By Muhammed Adamu
WHEN Justice Musdapher announced publicly that Nigerian judges had no reason whatsoever to hear criminal matters beyond a period of six months, it was the much that any Chief Justice –without the luxury of a judicial fiat- could do to advance the course of speedy dispensation of justice.

He had, severally in the course of his reforms, decried the pathetic situation of the Nigerian justice system high-profile criminal cases often took 8 to 10 years on the average, to conclude. Delay in the dispensation of justice, he said often manifests in the lapse of subject matter of a suit and even in the escalation of cost of litigation –more often than not exceeding the value of subject matter of litigation.

But if the revelation –coming from the nation’s number one judicial officer- that six months was sufficient to start and close a case, had done nothing to reverse the malaise, at least it exposed to the public truth of a judicial kind, which is that the problem of our justice system is not only about complex or defective laws but also about the attitude of judges and lawyers towards complex and defective laws. Musdapher’s exposé elicited instant commendation especially from a jubilant EFCC whose cases, had suffered the most delays in the hands of judges. The anti-corruption agency had announced in a statement that it was still seeking closure to over 75 high-profile cases including about 1,500 which it was presently prosecuting before the courts.

Constitutional complement

In fact, the Chief Justice said that even the Supreme Court, which in the 2010-2011 Legal Year had managed to dispose of 163 cases, still had 1,207 pending issues before it. Nor was the news any more cheering, as he added, that with a backlog of 1,207 pending cases, even if the Supreme Court had the full constitutional complement of 21 Justices, it would still have taken several years to clear. Yet, the irony of it was also that more appeal cases were still being filed almost on a daily basis before the Apex Court.

Former CJN, Dahiru Musdapher
Former CJN, Dahiru Musdapher

Delay in the dispensation of justice, he said was due largely to the pervasive exploitation, for selfish ends, by lawyers, of procedural rules and legal technicalities –an indulgence which many judges encourage even though they know it often does not lead to substantial justice. In fact, as Musdapher once said to a gathering of judges, losing a case on the basis of procedural rules and legal technicalities (and not on the basis of substantive issues placed for determination) “is akin to observing table manners and still rising from dinner with an empty stomach”. And he said further that the injury is gravest either “when an innocent person is convicted of a crime”, or when “a plaintiff with a sound claim (is) turned away by the courts” or worst “when a defendant leaves the court with an undeserved victory.”

Nothing makes the law more ‘uncertain’ Justice Musdapher said than that ‘procedural rules’ which should merely regulate the conduct of proceedings, are made to determine who gets justice and who does not. It is the reason, he said, that the votes of the electorate hardly count in determining who gains political office and who does not. Said Musdapher: “It is crucial that we ensure certainty, consistency, predictability and impartiality in the interpretation and application of the law”. It is not sufficient that the law is ‘just’, but it is necessary that the law is not vague or ambiguous; so that -as one of Britain’s great judicial minds, Lord Denning said- judges do not have to ‘speculate’ upon it to do justice.

Radical reforms: But Justice Musdapher’s short-lived tenure was not all about lamentation and no salvation. His reform programme had in fact recommended many radical and revolutionary measures necessary to reform the system. He had proposed, among others, reviewing the current mode of judicial appointments in deference to the call for the diversification of the pool from which such appointments, especially to superior courts are made. So  that a wider diversity of experience by judges appointed from outside the judiciary, including the Chief Justice, should add quality to judicial deliberations in court. In this regard, the Reform proposals recommended senior members of the Bar for appointment straight to the Appellate Bench in addition to judges who traditionally rise to it through the judicial rank.

Basically, the recommendation radically expanded the requirement for judicial appointments from strict ‘court room experience’ (for judges), to include ‘distinction in legal practice’ (for lawyers) and ‘academic excellence’ (for intellectuals). It had also recommended the subjection of nominees for judicial appointments to public scrutiny whereby names and qualifications of shortlisted candidates are published for public comments and as a necessary prerequisite to a rigorous, screening, selection and interview process. But even more radically so, it had recommended the appointment of ‘lay persons with integrity, experience and courage’ to serve on the National Judicial Council, NJC.

Justice Musdapher also advocated a review and streamlining of the structure of courts with a view to making the judicial process effective, efficient, and fast; and so that judgments of courts are not only clear, fair and just but also consistent with the doctrine and rules of judicial precedents. He had said that conflicting judgments especially from the various divisions of the Court of Appeal “portrays the judicial process as a game of Russian roulette where a judgment is given based on chance or luck and not according to well established judicial precedents or principles of law.”

The Reform also recommended the creation of a separate specialised institution –as does exist in most Commonwealth countries- in place of the NJC to primarily deal with complaints, petitions, discipline and removal of judicial officers and thus allow the NJC to concentrate on the no less onerous duty of formulating broad policies for, and judicial appointments in, the Judiciary. A situation, he said, whereby the NJC considers, at every meeting, about 40 petitions and complaints against judges, in addition to policy and appointment matters, was inimical to the thoroughness required to discipline errant judges –and especially considering the fact that the Reform Committee had recommended prompt and expeditious sanctioning of breaches by judicial officers.

