Thursday, April 11, 2013
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