee over Election Tribunal Judgments concerning 1997 Local Government Elections.
With regard to conduct outside court, these are less discernible. The prevailing benchmark is that any conduct which brings the office of judge into disrepute or is incompatible with the office is prohibited. Similar principle is embedded in regular employment law as conduct that "irreparably harmed his credibility and integrity" or scandalized the employer's business. In most cases, damage results only to the person and the institution. Our primary concern however is with cases where by judicial action citizens are visited with patent injustice or denied justice in the temple of justice itself.
It is therefore evident that review of judicial acts decision and conduct other than by way of appeal is the greatest challenge facing the newly constituted National Judicial Council. It should not be hindered by this task by the aforementioned twin doctrines: judicial independence and judicial immunity which doctrines have (in recent times) been utilized more as a cloak and veritable weapon of defense of injudicious conduct, abuse of judicial discretion and office nay brazen corruption than as a vehicle for justice and the observance of the rule of law.
Judicial independence is also not affected because review cannot by any stretch of semantics be equated with dictation and in so far as the right to fair hearing is guaranteed there is a constitutional safeguard to parties concerned. As pioneers the expertise ingenuity and sincerity of council members is a test. This writer’s suggestions is that scope of errors appeal-able as well as relief obtainable deserves review as the new council is indeed a major actor in law review and reform. This may require a Constitutional Amendment.
Judges must also be sensitized as to what issues are clearly political and therefore inappropriate for judicial determination. When Military governor of Mid-Western State (Ogbemudia) set up a panel to investigate and recover public property from corrupt public officers in 1967, he set up a commission headed by a highly respected practicing lawyer. But nowadays, judges enthusiastically undertake all sorts of "yeoman's" assignments from the executive. Some of the assignments subject the entire institution to public ridicule and dirty politics and, sometimes legal liability. Some are just not appropriate for application of the adjudicatory skills. At the same time, judges should be disallowed to drop cases without express reasons or without disclosure of reasons to parties or the National Judicial Council.
The long over-due overhaul of the criminal justice system should be spear-headed by the Council. There is seeping public discontent over the light or no sentence given in courts in cases involving huge sums of state funds and resources obtained by individuals through illicit or corrupt means. These cases not only showcase the ineffectiveness of the criminal justice system but also highlight patent inequality before the law - an anathema in a democracy. It is suggested that the proposal for a Constitutional Court deserves a re-examination. By the same logic, an Economic and Financial Crimes Tribunal should be set up. We have successfully operated a National Industrial Court for ages.
The National Judicial Council's responsibility for judicial supervision cannot be viewed from the narrow perspective of appointment discipline and removal nor confined to receipt of statistical judicial returns or notation of non-compliance with constitutional time limitation for delivery of judgments (three months) Judges should be held accountable for brazen violation of statute, abuse of office or flagrant corruption without compromising the doctrines of judicial independence and separation of powers. There is an urgent need to review, extend and graduate the scope of sanctions available for judicial misconduct. Removal or impeachment should be the sanction of last resort. The practice in England and USA is to demand resignation which explains why there are very few impeachments or removals.
The excellent job of obtaining periodic statistical returns and evaluation/assessment of judicial officers should be continued but stepped up. This activity as well as the day-to-day administration of the council can profit from more applications of Hardware Technology and Information Technology.
Petitions by lawyers, litigants and governmental and non-governmental and corporate entities should continue to receive prompt decisive and fair treatment in order to shore up the waning public confidence in the judiciary. The Council should consider pre-employment qualification tests or assessments including academic credits in specified subjects while the current orientation program is expanded. The Council must bear primary responsibility for “broad issues of policy and administration" of justice throughout the entire Nigerian Federation.
As discussed, the standard operating rules and procedures in the judiciary (judicial ethics) which were substantially compromised in the course of Nigeria's years of prolonged military dictatorship should receive fresh muscle consequent upon return to civil democratic rule on May 29th, 1999. The work of the National Judicial Council provides great opportunities to invigorate the institution and raise its profile as an arm of our democratic government. In only ten years, a lot of progress has been made by the Council. There are new and daunting challenges calling for detailed re-examination, solutions, proposals and changes in the judiciary.
We could not here possibly articulate all the challenges, address them and propose enduring solutions and answers. We concede that there is need for urgent reform activity to restore the waning public confidence in the administration of justice as well as address new vistas of challenges, change and opportunities for the judiciary in the new democratic order. The Council has abundant resources including the National Law Reform commission for these tasks. What matters to the common man and Nigeria's silently dissatisfied taxpayers (since they lack the vote and voice to effect change) is that the judicial authorities are "doing something" to address the patent weaknesses in the administration of justice.
Adebayo Adejare is a former General Secretary, Nigerian Bar Association, Lagos.