On the 17th of November, 1879 the first indigenous Nigerian Lawyer was enrolled to practice as a legal practitioner. His name was Christopher Alexander Sapara Williams. He was born on 14th July, 1855 and he died on 15th March, 1915. Even though he was fully engaged in his legal practice, he played a prominent role in the politics of Nigeria during the colonial era. His junior brother was Oguntola Sapara and Oguntola was a prominent physician. As a lawyer Sapara Williams was an advocate of great repute, he had an intimate knowledge of unwritten customary law. He once famously said that: “A Lawyer lives for the direction of his people and the advancement of the cause of his country”.
2. The independence of the Bar has been established from the beginning of advocacy and the existence of the common law lawyer. Thomas Erskine was one the foremost forensic advocates ever to appear in the English Criminal Courts. He had a passion for liberty and his greatest claim to fame came with his appearances and defence without fees of the prisoners in the great treason trials held in London in 1794. These were the trials that threatened to destroy the rule of law. Habeas Corpus had been suspended, the Old Bailey which was the main Criminal Court was surrounded by
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soldiers. A Special Powers Act was deployed to deal with imagined revolutionary insurrection and the “English Terror” was in full ascendency. Thomas Erskine took up the defence of Tom Paine who was charged for seditious libel arising from the publication of Paine’s book titled the Rights of Man and which book had sold over a million and a half copies, a colossal figure at the time considering the literacy level and access to books. Erskine was advised by Lord Loughborough, the Earl of Rosslyn, a former Attorney General and at the time Lord High Chancellor to decline the brief but Erskine bluntly refused. Erskine said:
“I will forever, at all hazards, assert the dignity, independence and integrity of the English Bar, without which impartial justice, the most valuable part of the English Constitution, can have no existence. From the moment that any advocate can be permitted to say that he will, or will not, stand between the Crown and the subject arraigned in the court where he daily sits to practise, from that moment the liberties of England are at an end. If the advocate refuses to defend, from what he may think of the charge or of the defence, he assumes the character of the Judge; nay, he assumes it before the hour of judgment; and, in proportion to his rank and reputation, puts the heavy influence of, perhaps, a mistaken opinion into the scale against the accused, in whose favour the benevolent principle of English law makes all presumptions”.
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3. On 19th October 1986, a new dimension to violence was introduced in Nigeria; assassination by mail specifically, parcel bomb Dele Giwa, a foremost Nigerian journalist and founder of Newswatch Magazine was killed by a parcel bomb in his home on 19th October 1986. This unfortunate event occurred two days after he was interrogated and interviewed by State Security Service (SSS) officials. Before his gruesome death, Dele Giwa had interactions with the top government officials. His last moments have been well documented and reveal that up till the explosion, he was in close communications with certain persons. Late Chief Gani Fawehinmi SAN was in the mold of Thomas Erskine. Against all odds and with a singular resolve, Gani as he was fondly called by the masses whom he genuinely held fort for all his professional life rose to the defence of his murdered friend, Dele Giwa. Despite official bottlenecks and administrative red-tape, Gani soldiered on in the quest for Justice and his efforts are well documented in Wikipedia on Dele Giwa. This reads in part:
“The subsequent court cases instituted by Fawehinmi against the government to enable him try the case as a private prosecutor after the Director of Public Prosecution, Mrs. Eniola Fadayomi had refused to prosecute based on the evidence available were mostly unsuccessful. An excerpt of the Judgement by the then Lagos State Chief Judge, Justice Candido Johnson reads thus “ … Even if one considers the reasonableness of time, I would say that the incident that gave birth to the death of the late Dele Giwa is not only unique in its form but also complex and would require sufficient time to conduct detailed and balanced investigation, a report on which the appropriate sufficient authority would reasonably act. The timing here appears hasty and premature. It appears impulsive without giving reasonable time and chance for a detailed and balanced investigation into this sordid incident. In the circumstances and having regard to the review made above, it is my ruling
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that this (ex-parte) application is misconceived and it is therefore dismissed. Leave to apply for mandamus is hereby refused.
