Also needing urgent solution is the weak prosecutorial machinery, which Owasanoye said cannot to meet current challenges, as well as poor investigation. Also to stopped is the “disappearance” or compromise of evidence, and the practice of suddenly transferring judges or key investigators to far-flung divisions in the middle of trials. Frequent change of counsel by accused is also used as a delay tactic, while some judges grant adjournments requests for flimsy reasons.
According to Owasanoye, once a case gets into hibernation, an accused is empowered to blackmail the criminal justice process; clean up the crime trail; negotiate with or frustrate prosecution; peddle political influence to pressure prosecution or the court; influence or frustrate the court; or an accused may secure political appointment or even win election in the interim. The professor of law said automatic grant of bail for corruption cases followed by release of passport encourages accused to delay cases. Also, refusal to accept reforms made through various practice directions even before the ACJA contributes to delays. The appellate courts toleration of delay tactics used by “senior lawyers” is also a factor.
Most courts are burdened with antiquated physical and legal infrastructure that renders them extremely slow and inefficient. Lack of courtroom technology is also a challenge. Most judges still write in long hand. In some states, lack of adequate number of courtrooms force judges to share spaces, alternating sitting times. This leads to unsecured storage of court documents, leading to “loss” of case files, and provides room for corruption. Lack of adequate institutional reforms and modernisation; low investment in information and communication technology; lack of political will and commitment to a better society; use of archaic and outdated laws, procedures and processes that are riddled with loopholes are some of the problems the judiciary is faced with.
For instance, the 42-year-old Lagos Division of the Federal High Court on Oyinkan Abayomi Drive, Ikoyi is struggling to cope with the ever increasing number of cases filed. It is a tale of daily agony for lawyers, litigants and other court users. To secure a seat, one must arrive at least an hour before the 9am resumption time. For those who are able to get into the courtroom at all, it is best to remain until court rises for the day. It is not unusual to see lawyers standing in court for hours. Finding a space to stand is also a privilege.
Some of the courtrooms are so small that the docks and the witness boxes have been converted into file shelves. Accused persons now stand outside the dock. Lawyers have to fight their ways through crowded corridors into the courtrooms. And due to extremely fully dockets, most times judges unable take all the cases listed for the day. The situation is worse when Senior Advocates of Nigeria (SAN) have several cases to argue. They alone can spend more than half the day on less than three cases.
As a way out, a nine-storey courthouse is undergoing construction at Bourdillon, Ikoyi, Lagos. The project, which began in 2012, is billed to be delivered next year. But, due to what is believed to be poor funding, the project is moving at snail’s speed. Judiciary funding has witnessed a decline since 2010, from N95 billion in that year to N85 billion in 2011. It was N75 billion in 2012 and dropped again in 2013 to N67 billion. The NJC was allocated N70billion in the 2016 budget by President Muhammadu Buhari.
Way forward
The purpose of the ACJA may be defeated if other aspects of the justice delivery system is not urgently reformed and changes made.
Appellate courts’ role
To make the ACJA work, lawyers believe appeallate courts must back the lower courts and not give wrong signals. A professor of law, Fidelis Oditah (QC, SAN), speaking at the PAAC/CSLS workshop, said: “Appellate courts must support the lower courts. Unless they understand their proper role, there will be no progress.” According to him, a situation where appellate courts entertain interlocutory appeals – “the principal way scuttling cases” – despite the ACJA, will amount to “asking the lunatics to be in charge of the asylum.”
Amend Constitution
According to Prof Akinseye-George, the ACJA faces a challenge from those who argue that some of its provisions mandating speedy trial are inconsistent with the right of appeal under the 1999 Constitution. It has been recommended that such provisions be incorporated in the Constitution. “The Constitution gave you a right to appeal at every point. Why not use it?” Oditah asked sarcastically. “The system has inbuilt destructive mechanisms for undermining itself,” he said, adding that a review is necessary.
Justice Evoh Chukwu of the Federal High Court said the Constitution should be amended to include a time-line for criminal trials, similar to election petitions. “Let us have a fixed time-line. We can say that every criminal case must end within six months and all interlocutory applications will be ruled on at the end of the case,” he said.
