The judiciary is central to a democracy. As the third arm of government, it acts as a check on the executive and the legislature. But due to political and other influences, the judiciary is not living up to public expectation. Its integrity is being questioned because of the unseemly conduct of some judges. Experts, including Chief Justice of Nigeria (CJN) Maryam Aloma Mukhtar are calling for the sector’s reform. JOSEPH JIBUEZE reports.
Will the judiciary ever regain its glory? This is the question begging for answer amid the rot in the sector. In the past, the judiciary repudiated technicalities to function at an optimum level in dispensing justice without fear or favour. In recent times, many judges have been found guilty of corruption and other sordid acts. The judiciary is grappling with the challenge of defending its independence and integrity.
With some exceptions, corruption, undue political and other influences, flawed process of judicial appointments, poor performance and denial of justice have become the judiciary’s lot. The consequence is a loss of faith in the justice system, leading to more people taking the law into their hands. Will there ever be a change?
Experts say change is possible with fundamental reforms, which must begin from within. According to Chief Justice of Nigeria (CJN), Maryam Aloma Muktar, corruption remains the judiciary’s bane. “Corruption has become a real cankerworm that has refused to depart,” she said.
Need for reform
Speaking at a Judiciary Reforms Conference in Abuja, with the theme: Putting our best foot forward: The judiciary and challenges if satisfying justice needs of the 21st century, Justice Mukhtar said corruption does not only manifest in judges receiving bribes to alter the course of justice, but in a flawed appointment process that produces inefficient judges that have no place on the bench.
She called for judicial reforms, which she said requires both cultural and systemic change in the delivery of justice, and must include the implementation of, and adherence to, a strict judicial evaluation performance management system.
The conference was organised by the Nigerian Bar Association (NBA) Judiciary Committee; the United Nations Office on Drugs and Crime (UNODC), which is implementing a justice reform programme in Nigeria with the support of the European Union; and a non-profit justice advocacy group, Access to Justice, which is executing a justice reforms project with the support of the Open Society Initiative of West Africa (OSIWA)/DFID, and the Performance Evaluation Committee of the National Judicial Council (NJC).
Justice Mukhtar said: “It is distressing to say that some judicial officers in Nigeria fall below the standard expected of judicial officers in the area of intellectual capability, uprightness, character and integrity and this reflects in the poor quality of judgments delivered by various courts in Nigeria and a growing problem of conflicting judgments and the attendant confusion they create in the Nigerian legal system. This problem stems mostly from the flawed appointment process of judicial officers and the enthronement of mediocrity over merit.
“The NJC under my leadership is effectively prosecuting a war against judicial corruption. I shall review the strategies adopted by the NJC to institutionalise the reforms with a view to repositioning the judiciary to serve the interests of the Nigerian people,” she said.
She said through the Intelligent Performance Measurement System of the NJC’s Performance Evaluation Committee, judges found to be performing below the required standards are either queried or removed.
Judges, she added, have been warned to stop issuing orders or give judgments that cannot be defended on the basis of available facts and applicable law.
Justice Mukhtar urged the NBA to pay attention to senior lawyers who have been linked with serial violations of the rules of professional ethics. She also accused some Senior Advocates of Nigeria of unwittingly encouraging corruption in the judiciary, saying they work “in tandem” with corruption judges.
For instance, she recalled that a judge who was facing a disciplinary hearing for misconduct was represented by no fewer than six SANs. “I think the SANs are equally guilty,” she said.
Chief Justice of South Africa, Justice Mogoeng Reetsang Mogoeng, who gave the keynote address, said the judiciary has what it takes to kick start a turnaround in Africa’s image. He urged the judiciary to be “ruthless” in dealing with corruption within it, as that is the only way it can develop the moral courage to deal with graft in the society.
“If there is one institution that can demonstrate that power can be exercised without corruption, it is the judiciary. We have to start it. Only then can we deal as harshly as possible with corrupt people when they’re brought before us,” he said.
‘Review appointment process’
NBA President Mr. Okey Wali (SAN) said the judiciary cannot perform efficiently where its independence is not guaranteed.
“To secure the independence of the judiciary, the government must grant to it true financial autonomy, and a full self-accounting status. The funds of the judiciary must be released to it as soon as the same is approved in the budgets of the Federal and state governments,” he said.
On appointment of judicial officers, Wali said persons who have had little or no serious practice of law have often been appointed judges.
“Appointments are not always made on merit but on extrinsic factors, such as family and political ties or affiliation. As a result of this, the judiciary and ultimately the judicial service system have been the worse for it,” he said.
He regretted that after 40 years, no practicing lawyers or distinguished university jurists have been elevated to the Supreme Court since the days of the late Justices Augustine Nnamani and Teslim Elias.
