NATIONAL JUDICIAL COUNCIL [NJC] AS HERCULES

According to Greek mythology, Hercules, the greatest of the Greek heroes, was compelled to complete twelve tasks as a series of penance.  One of those tasks, or 'labors' required that Hercules travel to Augean and clean the king's stables in a single day.  This was supposed to be an impossible task because the Augean king was said to have more cattle than any man in Greece.  Not only did his stables house thousands of cattle, sheep, goats, and horses, producing an unimaginable amount of dung, the stables had not been cleaned in 30 years!  Imagine the extent of the filth, the dung and the smell!

When Hercules showed up and offered to clean the stables in a single day for 1/10th of the the Augean king's entire herd of cattle, the Augean king was so sure it could not happen that he agreed to the terms offered provided Hercules could do it in one day.  Hercules did the job by using unconventional methods, he diverted two rivers flowing near the stables off their course, to flow into the stable yards and out through the rear, before rejoining the river course, while taking all the filth and dung along with it.

From this Greek tale, the phrase 'cleaning the Augean stable' emerged to mean performing a large, unpleasant and seemingly impossible task that has long called for attention.  When the incumbent Chief Justice of Nigeria Hon. Justice Miriam Aloma Mukhtar was sworn into the office in July last year, there were many calls upon her to restore the judiciary to its pride of place in the body polity by investigating the rumors of corruption that were rife, and acting on the many complaints about judicial behavior.  As she has only two years in office as Chief Justice of Nigeria, this is her Augean stable.

It was widely reported in the newspapers that at her Senate confirmation hearings Justice Mukhtar acknowledged the problems of corruption in the judiciary and told the Senate that she was determined to flush out corrupt judges from the system, saying that as Chairman of the National Judicial Council [NJC], she would initiate internal cleansing to flush out corrupt judges.  The NJC is chaired by the incumbent Chief Justice of Nigeria and exercises control and authority over the appointment, promotion and discipline of judges at both the Federal and State level.

Tales of corruption and declining performance in the judiciary are not new.  We must not forget that exactly 20 years ago, in 1993, Nigeria grappled with the monster of judicial reform when the military government of the time set up the Justice Kayode Eso Panel.  Although the Justice Eso Panel's recommendations included the removal of 47 judicial officers which it indicted for delinquency, it also recommended comprehensive structural reforms in the judiciary and in the administration of justice, including the establishing of a unified structure to discipline of judicial officers.  The structure proposed by the Eso panel was established under the 1999 Constitution as the NJC.  After the Eso panel was the Justice Bola Babalakin Review Committee, which substantially confirmed the findings and recommendations of the Eso panel.  So, why 20 years later, are we still grappling with efforts to reform and upgrade judicial standards?  Why has it become our Augean stable? Is there something endemic in our judicial set up or structure that make these issues a recurring decimal?

Nigeria is not alone in battling with perceptions of judicial corruption and incompetence.  In Kenya, the previous Chief Justice who was appointed in 2003 was given the mandate of reforming the Kenyan Judiciary.  he appointed an Integrity and Anti-Corruption Committee which when it released its report revealed specific malfeasance at all levels of the judiciary, with a total of 105 judicial offiers accused of corruption.  As the country's President moved to establish tribunals to investigate allegations contained in the committee's report, 15 of the 23 accused judges resigned.  10 years later and with a new Constitution in place, Kenya is still re-vamping its judicial system, sacking judges on grounds of corruption and ineptitude and hiring new ones.  Less than six months ago, 28 new Kenyan High Court Judges were appointed under its new constitutional appointment structure which substantially mirrors our system of Judicial Service Commissions.

In Uganda, the state of affairs is not different.  Ugandan newspapers reported in December 2012 that at the launch of the report 'The right to fair trial in Uganda' by Foundation for Human Rights Initiative [FHRI] in Kampala a former Ugandan Supreme Court Judge advised his government to investigate judges suspected of corruption and remove those found guilty instead of protecting them.

Back home in Nigeria, the recent announcement by the National Judicial Council that two Judges had been recommended for retirement, while a third is being investigated is a sign that the Chief Justice of Nigeria meant what she said when she promised to tackle corruption in the judiciary.  Is this re-awakening of the NJC enough though?  Is it a flash in the pan,k or can more be done to restore faith in the judiciary?  Two rivers were used to clean the Augean stables.  Should this job be left to the NJC alone or does the Nigerian Bar Association have a role to play?

Although, the Nigerian Bar Association has five of its members as part of the NJC, the regulations which set up the NJC provide that they shall sit in the Council only for the purposes of considering the names of persons for appointment to the superior courts of records; they are not involved in matters of discipline of Judges.