A Senior Advocate of Nigeria, Chief Joe-Kyari Gadzama, said efforts must be made to synchronise the ACJA provisions with the Constitution so that no section risks being invalidated on the basis of inconsistency. He also wants a limit placed on cases that go on appeal. “In the UK, not all cases go on appeal,” he said.
Strengthen investigation
The Federal Government recognises that convictions cannot be secured without strong evidence based on thorough investigation. Attorney-General of the Federation (AGF), Abubakar Malami (SAN), said: “The bane of the fight against corruption in Nigeria is no longer connected with inadequacy of penal laws, sanctions, or lack of institutional framework. Rather, attention must now be directed to strengthening the capacity of the enforcement agencies to apply this law (ACJA) to detect and prosecute offenders.”
Justice Bello said prosecuting “white-collar” crimes effectively requires documentary evidence, hence the need for handwriting experts and more forensic laboratories. “We have only one or two forensic laboratories where handwriting analyses can be done,” he lamented. “There is nothing a sound prosecutor can do when he is presented with a shoddy investigative report. The same garbage will be presented before the judge and eventually it gets thrown out.”
The criminal justice system, the chief judge said, must be well funded. “We (court management) had to buy vehicles for prisons to enable them bring suspects to court,” he recalled. Besides, Justice Bello said implementing certain aspects of the ACJA, such as community service, will require engaging probation officers.
Justice Peter Kekemeke of the FCT High Court said more prosecutors are needed. “Prosecutors are overwhelmed with cases that they are unable to give maximum attention to each one,” he said. According to him, it is unusual to see tired prosecutors shuttling between courts while handling multiple cases. He said sometimes the prosecution is unable to remunerate witnesses, resulting in their unwillingness to turn up in court, thereby causing adjournments.
Review procedure
The current rules of procedure, lawyers say, dwell too much on technicalities and must be reviewed. Rather argue the substance of a case, lawyers spend time on arguments over due adherence to procedure, wasting precious time. A good case can also be rendered invalid if certain motions were served without a court’s leave, among others. Prof Oditah decried the fact that a case can be thrown out on the basis that a counsel argued an objection orally without filing a counter-affidavit. He faulted a situation where a case is frustrated at appellate courts because documents were not properly signed or stamped. He thinks such things could easily be corrected so that the case could move on.
“Nigerian law is excessively and destructively procedural. What it reminds you is 18th, 19th century jurisprudence. There is no way we can make progress with a law that is as procedural as we have. How many cases are determined on substantive issues? What you have is misuse of procedure at the expense of substance,” Oditah said.
An EFCC prosecutor, Chief Godwin Obla (SAN), said 396 of the ACJA should be amended to give a judge the discretion to quash a charge when he does not see a prima facie evidence on the face of the charge. He also wants a review of the complicated procedure in the Evidence Act. “We need to review our laws of evidence and procedure. We need to cut out a lot of the red tape in the administration of justice.”
For instance, Obla said trial is delayed when defence lawyers raise objections to the admissibility of certain evidence tendered by the prosecution. “Imagine that I have three bags of evidence to tender. On each piece of evidence, a defence counsel can keep raising objection that proper foundation was not laid.” That, he said, can be used waste judicial time. He also faulted the practice of senior lawyers coming to court with over 30 lawyers and calling out their names while announcing appearance. “A lawyer comes to court with 30 lawyers and spends 30 minutes announcing their names. Why not just submit a list of names?” asked Obla.
Enforce practice directions
Practice directions, which have provisions for speedy trials, should be adequately enforced as the complement the ACJA, according to Prof Owasanoye. He cited instances. Order 1 of the Federal High Court (Criminal) Practice Directions, 2013, tells judges to minimise undue adjournments and delays and reduce the time spent on interlocutory issues. It advises the court and parties to ensure that hearings are not stalled due to lack of preparation. Order 6 says hearing of criminal cases shall be conducted on a day-to-day basis as far as the court’s schedule may permit.
Order 7 of the Court of Appeal Practice Directions 2013 provides that it shall refuse to hear appeals arising from interlocutory decisions of High Courts where the appeal court is of the opinion that the grounds raised in the appeal are such that can conveniently be determined by way of an appeal arising from the final judgment of the court below. Also, instead of entertaining interlocutory appeals, the Court of Appeal may order the trial court “to accelerate hearing in the substantive suit.”