“The NBA repeats our call that practising lawyers and distinguished university jurist of note should be appointed to the High Court and appellate Courts, the Court of Appeal and the Supreme Court,” Wali said.
Wali also faulted the organisation and funding of conferences for judges within and outside the country by some organisations, such as the Assets Management Company of Nigeria (AMCON) and the Economic and Financial Crimes Commission (EFCC), who are litigants or prosecutors before the courts.
“This is quite disturbing. Like Caesar’s wife, our courts must not only be above board, but they must, at all times, be seen to be above board,” he said.
A former Lagos Attorney-General and Commissioner for Justice Prof. Yemi Osinbajo (SAN) agreed with Wali, saying merit is the least considered factor when lawyers are appointed to the bench.
“Generally, our systems of appointment locally and nationally focus more on other considerations. Merit comes very low in order of considerations,” he said, adding that when judges are appointed on the basis of ethnicity/religion or other parochial considerations, they will almost invariably see themselves as champions of the platform which gave them the position rather than doing justice to all.
Osinbajo said to ensure merit in judicial appointments, there should be clarity on criteria, selection process and information for intending applicants; openness in shortlisting and selection from a wide range of eligible candidates, rigorous standard testing of competences and quality assurance at every stage of the process.
He recommended the United Kingdom model, which involves vacancy request, advertising and applications, short-listing, references, open candidate selection, panel decision, statutory consultation, checks, selection decisions and quality assurance.
A member of the Lagos State Judicial Service Commission Chief Kunle Uthman, who represented the Chief Judge of Lagos, Justice Ayotunde Phillips, urged the NJC to review the process of selection of judges and make it merit driven, open and transparent.
“This process of nomination by serving judges is awkward, restrictive, limiting in nature and forecloses other constituencies like the Magistracy, the Ministry of Justice and private practitioners as relevant in the exercises.
“An important part of the appointment process is the submission of two lists, namely Priority and Reserve, which are sent to the NJC with comments of every member of the JSC on each of the candidates. This process of selection is not merit driven and is further compounded by the submission of the Priority and Reserve Lists.
“I suggest an abolition of these two lists. In future, the JSC should forward the exact number of persons to fill the vacancies. Afterall, the JSC and not the NJC interviewed and observed the performance of these candidates prior to making recommendations.
“The NJC should cease to have the prerogative of tampering with the lists. If NJC is dissatisfied with the choice of any candidate its sole prerogative is to give in unequivocal terms reasons for such rejection, and request for clarification or replacement.
“In summary, members of the JSC and the NJC (to a limited extent) involved in the selection and appointment of applicants for judicial office, for promotion to higher judicial office and/or for specific roles within the judiciary should make their decisions by reference to sound, objective criteria, on the basis of each candidates personal merit, experience, competence, performance, skills and abilities,” he said.
A professor of law, Dakas C. J. Dakas, said the appointment process “should be designed to guarantee the quality and independence of mind of those selected for appointment at all levels of the judiciary”.
According to him, “an open, transparent and credible process inspires confidence in the men and women who are charged with the responsibility of dispensing justice.”
Dakas also faulted the appointment process, saying: “Judicial vacancies are officially circulated only in the legal community. Names of applicants or nominees are not published in the media. Non-confidential and non-sensitive information about the applicant are not published in the media.
“Comments are invited from superior court judges and the NBA, but members of the public are now allowed to submit any relevant information about the applicants candidates are not interviewed, whether in private or public. On the whole, the current dispensation is neither open nor transparent,” Dakas said.
Attorney-General of the Federation and Minister of Justice Mr. Mohammed Adoke (SAN), represented by Bola Odugbesan, said any evaluation system should be focused on the judiciary rather than on individual judges, while the emphasis should be on quality, and not necessarily the number of judgments delivered within a period.
“I share the view that the judiciary has a system skewed towards quantity rather than quality. We should focus on how well the judiciary is performing as whole,” he said.
‘Prosecute corrupt judges’
Responding to Justice Mukhtar’s allegation against SANs, Mallam Yusuf Ali (SAN) said though he had never defended any judge before the NJC panel, the principle of presumption of innocence entitled a person to defend themselves with everything at their disposal, including legal representation.
Besides, he the best way to deal with corrupt judges is not merely to dismiss or retire them quietly when they’re found culpable, as NJC presently does, but to subject them to full criminal trial.
“If it has been established that a judge is corrupt, he should be tried. That’s the only way the judiciary can operate with moral authority. We must give corruption the real treatment it deserves,” he said.
Executive Director of Access, Mr Joseph Otteh said there is increasing public distrust of the judiciary arising from what is perceived as a lack of independence or its unwillingness/inability to fight off political interference in the administration of justice.