Fawehinmi went on to the Supreme Court and got a favourable judgement which enabled him go back to the Lagos State High Court, this judgement also mandated Justice Candido Johnson to recuse himself from the case and appoint another Judge to hear the case. On 23 February 1988, Justice Longe ruled that the two security officers, Lt. Col Tunde Togun and Col. Haliru Akilu could not be tried for the murder of Dele Giwa. In his ruling Justice Longe averred among other things that, “… the Attorney-General did not oppose the objection raised by counsel to the ‘accused persons, Chief Rotimi williams, on the ground that the information was filed by private prosecutor (Chief Gani Fawehinmi) when the information had not been completed and especially when the ‘INFORMATION IMPLICATED ONE OF THE PROSECUTION WITNESSES’ (Kayode Soyinka) … the proof of evidence before the Court was mere HEARSAY … Based on the evidence available before the court, it will be an abuse of the process of court to call the two security chiefs for trial. The information is therefore quashed accordingly.”
4. Thus like Erskine, Gani stood for integrity and fierce independence of purpose which fundamentally is the basis and platform for the legal profession in the discharge of the duties of a lawyer.
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The foundation of the judiciary and establishment of Courts is the bedrock of all civilized societies. It is to promote the rule of law over the rule of man and to ensure that societal relationships are organized in such a way and manner to facilitate orderly behavior and peaceful co-existence. In a comment by the Hon. Justice Oputa formerly of the Supreme Court in a paper he delivered and which was edited by the Law Faculty of the University of Ibadan, the eminent jurist said:
“The establishment of the court system was a great milestone in the human journey. We are reminded how in a state of savagery and jungle justice every man was armed and was a law unto himself. But civilization means that courts were established and that men lay aside their arms and carried their causes to those courts. This presupposed and still presupposes a tribunal to which men, when they are in doubt or in anxiety or both, may freely have recourse. It also presupposes a court or tribunal that is free and not incapable of delivering a just and impartial verdict”.
5. The Nigerian Legal System consist of the Courts and various tribunals that adjudicate and interprete the laws of the country be it Federal or State. Our grund norm is the Constitution of Federal Republic of Nigeria 1999 [CFRN]. The Constitution outlines the various Courts of Record from the State and Federal High Courts to the Court of Appeal and the Supreme Court of Nigeria.
6. In the period before 1862, unwritten customary law was administered in the Southern part of Nigeria, while Moslem Law of the Maliki School which was written applied in the Northern part of the Country. With the advent of foreign trade, the British systematically and gradually established Consular
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Courts to deal with trading disputes and by 1872, an Order in Council provided for the formal establishment of the Consular Courts. In 1862, Lagos became a British Colony and the first Supreme Court of the Colony was established in 1863 by the Supreme Court Ordinance of 1863. Over the next century, political developments during the colonial era saw changes in the structure of the judiciary. These changes saw the emergence of several Courts with different jurisdictional powers and by 1914 when the Northern and Southern Protectorates were amalgamated, the Country had the Supreme Court, the Provincial Courts and the Native Courts as its judiciary.
7. In 1933, the Protectorate Courts Ordinance provided for the establishment of the High Court and Magistrates’ Courts. Appeals from the Magistrates’ Courts were to the High Courts while the West African Court of Appeal [WACA] which had been established in 1928 heard appeal from the Supreme Court and High Court. The Privy Council in England was the final Court.
8. In 1954, by the Nigeria (Constitution) Order in Council 1954, a Federal Supreme Court was established, while Lagos and Northern, Western and Eastern Regions all had a High Court each. There was also a lower Court system comprising of Magistrates’ Courts in all regions, Customary Courts in Western and Eastern Regions, Native Courts in the Northern Region and Moslem Court of Appeal, later Sharia Court of Appeal in Northern Region.
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9. Form the time of independence in 1960, the judiciary of the country has largely remained the same but for a few changes. The present structure has the Supreme Court at the top of the hierarchy; this is followed by the Court of Appeal and thereafter the Federal and State High Courts. The lower end comprises largely of the Magistrates Courts, the Customary Courts and the Area Courts in the Northern States. Over the years we have also seen the emergence of the Federal Revenue Court which later became the Federal High Court and the National Industrial Court.
10. I have recounted the above so that no one is left in doubt about the pedigree of the legal profession in Nigeria, that is, the Bar and the Bench.
