The Failing Judicial System (2): The Futility Of Special Courts Ebun-Olu Adegboruwa, SAN

Special courts! That is the new refrain in town, for solving all
the problems of the judiciary. Everyone wants a special court to
handle special cases, due mainly to the failing judicial system
that we are currently being confronted with in Nigeria. On July 2,
2019, the Chairman of the Independent National Electoral
Commission, Prof. Mahmood Yakubu, called for the establishment of
an Election Offences Tribunal, to try all criminal matters arising
from the conduct of elections.

That will be in addition to the existing Election Petitions
Tribunal already established under the Constitution, also for
election related cases. Way back in August 2015, the former
Chairman of the Economic and Financial Crimes Commission, Mr
Ibrahim Lamorde, proposed the establishment of special courts to
try corruption related cases. This has been re-echoed several times
by the present Acting Chairman of EFCC, to which the Lagos State
Judiciary assented in 2018. Just recently in November, 2019, the
Comptroller-General of the Nigeria Customs Service, Col. Hameed Ali
(Retd.), called for the establishment of special courts to
prosecute smugglers. Some others have called for constitutional
courts, while some others advocate for special courts to try AMCON
cases, etc.

Speaking to judges at the All-Nigerian Judges Conference in
Abuja last week, President Muhammadu Buhari capped up the demand
for special courts when he called upon the judiciary to embrace the
idea. He said:

“I will advise that the conference should, in its deliberations,
consider how to create an efficient structure for the proposed
Special Crimes Courts or the urgent designation of existing courts
as Special Courts with competent and credible judicial officers in
order to remove administrative bottlenecks in the judicial
process.”

Can this be the solution to the myriad of problems plaguing the
judiciary and the administration of justice generally? What it then
means is that we will need special courts for corrupt persons,
special courts for smugglers, special courts for sexual offences,
special courts for kidnappers, some for terrorists, other special
courts for electoral offences, etc. And the list goes on. Anyone
who is dissatisfied with the extant court system will just run to
the judiciary and demand for a special court. Of course this cannot
be the solution to the many problems bedeviling the judiciary
presently. In Lagos for instance, we are still contending for space
for lawyers and litigants to sit down in the Federal High Court,
built since 1973 just as a Revenue Court. So, what do we need to
do? The first and most critical solution is funding, the second
fundamental solution is funding and the third and most basic
solution is funding, for the judiciary. Funding, funding and
funding.

The Constitution envisaged a judiciary that is free, autonomous
and independent, so as to be properly placed to deal with the
excesses of government, the impunity of all officers of the realm
and the wrongs committed by individuals and corporate persons. The
President appears to be very much aware of this constitutional
expectation, or at least so it would seem, judging by the detailed
content of his speech. Should the courts still have any problem
accessing funds that the Constitution says should be drawn on the
first line charge of the federation account? Should the executive
arm of government still have a say in the budget and finance of the
judicial arm? Fair enough, the President has demonstrated his good
intention for judicial autonomy through the bold and innovative
provisions of the Financial Autonomy of State Legislatures and
State Judiciaries (Fourth Alteration, No.4) Act of 2018, which
cleared the road for the funding of the Houses of Assembly and
Judiciary of the States, directly from the Consolidated Revenue
Fund of the States. The Act has amended the existing section 121
(3) of the Constitution by stating that “any amount standing to the
credit of the House of Assembly of the State and the Judiciary, in
the Consolidated Revenue Fund of the State shall be paid directly
to the said bodies respectively; in the case of the judiciary, such
amount shall be paid directly to the heads of the courts
concerned.” It is indeed revolutionary, for a sitting President to
agree to grant full financial autonomy and independence to the
other two arms of government.

However, there is still much more that the President can and has
to do, as a matter of urgency, in line with his open declaration,
very well stated in his speech above-referred, as follows:

“The government has been committed to a number of justice sector
reforms such as review of extant laws and enactment of new laws
that will improve the lives of Nigerians. Additionally, we have
worked closely with the Chief Justice of Nigeria to ensure that
judicial budgetary allocations are enhanced in view of the needs of
the judiciary. I have strongly supported the increase in number of
judges at High Courts, Appeal Courts and the Supreme Court in order
to reduce the burden of the work placed on judicial officers. I
will continue to do so.”

