We have been assembled here to propose amendments to the provisions relating to the Judicature in The Constitution of the Federal Republic of Nigeria (Promulgation) Decree no 24 of 1999, otherwise called “the 1999 Constitution” imposed on the country by the Abdulsalami Abubakar junta. Notwithstanding the false claim in its preamble that it was made and enacted by the Nigerian people the decree has been said to be the grundnorm by the courts. To that extent it is a legal document which lacks legitimacy because of its fraudulent origin. Since the interests of the ruling class are well protected by the decree it is being adjusted and reviewed, from time to time, with a view to consolidating to guaranteeing political stability. Hence the suggestion of a holistic review of the decree has been unanimously rejected by the members of the National Assembly regardless of political affiliations. Even the idea of subjecting the proposed amended Constitution to a referendum has been dismissed by an arrogant political class which has sheer contempt for the people. In so far as the managers of the neo-colonial state are not prepared to appreciate that sovereignty belongs to the people the agitation for an inclusive, democratic, transparent, and legitimate Constitution will not abate after the on-going review would have been concluded.
The retreats for senators on the review of the constitution, the one-day meeting convened by members of the House of Representatives in the 360 federal constituencies and the intellectual interventions of the political elite cannot be a substitute for the direct participation of the poeple in the constitution making process. Having excluded the people from the democratic exercise of fashioning a new Constitution for the nation the on-going review is going to produce a document that will accentuate the demand for the convocation of a sovereign national conference. Although I am convinced beyond any shadow of doubt that the amended Constitution will not stand the test of time I have decided to partake of the discourse out of respect for the Rule of Law Group Development Foundation.
The Judicial Reform Bill 2012
Based on the recommendations of the 29-member committee of jurists and legal practitioners set up to inquire into the crisis in the judiciary a former Chief Justice of Nigeria, the Honourable Justice Dahiru Musdapher submitted a Judicial Reform Bill to the National Assembly in July 2012. The current Chief Justice, the Honourable Justice Maryam Aloma Muktar is reported to have endorsed the bill. Essentially the bill has proposed that appeals from the Court of Appeal to the Supreme Court shall only be by leave of the latter, reference to the appellate courts on constitutional matters has been abolished while the Supreme Court is conferred with the additional jurisdiction of rendering judicial opinion based on application made by either the President or Governor of a state. The bill has also proposed a composition of the Federal Judicial Service Commission and the National Judicial Council to reflect democratic participation of relevant stakeholders. The removal of judicial officers has been altered to ensure a greater degree of fairness.
However, the judicial reform is conspicuously silent on the appellate jurisdiction of the National Industrial Court. Having been clothed with the powers to hear and determine all matters relating to labour, employment and industrial relations to the exclusion of any other court it is dangerous to limit the right of appeal of aggrieved parties to the limited area of the breach of fundamental rights.
Included in the judicial reform is the duty imposed on the heads of courts to amend the rules of practice and procedure of the high courts and the appellate courts to enhance quality of justice delivery and ensure speedy dispensation of justice. But the administration of justice cannot be substantially improved upon if the system continues to allow the filing of filing frivolous interlocutory applications and stay of proceedings to frustrate trials and obstruct the course of justice. While the right to file interlocutory appeals from the High courts to the Court of Appeal is recognised there should be no stay of proceedings once a trial has commenced. It is hoped that the proposed rules will guarantee uniformity in the rules of the various high courts.
STRATEGIES FOR SPEEDY PASSAGE OF THE JUDICIAL REFORM BILL
Since the Judicial Reform Bill was submitted last year not much has been done by the judiciary and the Nigerian Bar Association to mobilise their members to debate the 52 proposals contained therein. In the same vein, the bill has not been circulated among legislators and other stakeholders in the society. Therefore, the copies of the bill ought to be well circulated in the print and electronic media.
In addition to the initiative of the Rule of Law Development Foundation the National Judicial Council and the Nigerian Bar Association should, as a matter of urgency, organise seminars and workshops for judges and lawyers on the bill. Such enlightenment programmes may lead to a qualitative amendment of the contents of the bill.
The National Assembly should be made to appreciate that the passage of the judicial reform bill will not achieve the desired objective if the Administration of Justice Bill, Prisons Amendment Bill, Police Amendment Bill and other relevant bills are not passed.
Having regard to the difficulty of amending the Constitution some of the provisions relating to the judicature should be transferred to the laws establishing the courts recognised by the Constitution.
The judicial reform bill has failed to address lack of access to justice by the generality of our people. Hence it is silent on the relevance of public officers’ protection laws, pre-action notices and the application of the doctrine of locus standi. In particular, the rules of court should specifically encourage public interest litigation to promote public accountability and constitutionalism.
The penchant of courts to sacrifice justice at the altar of technicalities has to stop. The misleading application of section 285 of the Constitution by the Supreme Court has made a mockery of the intention of the legislature. It is high time Nigerian courts returned to the path of liberalism in the interpretation of the Constitution.
Being an elitist proposal the judicial reform bill has not taken cognisance of the magistrate and area courts, customary and sharia courts which are daily patronised by the majority of our people. More so, that appeals arising from the decisions of such inferior courts are curiously allowed to terminate in the Supreme Court! It is my submission that no genuine judicial reform can succeed if it fails to protect the interests of the over 90 per cent of our people who have no contact with the high courts and the appellate courts.
Many of the recommendations aimed at sanitising the judiciary do not require constitutional amendment but the commitment of the National Judicial Council to rid the judiciary of corruption and other forms of misconduct. In this regard the National Judicial Council under the leadership of the Honourable Justice Maryam Aloma Muktar, CJN is determined to purge the judiciary of bad eggs while the rules of practice and procedure of the courts are being reviewed to enhance the quality of justice delivery. The Chief Judge of the federal high court, the Honourable Justice Ibrahim Auta has braized the trail by issuing practice directions to provide for the day to day trial of cases of terrorism, corruption etc.
In the past, the country benefited immensely from the appointment of distinguished legal practitioners and law teachers as Justices of the appellate courts. Even some Chief Judges were elevated to the Supreme Court bench without going through the Court of Appeal. Such jurists added value to the quality of the decisions of the courts and enhanced the integrity of the judicary. But without any justifiable basis the National Judicial Council has turned such appointment into a promotion exercise among serving judges. The ongoing judicial reform should return the judiciary to the glorious past when judges were selected among the best in the legal profession.
CONCLUSION
No doubt, the Judicial Reform Bill 2012 is a bold attempt by the Honourable Justice Dahiru Musdapher CJN (as he then was) to utilise the review of the 1999 Constitution to effect sweeping reforms in the Judiciary. The National Judicial Council and the Nigerian Bar Association should lead the campaign for the passage of the bill. As the passage of the bill alone cannot promote the administration of justice the campaign should be linked with the demand for the passage of other bills which are equally pending in the National Assembly.
To demonstrate that the judiciary is committed to the reforms the recommendations which do not require any legislation should be carried out without any further delay. Efforts should therefore be intensified by the National Judicial Council to review the procedure for recommending candidates for appointment to the higher bench, the removal of corrupt judges from the bench and the amendments of the rules of practice and procedure of the high courts and the appellate courts. The cooperation of the Nigerian Bar Association, the human rights community and other stakeholders is a sine qua non for the success of the judicial reforms.