It is worthy to note with some pride and fulfillment that there remains in our country today advocates and judicial officers who toil day in and day out sometimes in very uncomfortable environments to keep the wheel of justice rolling. From the Magistrates Courts to Area Courts and Customary Courts, from the various High Courts sometimes so remotely located that they are hardly noticed to the more glamorous Courts in the big cities, lawyers and Judges perform their tasks for the benefit of the people of Nigeria. Most are uncelebrated but their steadfastness over the past 53 years is deserving of praise and recognition.
11. The Nigerian Judiciary is the third arm of the government whose primary function is the administration of justice. The judiciary is awarded with judicial powers which is conferred by the Constitution. Chapter VII of the 1999 Constitution provides for the establishment of the Supreme Court, Court of Appeal, Federal High Court, The High Court of the Federal Capital Territory,
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Abuja, The Sharia Courts of Appeal of the Federal Capital Territory Abuja. The Customary Courts of Appeal of the Federal Capital Territory Abuja, the High Courts of the States, Sharia Courts of Appeal of the States, Customary Courts of Appeal of the States and Election Tribunals.
There is also the National Industrial Court Act 2006 which provides for the establishment of the National Industrial Court. These are generally referred to as the Superior Courts of Record while other laws provide for the establishment of other Courts such as the Magistrate, Customary and Area Courts.
12. The judiciary is commonly and rightly referred to as the last hope of the common man. This pre-supposes that it guarantees equal access to justice and equity, and equally ensures that the rights of citizens are adequately accommodated and judgments handed down in accordance with the dictates of the law and facts presented to the Court. The judiciary can only act as the last hope of the common man when it is independent, well-funded, courageous, unbiased and proactive. Unfortunately, these salient attributes have been eroded in the Nigerian context as independent observers such as the Transparency International’s Global Corruption Barometer 2010/2011 ranked the Nigerian judiciary among the most corrupt institutions in the country. The United States State Department reported in 2011 that Nigerian citizens face long delays and frequent extortions from judicial officials to speed up cases or obtain favorable judgments.
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13. It is therefore now widely acknowledged and unfortunately so, that the legal system has not run perfectly or seamlessly in recent years. The system has in fact suffered from severe corrupting influence which has been official and private. Official corruption is institutionalised by the Government where it deliberately underfunds the judicial system and controls the privileges enjoyed by judicial officers. The judiciary is made to practically go cap in hand for proper and adequate funding and in the process, the quality and impartiality of justice delivery is sometimes perceived as compromised unfortunately in favour of the Government of the day at both Federal and State levels. Some politicians and the custodians of executive powers conveniently reason that since the Executive, is involved in the appointment of Judges and after appointment, the State provides the Judges’ courts, chambers, living quarters, transportation, pay their clerks, provide materials such as books and computers, they (the Executive) ought to be able to indirectly influence the work of the judges. In his recent Valedictory Address to the special sitting of the Supreme Court to mark his retirement from the bench, Honourable Justice Stanley Shenko Alagoa said as follows:
“The greatest challenge to the judiciary are politicians followed by the businessmen. Traditional rulers must also share in the blame. It is this class of persons that bribe, intimidate, harass or influence Judges to depart from their sacred oath of office and the path of honour and rectitude. A Judge who hob nobs with this group may well be unwittingly allowing his position to be compromised and possibly jeopardized”.
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14. Conversely, Lord Mansfield in John Wilke’s case admonished on the proper attitude that good Judges should adopt when he said:
“I honour the King and respect the people, but, many things acquired by the favour of either, are, in my account, objects not worth ambition. I wish popularity, but it is that popularity which follows; not that which is run after. It is that popularity which, sooner or later, never fails to do justice to the pursuit of noble ends, by noble means. I will not do that which my conscience tells me is wrong, upon this occasion; to gain the huzzas of thousands, or the daily praise of all the papers which come from the press: I will not avoid doing what I think is right; though it should draw on me the whole artillery of libels; all that falsehood and malice can invent, or the credulity of a deluded populace can swallow…….. See (1763) 19 How St. Tr. 107 at 1112, 1113, s.66, 4 Burr, Part IV 2562 reproduced also in 98 E.R. 327 at 347”
15. In relating some of his unpleasant experience as a Judge, Hon. Justice T.A.A. Ayorinde formerly Chief Judge of Oyo State also wrote at Page 40 of his thought provoking book “Threat to the Rule of Law”:
“The question is where do we go from here? Are Judges to be cowed down by threats or to be afraid of possible threats before or after judgments and succumb to giving wrong judgments in fear of their lives? Should Judges run away from giving correct judgments according to the applicable laws, according to the relevant provisions of the Constitution of the country and the evidence before them so as to answer to the description of ‘good boys’ deserving pots of porridge from the men in the Executive arm of Government controlling public funds? This is a question which we should answer if we want to live in a democratic society free from oppression and harassment”.
