Monday, November 28, 2011

Justice Musdapher’s Advisory to Nigerian Judges

“A corrupt Judge is more harmful to the society than a man who runs amok with a dagger in a crowded street. The latter can be restrained physically. But a corrupt Judge deliberately destroys the moral foundation of society and causes incalculable distress to individuals through abusing his office while still being referred to as ‘honourable.’ – Hon. Justice Samson Uwaifo (Retd)

There is no gainsaying that Nigeria’s judiciary, particularly in 2011, have been in the eye of the storm. The institution has been enmeshed in war of attrition that has left it battered, bruised and soiled. At a lecture organised by the Nigerian Institute of Advanced Legal Studies (NIALS) on 10 November 2011, Chief Justice of Nigeria (CJN), Justice Dahiru Musdapher in a paper titled “The Nigerian Judiciary: Towards Reform of the Bastion of Constitutional Democracy” lamented the delay in the dispensation of justice which he identified as a major challenge in the justice delivery sector.

He attributed such delay to institutional incapacities in facilities (especially electronic facility), in-built delay mechanisms in the law, as well as failings on the part of some Judges, the official and private Bars, law enforcement agencies, litigants and witnesses. CJN also expressed concern about “the declining intellectual depth and overall quality of the judgments of some Judges as well as the frequency with which some Judges churn out conflicting decisions in respect of the same set of facts.”

Perhaps, most weighty of the comments made by the CJN at the NIALS lecture was his advisory to his colleagues on the bench. According to news report, Justice Musdapher said: “I must make specific mention of the need for Judges to prioritise criminal matters bordering on official corruption that are placed before them. It has since been recognised that corruption is the bane of development in Nigeria. Therefore, it is imperative for all Judges to realise that these cases are extremely important to Nigerians and must be dispensed with swiftly. I hereby strongly advise all Judges to accelerate the hearing of such cases and ensure that they are dispensed with within six months of filing. If for any reason the prosecution is not ready to proceed with the case, then the matter should be struck out rather than leaving the public with the impression that the judiciary is not performing its necessary role in curbing corrupt practices in Nigeria. These delays cannot be tolerated any longer.”

That statement was spot on. Nigeria over the years has been occupying the unenviable position on the Transparency International’s Corruption Perception Index. With a score of 2.4 out of 10, Nigeria in 2010 was ranked number 134 out of 178 countries on CPI. In its official reaction to the CJN’s advisory, Economic and Financial Crimes Commission said if the directive is strictly adhered to by judges, it will not only draw to a close the over 75 high profile cases and 1500 others it is presently prosecuting in courts "with the attendant effect of reshaping the nation’s anti-graft war but will equally reposition the country’s reputation in the international community." It is therefore heart-warming to hear that the CJN has deemed it fit to drum up support for the anti-corruption crusade of the government.

However, this directive to my own mind does not have the force of law and as such CJN may not be in a position to sanction judges who flout it. If what happened with election petition tribunals is anything to go by, a constitutional amendment has to be effected on section 285 of the 1999 Constitution, as amended in order for a time limit to apply to the disposal of election petitions. The closest power given to CJN to make rules is in section 236 of the 1999 Constitution, as amended and it reads “Subject to the provisions of any Act of the National Assembly, the Chief Justice of Nigeria may make rules for regulating the practice and procedure of Supreme Court.” Thus, National Assembly must approve of any such regulation and it only applies to the Supreme Court.

The nobility of the intention of the CJN in helping to fast track adjudication on corruption cases is not in doubt; however, he must not over reach himself by issuing directives that can further embattle the judiciary. The advisory is in order if it is just to seek cooperation of colleagues to expedite adjudication process. In addition, he should join the EFCC’s advocacy for special court or tribunal to handle corruption matters. That in my view is the sure way forward out of the present quagmire of slow motion in the dispensation of corruption cases.

Further, it is not only corruption cases that needs to be fast tracked. All cases before the courts must be handled expeditiously. Comptroller General of Prisons, Mr Olusola Ogundipe has said time and again that the number of awaiting trial inmates in our prisons is intolerable. According to the CGP, out of the over 48,000 inmates in Nigeria’s prison custody only about 14,000 of them were convicts. Moreover, up to 50 per cent of these Awaiting Trial Prisoners have been on remand for between 5 and 17 years without their cases being concluded. A newspaper investigation has also shown that the Supreme Court is currently hearing appeals filed in 2001 and 2002. In his address at the event to mark the 2011/2012 legal year, Musdapher said that during the 2010-2011 legal year 1,149 civil appeals, 58 criminal appeals and 177 motions were pending before the court. This is preposterous!

Some administrative steps taken by the CJN to reform the judiciary are well-intentioned and commendable. Some of them include the reversal of an administrative order of his immediate predecessor in office, which restricted the sitting of the Supreme Court to only three weeks in a month. CJN directed the litigation department to fix cases for every week. The setting up of Justice Mohammed Lawal Uwais led 28 member judicial reform Committee is also praiseworthy even though reports of similar reform committees in the past have largely remained unimplemented. Also laudable is the CJN’s plan to introduce Intelligent Performance Measurement System for both judicial and non-judicial staff to weed out those who are unproductive as well as his announcement of the full computerisation of Supreme Court operations so as to ensure efficient and speedy processing of court documentations, fast-track compilation (and transmission) of records of proceedings and other vital documents; enable Judges; lawyers; litigants; researchers and the public to have easy access to online legal database among other benefits.