Mr. Emeka Okpoko (SAN), in this interview with AKEEM NAFIU speaks on decentralisation of the Supreme Court, funding of the judiciary, retirement age for judges and sundry issues
Can the much touted decentralization of the Supreme Court fast track justice delivery system?
Before we begin to address those points, it’s important that we even appreciate the entire workings of the Supreme Court. It must be understood that the court being the apex is the final place where law issues are concluded; decisions of court end there.
Therefore, when you are talking about decentralisation, you need to first consider how that will be possible without creating confusion. Confusion in the sense that if you have Supreme Court across the states, there is a likelihood of having conflicting decisions being churned out of the courts.
The key thing is the need to avoid duplicity or multiplicity of decisions on the same or similar issues. The point I am making is that if Supreme Court is decentralised, there is every possibility that decision may be running riot with each other.
This also means that the court being the final place may not be able to develop precedents that can be relied upon by the lower courts to conclusively decide issues.
What I am saying is that the various Supreme Courts in existence might be citing different authorities at the same time on the same issue. This may pose a serious problem.
Except the Supreme Court is decentralised in such a way that conferences are still being done together wherein all the courts will have to converge on every of their decision to reach a common ground. This of course, may not be feasible.
Even as the Supreme Court is at the moment, some decisions are still in conflict. The problem that may be created with decentralizing the Supreme Court will affect every other court down the line. This is because the lower courts may not be able to give an informed opinion owing to the conflicting decisions of the Supreme Court.
So, we are likely to run into a crisis with the decentralization of the Supreme Court. Therefore, I think it is better we maintain the status quo. But part of how we can speed up dispensation of justice in courts is by increasing the number of judges, even at the Supreme Court level. We can have three, four panels of Supreme Court Justices sitting in a day.
Besides, we should also work on improving facilities at the courts using the Information Communication Technology (ICT) system. More special assistants should also be employed for judges and most importantly, government should look into the proper funding of the judiciary. This is a major issue because the judiciary is heavily underfunded at the moment.
What budget estimates would you say can be adequate for the judiciary? Determining how much will be enough to fund the judiciary is beyond me. I think it is a matter of budget. When you compare what judiciary get with what is being spent on the other arms of government, you will see that it is heavily underfunded.
This is the only arm of government that functions on a daily basis. The courts must sit everyday even during vacation, there are vacation judges. So, judiciary requires heavy funding. But you can see that it did not even have a role in determining its budget. It’s whatever that is budgeted for that would be taken. The executive has always been in charge.
How can the judiciary have a say in what comes to its funding?It’s only when the Constitution is amended that the judiciary can have a say in what comes to it. Of course, you will see in the Constitution where it is said that all money in the consolidation account in every state in the name of the Head of Courts in each state should be paid into the account of the Heads of Courts. But in reality, this is not the case. State governors don’t usually follow the law and that is the problem. What we usually have are situations where the Heads of Court go cap in hands begging for money from the governors. So, Nigerians must begin to clamour that the judiciary must be properly funded.
The Administration of Criminal Justice Act (ACJA) 2015, midwived to revolutionize criminal trials is two years old now. Which of its provisions would you say has helped the cause of justice?
Sincerely, one thing is for us to have the law, its proper implementation is another thing.
There is a philosopher that says that for all form of government, let people contend that what is best administered remains the best. What I am saying is that it’s not about having the law, implementation remains another problem. In the area of implementing the law, a lot of vagaries and issues begin to set in. Judges are trying. Some of them are struggling to implement the law. I have been to a court where the judge insists on the day to day hearing of a case based on the provisions of the ACJA. But most of the reality on ground may supersede the desires.
The judge who is presiding over a case is also a human being. So, when certain realities occur and it’s very obvious, there is nothing they can do. Judges are overburdened with a lot of cases. I think it is too early in the day for us to even begin to run into the conclusion that the ACJA is not effective. Yes, we may improve on it, but it may be too early to draw any conclusions. The Criminal Code regulating criminal trial has been there for a long time before the promulgation of the ACJA.
So, I think two years is not enough time to assess the law. With the space we are going, I don’t think it is bad. The most important thing for us is to keep working hard and to keep improving gradually. Mind you, justice rushed can also be justice denied.
At times, when we say we are implementing the ACJA, the defendants may not be given enough opportunity to defend themselves and this may also affect the justice of the case. An instance where a lawyer who is handling a case is sick, will it possible for the judge to insist on the day to day handling of the case? That would be unfair.
Do you share the view that some Senior Advocates of Nigeria facing corruption cases be suspended pending conclusion of cases against them?
I don’t agree with the suggestion. I think it would be wrong to say that except there is a law to that effect. Suggestions like these need to be backed by law. In the absence of such law, I don’t think it will be proper to strip a silk of his status because he or she is facing a criminal charge. It is only when the trial is concluded and the lawyer in question is found guilty that such a thing can be done. We have the Legal Practitioners Disciplinary Committee (LPDC) and other organs in the judiciary that will take the issue up from there.
Would you be in support of an amendment of Section 292 (2) of the Constitution which bars judges from practice after retirement but allows magistrates to so do?
I don’t see any unfairness in the law to warrant any amendment. First, we must understand the distinction between judges and magistrates. A magistrate is not seen as a judicial officer by the Constitution; it’s only judges that are seen as judicial officers. The reason why a judge should not come back to practice after leaving the Bench is that a judge is a brother to another judge.
They are brothers in the eyes of the law. Now, if a judge leaves the Bench and returns into practice, he will appear before his brother judge to do a case. This is not expected to happen because of the tendency of bias. For me, having become a judge, I would never subscribe that such an individual go back to practice after leaving the Bench.
The former judge can engage in solicitors’ work like consultancy services or writing of legal opinions, but it is wrong to now come back for advocacy before a brother judge. If a judge appears as a lawyer before his brother judge, is he not likely to be granted audience?
Even when he is not getting it right, his brother judge will manage him. This will definitely confer some advantages on him over other counsel who appears for the other party. Magistrates on the other hand were never brothers to the judges of the High Court and as such they were not recognized even when they appear before the judges.
Do you think the office of the Attorney-General of the Federation and the Minister of Justice should be separated?
Yes, I share the view that having the two offices together is a big problem. I share the view that the Attorney General and Minister or Commissioner for Justice, plays more of politics in the performance of their functions. They are usually pre-occupied with party issues.
Even the person who appoints them will not let them be. So, I think it will be better to separate the two offices. This will allow whoever is the Attorney General to be strictly occupied with issues of law while the Minister or Commissioner for Justice can engage in party activities.
What benefit do you think an upward review of retirement age for judges will be to the judiciary?
An upward review of retirement age for judges will be beneficial because the older you are on the Bench, the better. A judge who is allowed to retire at an older age would have gathered a lot of experience. He would have seen it all and maturity would come to bear in his actions. His business at that point in time is to ensure that justice is done to all. He will no longer see the law the way it will be seen by a younger person.
In the eyes of a younger judge, one plus one will always be two. But in the eyes of an older judge, one plus one may not always be two. The older judge will begin to look at other areas of life. They would have seen it all and it will not be difficult for them to sit down and write erudite and perfect judgments. Look at the way the late Justice Kayode Eso navigated with the law. It’s a function of deeper experience. This is because as one grows older, his contents become deeper and better.
18 December, 2017