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16. The independence and integrity of the judiciary is thus exposed to official abuse and corruption and sometimes Judges who fiercely exhibit independence are made to personally suffer systematic humiliation in the form of non-advancement in their careers and outright victimization.
On the other hand private corruption occurs where judges, lawyers and litigants conspire to compromise the legal system.
17. WHAT IS JUDICIAL CORRUPTION?
Corruption can be defined as ‘the abuse of entrusted power for private gain’. By implication judicial corruption includes any inappropriate financial or material gain and non-material gain, aimed at influencing the impartiality of the judicial process by any actor within or outside the court system. Judicial corruption poisons the judicial process by compromising its defining attribute which is fair, equal, and fearless resolution of disputes. Judicial corruption takes many forms, naked bribery being the most heinous. As for legal practitioners, we cannot go around calling ourselves learned friends and learned brethren if we condone or wink at judicial corruption. The Nigerian Bar can certainly not absolve itself, as the problem of corruption is not limited to the bench but also prevalent at the bar, court administrators and officials and the whole Nigerian society.
It is however obnoxious when the Judiciary which is held in the highest esteem is also allegedly infiltrated with the virus of corruption. The Judiciary is entrusted with the near divine office of deciding life and death, of adjudicating over disputes and ills among constituents of society, which includes corruption. The judiciary due to its position in the society ought to punish those involved in corrupt practices and not for judges to partake in the same malaise. Having a corrupt judiciary denies that arm of government of its very essence.
18. A call to sit in judgment over others is like a divine call. The calling of a Judge is a call to be incorruptible, to be above board, to dispense justice without fear or favour and to hold on to the oath of office of a judicial officer and to protect the law and the constitution. Unfortunately this has always been a difficult task in many jurisdictions all over the world.
19. Recently, the Chief Justice of the Philipines, Chief Justice Sereno openly urged lawyers in her country to stop discussing corruption in the judiciary in hushed tones, but to expose corrupt judges whom she described as “hoodlums in robes”. She said that since lawyers represent the single biggest group of the people that actively interacted with the courts, they were in the best position to stamp out corruption in the Judiciary.
20. Former American President Theodore Roosevelt said that “Unless a man is honest, we have no right to keep him in public life: it matters not how great his power of doing good service is no man who is corrupt, no man who condones corruption in others, can possibly do his duty to the community. Suffice to say then that corrupt Judges have no place in the public service in Nigeria. This should be the starting point.
21. In the United States of America, every year several Judges are prosecuted and convicted of various crimes by the Public Integrity Section of the United States Department of Justice or by State Authorities. The website review of this anti-judicial corruption organ shows an expository in the book titled “Judges Gone Rogue: Breaking the Myth of American Justice”. It is complete with pictures of indicted Judges.
For full effect, I am inclined to quote the work extensively here:
“Every year, several judges are prosecuted and convicted of various crimes by the Public Integrity Section of the United States Department of Justice or by state authorities. For instance, in the 1980s, the FBI mounted Operation Greylord, named after the curly wigs worn by British Judges, which resulted in the indictment of 92 officials in Cook County, Illinois, including 17 judges, 48 lawyers, 8 policemen, 10 deputy sheriffs, 8 court officials, and one state legislator.
Nearly all were convicted, including 15 judges, most of them pleading guilty. It necessitated the use of undercover operations that used honest Judges and lawyers posing as crooked ones, and the strong assistance of the Cook County court and local police. In more recent years, there was a rash of Judges—at least sixteen—stepping down in Georgia after scandals or outright criminality, after being investigated by Georgia’s Judicial Qualifications Commission.
One sent a message over Facebook to a criminal defendant, saying he’d give her behind-the-scenes advice on her case. Another was caught having sex in a parked car with the public defender assigned to his courtroom. Another inappropriately touched a prosecutor and investigator after they sat on his lap posing for a photo.
