By Dahiru Musdapher
AS I have stated in several for a recently, the Nigerian Judiciary is in urgent need of radical surgical reform. We must rise above the daunting challenges of today and restore hope and confidence in the judicial system. The importance of a credible, efficient, independent, impartial, honest and virile judiciary in building a stable democratic nation cannot be I overemphasized; it is indeed· a necessary pillar of constitutional democracy and a necessary ingredient .. towards building a peaceful and decent society.

Though we have recorded some commendable successes in stabilizing this country on many occasions, our failures appear more visible in the eyes of the ordinary citizen. The importance of our constitutional responsibilities clearly indicates that the bar must be raised much higher.

Like doctors in an emergency ward, our performance is mostly based on where we falter rather than where we succeed. Therefore, an average performance is clearly below the expectation of Nigerians and we must all strive to meet and eventually exceed these lofty expectations. I hereby make a renewed commitment to all Nigerians that we shall do our utmost to improve the Nigerian Judiciary for the benefit of all.

Complexity of challenges

However, it is important for Nigerians to appreciate the complexity of the challenges we face today. It is instructive to consider that amongst the Judiciaries in the Commonwealth in particular, and those practising democracy in general, perhaps none is as burdened, encumbered, harassed, inundated and over-stretched with political cases and disputes as much as the Nigerian Judiciary.

The point must be made straight away that the Nigerian Judiciary can boast of having produced some .. of the finest crop of Judicial Officers within the Commonwealth countries which operate and administer Common Law. Hitherto, Judicial Officers were seen as demi-gods and taken as representatives

of God on earth. This is how it should be, because when there are disputes between individuals and organizations, whether in the churches, mosques, schools, universities, business or even among couples and friends, what would readily cross their minds would be to take the disputations to the Court of Justice for adjudication.

*A cross section of Judges

In essence, Judges should be seen as persons within the Legal Profession who possess the extra-ordinary character, culture, trait, patience, intelligence, knowledge, dynamism and virtues to adjudicate honestly and impartially among contending and disputing parties.

It is, therefore, not a surprise that Section 6(6) of the 1999 Constitution (as amended) solely and squarely vests judicial powers and authority in the Superior Courts created by the Constitution. Before independence and through to the post independence era, Judges in Nigeria were rarely accused of corruption, whether rightly or wrongly.

Indeed, corruption or any type of vice was seen as an abomination and anathema within Judicial circles, whether at the Supreme Court, Appellate Courts, Magistrate Courts, Customary or Native Courts. I … cannot but reiterate what I said not too long ago during a Dinner Speech in honour of delegates to the 2010 biennial conference of All Nigeria Judges of the Lower Courts. I had stated that –

“We do not have a garrison or army to fight our cause. Our authority rests solely on the public perception of our integrity and absolute impartiality”

The challenges confronting the Judiciary are not insurmountable. There is a determined resolve on our side to face these challenges squarely, and ensure that the ethics of the Bench are complied with by all Judicial Officers in Nigeria.

It is also the desire of the citizenry that justice must be done, without delay, at all times and be seen to have been done. With a corrupt Judiciary, this can never be accomplished. This is probably why the erudite jurist, my brother, Niki Tobi, JSC (rtd.), in Eriobuna vs Obiorah (1999) 8 NWLR (Pt.616) 622 at 630 declared that:

‘/1 judge by the nature of his position and professional calling} is expected to be straight forward} upright} diligent} consistent and open in whatever he does in court and in other places of human endeavour that he happens to find himself This is because his character as a judge is public property. He is the cynosure of the entire adjudication in the cour~ and like Caesar}s wife of Ancient Rome} he is expected to live above board and above suspicion} if the

judicial process should not experience any reverse or suffer detriment. A judge should know that by the nature of his judicial

functions} he is persistently and consistently on trial for any improper conduct immediately before} during and immediately after the trial of a case.”

It is therefore our collective responsibility to ensure a continuous independent, strong, respected and respectable Judiciary for the impartial administration of justice. All Judicial Officers must actively participate in establishing, maintaining, enforcing and observing high standard of conduct so that the integrity and respect for the independence of the Judiciary is sustained.