Before Kenya undertook the above mentioned structural reforms in its judicial system, the joke in the corridors of justice in Kenya was, "why hire a  lawyer when you can buy a judge?"  In any country the end result of the public's loss of confidence in the judiciary is a disincentive to use the services of the lawyers.  Apart from a shift in public perception as to whom to pay, the users of the legal system will look for solutions elsewhere, except when access to the courts is the only option.  Nigeria is no different, as seen by the increasing popularity of television and radio based peoples' mediation and intervention programmes.  Again, within the profession at least, there open gossip about the role of lawyers in corrupting Judges.  So, our NBA has a direct stake in ensuring that the Judiciary lives up to expectations.

Whether by coincidence or by design, about the same time, the National Judicial Council was announcing the retirement of some Judges, the Legal Practitioners Privileges Committee announced that a Senior Advocate had been suspended from the rank while disciplinary proceedings were pending against him with regard to a complaint from a client.  I must make it clear that there is no allegation that the matter is connected with any judicial impropriety.  The decision has been subject to comment within the profession, not because of any belief that the Senior Advocate is guilty [the matter is still under investigation] but because it sends a signal that the profession is prepared to discipline itself, if the need arises, at the highest levels.  But apart from maintaining ethical standards and enforcing internal discipline, what else can the legal profession do, to support the NJC in its efforts to cleanse its Augean stable?

Funke Adekoya, SAN

THE ROLE OF JUDICIARY IN NATION BUILDING

From whatever angle one looks at the concept of nation building, it must be borne in mind that there is an unassailable truism that nation building can only be properly and truly carried out by the people and institutions of the country concerned.  Any hope that outsiders or foreigners would be the drivers of the vehicle of nation building is no more than a political illusion.

Constitutional Framework

The courts in Nigeria are creations of statutes.  The 1999 Constitution of the Federal Republic of Nigeria on its part provides in its Section 6(1) and (2) specifically as follows:

It is submitted that the judicial implication of the foregoing provisions is that the Constitution in the exercise of its judicial powers and as such, it is the Constitution that the Courts must look up to and not any of the other two arms of government in playing its role in nation building.

Constitutional Role

The role of the Courts in nation building is traceable to the Constitution.  Thus Section 6(6)(b) of the Constitution.

It is clear from the foregoing provision that the role of the courts in nation building can only be "interventionist" and not "origination" in nature.  it is interventionist because according to the language of the Constitution, there has to be a matter between persons or between government or authority and persons before the courts can begin to play any role by exercising their judicial powers.  "Persons" here include natural and non-natural persons.

Although the role of the Courts has been encapsulated in forty-two words in the provision quoted above, it is nonetheless, as wide as Nigeria itself.  In this regard, it has been held by the Courts themselves that it is their duty to expound but not to expand their role in interpreting this provision.

It is submitted that, in exercising their judicial powers under the Constitution, the courts in Nigeria must constantly bear in mind the expectation of the peoples in Nigeria that they wish to enjoy a feeling of happiness for being an intrinsic part of the country a failure of justice.  Can it be open to debate that the dong of justice is the primary role of the Courts in nation building?  What our Courts need to do therefore is to adopt a pragmatic approach, in the dispensation of justice, in a manner that would assure the citizenry of its efforts at nation building.  Our courts would seem to have, over the years, strive to accomplish this objective.

Judicial Precedent

The concept of nation building involves the use of state power such as the judicial power of the courts to promote and propagate autonomous things.  These, of course, include decisions of local courts.  It would seem that the Supreme Court of Nigeria is in agreement with this view although there has not been a consistent demonstration of this tendency on its part.  In ATTORNEY-GENERAL BENDEL STATE v ATTORNEY-GENERAL OF THE FEDERATION, ESO, J.S.C. aptly explained the attitude of nation building and expressed his judicial disgust for the continued promotion and propagation of foreign judicial decisions in our courts.

In pursuance of their role in nation building, our courts particularly the Court of Appeal and Supreme Court ought to be citing, more frequently, decisions of the High Courts of Nigeria as Authorities on issues on which the Supreme Court has not made pronouncements rather than decisions of the High Court of England, which are mainly reported in the King's Bench Division and Queen's Bench Division Law Reports and other Law Reports.

Promotion of Investments

The courts in Nigeria ought to use their judicial powers to promote and encourage investments in the nation's economy.  Citizens and institutions that have invested in various sectors of the economy ought not to be made to regret their investments by reason of oppressive judicial process.  There are many areas of our judicial process that could make investors wish that they had invested in other developed economies where the judicial process would be investment friendly.