22. “Judges Gone Rogue” exposes judicial corruption on a wider scale through the story of a physician who fell victim to a conspiracy between a hospital, its attorneys and a state-court Judge, aimed at defeating him in court.
After suing the conspirators, including the Judge, in a federal court and after being denied due process in that forum as well, the author became determined to continue his quest for justice in various fora, including other state courts, federal courts and federal circuits, reaching the Supreme Court. In total, the author filed thirteen lawsuits, some of which are still alive, but was repeatedly denied due process by various Judges who were either directly corrupted by the hospital and its attorneys or were in direct agreement with other Judges never to allow discovery and to dismiss the suits in bad faith.
23. Exposure of the corruption did not require the assistance of law enforcement—the author simply learned how to become a litigator without the luxury of going to law school. This provided him with an edge: he could go where no lawyer would ever dare. He could challenge or even sue a corrupt Judge without being concerned about losing his license to practice law—he has none. Watchdogs monitoring judicial corruption are aware of the magnitude of the problem across the Nation, yet suits against Judges and their co-conspirators are rare. That is because a lawyer attacking a Judge, even rightly so, is at risk of being disciplined. This is the territory of career suicide for lawyers—they might end up losing their license to practice law.
24. “Judges Gone Rogue” shows, through a story of judicial conspiracy of unprecedented magnitude that spanned more than eight years, that judicial corruption and dishonesty are widespread in the United States. It is a story about crime, deception, treachery, shock, surrealism, disappointment, humiliation, despair, patience, hope, clairvoyance, determination and perseverance.
The story may at first seem to be a figment of someone’s vivid imagination, but it is one that will emerge as a surreal pictorial of what really goes on quietly every day inside our courts of justice, both at the state and federal levels. This story will come as a shock to most lay citizens, law students and young lawyers.
It will even shock the minds of many seasoned lawyers, including litigation attorneys, and will drive many to rethink their systems of belief about the law, order, justice, and life itself. “Judges Gone Rogue” reveals how easily the criminal world intersects with the supposedly legitimate world of law. It demonstrates how in many courts the law, the truth, the facts, the evidence and justice itself are all usually irrelevant. Judges Gone Rogue will radically change the way you look at justice forever.
25. Chief Afe Babalola SAN, Chairman Charted Institute of Arbitrators of Nigeria and a foremost advocate lamented the unsavory influence of politicians on the judiciary as it concerns influencing outcomes of cases when stating that:
“Time was when a lawyer could predict the likely outcome of a case because of the facts, the law and the brilliance of the lawyers that handled the case. Today, things have changed and nobody can be sure. Nowadays, politicians would text the outcome of the judgment to their party men before the judgment is delivered and prepare their supporters ahead of time for celebration”.
In a lecture titled “What is happening to Judicial Independence” delivered on 6th March 1991, Lord Mackay of Clashfern said of Judges:
“Their function is to decide cases and in so doing they must be given full independence of action, free from any influence. But in order to preserve their independence the Judges must have some control or influence over the administrative penumbra immediately surrounding the judicial process”
26. At the recent opening of the new legal year and swearing in of 17 new Senior Advocates of Nigeria at the Supreme Court, the Chief Justice of Nigeria, Justice Aloma Mukthar decried the poor funding of the Nation’s Judiciary. She said that:
“Statistics have shown that funding from the Federal Government has witnessed a steady decline since 2010, from =N=95 Billion in that year to =N=85 Billion in 2011, =N=75 Billion in 2012 and which dropped again in 2013 budget to =N=67 Billion”.
There is therefore no gain saying that an underfunded and financially malnourished judiciary can only breed official corruption in the judiciary and ultimately pose a great hazard to the dispensation of justice and a danger to the polity. The United States Department Country Report on Nigeria in 2003 remarked that “The Judicial Branch in Nigeria remained susceptible to executive and legislative pressure and that in-efficiency and corruption continued to prevent the judiciary from functioning adequately”.
27. In 2013, this remark remains largely true as the funding of the judicial arm of government remains appalling. Official underfunding of the judiciary 53 years after independence therefore presents to us the face of judicial rot. It undermines the independence of the judiciary and it makes nonsense of globally accepted conventions such as the United Nations principles of the Independence of the Judiciary,
The Latimer House-Commonwealth Principles of Accountability and Relationship between the Three Arms of Government and the International Principles on the Independence and Accountability of Judges, Lawyers and Prosecutors.
