CJN, CJs can address problems of courts by Practice Directions – Boma Ozobia
By Innocent Anaba
Mrs Boma Ozobia is President of Commonwealth Lawyers Association, CLA. She was elected in Hyderbad, India in 2011. In this interview, she spoke on her tenure, which will come to an end in April this year, with the election of another president in South Africa.
She also said that most of the problems facing the courts can be addressed by the Chief Justice of Nigeria and Chief Judges of the respective states by putting in place, appropriate Rules and Practice Directions, which they have the power to make under the constitution.
How would you appraise the performance of the judiciary in 2012?
Judges in Nigeria, like their colleagues in many of the developing Commonwealth countries, live and work in very difficult circumstances. They have very little control over the number of cases coming through the system on a daily basis from the appellate courts and indeed, even in the courts of first instance.
Meanwhile, they are not able to increase their numbers to meet the growing demand due to constitutional and other provisions. A typical example is the situation in the Court of Appeal. Do you know that as we speak, the backlog of cases had resulted in the absurd situation where, if all panels of the Court of Appeal sit for seven days a week for the next one years, they would still not be able to conclude all currently pending appeals before the courts? This is a systemic failure and it would be unfair to blame judges as we often do. The blame game is the easy option but it does not provide a solution.
How can the problem be resolved?
The truth of the matter is that we need a radical and total over haul of the system to properly address this problem. Nigerian judges are relatively poorly equipped in comparison to their counterparts in the developed Commonwealth. The Nigerian judiciary is grossly underfunded, which means that there are insufficient funds to provide our judges with adequate support by way of properly qualified research assistants, well-resourced libraries, comfortable and well-equipped courts and other tools that make service on the Bench a worthwhile and rewarding undertaking in other countries. Recently, a former President of Nigerian Bar Association, NBA felt compelled to take action on behalf of the Nigerian people as a result of the reduction in the budgetary allocation to the judiciary in the 2013 budget.
I had been asked on many occasions why the Nigerian Judiciary does not have more judges of courage, ‘Judicial activists’ as they are often described, and India is most commonly cited as the bench mark for this ‘Judicial activism.’
It is widely believed that our judges, particularly in the Supreme Court, lack the intellectual debt and courage to deliver such robust judgments we had in the days of Justice Kayode Eso, JSC of blessed memory, Justice Chukwudifu Oputa, JSC; Mohammed Uwais, CJN.
But we hear of such judgments in India and others commonwealth countries. What is your reaction to this?
The Supreme Court in India had quite properly’ in my view, given public interest litigations a fair hearing and made decisions to address the wrongs suffered by the poor and disadvantaged in that society within the provisions of their constitution.
However, there are many, including leading members of the profession in that jurisdiction, who feel the Indian Supreme Court has crossed the line and has effectively appropriated some of the constitutional powers of the executive arm of government. I personally do not think our judges lack courage, quite the contrary, I also believe there is much to be said for making haste slowly when it pertains to the justice delivery system.
What can we do now to get it right?
I would recommend the Ugandan example as a benchmark in this regard for Nigeria, which is grappling with very similar challenges. Having said that, there is much that can be done to make the administration of justice more efficient, without changing the law as it currently stands. Those the Chief Justice of Uganda had been able to address successfully by various administrative measures.
For instance, in July 2008, the Ugandan Judiciary administratively established a specialist anti-corruption court by designating judges of the Uganda High Court as specialist judges of the High Court’s anti-corruption division. This Anti-Corruption Division commenced hearing corruption or corruption related cases only, in December 2008.
I asked the Chief Justice how he was able to achieve this without a change in the law and he responded that their constitution gave him the power to issue orders and directions to the courts as necessary for the proper and efficient administration of justice.
After that conversation with Justice Odoki, I looked up the provisions of the Ugandan constitution and compared the provisions with that of the Nigerian constitution. In so doing, I was able to confirm that the Chief Justice of the Federation, the President of the Court of Appeal and the Chief Justice of the Federal High Court had similar powers. At state level, the Chief Justice of the state is similarly empowered, as are the administrative heads of the Sharia and Customary Courts.
Some lawyers have advocated for specialization as a way of improving the quality of legal services to our clients. What is your reaction to this?
A lawyer who claims to be an expert in every area of law is in my view, an unethical and unprincipled lawyer. A client engages your professional services because you have held yourself out to have expertise in that area of law, not because you know where to find the books to read. If you have to read it up to even understand the basic principles of that area of law, you cannot hold yourself out to be an expert.
The danger of that approach is that you may not find all the books and a little knowledge is a dangerous thing. Having said that, I am willing to accept that litigation or Court Room Advocacy, which forms the bulk of many practitioners’ work in this jurisdiction, may, as it had been argued, be an exception. But my response to that argument is that litigation in itself is a specialization. Needless to say, I am an advocate for specialization and our practice has been built along these lines.
