Salvaging the precarious situation of the judiciary – Dr. MUIZ Banire SAN

Our judges need to be made at par with their counterparts in other jurisdictions. Where they are taken care of adequately and any of them is still involved in corrupt practices, the punishment need not be sparing

 

Muiz Banire I Sunday, July 23, 2023

LAGOS, Nigeria – The judiciary is said to be the last hope of the common man. If as lawyers we are meant to literally interpret this, it would appear that this implies that those other than the proverbial common man have alternatives to the judiciary in the resolution of disputes involving them and securing of justice.

In other words, this category of people can resort to other means of getting justice in moments of their grief.However, by the Constitution of the Federal Republic of Nigeria, all persons, natural and artificial, are meant to submit their disputes to the judiciary for resolution.

This includes the governmental organs and entities. In the dispensation of justice among these categories of persons, judges are appointed as the arbiters. Quite expectedly, they are to be complemented by non-judicial staff. In Nigeria today, we have a total of about 2,000 judges across board. These include judges of the various High Courts, Industrial Courts, Sharia and Customary Courts of Appeal.

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It is through the judges that justice is dispensed. However, due to the multitude of cases being filed in some states, probably due to the level of commerce that goes on there and the degree of modernization, the courts manned by these judges are ever overburdened. The judges in some of these jurisdictions are unable to cope with the pressure and workload, coupled with the lack of technological support and equipment that are crucially required. The resultant effect of this is the backlog of cases spanning several years. In some states/jurisdictions like Lagos, Port Harcourt, Enugu, Abuja, etc., for a case at the High Court level, it may take an average of five years to conclude, everything being equal.

By the time these cases move to the Court of Appeal, another minimum of five years is spent on the hearing and disposal of such cases. The elephant in the room is the Supreme Court, which is the apex court in Nigeria. This takes, at the barest minimum, a period of 15 years before disposal of cases. By the time the cases are ultimately disposed of, most original parties would have been dead. This explains why it is said that it is easier to access the court in Nigeria than exit it. In other words,accessing justice is a horrendous task in Nigeria as the time to dispose of cases in the country is often unreasonable.

The import of this is that, more often than not, justice is delayed, translating into justice denied. Due to the excruciating delays witnessed in the dispensation of justice, many people have gone back to the ancient days or resorted to resolving disputes by taking the law into their hands. Before the advent of the modern judicial system, Africa did not lack judicial means.

We had several institutions by which justice was dispensed, ranging from palace courts to shrines and priestly intervention. Thieves, rapists and other felons were caught by traditional voodoo means and sentences were passed. In many cases in Yorubaland, a rapist would be banished and might be sold into slavery as punishment for his offence. Banishment by selling into slavery into a faraway land was known as titaloji, which means selling to the land of ajoji, with the words “ajoji” meaning strange. The punishment so was well known that it gave birth to a proverb that “iya okobo yo ni’jo oro oji, o niOlohun se, omo oun kii ba obinrin sun.” This literally means the mother of an impotent congratulates herself on the punishment of banishment by selling into slave. She thanks her creator as her son does not mate with women.

This form of punishment, caning, ridiculing, forfeiture of property and many more were known to our criminal system. At times, it might be a death sentence or imprisonment. Such sentence, at times, might be visitation of the gods in which the guilty might be afflicted with an incurable disease or death.

The punishment might be crude, inhuman and heart-rending. Punishment might not be proportional to the gravity of the offence committed. Definitely, this does not commend well to civilization. In the civil aspect, we had so many ways of settling disputes which were quite effective as well. Chiefs played dominant roles in this regard. A major shortcoming of this system is the fact that judicial proceedings were not documented and neither were they standardized as to create a system that evolved through the common law in England over time.

A major reason for this was best encapsulated by the decision in Lewis v. Bankole, in which writing was said to be foreign to native ideas. This makes judicial precedent nebulous if existent at all. There was hardly a formalized stare decisis. The decision of the King in a palace judicial proceeding may then be structured according to his mood, whims and caprices. Where parties consult oracles to decide their disputes, what could be the outcome can never be predetermined except as may be stated by the medium. In many cases where there is no effective judicial system in place or people lack trust in the existing judicial system, parties to disputes resort to violence. Many cases of extra-judicial killings occur with the police unable to unravel them.