The time has come in Nigeria to review the system of funding and to enshrine and deepen the independence of the judiciary so that it is not unduly exposed to an over bearing Executive which ultimately can lead to official corruption.
28. In 53years of independence, scandals bordering on official corruption in the judiciary have bedeviled the polity. These have lowered the public perception of the judiciary in the eyes of the public. This fact was recently acknowledged by no other than the current Chief Justice of Nigeria, the Hon. Justice Aloma Mukhtar. Enquiries and investigations in the past have been half hearted, poorly conducted and unproductive. The work of some past panels of enquiry have been severely criticized for failing to give fair hearing to some affected Judges hence the setting up of further review panels.
In fact a serving very senior Justice of the Supreme Court who was found wanting by one of such panels was actually vindicated by a subsequent review panel and the recommendation of the earlier panel was promptly reversed.
This again is instructive in that any investigation into the conduct of Judges must be thorough so as not to victimize hard working and honest judicial officers in the attempt to sanitize the bench.
In recent years, the National Judicial Council has also made attempts to sanction judicial officers and their efforts have been widely reported in the press.
Lawyers have also come under close scrutiny and the Legal Practitioners Disciplinary Committee has its hands full with petitions and complaints.
There is no gainsaying that a corrupt and inept judiciary can only spell doom for the Rule of Law, democracy and the citizenry. The role of Bar and Bench is to be above board and indeed the role of the press as watchdogs cannot be overemphasized.
29. PLACE OF THE BAR IN JUDICIAL CORRUPTION:
Corruption is not only seen at the judicial level. In some circumstances, the bar is perceived to be as corrupt as the bench, the reason being that it is the only passage in which the public gets through to the judiciary.
Examples of this situations include; where lawyers connive with clients and judicial officers to weaken the rule of law, where lawyers acting as middlemen approach Judges in order to buy judgments at all cost, where lawyers parade themselves as the right persons to approach in order to buy a judgment, where lawyers offer bribe to the judge or court staff to manipulate court dates to favour one party or another or where a junior court personnel is encouraged to “lose” a file, where lawyers short-change their clients, where lawyers deliberately prolong court proceedings by filing frivolous preliminary objections and the perceived connivance of lawyers engaged by the state with their political masters to trample on democracy and rule of law.
30. The Chief Justice of Nigeria, recently stated after receiving copies of Directions and Rulings of the Legal Practitioners Disciplinary Committee of the Body of Benchers from January to May 2013 that ‘ongoing judicial reform program will succeed if legal practitioners are disciplined’.
In working towards achieving this aim, the Nigerian Bar Association has made the crusade against corruption most especially at the level of the bar as a cardinal programme. The association did this by setting up a fully-fledged disciplinary department which promptly process petitions.
In order to find a way to combat the corruption eating up the judiciary alongside the bar, the NBA also through its Anti-corruption committee set up a Name, Shame, and Tame campaign. The current President of the Nigerian Bar Association, Chief Okey Wali SAN at the 2 day anti-corruption lecture in Abuja described the programme as a means of encouraging lawyers and litigants to report corrupt judges and lawyers through an anonymous phone-in service, and he promised the NBA will investigate the reports, not for accuracy but for reasonable viability, and submit its findings to law enforcement agencies for follow-up action which NBA will encourage and monitor. This is highly commendable and it is hoped that the naming and shaming will lead to a gradual sanitation of the bench and the bar.
31. THE WAY FORWARD
There is a code of conduct for the Bench. This ought to be made public and the challenge before the press is to play the role of ombudsman to the conduct of judges. Whistle blowers must be encouraged and protected in the interest of the public.
In biblical times, Judges knew that they had divine assistance in performing their duties. Moses told the Judges deciding disputes between the children of Isreal that they should have no fear of man, for judgment belongs to God. See (Deuteronomy 1: 17-18). Indeed Moses took to God himself very difficult cases such as those by the daughters of Zelophedad, who contended that their sex should not prevent them from inheriting their father’s property. God gave Judgment in their favour.
