The Judiciary, its own enemy (2)

By Mohammed Adamu

I CONCLUDE this series with an excerpt from a previous piece
titled ‘The Judiciary Waiting For Buhari’ written about four years
ago (May 19, 2015) and a Postscript from another ‘On Justice
Onnoghen’ (Feb. 09, 2017).

This mostly chronicles the revelations of one of the Chief
Justices of Nigeria, the late Justice Dahiru Musdapher whose eleven
month reform-frenzied tenure was about the most eventful, most
revealing of the sordid entrails of this otherwise esoteric
institution.

…none (had) captured (the rot in the Nigerian Judiciary) any
better than the eminent jurist, Justice Kayode Esho, in a memo on
the Musdapher Reform Programme where he said: “There has been no
time in the history of the judiciary of this nation that the
institution has sunk this low”.

And Justice Musdapher it was who had the rare courage to break
the yoke of judicial esoterism by publicly confessing to serious
challenges bothering particularly on the ethical and moral
substructures of the Nigerian judicial system -its dilapidated
courts and its decrepit administrative machinery; and its dismal
continuing-education programme for which already a serious decline
had set in, in the intellectual capacity of judicial officers to
effectively and efficiently deliver justice.

AtikuObi group applauds Appeal court for suspending Onnoghen’s
CCT trial

And this decline is not helped by a culprit Nigerian Bar which
-although outside the court is famed for moral suasion and a toga
of ‘corrective’ disposition- in court it is prosecutorally
indecorous, permitting abuse of ethics and rules of professional
conduct with the attendant consequences that many so called
Ministers of the Temple of justice are now willing perverts of the
very course of justice they are sworn to uphold.

Nor is this helped by our ‘body’ of laws -a relic of our
colonial and postcolonial experiences- whose complex hyacinth of
technicalities only aids lawyers and judges to pervert justice. Our
‘corpus juris’ remains, still, the epitome of obsoleteness and
archaism, yearning for the redeeming grace of a corrective
Legislature.

The consequence of this rot naturally manifests in a serious
downturn in the system’s public perception index, so that over the
years the Nigerian Judiciary has lost a great deal of the
confidence of the public, and Nigerians no longer believe they can
get justice from the courts of their land. In fact, many identify
the Judiciary more as a zone of despair in seeking justice than as
the proverbial ‘last hope of the common man’.

The judicial process has especially acquired a sickening
notoriety for complexity, from filing to final judgment; and this,
added to the growing juridical and advocatorial incompetence in the
system, conduce to occasion unwarranted delays that make a mockery
of that fair maxim of equity which asserts that ‘delay defeats
justice’.

Said Musdapher it takes “an average of eight to ten years to
determine a matter from the commencement of court proceedings to
final judgment”. You need only add ‘delay’ to the serious infamy of
unfair judgments, judicial impropriety, absence of judicial
integrity and above all corruption at virtually all levels of
administration of Justice, to complete the parade of judicial
negatives.

Justice Musdapher in one of his appraisals of the judicial and
extrajudicial underpinnings leading to a hemorrhaging judiciary had
observed among others, an ‘unprecedented invasion of the judiciary
by prevalent societal currents especially politics which he said
had continued to chip away at the Institution’s capacity to
dispense justice. He observed a near total collapse of the dictates
of conscience in many judges and pervasive judicial corruption
which he said had placed a virtual strangle-hold on its capacity to
dispense justice without fear or favour, affection or ill will.

Worst of all he said was the unfair use by lawyers of legal
technicalities especially in ‘procedure law’ to the detriment of
substantive matters. Most so called ‘best lawyers’ in Nigeria are
really faint hearted, lily-livered Mayweathers of the judicial
boxing ring who rather than fight fair and square on the turf of
substantive matters, prefer the rut of procedural
technicalities.

Justice Musdapher said that the Nigerian Judiciary is dogged no
less by human foibles than it is by the existence of bad laws and
procedures which must be amended. And in his crusade he was not all
lamentation and no remedy. He had suggested reforms that were no
less holistic and many of which were in fact radical and
revolutionary. He had called among other things for:

1) review of the requirements for appointment of judges so that
in addition to pure merit, morals of prospective appointees should
count; 2) extending the current mode of judicial appointments
(especially into superior courts) to include candidates outside the
judiciary –so as to provide wider diversity of experience and add
quality to judicial deliberations in court. He also recommended: a)
the need to relieve the National Judicial Council NJC of the duty
of dealing with petitions, discipline and removal of judicial
officers so that it concentrates on the responsibilities of
formulating broad policies for, and judicial appointments in, the
judiciary; b) the creation of a separate discipline-only body and
to which should be added the duty of ‘Intelligence Measurement
Performance System’ for weeding under-performing officers out of
the judiciary; c) an elaborate mechanism both for the punishment
and insulation of judicial officers for and against corruption.

To reposition the Judiciary, Musdapher’s Judicial Reform had
proposed to the NASS, a ‘Fifth Alteration’ Draft Bill. The Reform
was targeted at restoring five key universal components of judicial
administration, namely: 1) an INDEPENDENT JUDICIAL SYSTEM with a
self-governing, independent ‘budget-authority’ and a
‘rule-and-policy making’ autonomy; 2) a TRANSPARENT JUDICIAL SYSTEM
that guarantees open judicial selection, promotion, discipline,
removal of judicial officers and open access to court proceedings;
3) an ACCOUNTABLE JUDICIAL SYSTEM with an effective case
management, clear judicial productivity and performance standards;
4) an EFFICIENT JUDICIAL SYSTEM with standardised training and
education, improved access to justice, and one that is fast,
certain, consistent and predictable in delivering justice; and
lastly; 5) a DIGNIFIED JUDICIAL SYSTEM that enjoys the respect, awe
and confidence of the public and before which every citizen feels a
sense of duty to willingly subjugate.

POSTSCRIPT

Prior to the appointment of the late Justice Dahiru Musdapher as
Chief Justice in 2011, the National Judicial Council, NJC had
always proposed to the President names of the three most senior
justices of the Supreme Court in order of their seniority. The
President then had the ‘privilege’ -not ‘right’- to select any one.
Interestingly, no President was known to exercise that privilege in
the disfavour of the most senior of the three. It was to frustrate
the attempt (by President Goodluck Jonathan) to exploit this
privilege for geo-ethnic motive that the NJC under Musdapher ended
this succession tradition by insisting that the NJC present the
name of the most senior justice only –namely Aloma Muktar; giving
Jonathan a virtual Hobson’s Choice. Behind Justice Aloma were
justices Mahmud Mohammed and Walter Onnoghen in that order, but
information had reached Musdapher indicating that Jonathan had been
advised by his hawkish kinsmen to ‘damn the consequences’ and skip
both Aloma Mukhtar and Mahmud Mohammed to pick ‘his own’, Onnoghen.
And it is on record that on receiving the NJC list containing only
the name of Justice Aloma, President Jonathan was said to have
returned it to the NJC, insisting that the Council should do the
needful by respecting its time-honored tradition of sending three
candidates, -a demand which the Council rebuffed again by
re-sending Aloma’s only name as the Council’s nominee. This was the
Onnoghen. Concluded