We must collectively come together and tackle the problems of court inefficiencies, poor infrastructure and condition of service, decay of intellectual capacity and corruption. These setbacks among others have served to disrupt full efficiency of the Judiciary and its perception by the public.

Let me restate at this juncture that the society we all serve is not satisfied with our performance thus the task is ours to rebut this notion. A Judge can only inspire confidence in the judicial process if he, in addition to being impartial, is seen to be impartial.

The Judicial Officer is respected because he respects himself. When he descends into a lower sphere and takes a partisan position, he is open to criticism as any other person and such criticism may lower the dignity of the bench and tarnish the image of the Judiciary.

As Judges, we must act according to the highest decorum and the highest dictates of our conscience. We also must be guided by the fundamental values and principles of constitutional democracy as well as the value of simple decency.

Our judgments and pronouncements must not appear to be against the essence of justice. Surely, the application of these broad principles cannot produce judgments that appear unfair and unjust.

In the context of this discourse Judicial Ethics must be broadened to include the sanctity of those factors that may adversely affect public confidence in the ethical standards of a judicial system. The term signifies the possession of those high moral principles and professional standards that must be steadfastly adhered to and upheld in order to maintain public confidence in the judiciary.

The term judicial integrity may also be understood as the amalgamation of those preconditions that must be present before the judicial function can be validly and effectively exercised. Though these preconditions may vary according to differing democratic peculiarities; the following must necessarily exist before a functional judicial system under the rule of law might subsist.

* Judicial independence, impartiality and objectivity;

*Decisions within the societal consensus and

Public confidence in the judiciary.

A society can operate under the rule of law only when laws are administered fairly; rationally; consistently; impartially and devoid of any improper influences that may be inconsistent with each of these objectives. Fairness requires a reasonable process of consideration; Rationality requires a reasoned relationship between the rights and duties and the outcome; Predictability requires a process by which the outcome is related to the original rights and duties; Consistency requires similar cases to lead to similar results and finally, Impartiality requires the decision maker to be indifferent to the outcome. Any form of improper influence or incompetence, inefficiency, bias ‘“ etc, distorts each of these objectives and weakens judicial efficiency.

Judicial Independence is an important component of modern democracy. It is crucial to the doctrine of separation of powers, the sustenance of the rule of law and the protection of human rights. In the words of a Canadian jurist;

Judicial Independence is essential for fair and just dispute resolution in individual cases and it is the life blood of democratic constitutionalism. Without judicial independence there can be no preservation of democratic values.

Historically, the Act of Settlement of 1701 recognised that the independence and impartiality of the judiciary could not exclusively depend on only the personal integrity and resilience of the individual judge. Accordingly, it was necessary to institutionalise the independence of the judicial system.

The Act of Settlement created for the first time a basis for judicial security of tenure that was later on reinforced by legislations that guaranteed remuneration. These statutes institutionalised judicial independence in a form hitherto unknown and continue to serve as the 4> foundational principles for the administration of justice in all common law jurisdictions.

An independent judiciary requires that individual judges are independent in the exercise of their powers, and that the judiciary as a whole is independent, with its sphere of authority protected from the influence, overt or insidious, of the other arms of government.

As asserted in the foregoing, an independent judiciary also requires protection from more systemic influences. A fundamental aspect of this institutional independence is ensuring that the judiciary receives adequate funding. Just as salary protection is necessary to individual judges’ independence; the overall financing issues can influence the work of the judiciary as a whole.

Judicial independence is not an end in itself, but a means to an end. It is the kernel of the rule of law, giving the citizenry confidence that the laws will be fairly and equally applied.

Judicial independence also allows judges to make decisions that may be contrary to the interests of the other branches of government. Presidents, ministers and legislators at times rush to find convenient solutions to the exigencies of the day.

An independent judiciary is uniquely positioned to reflect on the impact of those solutions on rights and liberties, and must act to ensure that those values are not subverted. • Independence is the wellspring of the courage needed to serve this noble function of the rule of law.