For the Supreme Court, Order 7 of its Criminal Appeals Practice Directions 2013 provides: In the determination of appeals arising from interlocutory decisions of the Court of Appeal in all criminal appeals relating to the offences of terrorism, rape, kidnapping, corruption, money laundering, and human trafficking, the Court shall give priority to those matters and where possible, hear such matters on a day-to-day basis until final determination.
Sort out jurisdictional logjam
The case law, based on judicial decisions, provides that a court’s jurisdiction can be challenged at any stage during a proceeding. This, Oditah said, is subject to abuse. “The issue of jurisdiction can be raised at any stage. You see lawyers arguing that it is the livewire of a case and nothing can be built on nothing, in a case that is at an advanced stage. How can you curb corruption when you have built up such obstacles,” he asked.
Curb indolence
Laws and rules cannot be effectively enforced without willing judges to drive the process. For instance, some habitually sit late. A judge of the Federal High Court in Lagos is notorious for keeping lawyers waiting for hours, and for sitting late and rising early or intermittently. Others, however, are known for sitting promptly at 9am. A frontline lawyer, Chief Afe Babalola (SAN) said corruption in the judiciary and the incompetence of some lawyers and judges work against quick justice delivery.
Stricter monitoring and stiffer sanctions are therefore needed to curb the judiciary of lazy judges. The Nigerian Bar Associations (NBA) president Augustine Alegeh (SAN) said a committee has been set up to monitor judges and report lazy, corrupt ones to the NJC.
“In the case of judges you don’t know where incompetence ends and corruption begins,” Oditah said, adding that “judicial attitude” needs to change. “Many judges are so grossly undisciplined. In the UK, for over 20 years that I practices there, I’ve never heard of a judge not sitting because he went for a seminar. A lot of time is wasted when you turn up in court in Nigeria and the judge is not there. In some cases it happens when you travel from one state to another. I recall going for a case in Port Harcourt and was told that the judge had gone for ‘early Salah,’” he said.
A life Bencher, Mrs Hairat Balogun, said judges need to be highly disciplined if they must “do justice even if heaven falls.” Sadly, she said, some judges do not handle proceedings with authority, while others exhibit laziness by adjourning even simple rulings. “Some judges don’t seem to be able to manage their courts,” she said.
Improve case management
An overly full docket is major cause of delay. Some judges have tens of cases listed for a day. Sometimes cases are adjourned because the list could not be exhausted. It is also not unusual to see a judge asking a prosecutor during a trial to hurry up or to conclude so that other cases could be heard. According to Prof Oditah, there is the need to strengthen judges’ cases management powers. He suggested that rather than fixing all cases for 9am and have lawyers sit in court for long hours, each lawyer could be assigned a particular time to be in court. To Oditah, it will not cost so much to inform lawyers ahead that a judge, due to other engagements, will not sit, or that their case may be taken, so they do not waste time coming to court. “We need to reform the way cases are listed. It is so chaotic. The way it is done, the court is dignified only in name because there is nothing dignified about how cases are managed,” Oditah said.
Gadzama said it is wrong to make lawyers sit in court for hours listening to cases they are not interested in. He said cases should not be adjourned because a senior counsel is not in court. To him, with the frontloading of processes, a senior lawyer does not need to be in court for processes to be adopted. “Senior lawyers stalling cases for not being available should be discouraged. What do you have other lawyers in chambers for? Frontloading allows you to put all your arguments in writing, so you don’t even need to be there.”
Insulate judges
Should judges attend social functions? Some believe judges should not be at places where they can mix with potential litigants or lawyers who may bring cases before them. Unfortunately, some judges, Oditah said, cannot draw the line. “You can see a judge socialising even more than free people. You don’t even need to bribe them. He drank your Champaign, so he has to do something – so how can he refuse your ex-parte application for injunction?”
Stop abuse of nolle prosequi
A disturbing trend is the abuse of the nolle prosequi provisions in Section 174(1)(c) of the 1999 constitution which empowers the AGF or prosecution to discontinue criminal trials.
Although this power is to be used in the public interest, it has been used to frustrate high profile corruption cases against public interest.
Build capacity
Building the capacity of prosecutors, investigators and lawyers is crucial. A human rights group, the Access to Justice (A2J), after a study, found that ACJA, first passed by Lagos State in 2011, has not solved most of the problems it was designed to address. The research report said six years from when the reform changes were first enacted into law in 2007, and two years after the 2011 amendments, “the creative push for reform in Lagos State and the lofty goals and the outcomes envisaged by the legislation have not been achieved till this time.”