32. There must be Executive determination and political will to have a fully independent judiciary and bar.
The Executive arm should not be seen as providing for the welfare of Judges as a favour being extended to the Judiciary. This tends to hamstring the Judiciary thereby giving the public a wrong perception that justice will surely be denied if legitimate claims are made against the government of the day or powerful individuals within.
The role of the Judiciary is so fundamental that an organization such as yours must have a Judiciary watch committee which must aim at investigating and reporting suspected cases of corruption on the bench and within the legal profession.
33. INDEPENDENCE OF THE JUDICIARY: For the Judiciary to be able to function effectively, perform its constitutional duties and to fight against corruption, it must be independent of influence and one crucial way of ensuring this is for it to draw funding from a first line charge, thereby freeing it from reliance on politicians for funding. This will allow the judges to decide matters before them impartially on the basis of the facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or direct interference, for any reason.
34. JUDICIAL APPOINTMENTS: The Bodies in charge of appointment of judges should take extra measures and due diligence before an appointment is made. A thorough background check should be run on potential judges so as to avoid the situation of appointing wrong person or persons into the positions.
35. JUDGES TO BUILD INTEGRITY AND PUBLIC TRUST: As the leaders of judicial administrations, judges have to ensure the standards of performance are raised to a level where the public has total confidence in the judiciary as an institution and in individual judges in particular. They should provide improved access to justice, quality of justice, raise public confidence in judicial process, improve efficiency and effectiveness in responding to public complaints about the judicial process. Also, for the integrity of the Nigeria Judiciary to be maintained, issues that border on the ‘key players’ of hierarchy and authorities in the Judiciary, should not be politicized or used to drag the legal system in the mud.
Amendment of obsolete criminal laws, re-activation of Administration of Justice Commissions, and passage into law the Administration of Criminal Justice Bill and other justice sector related Bills pending at the National Assembly like the Police and Prison Bills is another practical way of combating corruption in the justice sector in Nigeria.
36. JUDICIAL ACCOUNTABILTY AND DISCIPLINE: The National Judicial Council and the Legal Practitioners Disciplinary Committee which are to act as checks and balance on the activities of lawyers and judges respectively should be more empowered so as to dish out stringent punishments against lawyers and judges upon whom petitions are written and proven. Judges should also be made to render account on the pending cases, rulings and concluded matters before them to the National Judicial Council on a more regular basis.
The solution to underfunding of the Judiciary which is the basis of official corruption and rot in the judiciary is already provided by law. The agitation for strict compliance with the constitutional provisions regarding the funding of the judicial arm of government must begin and be intensified. These provisions have been well articulated in a recent joint article by Olisa Agbakoba SAN and Chinedu Nneke as published in This Day Lawyer Weekly pull out on 1st October 2013. I quote extensively from the Article
“In Nigeria, the 1999 Constitution contains provisions to guarantee financial independence of the judiciary. They are Sections, 80, 81 and 84. The objective of these sections was to secure independent funding of the judiciary in Nigeria, free from executive interference and control.
Section 80 established a Pool of National Income called the Consolidated Revenue Fund of the Federation. It stipulates that “All revenues or other moneys raised or received by the Federation (not being revenues or other moneys payable under this Constitution or any Act of the National Assembly into any other public fund of the Federation established for a Specific purpose) shall be paid into and form one Consolidated Revenue Fund of the Federation”.
Section 80(2) provides how monies are with-drawn from the Consolidated Revenue Fund of the Federation. It states that “No moneys shall be withdrawn from the Consolidated Revenue Fund of the Federation except to meet expenditure that is charged upon the fund by this Constitution or where the issue of those moneys has been authorized by an Appropriation Act, Supplementary Appropriation Act or an Act passed in pursuance of Section 81 of this Constitution”.
38. Going by the stipulations of Section 80(2), there are only two ways in which money can lawfully be withdrawn from the Consolidated Revenue Fund of the Federation. They are (1) By direct charge upon the fund, and (2) By Appropriation.
Section 81(1) empowers the President to lay before the National Assembly, estimates of the revenues and expenditure of the Federation for the next following financial year. The Heads of Expenditure contained in the President’s estimates are included in the Appropriation Bill.
However, Section 81(2), exempted the expenditure charged upon the Consolidated Revenue Fund of the Federation from the Appropriation Bill the implication of Section 81(2) is that the President does not have power to include any expenditure charged upon the Consolidated Revenue Fund, in the Appropriation Bill.