For example, a simple case of pensioner who had invested in real estate in this country in the hope that the rents accruing from his investment would be used to sustain himself in his retirement.  There have been cases of recovery of premises that have lasted more than ten years in court in some of which the tenants had stopped paying rents whilst the case remain pending in court.

Criminal Justice

As part of its contribution to the process of nation building, our courts ought to ensure a Criminal justice system in which persons accused of crimes are promptly tried and commensurate penalty imposed on those found guilty of criminal offences.  It leaves much to be desired in a nation where a poor man who is accused of stealing a goat is speedily tried and when convicted, is sentenced to a term of six months or one year imprisonment whilst a former Governor of a state who is accused of stealing over N1Billion of State funds enjoys the privilege of a criminal process that allows his trial to be prolonged for a period of over three years during which period he is able to gallivant across the globe and even when he is eventually convicted, he is sentenced to a term of imprisonment of say three or six months.

The use of the criminal justice process as a tool in nation building cannot be over-emphasized.  If the citizenry are assured of a swift criminal justice procedure that ensures a three way traffic justice system in which there is justice to the state, justice to the accused who is alleged to have committed the crime and justice to the victim of the crime, thent he courts would have succeeded in promoting a feeling of happiness on the part of the people for being an intrinsic part of the country whenever they come in contact with the criminal justice process. OPUTA J.S.C, that former "Socrates of the Supreme Court" aptly encapsulated this in the case of JOSIAH v THE STATE.

Political Process

Nigeria as a nation has chosen democracy for herself.  From time to time the courts would be called upon by politicians and institutions involved in the democratic process to intervene in disputes arising from the electoral process.  The courts must at all times stand on the side of free and fair elections bearing in mind that a free and fair election which gives birth to a democratic government does not begin and end with the act of voting.  An election is a process of beginning with the registration of voters.  The courts must therefore ensure, when called upon to intervene, that the stream of the electoral process is not polluted by acts that are contraceptive to the birth of a truly democratic government.

In this regard the courts ought to bear in mind the observations of ANIAGOLU, J.S.C that the essence of democratic elections is that they be free and fair and that in that atmosphere of freedom, fairness and impartiality, citizens will exercise their freedom of choice of who their representatives shall be by casting their votes in favor of those candidates who in their deliberate judgement, they consider possess the qualities which mark them out as preferable candidates to those others who are contesting with them.

Free and fair election which will give birth to a truly democratic government cannot theefore, tolerate inflation of the number of registered voters in a particular constituency, thuggery or violence of any kind corrupt practice, impersonation, undue influence, intimidation, disorderly conduct and any acts which may have the effect of impeding the free exercise by the voter of his franchise.

Although such governments may enjoy what one would call a synthetic political follower, they ultimately weaken the citizenry's faith in the nation on which they are foisted.  Our courts have an onerous duty of preventing their emergence.

The Courts also have a duty to ensure that there is popular participation in the political process.  This role was manifested in the decision of the Supreme Court in INEC v MUSA21a where the court upheld the right of every Nigerian to form and belong to any political party of his choice.

It was the judgement of the Supreme Court in this case that liberalized the legal regime for the registration of Political Parties and opened up the political space for popular participation.

Corruption

It is generally said that corruption is a canker worm that has eaten deep into Nigeria.  One should say it is not only a canker worm but also caterpillar and locust which have ravaged our economic base and negatively affected the quality of life which the ordinary citizen would otherwise have been enjoying at the instance of the State.  It is the duty of our courts to strive to abolish corruption in their effort at nation building.

Indeed Section 15(5) of the 1999 Constitution provides that "the State shall abolish all corrupt practices and abuse of power."  Thus the concept of nation building and corruption are antithetical to each other.  The objective of corruption is to steal, kill and destroy, so it is evil.  But nation building is aimed at fostering a harmonious relationship between the State and the citizenry with a view to promoting a feeling of happiness and belonging to the end that loyalty to the nation shall over ride other primordial loyalties.  Our Courts must therefore at all times stand against corruption in all its ramifications.  But a judiciary can only fight corruption if it is peopled by incorruptible personnel.

This means that the role of the courts in fighting corruption in its efforts at nation building mus begin with the appointment of incorruptible people to the Bench.  A corrupt judge is more dangerous than an armed robber.  His activity strikes at the very root of the fountain of justice.  Thus justice is rooted in confidence and confidence is shattered and destroyed when the dispenser of justice is revealed to have been motivated by considerations other than law.

Mr. Oyetibo, SAN