Notable among the causes of the law’s failure is a pervasive ignorance of its relevant provisions by security agencies, especially the police. The study shows that only 29 per cent of police officers in Lagos were familiar with the ACJ Law 2011 (as amended) or have received any formal training on its provisions. The report says much unjustified time continues to be wasted between filing of information or charge against suspects and their eventual trial. In the intervening period, the suspects are “typically” left to languish under grueling detention or prison conditions, the study revealed.
The study also found that many magistrates do not comply with the oversight safeguards enshrined in the ACJ Law concerning 60 days adjournments with respect to persons detained under remand orders. Provisions of the law on taking of confessional statements have been grossly ignored by the police and un-enforced by magistrates, the study said.
According to the study, all those interviewed – police officers, inmates, lawyers – said the police do not make video recordings when obtaining statements from arrested persons, nor do they ensure that a lawyer is present. Magistrates interviewed unanimously reported that the police do not usually inform them of cases of persons who were arrested and kept in custody without being offered bail. Contrary to the law’s procedure on bail procedures, 75 per cent of lawyers and 89 per cent of prison inmates stated that the police do not release detained suspects on bail where it is impracticable to bring them to court within 24 hours. The report said nine percent of police men still maintain the practice of not accepting women as sureties when granting bail. A2J said more training was needed for an effective implementation of the ACJA.
Review appointment process
Legal experts have harped on the need to make judges’ appointment transparent rather than shrouding the process in secrecy. A professor of law, Oba Nsugbe (QC, SAN), said: “We need to make greater effort to completely demystify the system of judicial appointments in Nigeria from beginning to end…Uncovering information about how to go about it, upcoming vacancies, criteria for appointment, and the process of appointment was painstakingly difficult.
“I interrogated various official websites for answers, read a number of publications, and spoke to people. The answers never seem complete or exhaustive. This needs to change. In so important an area, you can never find enough clear, systematic information about what each and every stage entails – exactly what is needed of the applicant, when, who will assess it, how it will be assessed, and against what criteria. There needs to be more transparency about appointment procedure,” Nsugbe said.
The NJC last year released guidelines that provide for call for expression of interest by suitable candidates who wish to be appointed judges. An advertorial is to be placed on the website of state judicial service commissions, notice boards of courts and at NBA branches. But A2J alleged that the appointment of 25 new Federal High Court judges did not follow the guidelines.
“This rule was clearly not followed in the current recruitment process. Our investigation reveals that no such call for expression of interest by suitable candidates was made. All that was placed on the website of the Federal High Court was a copy of the letter written to judges, heads of courts, AGF and the NBA inviting them to make recommendations of persons for consideration,” A2J’s Executive Director Joseph Otteh said. It was learnt that those appointed had prior knowledge of it before it was made public. They were contacted privately and most did not apply for it, a source said.
For Oditah, ill-equipped judges cannot do justice. “You have got to articulate minimum standards for appointment of judges. That is why if you look at a judgment from the Supreme Court, you wonder if it is from the Magistrate Court. It is so bad that sometimes the Supreme Court writes judgments on applications you have earlier withdrawn! The system of lobbying for appointments must stop.”
Discipline erring lawyers
The NJC has sanctioned several judges for corruption and misconduct, but their lawyer-accomplices usually go scot-free. Prof Owasanoye criticised NBA for not disciplining some of its members who engage in wrongdoing. “The NJC disciplines a judge against whom a petition is written, but nothing is done to the lawyer who aided the wrongdoing,” he said.
Experts say there is the need to strengthen the profession’s disciplinary procedure. Chief Anthony Idigbe (SAN), believes there should be an external regulator for the profession. According to him, self-regulation has failed. “We need an independent regulator for the legal profession,” he said, while urging the judiciary “to fight for” statutory regulation. Idigbe argued that the Legal Practitioners Disciplinary Committee (LPDC), for instance, may not be independent enough to impose sanctions on highly-placed lawyers because it is made up of jurists who may have vested interests or against whom a complaint is made.