We have many cases that have resorted to communal strife with internecine killings and destruction of properties being the outcome. In all these, it is certain that a system of that nature can never accommodate modern level of developments and the desire for peace and international commerce which only could birth economic advancement needed in society. This is why the Constitution recognizes and establishes the judiciary as the third arm of government with duties, functions and powers clearly spelt out. Judges are the gatekeepers to the yards of justice.

They are the maintainers of the society’s peaceful means of dispute resolution. A place where there is no effective judicial system can never make any substantial progress as international commerce can never prosper effectively there. This informs why the whole world takes the judiciary seriously and recognizes justice as divine treating unjust laws, unjust societies as undesirable.

A gatekeeper to where treasures are kept cannot then be made a victim of starvation and be expected to be efficient. Such a gatekeeper to the treasury cannot be expected to effectively carry out his duties while being deprived of necessary tools to do his job. He must be well kitted and trained. The agitation in Nigeria for judicial officials and judicial staff to be better taken care of in terms of welfare has been on for long. Our judges and judicial staff have been victims of worse treatment. If there is any compromise of a judicial process, we cannot absolve the system of guilt.

Our judges need to be made at par with their counterparts in other jurisdictions. Where they are taken care of adequately and any of them is still involved in corrupt practices, the punishment need not be sparing. It cannot then be a matter of a slap on the wrist but rather bringing down a condign punishment on the erring judge. It cannot be a matter of mere retirement or dismissal from office but must be accompanied by prosecution and sentencing. Let the hunter become the hunted and the judge become the accused person standing trial.

This will bring enough shame and when found guilty, accordingly sentenced. However, before we can courageously implement this, we must remove the incentives to corruption. We must remove the hurdles to effective performance of their jobs. In the areas of efficiency, as it is clear that many judges have been accused of incompetence and inadequate knowledge of the law, it is important that our recruitment process is made more meritorious and not based on patronage.

A situation where judges are appointed on the basis of political and other parochial considerations is not commending to good sense. Such a society can never make any substantial progress. Its judges might be worse than armed robbers and crude illiterates placed in the most respectable places of authority.

It is incumbent on the present administration to look critically into this and save the judiciary from ignominy. Parties to disputes can only be at peace if convinced that their arbiter will be im partial. The populace today does not respect our judges based on the perception the people have about them. It is commonplace today to hear people condemning judges in the media without any fear of repercussions.

A society where its judges are afraid to perform their duties can never be a free society where justice can be effectively dispensed. A situation where judges have to pander to social media opinions and be afraid of public condemnation or appraisal that is not based on any realistic basis is not accommodating to effective dispensation of justice.

We need to remedy a lot of things with respect to the welfare of judges, their modes of appointment, punishment and security of tenure. We must wean the judiciary from the undue influence of the executive or the legislature. We must revive public confidence in our judicial system otherwise there will always be incremental rate in self-help.

People will be looking for alternatives to spending years in court awaiting an unpredictable outcome. Above all, for any meaningful intervention in the lives of judges and judicial staff, it is important to revamp the economy as judges and judicial staff do not patronize markets in heaven. While we agitate for increase in the salary of judges, it will still amount to scooping water from a stream of income only to pour it into an ocean of inflation.

It means no progress. We need to revamp the economy, strengthen the naira so that it commands greater purchasing power. Without such a reasonable effort, I bet that we shall only be moving in circles. Of note also is the bourgeoning responsibility cast on our judges in the dispensation of electoral justice. We need to devise urgently a means of sparing them this torture. Commercial and other regular cases now take the back seat due to the congestion in courts and the use of the judges for electoral justice.

As much as one would have aligned with the proposition that retired judges be substituted for the serving judges in the dispensation of electoral justice, the new retirement age has defeated this thought. The truth is that by the time a judge retires at age seventy, he is hardly useful to himself again ,much less the society. I therefore believe this novel idea is dead on arrival. We need to engage further towards innovating a better scheme towards solving this perennial delays in our courts.

Recruitment of more judges in my view is no option, may be deployment of technology. This is still work in progress that must be urgently be completed in order to salvage the judiciary.