He added that the dwindling public confidence is also caused by the dysfunctional state of the judiciary which results in its failure to resolve cases in a fair, efficient and speedy manner.
“Issues implicated in a judiciary’s low standing in the public eye ultimately have something or the other to do with the way judges are appointed into office and the degree of accountability of the judiciary to its people and of the accountability of judges to the judiciary itself…
“This is why we thought, as stakeholders, we could offer our support towards implementing reforms to these processes,” Otteh said.
He also rejected suggestions that states should have the sole prerogative of appointing judges, without NJC’s intervention. “We need a layer of safeguard and that’s why I think the role of the NJC is very critical,” he argued.
UNODC Country Representative Mariam Sissoko stressed the need for an effective performance evaluation mechanism for judges to ensure the success of the ongoing reform process in the nation’s justice administration system. She said that the ability to monitor and evaluate the performance of the judiciary is an important component of judicial reform.
“Public confidence in a free, fair and impartial judiciary is enhanced when the public is not only aware of the process by which judges and magistrates are selected, but also when they are assured that there is oversight in the manner in which the judiciary dispenses justice,” she said.
Resolutions
A communiqué issued at the end of the conference reads in part: “An essential aspect of ‘putting the right foot forward’ must include a review of the guidelines for the recruitment of judges to encourage a more transparent, competitive and merit-based system that will eliminate non-transparency in the appointment process. The ongoing review of the process by the NJC should include a participatory process that will ultimately lead to the appointment of persons of integrity and eliminate corruption.
“There should be adopted a manner of appointment of members of the Judicial Service Commissions (JSCs) that would ensure that only competent candidates are appointed who should resist any attempt to influence them in arriving at their decisions.
“To reduce case backlogs in states with limited judicial manpower, the option of appointing and using ad-hoc judges is worthy of consideration. SANs, competent senior lawyers and retired judges could be appointed on an ad-hoc basis to fill these positions as is the practice in other jurisdictions.
“Judicial appointments should, as much as possible, give adequate consideration to gender parity. There should be enough diversity in the appointment process to ensure proper representation. The quality of justice is improved since a diverse judiciary is able to draw on a wider range of collective experience.
“Competency based criteria should be adopted in the appointment of judges and the process must be merit-based. Fair and equal consideration should be given to members of the Private Bar and the Academia.
“There is need for a strategic improvement in the system to involve all stakeholders in order to have a system that takes into consideration outputs and standards which have the capability of sustaining public trust. The Nigerian Bar Association should also institute a system of qualitatively monitoring and evaluating courts and judges’ performance at all levels of court.
“States’ Judicial Service Commissions should undertake performance evaluation at the lower courts where a majority of cases are decided in order to strengthen the system of justice delivery.
“Performance evaluation should go beyond sanctions for poor performance and should include interventions to improve capacity towards enhancing performance where gaps are noticed. Exceptional performance by judicial officers should be rewarded.
“An enabling environment should be created for judges to adequately perform their functions. The judiciary and other stakeholders must advocate for true independence with control over its own budget. There is need to implement and respect the constitutional provision on fiscal Independence of the judiciary.
“Corruption is an insidious plague that leads to the subversion of justice. The judiciary must play a pro-active role in eliminating corruption within the justice system thereby enhancing integrity and accountability.
“Judicial officers must develop case, change and time management skills. An evaluation methodology that uses National caseload data will enhance decision-making and produce better performance management policies. A properly structured judicial education system through which continuous training will be available to Judges must be developed.
“The National Judicial Council should refer all substantiated complaints of corruption against judicial officers to appropriate law enforcement agencies for investigation.
“Concerns were raised about the commitment of the Bar in securing the independence of the judiciary. Attorneys General must do more in giving relevant advice to governors.
“Performance data used for evaluating the outputs of judges should include all decisions and pretrial proceedings done by judges.
“Judges and legal practitioners are vital in securing the integrity of the judiciary. Lawyers should support the judiciary by desisting from playing any part in the corruption and subversion of the judicial process.”
At the conference were Supreme Court Justices, President of the Court of Appeal, Justice Zainab Bulchachuwa; former PCA, Justice Umar Abdullahi; Heads of Courts, including Anambra State Chief Judge, Justice Peter Umeadi and his Imo State counterpart, Justice B. A. Njemanze; and chairman of NJC Performance Evaluation Committee Justice Emmanuel Ayoola (rtd).
Also present were Chairman, Senate Committee on Judiciary, Senator Umar Dahiru; his House of Representatives counterpart, Beni Lar; Prof Ernest Ojukwu, Nigerian Law School; Deputy President, National Centre for State Courts, Jeff Apperson; an independent judicial researcher Dr Gar Yein Ng; former chairman, NBA Lagos Branch, Chijioke Okoli.