The expenditures charged upon the Consolidated Revenue Fund are explicitly provided in Section 84(2), (4) and (7) as follows: 84(2). The remuneration, salaries and allowances payable to the holders of the offices so mentioned shall be a charge upon the Consolidated Revenue Fund of the Federation.
84(4) The offices aforesaid are the offices of … , … Chief Justice of Nigeria, Justice of the Supreme Court, President of the Court of Appeal, Justice of the Court of Appeal, Chief Judge of the Federal High Court, Judge of the Federal High Court, Chief Judge and Judge of the High Court of the Federal Capital Territory, Abuja, Chief Judge of a State, Judge of the High Court of a State, Grand Kadi and Kadi of the Sharia Court of Appeal of the Federal Capital Territory, Abuja, President and Judge of the Customary Court of Appeal of the Federal Capital Territory, Abuja, Grand Kadi and Kadi of the Sharia Court of Appeal of a State, President and Judge of the Customary Court of Appeal of a State … ,
84(7) “The recurrent expenditure of judicial offices in the Federation (in addition to salaries and allowances of the judicial officers mentioned in subsection (4) of this section) shall be a charge upon the Consolidated Revenue Fund of the Federation.
39. Clearly, by virtue of Section 84(2), (4), and (7), the amount standing to the credit of the judiciary in the Consolidated Revenue Fund, consisting of salaries, allowances and recurrent expenditure of judicial officers are charged upon the Consolidated Revenue Fund,
Therefore exempted from the President’s Appropriation that is laid before the National Assembly. By virtue of Section 81(3), “The amount standing to the credit of the judiciary in the Consolidated Revenue Fund of the Federation shall be paid directly to the National Judicial Council for disbursement to the heads of the Courts established for the Federation and the States under Section 6 of this Constitution”).
40. The only fund relating to Judiciary that is subject to appropriation is the capital expenditure, because it is not provided in Section 84(2) and Section 84(7) which set out funds charged on the Consolidated Revenue Fund.
There is no doubt that if Sections 80, 81 and 84 of the Constitution are implemented, the result will be a strong, independent and fearless Judiciary. Sadly, these constitutional stipulations are not been followed.
The practice in ‘Nigeria is that Judiciary is dependent on the Executive and the National Assembly for its Budgeting and Funds in that the amount standing to the credit of the Judiciary in the Consolidated Revenue Fund of the Federation is not paid directly to the National Judicial Council for disbursement as stipulated by Section 81(3).
Further, and contrary to Section 81(2) of the Constitution, the President includes in the Appropriation Bill sent to the National Assembly, the annual budget estimates of the judiciary, notwithstanding that it is charged upon the Consolidated Revenue Fund by virtue of Section 84(2), (3), (4), and (7) and thus exempted from Heads of Expenditure to be included in the Appropriation Bill.
41. Upon the receipt of the Appropriation Bill from the President, the National Assembly passes it into an Act i.e the Appropriation Act which purports to authorize the issue of funds for the Judiciary from the consolidated Revenue fund, through Statutory Transfers.
The funds are then released to the Judiciary in tranches. The Constitution itself authorizes the NJC to withdraw funds direct from the Consolidated Revenue Funds. This being the case, the practice whereby the President appropriates funds for the Judiciary and then statutorily transfers the funds to NJC contravenes direct Constitution Transfer to the NJC envisaged by Section 81(3) of the Constitution and derogates from the doctrine of separation of powers and concept of judicial independence”.
42. It is assuring to note that the above provisions are now the subject matter of litigation where declaratory reliefs are being sought as to the interpretation of the relevant constitutional provisions quoted above and further mandatory orders are also being sought to redress the situation whereby the Executive and Legislative arms of government shackle the funding of the judiciary.
However, further pressure must be put on the government by the Bar and Bench, Civil Society groups, journalists and other stakeholders to ensure that the proper funding of the judiciary is a reality and therefore stem the continuous rot in the judicial system.
43. Even though we acknowledge the rot that has cancerously eaten into the fabric of the Judicial system, all hope is not totally lost as there still remain fine examples of dedicated, hard working, corruption free Judges at all levels of the judiciary. Those examples are worth celebrating as we mark that 53RD Anniversary of Nigeria’s Independence.
05 April, 2018