Though it may be difficult to assemble all the issues that affect judicial independence, the following areas appear to be where it is most vulnerable;

·    The appointment of judges

Security of tenure and remuneration; including Pensions and Retirement Benefits

Institutional autonomy particularly the assignment of cases

Judicial accountability

Adequacy of resources for the courts

Media and societal pressures

Scope of judicial power and justiciability

The role of an adjudicator, is an onerous and unenviable one, we must discharge our functions impartially, effectively and in the best interest of justice, and in accordance with the law; without regard to any undue influences, sentiments or show of favouritism. There must be zero tolerance to judicial dishonesty and Corruption.

It is apparent, therefore, that judicial integrity is an extremely important component of the established … arsenal guarding against tyrannical rule. It is extremely important that judicial authority be exercised with integrity in an impartial manner. Judges are expected to be impartial arbiters so that legal disputes are decided according to the law and free from the influence of any undue bias, prejudice, or political pressure.

Certain kinds of bias are incompatible with the proper exercise of judicial function and are unacceptable in judges. For example, ethnic bias and misguided stereotypical thinking about groups of people and other related vices that have nothing to do with the matter at hand, often lead to severe travesty.

Where a judge has a predilection against a class of persons, it may operate to improperly predetermine the outcome of individual cases and deny a litigant the right to have his or her case decided on the basis of the evidence presented at the trial.

Therefore, personal bias or prejudice on the part of a judge is improper and should not be tolerated. Antagonism or favoritism directed personally at a party by a judge indicates that the judge does not have the requisite degree of impartiality to decide a case fairly. Animosity or irrational biases are clear signs of improper partiality that disqualify a judge from presiding over a case.

Another aspect of this mandate is that judges MUST not lend the prestige of their offices to advance the private interests of others. The office was created for the purpose of administering justice; it was not intended to be used to support the private ventures of others.

Accordingly, it is a gross violation for a judge to use the prestige of his office to do favours for friends or relatives. For example, it is improper for a judge to intercede in criminal proceedings before another judge on behalf of a friend or relative.

It matters a great deal how matters are decided in our courts. A judge must decide not just who shall have what, but also who has behaved well, who has met the responsibilities of citizenship, and who by design- or greed and insensitivity, has ignored his responsibilities to others, or exaggerated theirs to him. If the decision at the end of the day is unfair, then the whole society has inflicted a moral injury to one of its members because, it has stamped him in some degree as an outlaw.

This injury is gravest when an innocent person is convicted of a crime, but it is no less excruciating for a plaintiff with a sound claim to be turned away by the courts, or when defendant leaves the court with an undeserved victory. Difficult as the task is, ‘“ judges must nonetheless perform their judicial functions with zest, candour, magnanimity and integrity.

It is my opinion that the moral degradation and decay in our body polity strongly calls for the need to stimulate a change in societal consensus. The public demands it, the nation needs it. The judiciary must take the initiative of raising the bar of accepted societal behavior.

This responsibility would determine the public perception of the courts and their moral authority in coming years. The integrity of the judge and the judicial system is necessarily connected with its perceived usefulness to society particularly the role it must play in ensuring that prevailing societal iniquities in corruption and dirty politics are tackled head-on.

Accordingly, based on this reality; I am of the firm opinion that the role of the courts must be understood from the broader perspective of a responsibility to bridge the gap between law and society. It follows therefore, that the restriction imposed by of the requirement to show an injury in fact before a legal standing can be established to allow a litigant to sue for a determination of the constitutionality of actions or the effect of actions under the rule of law; must be  expanded; at least to the extent that would allow one to sue for either constitutional breaches or affronts to the rule of law.

Lord Diplock rightly observed that:

“ ….. it would in my view be a grave lacuna in our system of public law if a pressure group like the federation, or even a single public spirited tax payer, were prevented by outdated technical rules of locus standi from binging the matter to the attention of the court (if only) to vindicate the rule of law and get unlawful  conduct stopped”

This approach has since been adopted by the Supreme Courts of other jurisdictions without the occurrence of the attendant fears of frivolous law suits. This release would invariably clear up those dark corners of legal technicalities that most times give refuge to those who wantonly abuse constitutional powers, make a mockery of the rule of law; and get away with it. This would go a long way in reinforcing the public’s belief in the judiciary’s ability to ensure that other arms of government always act within constitutional limits and the rule of law.

