Dedicated to Nigeria's socio-political issues
October 3, 2007 - December 2, 2007
Fixing the Judicial Mêlée
Olubusayo Michael Oluwagbemi II
In any democracy, the most important arm of government to the common-man is the judiciary. The judiciary is often said to be the last hope of the common man. It is the sole adjudicator over the political, social and economic stratosphere. The notion of a democracy advanced, modern, developed, backward, under –developed, infant or nascent is usually predicated on the degree of fairness obtainable in her judiciary system: basically speaking the possibility of obtaining a fair judgment from the body of benchers in a reasonably short period of time. However in a supposedly republican democracy which by design is federal in nature, the hall of justice is prone to being jam-packed and highly ineffective but like every other levers of democracy it always need to be reformed to meet these challenges.
The Nigerian judiciary has been an exemplary arm of government in our current democratic dispensation. Most remarkably, they have stepped up in adjudicating in cases between states and federal government, individuals and elected officers including election petition. From Buhari saga to the revenue allocation even to the recent Lagos-FG fiasco; the court especially the highest one in the land have made far reaching decisions that have been seemingly fair and have restored hope of Nigerians in the our nation’s democracy.
Even lower level courts in intervening in labor disputes, including election petition i.e. the nullification of presidential results in Ogun states and other locations, have proven that our body of benchers can be trusted. The Judiciary has also done a good job in self regulation. The National Judicial Council has dismissed, suspended, retired or transferred erring judges promptly as soon as cases of judicial indiscretion are established. We owe much of these reforms to a new reinvigorated National Bar Association as well as an activist panel of eminent jurist at the Supreme Court. We can’t but take notice the fretting going on in Aso Rock Villa presently regarding the recent petition against the election of Mr. President – don’t ask this writer for any predictions.
Our courts have faired well; we can be proud of them given the difficult conditions under which they work. These include political and social pressures, ranging from bribe to threat of outright impeachment in state courts. In addition to these, poor working conditions (with many of courts ill equipped and looking unkempt and inhabitable) have made judges carrying on like their revolutionary American counterparts that sat within the first fifty years after her independence; enduring the scorn of their peers but dedicated to the advancement of the common man! God Bless Nigerian Judiciary.
However, we cannot over look the inadequacies of our present system. Cases of delayed justice, inadequate court facilities, over flowing prison, outdated laws as well as lack of best practices in our judicial system have dimmed the hope that the little advancement we make offers. Prisoners are multiplying daily, lawyers engage in delay tactics and our court process is inadequate, ineffective and very open to abuse. In order to fix this problem, there must be some kind of collaboration between the legislature, executive and judiciary. The legislature should back these reforms with law and appropriation, the executive should see to it that the money is released and projects executed, while the judiciary should keep faith and deliver on these reforms.
First and foremost, the legislature would need to look into making constitutional amendments that would change the way in which justice is administered in our nation. Nigerians should have a right to trial by jury. Even though this concept is entirely foreign to our modern Nigerian jurisprudence, it has long existed in our traditional judicial system. Justice by the elite few is bound to be corrupt and slow. Give it time, and mob justice would be the order of the day. To effectively do this, government shall require all graduates of secondary schools to register with their respective local governments on filling their WAEC forms and update yearly on their address and such records should be kept at the local level. This record would form the roll of jury within our nation and every case on trial would be decided by jury of ones peers selected randomly without possibility of external interference or favoritism., the power to sentence and confirm pronouncement shall continued to be vested in judges who shall abide by sentencing guidelines issued by the convening authority be it the local state or federal government.
This brings us to a very important issue. Justice in our country for it to be effective has to be localized. That is why government on the local level should maintain courts to try minor and medium sentence offenses. These courts to be called municipal courts should have both powers to try civil or criminal offenses. Civil suits relating to marriage, divorce, child custody, damages etc. may be brought before the courts. Criminal cases including parking or driving tickets or fines, environmental fines, cases of battery or assaults as well as any anti-social behavior should be tried also by the municipal courts.
To ensure the democratization of these courts, judges sitting on the municipal courts should be elected law officers with some minimum experience criteria, elected on a zero party basis. The power to impeach the judges on this level should be vested in the local government legislature, and the power to recall judges should also be vested in the people. In addition to this, the manner in which criminal cases are investigated on local and state levels should also be reformed; prosecutors should be elected in all local governments, and the attorney general should be stripped of the power of withdrawing cases from the courts without judicially reasonable needs that must satisfy the trial court.
