By Aare Afe Babalola, SAN, CON, OFR
Last week, I discussed the appointment of judicial officers vis-à-vis the provisions of the 1963 Constitution which effectively saw to the invitation of, perhaps, the most qualified and best-suited judges the nation has been privileged to have.
Still, on the appointment, I advocated for the appointment of judicial officers from the teeming number of Senior Advocates of Nigeria, as it has been acknowledged that the best Judges are the seasoned, tested, and competent legal practitioners; as well as the need for the conferment of the rank on more legal practitioners, and the need to review the current salary structure of the existing judicial officers.
The Effect of Insecurity and Corruption on the Judiciary
It is common knowledge that the country is in crisis. Nigeria is now faced with problems of unpaid salaries, pensions, and other emoluments, spiral unemployment, different shades and shapes of violence, kidnapping, armed robbery, poverty, grossly underfunded institutions, and poor infrastructure. Though our currency was once stronger than the Dollar, it is now almost N500 to a Dollar.
Last year, Nigeria was ranked as the poorest country in the world with over 50 percent of Nigerians living in extreme poverty, while over seven million Nigerians are in urgent need of life-saving assistance (European Union Parliament Resolution, January 2020). Besides, Nigeria which was a safe country in those days now enjoys the negative accolade of being the number three unsafe country in the world.
Unfortunately, judges have not been immune from the reported incidences of kidnap. In 2019, a news report titled “Reps Lament Kidnap of Judges, Senate Seeks Permanent Solution” made the headlines. The report noted, among others, as follows:
“The House is conscious of the risks associated with the performance of judicial responsibility on the lives of judicial officers and their families, and the necessity for judicial officers to be provided a safe, comfortable and conducive environment to operate; disturbed that judicial officers are becoming preys in the hands of criminals and the security of their lives and that of their family is under serious threat.
Some weeks ago, Justice Abdul Dogo of the Federal High Court, Akure Division, was kidnapped on his way to discharge his official functions and was later released after spending some days in the kidnappers’ den. Just a few days after the release of Justice Dogo, Justice Chioma Nwosu of the Court of Appeal, Benin Judicial Division, was kidnapped in brutal circumstances. His lordship’s orderly was shot dead.
Some weeks back, it was reported that a Sharia Court Judge was kidnapped by gunmen within the Court premises. This, among several other similar reports, have flooded the media space, such that judges – once revered – have now become targets of the people of the underworld who resort to intimidations to pervert the course of justice without any consequence whatsoever.
The insecurity situation in Nigeria is so deep-seated that in January 2020, the European Union Parliament moved a motion for urgent resolution of Nigeria’s high level of terrorism and insecurity, stating thus: “The security situation in Nigeria has significantly deteriorated over the last years, posing a serious threat to regional and international security; whereas human rights violations, violence, criminality, and mass killings are widespread and constantly reported, notably in the North-Eastern Region of the country”.
According to Transparency International’s Corruption Perceptions Index 2019, Nigeria is the second most corrupt country in West Africa and 34th most corrupt country in the world. Again, unfortunately, some judges have been caught in the web of corruption and bribery. While there can be no justifiable reason for accepting bribes as a judicial officer, it, however, goes to show that more needs to be done in terms of the remuneration of judicial officers. As I highlighted in the first part, the salaries of Nigerian Judges when compared with the salaries of their counterparts in other countries are, to say the least miserably low. Each time I see Judges’ cars break down on the road due to age I feel sorry for the Judiciary. There are situations where some of them don’t even have cars. Worse still, unlike the Judges in those days who used to move around with their Police Orderlies into their gorgeous residences in the GRA, many judicial officers now live in rented houses in built-up area
The Current Industrial Strike
The ongoing JUSUN strike enters its 10th week – with no glimmer of hope for the actuation of the union’s agitations across all states of the federation. Since I started practice in the early 1960s, I have never witnessed the closure of all the courts even for one day. As a result of the closure, the Police is paralysed in its efforts in the administration of justice because they have not been able to charge any suspected criminal to court.
Those who have cases in courts or those who want to file new cases are also affected. Of course, you can imagine the effects on the income of lawyers. It is a well-known fact that the Judiciary is the third Arm of Government after the Executive and the Legislature. The situation can be likened to a human being whose ability to work depends on the arm, the legs and the eyes. If for any reason any of these three important parts of the human body is incapacitated, then the whole body is in trouble. With this scenario, Nigeria is certainly in crisis.
The Executive and the Legislature should immediately ensure that the situation in the Judiciary is immediately resolved, or else, they are by their action aiding the collapse of the country
Return of Retired JudicialOfficers: The Need for Urgent Reforms
One final issue worthy of mention, particularly in the sphere of the reform of the judiciary, is the need for a review of the legislations barring retired justices from appearing in our courts. Without a doubt, the return of retired judges to the bar will elevate the practice of law.
The job of a judge is characterized by a near-total absence of job security and judges have, over the years, been victims of harsh administrative decisions of divergent political structures, particularly the military. In addition, judges are constantly vulnerable to the fear of dismissal and the realisation of economic woe which may befall them.
However, if our judges are able to return to legal practice, even after dismissal, they will still have an opportunity to earn and therefore become more relaxed and resolute in the administration of justice, knowing full well that they can still dust the wig and gown and return to legal practice if they do not dance to the tune of influential and powerful people in the society.
Nigeria has come to a stage whereby major reforms have to be carried out in its judicial system, and certainly, the return of judges – retired, dismissed, or resigned – to active legal practice is ripe for consideration. Even if such judges are not allowed to return full steam, there should still be a measure of participation in law practice that will ensure the sustained relevance of such erstwhile jurists in the nation’s development of law. In this regard, Nigeria may adopt the quasi-restrictive style being utilised in the United States – which essentially allows retired judges to practice in court, even the one which they once sat, but permits the sitting judge to recuse himself in the case of a conflict of interest; or even which permits retired judges to prepare and draft pleadings, motions, appellate briefs, among others, for a fee.
Conversely, in the appointment of new judges, we may create a provisional five-year period which essentially allows such new appointees to sample how life on the Bench is, and voluntarily resign if they find that they cannot cope with the dictates of the Bench, or that life on the Bench is more than what they actually bargained for. In that scenario, such judges will be able to pick up their wigs and gowns and continue with legal practice, even if in a limited capacity.