What reforms would you like to see in the judiciary this year?
I will like to see the judiciary make more use of the Registrars and qualified lawyers in dealing with administrative matters to reduce the burden on judges in the future. It may take more than a year to put in place the required structure in terms of policy and guidance but it is commonplace in many Commonwealth jurisdictions and I commend it to Nigerian judiciary.
In South Africa for instance, senior lawyers are drafted to sit in quasi-judicial capacity to deal with those interminable applications that take up so much of a judicial working time. In England, practising lawyers sit as Recorders or part time judges for the same reason. I am not saying we should import this practice whole sale but there is much to commend it and it is certainly worth considering.
We all agree that justice delayed is justice denied and we do not want our citizens to get so frustrated with the inefficiencies of the system that they resort to self-help. It is already happening, therefore, urgent measures have to be taken to alleviate the situation for the litigant, particularly the poor and disadvantaged in our society.
What has been your experience, piloting the affairs of CLA in the last 23 months?
It has been a privilege to serve in the capacity of President of CLA for the past 23 months. Thankfully, the secretariat deals with all administrative matters, which means that my role as President is effectively ambassadorial. We also have a very structured governance system in place.
This ensures that no one individual, regardless of title or role can make decisions on behalf of the organisation without the consent and approval of the majority. Coming from a country like Nigeria, where we have the tendency to build ‘Big Men’ rather than ‘Big Institutions,’ I appreciate the independence and sanctity of the institution and decision by majority vote. Naturally, this can sometimes mean that we do not take decisions as quickly as we would like, but the pros far out weigh the cons.
As President of CLA, what have been your greatest challenges in office?
The greatest challenge had been the physical impossibility of being in two places at once and the relatively poor connectivity between the six continents generally and Africa in particular. I will give you an example, each time I had to travel within Africa on CLA business, it takes me four days to make the return trip on average with the exception of the West African sub-region. Of course, the time devoted to CLA activities also reduced the time available for fee earning legal work and impacted on my firm’s bottom line to some extent.
What are the fundamental principles that CLA believes in?
CLA quite simply exists to promote the rule of law and standards in the profession across the Commonwealth. With our shared history and system of law, Commonwealth countries have much to learn from each other and CLA provides a platform for this interaction and exchange of knowledge. It is quite simply the largest and only global platform for common law practitioners the world over.
All common law jurisdictions are concerned with the preservation of the highest standards of ethics and integrity in the profession, which is why it is a central objective of CLA as well. Naturally, ethical lawyers make ethical judges and advocates, which mean that the society is better served and the citizens will continue to have confidence in the justice system, which in turn will result in respect for the rule of law. Pursuing these two key objectives from CLA’s perspective would, therefore, really equals a win-win for all concerned.
You had advocated mentoring of young lawyers as a way of giving back to the society its contributions to your professional training. How far have you achieved this?
Mentoring is a crucial part of training in all professions, including the law or some might say, more particularly, the law. There is so much one can only pick up from experience, which is simply not available in standard academic books, no matter how well written. If I had traveled by road to Ibadan and I know there is a trailer park on the way that could result in delay to the unsuspecting traveler, it would be helpful to that traveler, if I am able to share my experience. The traveler can set out earlier, allowing time for any delay at the trailer park.
This is a rather simplistic explanation of the importance of mentoring. But this is essentially why my friends and I wrote the two books ‘Sisters in Law’ and ‘Survival Manual for New Wigs.’ It is also the reason Sterling Partnership had engaged the Nigerian law school to organise an annual mentoring talk at the Lagos campus for the past four years.
It is also the same reason I am involved with WISCAR, a formal mentoring programme for young women professionals interested in moving up the career ladder. These efforts have yielded great results, for which I cannot take the credit. The results were achieved by team effort in all these instances and the credit goes to all who make up the team, including the mentees.
You are to hand over the Presidency of CLA to another person in South Africa.
I will definitely hand over at the end of the conference in Cape Town. We usually hold an AGM on the first day of the conference, where the officers of the CLA are elected. Usually the institutional members such as the NBA will field their candidates in accordance with the CLA constitution. However, individual candidates may be nominated by individual members, nominations are not restricted to the institutional members only.
Lawyers complain that some programmes of International Bar Association and sometimes CLA, do not address specific and particular problems facing developing countries such as Nigeria. How did you address this?
The IBA conference is a global legal conference with papers and contributions from civil law jurisdictions and other systems of law whilst the CLA is quite simply about the common law. This means that every session, paper and discussion is relevant to your practice as a Nigerian lawyer for many reasons, not least because the decisions from other common law jurisdictions have persuasive authority in our courts.