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Challenges of judicial reform: The Nigerian experience
I am particularly delighted by the choice of this topic, “CHALLENGES OF JUDICIAL REFORM IN THE 21st CENTURY: THE NIGERIAN EXPERIENCE,” a topic which borders on judicial reform and therefore coincides with my initiatives championing the implementation of reforms in the Judiciary to enhance access to justice and speedy disposal of cases as well as efficient administration of justice. Indeed to have been called upon to address you all on a topic which arouses such passion within me and, I am sure, within all members and, indeed, friends of our noble legal profession, will no doubt be beneficial to the reform process.
I intend to be a little bit unconventional in this lecture for an audience that is predominantly concerned with the teaching of law, almost to the exclusion of law as an issue of policy. Instead of defining some of the operative terms of the lecture topic, what I propose is a narrative that revolves around the issues bringing with it policy options that we all need to be particular about. Suffice it to say that this lecture will be focused on the evolution of the judiciary, an evaluation of the progress made thus far, reform initiatives and the way forward which I hope will provide a crystal gaze into the future. This is the thrust of the lecture, and I believe, the objective of this lecture will then be best served.
Permit me to reiterate here that the issue of judicial reform is my utmost priority and I crave your indulgence in allowing me to repeat my views and perceptions on it which I tend to do whenever I am presented with the opportunity. I implore you to all realise the need for engendering a sense of urgency relating to these issues; and further hope that our joint efforts in this regard will be crowned with success for the benefit of all.
IV. Brief historical evolution of the Nigerian judiciary
With the scramble and eventual demarcation of Africa at the Berlin Conference, the English type legal court system was imported into the territory known as Nigeria as a potent instrument of consolidating and legitimising colonial rule. Back then the judiciary was not separate from the executive but was in fact a department of and controlled by the executive branch of government. The exercise of its jurisdiction was also controlled by the supervisory courts outside the country as appeals from our courts lay to the Judicial Committee of the Privy Council which was the court of last resort.
That was basically the setting until Nigeria attained independence in 1960 with a constitution crafted after the Westminister model of written constitution that recognised the Nigerian Judiciary as an independent arm of government. The judiciary began to have a chequered history in 1966 (with the first military coup), enduring eight military interventions out of fifty two years of Post-Independence in Nigeria’s existence. The typical behaviour of the military juntas was, namely, the suspension of the constitution, proliferation of ouster clauses, fusion of the executive and the legislature - thereby undermining the independence of the judiciary; and the flagrant disobedience of court orders by the executive in what became known as “executive lawlwessness.” To emasculate the judiciary further, the military enacted decrees with ouster clauses that sought to deprive the court from looking into acts which were considered as contrary to the tenets of democracy, against the rule of law and offensive to acceptable standards of modern society.
In the midst of all these, the judiciary lived and has continued to live up to its constitutional and historical role as “the bastion of constitutional democracy,” the most critical leg of the tripod on which democracy rests,” “the last hope of the common man, the downtrodden and defender of the citizens” by upholding their fundamental rights. In the face of all these challenges, the judiciary was heavily constrained. Some judges, who were apologists to the military government bowed to the pressure thus, it was more or less a situation where the tail was wagging the dog. However, courageous judges went out of their way to preserve the observance of the rule of law and ensure that the fundamental human rights of all Nigerians were unfettered by the military decrees. There is no doubt that the military era in Nigeria witnessed the highest level of judicial activism. In the case of Okorafor v. A.G. Miscellaneous Offences Tribunal & 2 Ors, the Court had this to say in respect of the ouster clause provision:
“Courts are not frightened of an Ouster Clause. They respect it but when an Ouster Clause seeks to make it impossible for the courts to protect the common man and make laws which cannot stand the test of reason or that is an affront to decency and intelligence, then a court should be careful not to lend its weight to a law that would make it an enemy of the common man and not the last hope of the common man.”
In this same case, Pats Acholonu, JSC (as he then was) held that:
“It is my view that a statue is inherently irrational and an assault to the psyche of the citizen when it is extraordinarily in conflict with reason, is offensive and utterly hostile to rationality and so emptied of substance that is should be rejected by the people to whom it is directed and to people of other nations who would condemn it for its inhumanness.”