Appoint more judges, build more courts, review the welfare
conditions of judicial officers, to be in tune with the reality of
our times, invest massively in infrastructure for the courts, in
the area of power supply, research assistants, regular trainings
and exposure for judges and judicial staff alike, automated court
system and security for the courts.

But much of the solution also lie within the judiciary itself.
The corrupt system of the registry of the various courts is
frustrating justice delivery. Why will a court of justice be so
starved that it cannot afford paper and ink to print out its own
record of proceedings or the order made by a judge? Why should a
litigant pay for the service of a process filed in court, be issued
official receipt for it and then he is forced to pay thrice that
amount to the court sheriff illegally, in order to get his case
moving? How come the courts have not been able to regulate and
curtail the glaring excesses of the registrars of court? Why should
it take two weeks to obtain a copy of an ex-parte order granted by
the court? Without doubt, there is need for an urgent overhaul of
the archaic system of filing and service of court processes. This
certainly has nothing to do with the executive or legislative arms
of government but rather that the judiciary itself seems not ready
for true and lasting reforms.

The rules guiding the practice and procedure of the courts
require urgent tinkering to adjust the very wide discretions
granted to judicial officers in the determination of certain
principles of law, which has led to several conflicting decisions,
even in the Supreme Court. Ever before the legislature woke up to
think of regulating the proceedings of the courts, the judiciary on
its own should have devised a workable means of concluding cases
and abolish the frustrating practice of interlocutory proceedings
that hinder the effective resolution of legal issues. It is
profitable to collapse all objections into the defence and to
jettison all forms of technical procedures that obfuscate the
justice of any case. Surely, there must be something wrong with a
system that permits appeals to the Supreme Court on narrow and
technical points of law, lingering for decades, whilst the
substantive issues that led to the court cases are not examined at
all, let alone being resolved.

At the Annual Dinner of the Body of Senior Advocates of Nigeria
held on November 30, 2019, the keynote speaker at the occasion, Dr.
Christopher Kolade, addressed the very strange idea of special
courts and concluded that in years to come, when our grandchildren
ask us why we now have so many courts for different cases, we will
tell them that the original court system failed us. The times have
changed so tremendously that you wonder if the judiciary in Nigeria
is following global trends. Alternative Dispute Resolution? Yes,
but only for commercial cases, or how else do you ask an arbitrator
to decide knotty constitutional questions or matrimonial cases
involving custody of children?

And it is not enough to even just fund the courts without more.
Section 287 of the Constitution demands that all persons and
authorities in Nigeria should give respect to the orders and
decisions of all courts in Nigeria. So, the President should not
grant financial autonomy with one hand and snatch away the
authority and integrity of the court with the other. Judicial
independence cannot be measured by funding alone, but also in the
willingness to obey and abide by all decisions and orders of the
courts, as the integrity of the judiciary is better achieved
through willful obedience to the orders and directives of the
courts. In this regard, so long as Col Sambo Dasuki (Retd.) remains
in custody against several orders of court for his release on bail,
so long as judges are living under some mortal trepidation of
persecution on account of their decisions, then the judiciary
cannot be said to be independent, no matter the number of billions
of naira thrown at the courts. No other time in our nation has the
judiciary been so ridiculed than now, when a judge grants bail to a
defendant, screens and approves his sureties and thereafter issues
a warrant for his production in court to be released. Upon being
served with the order for the production of the defendant, the
executive arm of government then sets up its own procedure for the
verification of the same sureties already approved by the court and
will on that account alone, not agree to produce the defendant in
court, in deference to the order of the court.

So, we truly don’t need special courts, as the panacea to the
ridicule that the judicial system in Nigeria has become; it is
sufficient for the President to match his words with immediate
action, to appoint more judges, issue an executive order to all
agencies of government to respect all orders and decisions of the
courts and halt the profiling of judicial officers by security
agencies, as that in itself constitutes a subtle pressure on the
courts to do the bidding of the executive. If the judicial system
is adequately funded and well reformed to be effective, it will
take care of all cases, without special courts.