Also, some judges indulge Senior Advocates too much and allow them get away with wrong conduct. Some, according to Dr Babatunde Ajiba (SAN), are not good examples. He disagreed with a suggestion that SANs should monitor other lawyers in court. To him, SANs are not infallible and may need to be reported. “Unless we take it up and report wrong conduct, the problems will persist,” Ajibade said. Oditah added that senior lawyers’ excesses must be curbed. “There is an intolerable level of impunity with which the senior lawyers act. How can a senior lawyer frustrate a court proceeding on the basis that he is attending a seminar? You must have the ability to sanction such misconduct,” Prof Oditah said.
Falana agreed that a lot of leeway is given to senior lawyers. “How can a junior lawyer go to court to ask for an adjournment because the senior lawyer who is supposed to lead him is unavailable? That was not the practice we met.”
Another SAN, Mallam Yusuf Ali (SAN), said the profession is witnessing increasing reports of professional misconduct, corruption and sharp practices with the attendant negative consequences on the administration of justice. He said the LPDC in inherited 37 cases in 2013. Additional 16 new cases were filed that year. Last year, 13 cases were filed, while 17 have been filed so far this year. Ali suggested that the legal space should be sanitised to ensure that non-lawyers do not make illegal incursions into law practice. Lawyers who collude with non-professionals to undermine the profession should be seriously sanctioned, he said.
According to him, rule of law and professional ethics should be taught as a core course in all universities. To him, undermining the rule of law should be considered a professional misconduct for which a lawyer can be sanctioned. NBA’s investigative powers, he said, should be strengthened and enhanced to be more effective. A database containing the names of lawyers who have been sanctioned for misconduct by the LPDC should be created and made easily accessible so that they will be identifiable, Ali suggested.
“The LPDC should, in addition to any of the sanctions which it may impose, have the power to recommend in appropriate cases, that lawyers liable should be prosecuted if the act of misconduct amounts to a crime. The act of sweeping complaints under the carpet should be made misconduct under the Rules of Professional Conduct 2007. Anyone found engaging in such acts should also suffer the same fate like the person who has committed the misconduct,” Ali said.
Put corrupt judges on trial
According to the Chief Justice of Nigeria (CJN), Justice Mahmud Mohammed, no fewer than 64 of the over 1,020 superior court judges have been sanctioned in the last five years for corruption and misconduct. None of the judges, however, was charged to court. Most were either compulsorily retired or dismissed. But a former Ogun State High Court judge, Justice Babasola Ogunade believes judges indicted for corruption should not be given soft landing. They should be tried. “Nobody is above the law,” he said.
Other solutions
Prof Owasanoye said concerted effort is required from stakeholders to rid the country of corruption. The National Assembly, he said, should give anti-corruption agencies first line charge funding and make them truly independent. Being financially hamstrung incapacitates them. He said since the legislature has enthroned best practices with the passage of ACJA 2015, judicial actors must no longer “live” in the past. The NJC, the CJN and judges should enforce existing practice directions as well as letter and spirit of ACJA on speedy trial of corruption cases. Owasanoye said they must also prevent transfer of trial judges.
The AGF, he said, should never discontinue any corruption case as a policy. Anti-graft agencies, he said, should publish monthly update of high profile cases online; screen out lawyers with reputations for delaying case from prosecuting for them, and report cases of deliberate frustration of cases. He urged NBA to reform its disciplinary procedure and sanction lawyers who are notorious for using dilatory tactics to stymie criminal justice administration.
The media and civil society, he said, should keep high profile cases on the radar; name and shame lawyers and judges who delay cases; advocate continuous reform, and make more use of social media for public education.
Prof Akinseye-George said: “It is strongly recommended that the 1999 Constitution be amended such that all interlocutory appeals terminate at the Court of Appeal.” For effective implementation of the ACJA, he said provisions of Section 308 should be incorporated into the Constitution.
“This is so that the criminal justice sector could be saved from unnecessary delays perpetuated through the abuse of interlocutory appeals. Meanwhile, the courts and the Supreme Court in particular should give effect to the intendment of the lawmakers by interpreting the Act in a manner that would promote speedy determination of cases without undue distraction and delay by interlocutory appeals,” Akinseye-George said.
It is believed that a virile judiciary, which will truly be the last hope of the common man, can be achieved if the ACJA is effectively implemented, and if the necessary reforms are carried out.