In Adeyemi (Alafin of Oyo) & Ors. v.A.G. & Ors. (1984) 15 N.S.C.C. at p. 454, Aniagolu, J.S.C. (as he then was) maintained the same position thus:
“The jurisdiction of courts must be jealously guarded if only for the reason that the beginnings of dictatorships in many parts of the world had often commenced with usurpations of authority of the courts and many dictators were often known to become restive under the procedural and structural safeguards employed by the courts for the purpose of enhancing the rule of law and preserving the personal and proprietary rights of individuals. It is in this vein that the courts must insist, wherever possible, on a rigid adherence to the constitution of the land and curb the tendency of those who would like to establish what virtually are kangaroo court, under different guises and smoke-screens of judicial regularity. This, the courts, in the discharge of their appointed duties, must sternly always endeavour to resist.”
V. Mandate of the judiciary
Nigeria commenced another phase of constitutional democracy in 1999 with a fresh constitutional framework called the 1999 Constitution (now the 1999 Constitution as amended), which was fashioned after the American presidential system of government with its division of powers among the three arms of government culminating in a complex system of checks and balances. Under the 1999 Constitutional framework, the mandate of the Nigerian judiciary, as encapsulated in section 6(6):
“Extend(s), 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 thererto, for the determination of any question as to the civil rights and obligations of that person.”
Furthermore, as a measure of the importance that the Nigerian Constitution attaches to the role of the judiciary, section 4(8) thereof forbids the legislature from enacting any law “that ousts or purports to oust the jurisdiction of a court of law or of a judicial tribunal established by law.”
The judiciary has always been regarded with respect and great honour. In the times gone by, a judge was viewed with some mystique and the nation often felt proud to celebrate the names of its justices like Samuel Olumuyiwa Jibowu, Sir Adetokunbo Ademola, Nageon de Lestang, Sir Vahe Bairamian, Mamman Nasir (the Galadiman Katsina), Muhammed Uwais and indeed the Honourable Justice Akanbi, to name but a few great jurists still living and gone. The profession of law, vis-a-vis the judiciary, was one which operated discreetly, worked diligently and overachieved despite being the lest funded arm of Government. It bred men of worth without whom the fabric of society may have indeed been torn and in tatters.
I cannot but reiterate what I said not too long ago during my address at the Opening Ceremony of the 2011 Court of Appeal Justices’ Annual Conference thus:
“I am proud to state that the Judiciary has recorded commendable successes in the performance of its statutory duty and has contributed in no small measure to the protection of our young democracy and stabilisation of the country. However, some critical areas are in urgent need of radical surgical reform.”
Roscoe Pound, one of America’s renowned scholars, in his celebrated address titled, “The Causes of Popular Dissatisfaction with the Administration of Justice,” had this to say:
Alao-Aka-Bashorun, Esq., once stated that:
“.....there are problems and limitations in the administration of justice. That is how it should be in any human endeavour. Man strives for perfection all the time. You cannot improve on justice by evading the established and tested system of judicial administration. Indeed no modern army will fight a modern war without applying the military tactics which had stood the test of time. As this is true of the science of war, so also is it true of the science of social justice.”
I will now turn to the main theme of this Lecture, namely, challenges of judicial reform in Nigerian.
VI. Key Challenges to judicial reform
The challenges facing the judiciary are multidimensional and multifarious, some of which are more or less institutional or inherent in nature. The Judiciary has grown tremendously in size and stature over the years. While this growth is rapid and largely desired, there has been some discordance in movement and coordination, like a child that grows too fast. For instance, this rapid growth and necessitated the creation of sixteen Division of the Court of Appeal with the attendant problem of conflicting judgements of the appellate court. This has a tendency of not only leading to confusion in judicial precedence but also could cause untold hardship to litigants in their quest for justice; this is what is referred to as “unintended consequences” by social scientists. The increased importance and jurisdiction of the Court of Appeal cannot be ignored especially during this period of democracy and a renewed sense of rights by the general polity.
It is crucial that we ensure certainty, consistency, predictability and impartiality in the interpretation and application of the law. Certainty and consistency require similar cases to lead to similar results. Predictability requires a process by which an outcome can reasonably be anticipated.Share