As Judges, we do not aspire to power and do not seek to rule. We must not stretch the confines that invariably bind us as Judges. The determination of the questions placed before us regulate and stabilize this great nation, protect its democratic values and practices and ultimately its future. Consequently, we must rise to the challenge and restore public confidence in our judicial system.

It is pertinent to stress that irrespective of concerted efforts to stem the tide, most cases are still decided on the basis of technicalities rather than the substantive issues placed before the court for determination. This attitude is strictly unwarranted as procedural rules are there to regulate the conduct of proceedings and ensure that the process for the attainment of justice is fair and equitable. Stringent application of procedural rules and technicalities that do not lead to the attainment of substantial justice is clearly against modern perceptions of justice.

Judiciary has sufficient capacity and the resolve to correct whatever ills exist within it. However Section 121 (3) • of the 1999 Constitution (as amended)  caters for the funding of the Judiciary at the state level. I hereby make a call on all the State Governors to demonstrate a commitment to our efforts to enthrone justice in Nigeria by fully adhering to the provisions of the said section by releasing the funds for the judiciary in the states without delays or unnecessary hurdles.

This issue of funding the Judiciary has continued to pose serious challenge to the institution. Unfortunately, the same cannot be said as regards funding for the Judiciaries at the State level. While the Constitution specifically mandates that all monies due to the Judiciary should be given to the Heads of Courts, such provisions are complied with more in breach than obedience.

Majority of the Heads of Courts still go caps in hands to the Governors to beg for what is constitutionally due to them. I urge the Governors who are already in compliance, to please appeal to conscience of their colleagues in the interest of the administration of justice. There is urgent need to build capacity of Judicial Officers and their support staff at both the State and Federal levels.

Courts’ infrastructures in majority of the States are in deplorable state. Yet archaic court equipment requires urgent attention. Adequate funding will go a long way in helping the Judiciary to realize its dream of upgrading its courts to international standards where processes are automated, good working environments are provided and sufficient working facilities as well as improving the conditions of service are ensured. This ultimately would improve court efficiency; reduce corrupt practices and indeed build public confidence in the judicial system.

The issue of corruption will continue to be in the front burner of our national discourse. Towards this end, efforts are ongoing to reposition and strengthen the National Judicial Council for the effective discharge of its statutory mandate in dealing with judicial discipline.

It appears to me that the Nigerian public consider our performance largely in relation to how we are able to determine cases bordering on official corruption and those relating to election petitions. Regarding the former, as I directed at the NIALS Fellows Lecture recently, I to restate the need for all Judges to prioritise the hearing of these matters pending before them.

It is imperative for all judges to realise that these cases are of extreme importance to Nigerians and must be dispensed with swiftly. I reiterate the counsel to all judges to accelerate the hearing of such cases and ensure that they are dispensed within a reasonable time of filing to ensure quick dispensation of justice to the satisfaction of all and sundry.

Regarding the latter, I must implore all judges to ensure that their judgements are based on clear reasoning based on the substantive issues placed for determination. Judges must understand that in the determination of such cases, their role is to ensure that they give effect to the wishes of the voters.

The technical rules and procedures for such proceedings were developed to ensure that the wishes of the electorate are respected and not the other way around. Technical and procedural rules must be observed in full context of their purpose. We are the last line of defense and the only hope of the common man; we must ensure that justice is done to the satisfaction of the populace.

I also wish to call on political litigants, the media and the civil society to play their respective roles in assisting the courts in arriving at sound decisions rather than whipping undue sentiments without understanding the issues placed before the court for determination.

It is important to also state that whenever, the processes involved in an election are strictly adhered to by the regulator, the task of the courts in correctly applying the law in determining any disputes arising from elections would be clear and straight forward.

Hon. Justice Dahiru Musdapher, GCON is the Chief Justice of Nigeria and Chairman Board of Governors, National Judicial Institute