The Reform also proposed amendments to certain provisions especially of the various Acts establishing superior courts and especially the appellate jurisdiction of the Supreme Court to stem the tide of appeals reaching it as of right. It recommended that appeals from the Court of Appeal on Interlocutory decisions, shall only come to the Supreme Court by the Apex Court’s own leave. This is in addition to recommending the expansion of its powers to include ‘Advisory Jurisdiction’ on application by the President or Governor on question of law or fact; – so that rather than by appeals which would’ve come to it, the Apex Court can handle a good number of matters by ‘advice’ instead.

Existence of  defective laws

And since many of these recommendations required legislative amendments –not merely administrative action- a Constitutional Amendment Proposal was officially submitted both to the Senate and the House of Representatives to consider. It’s been about five years since then, and the National Assembly has done nothing about it, -proving yet again that the problems of the Judiciary after all, transcend the mere existence of defective laws, or the advocatorial manipulations of unconscionable lawyers or yet the judicial indiscretion of corrupt judges. Most of the problems of the Judiciary result from the ineptitude of a legislative arm not willing to propose legal reforms and not responsive even to the proposals of the Judiciary, for reform.

The ‘Independent’ Newspaper in its Editorial of 12/16/11 wrote about the Musdapher Reform: “Not in recent times has any Chief Justice… spoken the minds of Nigerians, and echoed their frustrations and disappointments with such fearless candor and unremitting boldness … At a time when the much touted fight against corruption is tottering and enveloped in doubt and uncertainties, the statements of the Chief Justice certainly hits the bull’s eye and struck a resonating chord in the collective conscience of the people”. And ‘The Nation’ Newspaper in its ‘Comment and Analysis’ of 11/20/11 said: “we have a radical jurist in the mould of the late Chief Gani Fawehinmi at the apex of the country’s judiciary”.

‘Leadership’ Editorial of 09/25/11 wrote “Though Musdapher has been an establishment person… he has made some pronouncements… which indicate he can spring some radical surprises”. And as the Nigerian Tribune’s Editorial of 11/29/11 said commended Justice Dahiru Musdapher “for his courageous war against injustice in Nigeria”, ‘National Mirror’s Editorial of 09/29/11 wrote “Let it be on record that Justice Musdapher’s tenure restored Nigerians’ faith in their Judiciary”.

Itse Sagay said in the Daily Trust edition of 12/06/11 that Justice Musdapher’s “short intervention so far has brought about a timely reversal of the dark days of our nation… So far, he has uplifted our judicial system”, even as Chris Uche (SAN) in the 11/20/11 edition of ‘I give kudos to the intervention made within the few weeks he has assumed office”. Chief Edwin Clark in a letter to the CJN (published in The Nation’s edition of 11/16/11) said Musdapher had “honestly and courageously admitted serious shortcomings in the Judiciary and… (that his) courageous speeches… filled with wisdom and forthrightness (had) no doubt gladdened the minds of many Nigerians”.

Postscript

As we sit at trial

THE following  summarises some of the radical comments made by Justice Dahiru Musdapher about five years ago.

“As it stands today, it appears that the society we serve is not entirely satisfied with our performance. Hard as it may be to accept, we feel it is less important to focus on whether this assessment is fair or not. The important thing is for us to transparently come to terms with prevailing realities, accept the gap in expectation, and do our utmost to bridge it.

I must emphasise that the efficacy of exercising constitutional judicial power is firmly anchored to a moral authority that rests on public confidence. It commands no armies and collects no taxes as its authority rests squarely in the public’s perception of its propriety. Public confidence in the judge and the judicial system reinforces conviction for the attainment of justice and enhances the willingness of the populace to be subject to the law.

Accordingly, it is very important to ensure that those who abuse the privilege of judicial authority are exposed, banished and punished… I urge you to realise that there is no middle ground and no space on the bench for those adjudged to be unworthy arbiters of truth.

We fully appreciate that the success or failure of our young democracy largely depends on our judicial system;… To my brothers on the bench, I implore you to remember that we do not have a political platform nor represent a sectional constituency. Right or left, religious or secular, rich or poor, man or woman, disabled and able bodied, any and all, must remain equal before us.

The judiciary must take the initiative of raising the bar of accepted societal behaviour… The integrity of the judge and the judicial system is necessarily connected with (the system’s) 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…The determination of the questions placed before us regulates and stabilises this great nation, protects its democratic values and practices and ultimately its future.

As judges we do not aspire to power and do not seek to rule. We must not strain the chains that bind us as judges. It must always be the rule of law and not the rule of the judge… I urge you to take a moment and engage in deep self-introspection if only to confirm that your primary allegiance is to truth, justice, decency, morality and the rule of law as it should be. We must constantly reflect and remember that as we sit at trial, we also stand on trial!”

Concluded

 

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