There is also an urgent need to change the configuration of our courts. The three hundred and sixty federal constituencies should become federal district. With a federal district court that would try federal related offences or cases, and would offer trials speedily and quickly on the local level. There is need to limit the number of courts of appeals to regional zones, i.e. the six geo-political zones, Abuja and Lagos. Hence total of eight in number. The federal districts should also have prosecutors appointed on the federal level and approved by the senate to specific terms, to prosecute federal crimes ranging from armed robbery, cultism, to fraud or even drug related offenses. It should be noted that areas of concurrent jurisdiction should be treated as a matter of cooperation for federal, state and local authorities when they arise. The constitution should also be amended to explicitly prevent state from making criminal laws based on any religious code or injunction – this would go a long way in avoiding the judicial ambiguity that exist today in our nation
In addition to these, state magistrate courts as well as customary courts (for civil cases – chieftaincy and land cases) shall continue to exist to try crimes against the state including murder, prostitution, child molestation etc. It is suggested that they should be converted to courts of records, while the state high courts should become the first port of appeal for the trial layer of justice on the state and local level. Appeals emanating from the federal district courts and state high courts should go to the Federal Courts of Appeal. It is suggested that regional courts of customs should be set up to try commercial or financial related cases, appeals should also be directed at the court of appeals. These changes would definitely require building more courts, equipping them, employing more judges to staff magistrate and newly professionalized customary courts, as well as transfer and dispose off existing cases in a timely manner. In this respect, the court of Appeals should be last source of guaranteed justice, while like the United States the Supreme Court should be a court of petition which should hear cases petitioned to it by parties that feel aggrieved, and should reserve the right to hear or reject to hear such petitions as the case may be. Only cases of capital punishment should be guaranteed review by the Supreme Court, as well as disputes between states and the federal governments.
Furthermore, there is need for urgent reforms in our criminal justice system. Government need to stop paying lip service to prison reforms. Prison and criminal records need to be created, finger-printing of ex-convicts need to be an established norm, while government should pursue an aggressive program of building new prisons in rural areas with large tracts of land and ensure that the prison system is self sustainable and income generating, while providing true rehabilitation for prisoners. Libraries, computer training centers and outreach educational programs need to be included in prisons, while juvenile detention centers need to be opened up in every state within the federation to provide specified service to the young criminals in our nation. Judges need to armed with creative new sentences; including suspended sentences for non violent crimes; community service for others; partial house arrest for certain crimes, as well as a probation system that would monitor violent criminals on conclusion of their jail terms; or release other convicts on record for good behavior while in prison while ensuring our prisons are not overflowing. All these reforms, would require that our nation invest in new technology and open ourselves to committing funds to these crusade to change the hearts and minds of the rejected and abused convicts in our society.
In conclusion, specific reforms on the trial stage of our justice system need to be implemented. The use of ex-parte injunction should be abolished, while the habit of appealing pre-trial decisions of the courts relating to granting bail, preliminary motions etc. should be abolished also. In addition to these, because of the novel trial by jury method, specific period of trial would need to be set to avoid wasting the time of the jury and should be not longer than necessary to allow the defense and plaintiff to argue their case. Evading jury duty or non-registration should attract stiff punishments including jail and fines, while employers should grant appointed jurors leave with pay during their jury duty. It should be noted that these changes would eliminate adjournment in the trial stage, since no motion to blockade trail or appeal pre-trial decisions would be entertained wither by the trial court or an appellate court. The Nigerian Body of Benchers should begin to rein in on lawyers that engage in frivolous litigation, deploying various delay tactics. Judges should also begin to use aggressive contempt of court charges on such lawyers, subjecting them to a similar delay in jail to the advantage of the general public and their peers that might be interested in using such selfish and self serving tactics in the future. It is only far reaching changes like those enumerated above that would truly clean up the hellish process we call litigation in our nation. The time for change is now, tomorrow may be too late.
voice of the majority is no proof of justice.
I consider trial by jury as the only anchor yet imagined by man by which a government can be held to the principles of its constitution.
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This page was last updated on 10/27/07.