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Appointment of judges bane of our judiciary — Clarke, SAN

By Abdulwahab Abdulah

Chief Robert Clarke, SAN, is well known in the legal community both home and abroad. In this interview he speaks on happenings in the judiciary in the last few years and notes that unless there is thorough application of the words and letters of the constitution, nothing will move up in the judicial system in the country.
Excerpts:

HOW would you describe happenings in the judicial arm of government since the inceptions of this administration?

The judiciary under the 1999 constitution has been created as one of the three arms of government in Nigeria. The judiciary comes as number three, the presidency, number one and the legislature comes as number two; still all the arms of government have equal powers in terms of administration. In civilized countries where democracy is fully practiced, the independence of the three arms is guaranteed under the constitution. Therefore, none of the three arms can dictate to the others.

I don’t want to start to be criticizing, for those who criticize for its sake must have laid foundations for the people to see what could have been the alternatives. The judiciary all along in Nigeria, I must say before the advent of this so called 1999 constitution, was unfettered by any organ and most of the brilliant judges Nigeria has ever seen or I have ever practice under exist in that era.

It is sad to say that under this dispensation and so called democracy created by the 1999 constitution, I am saying painfully I cannot point to one judge from the supreme court downward that I can use as a role model if I was still a young lawyer. It is unfortunate, but these are the circumstances the judiciary found itself.

Now, has the power of the judiciary been eroded by any law? No! But the system of governance now on the appointment of judicial officers is nothing to write home about. It takes away the powers of appointment vested in the National and state Judicial Councils, saying they cannot appoint judges except to recommend, knowing fully well that it is the person that appoints that can also terminate such appointment.

Practice of democracy

The constitution allows you to nominate someone, but not to appoint or control. Unfortunately, a chief judge of a state who knows that the governor cannot do otherwise unless the NJC recommend his removal will be tempted in many ways to lobby and politicians are notorious for that. Since 1998, when they came on stage, the politicians have destroyed the country, not only destroying the system of governance and the constitution under which they swore to uphold. We do not practice democracy in Nigeria, what we practice is civilian government against the military government. Democracy connotes that the institution of governance which the constitution has mounted is to curtail the excesses of every arm of government.

There is no system of governance today that has been strengthened in democracy. Is it the police that is within the executive to use as they like, is it the prosecuting bodies that need to deal with issue of criminality? All these ought to be independent of the executive, but what we have seen today is that all institutions of democracy under the 1999 constitution  have been debased by the politicians who have also taken these judges under their arms.

I can assure you that no chief judge of a state can be bold enough to say he is not being dictated to by the governor of the state and even the party ruling in such state.

Until those areas are removed in our system, a judge will not be able to dispense justice according to the law and conscience. I have spoken about the worries that do arise from the system of governance, now we need to talk about the individuals that are practicing in this area. I am aware that there are capable, young and vibrant lawyers who are desirable of going to the bench, but they can’t because they donot have any big politicians or obas to back them.  But when issues of such appointment occur, you would see the politicians coming up with list of nominees. If you’re not nominated by top political figure, you cannot be appointed and if you are appointed, people will ask you for favours, of course, there must be pay back days.

What can you say about the frosty relationship existing between the office of the attorney general of the federation and some of the prosecuting agencies, especially the Economic and Financial Crimes Commission, EFCC in area of prosecuting cases in court?

As I said earlier, democracy is not about going to vote or election but it is the strengthening of instruments and institutions that protect democracy. We have seen it happening practically in America, the FBI, like our EFCC without being prejudiced is independent with officers appointed by the president and confirmed by the Senate. It is deemed to be independent of any other arm of government. But today, the same ministry of justice is investigating the same President by appointment of special counsel. You can see democracy working in its true perspectives.

In Nigeria today, the EFCC and ICPC, the police are prosecuting and dispensing justice through the criminal court system. The question is: the police knows that in other climes, their system cannot be faulted. This is because under the old law, the police cannot carry you to court. After their investigation, the file is handed to the DPP, who would now look into the report, consider the prima facie of the case, send it to the Attorney General who now takes the case to court. The criminal procedure laws of Lagos makes provisions for that. But in practice what do we find? Outside the police, I doubt if the ICPC or EFCC send any criminal case file to the Attorney General before going to court. Whereas, that is an aberration of the law. No court can assume jurisdiction when a process that lead to the case is not well laid.

Many of the judges run away now when cases involving the EFCC is assigned to them. What I see now is that the fear of the EFCC is the beginning of wisdom.  Now where are all these things leading us to? EFCC is only an investigative and prosecuting organ on behalf of a superior organ (AGF). But today the EFCC has constituted itself into an investigative and prosecuting organ without recourse to the higher body. Although, they will say they are suing on behalf of the attorney general. So you find out that the system of governance allows the powers of the AGF to be so eroded. Can you imagine the AG fighting over somebody being charged to court by the EFCC?

There are issues bordering on the powers of the AGF to issue  nolle prosequi. Many things are happening regarding the operations of the constitution.

What do you think could have been responsible for courts of concurrent jurisdiction, especially at the appellate level giving different opinions on same subject matters?

In the first instance, let me tell you in ordinary circumstances, the court of same competent jurisdiction, say the high court, across the country by nature are allowed to give different opinions on a given issue. This is because as lawyers we may see things from different ways, the fact may be a little different. As lawyers, facts are sacred. Now in the court of appeal, there is only one court but different divisions.

Again, a panel of three justices sitting in Calabar may give different opinions from the appeal court in Lagos. There is nothing wrong, it is for the development of the law. That is why we have the appellate court, that is the supreme court. But let me declare that politics since 1999 has completely affected this country and its judiciary. Today, 80 per cent of the cases from lower courts to the supreme court are political cases. Likewise at the court of appeal and the Federal high court.

The Chief Justice of Nigeria, CJN recently by way of practice, without any statute, dedicated some courts to handle corruption cases to hasten such matters. Do you think this is necessary and do you think it will impact on the cases?

The CJN under the law is entitled to give directives. These are directives and provisions under which matters will come, the rules  that they will follow. The court of appeal presiding judge can also issue rules which the court will follow. All these are directives and to the best of their intention and knowledge necessary for speedy dispensation of justice. As I said, most of the cases they do are political. They will always tell you they are busy, busy on what? We have 17 justices at the supreme court and things are slow.

There have been agitation for the creation of more courts and employment of more judges in spite of the nation’s scarce resources. What do you take of this?

Let me be honest with you, we don’t need all the courts. As I told you, 80 percent of the cases in those courts are political cases. Why should it be so? A politician who loses elections in the primary in his ward,  local or state will rush to court. The one who wins or loses will rush to court. We are going to an era of elections now, you see what happen at the primaries, why should it be so? If there is a statute as to the cases that can go to the supreme court, by the creation of final court for political cases, all such things will not happen. Power belongs to the people, if your party says you are not elected, why rush to the supreme court to argue that they are not correct. Why should we worry ourselves wasting tax payers money into all these, thereby jeopardising the interest of 90 percent of the people? As I said, it was Abacha regime that created constitutional court and my old friend, the CJN was being taunted as chairman or president of the court. If it had succeeded then all the problems with the politicians would not have existed.

What’s the way forward?

There is no suggestion outside the prevention of politicians from hijacking the appointment in the judiciary. Now it is in the hands of the politicians that you get everything from. That is why every judicial officer would want to have whatever he can grab from the system like the politicians. We should allow the constitution to take its rightful place, allow the judiciary to do more of its appointments.

 


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