By Joseph Chu’ma Otteh

‘NO system of justice can rise above the ethics of those who administer it”

The recent decision by the National Judicial Council (NJC) to recommend the retirement of two Judges is probably the strongest evidence yet that a new administrator is now in charge and that business will not, under her, be as usual.

The NJC has finally brought to definite closure matters which had smouldered for an interminably arduous period, some of them, since 2008, like the case of Hon. Justice Thomas Naron, against whom petitions had been unresolved by the Council since 2008.

What this reinforces is that leadership is what tips the scale concerning how an institution delivers on its mandate.

In this piece, we explore how the NJC can go the full distance with its current resolve, and outline the challenges that the Council should, in its new incarnation, take on as a matter of urgency, to restore confidence in the Nigerian justice system again.

Restore Credibility of the NJC

The NJC’s credibility has been a key issue in the fight to make the Judiciary function accountably and ethically. Just a few years ago, we all thought that the problems within the Judiciary were down to its lack of independence and its inadequate funding.

Let’s recall what the Eso Panel Report said on this,  “the root cause of all the problems of the Nigerian Judiciary was its total dependence on the Executive and its consequent treatment by the latter as a mere parastatal of the executive arm of government, a department of the Ministry of Justice.”

The establishment of the NJC was expected to give the judiciary greater autonomy over matters pertaining to the affairs of the judiciary and reduce the overreaching range of political influence over the way the Judiciary was recruited and functioned.

The NJC, after a review of the Justice Eso Panel report in 2002 through a Committee chaired by Hon. Justice Bolarinwa Babalakin (rtd) concluded that the 1999 Constitution, through the establishment of the NJC, had effectively taken care of the concerns and problems identified by the Eso Panel including issues of independence (recruitment, security of tenure and funding), and had adequately secured both the Federal and the States’ Judicial Service Commissions as independent bodies from executive and legislative control.

Unfortunately, a few years after, with significantly improved funding and a robust judicial oversight agency made up substantially of persons within the Judiciary, the problems still subsist.

Let us recall, that shortly after he became President in 1999, Chief Olusegun Obasanjo had candidly conveyed this sense of anger and frustration with the judiciary, when he told the All Nigeria Judges Conference that “[t]here is prevailing disenchantment of the populace with the Judiciary, an attitude which has arisen out of the lapses or failings of the Judiciary”.

Thirteen years down the line, and after substantial investments in improving the lot of the Judiciary, ex-President Obasanjo had cause to remark again in 2012, that: “Now, the judiciary has been riddled by corruption, which has affected other sectors of the country.

And if the judiciary becomes corrupt, where is the hope for the nation? Justice has become the highest bidder. That is what we have now. “For election, we now have democracy of the judiciary, substituted for democracy of the people.”

Justice Aloma Mariam Mukhtar
Justice Aloma Mariam Mukhtar

At the same event where these comments were made, retired Chief Justice of Nigeria, Mohammed Uwais also said  that: “It is true that Nigeria needed a strong judiciary that started on a strong footing from the colonial masters. But corruption has affected the judicial arm of the government.

When I was the CJN, I worked with the President to remove quite a number of the judges from office on the recommendation of the [the NJC]. That was the standard we expect from the NJC. But unfortunately, judges who are corrupt are allowed to go scot free.”

In other words, the NJC, over the years went from being effective (or at least considerably so) to being mostly symbolic, a lame duck, and a window dressing. The reason? Leadership!

Therefore, if the Judiciary’s survival and honour depends on the leadership and effectiveness of the NJC, then we must learn to take adequate measures to ensure that irrespective of the complexion of its leadership, the NJC can manage to function at some credible level in any weather.

In other words, that the NJC can function considerably – if not effectively – irrespective of the calibre of its leadership. There are two ways we think this can be accomplished. The first is this: the NJC must itself adopt standard and enforceable internal policies or systems that can sustain effective outcomes in any case. For example, petitions to the NJC will only be investigated if they are listed in the business agenda of the Council.

This is not good enough. What it means is that a Chief Justice who does not want something discussed by the Council will simply decide against its being tabled for discussion. Second, even where petitions are tabled, the Council can still decide to not investigate it, or, if it does, it largely does a ceremonial, rough-shod job of that.

This is the reason why some petitions will probably never be investigated or decided in any forthright sense. To avoid against this, the NJC should adopt credible intake and disposition safeguards or guidelines for the reception, listing an
d determination of all complaints brought against Judges and no one person should be able to determine the fate of any complaint against a Judge.

Second, the NJC should pursue constitutional reforms to reconstitute the Council and reduce the powers and influence of the Chief Justice of Nigeria over the membership of the Council. The Council, for one, is too egalitarian and exclusive. The Ghana Judicial Council, to make a comparism, has a membership drawn from a wide spectrum of governmental and other interest groups, including representatives of Magistrates, traditional Chiefs, the Judicial Service Staff Association, the Police, Military and the Bar.

We need to show that the NJC is not just an elitist institution whose memberships do not exist in the realms in which ordinary people do. Also, the CJN selects 60% of the membership of the NJC, and when you consider that five representatives of the NBA only participate when the NJC is considering judicial appointments, you find that for most of its business, the NJC is composed of persons 78% of who are selected by the CJN alone.

If the leadership of the NJC falls into the wrong hands, as we probably have experienced at some point, Nigerians pay dearly. Therefore, the structure of the NJC’s composition and leadership is lopsided and weakens the integrity and independence of that body. This needs to change.

Third, the NJC can press for reforms that could separate or divide the Council into two, creating a separate disciplinary arm and giving the new body exclusive functions and an independent Chairperson who is not a serving Chief Justice.  The body could be called a Judicial Disciplinary Council (JDC), or Judicial Performance and Disciplinary Council (JPDC), a nomenclature similar to that proposed by the Justice Kayode Eso Panel.

Reform Judicial Appointments

Much has been said about reforming judicial appointments, and the Justice Uwais Committee set up by retired CJN, Hon. Justice Musdapher made insightful recommendations in that regard. The NJC needs to take those recommendations very seriously and implement them.

Current procedures of judicial appointments will not help Nigeria identify the generation of judges who will be our best foot forward going into the future. Our current system does not offer equal and fair opportunities to access judicial office, neither does it promote transparency and accountability and needs to be replaced in this regard.

Conclusion

By a single stroke of resolve, Hon. Justice Mariam Mukhtar (GCON), the Chief Justice of Nigeria has rekindled hope that the Nigerian Judiciary will rise again out of the ashes of disappointment and failure and serve Nigerians in the spirit, and beyond the letters, of our Constitution. She is making good on her promise to ensure leadership by example and ensure internal discipline in the judiciary.

She has set herself on a worthy cause and is entitled to praise. However, the road is still a long one, and the challenges, as well as the uncertainties are many. Having started on a promising note, the expectations will be stronger. She will need to keep a steady and resolute hand on the plough. May she be resourced with more strength, courage and wisdom to pursue this good cause.

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