Federalisation of judiciary, key to effective, efficient justice system — Prof Omoregie, SAN
Professor Edoba Omoregie, SAN, is a lecturer in the University of Benin, Edo State and a Visiting Scholar /Resource Person to the National Institute for Legislative and Democratic Studies, NILDS. In this interview, he addressed critical issues in the justice sector including corruption, poor renumeration, infrastructural decay, creation of state police, human rights abuses and insecurity in the country.
Excerpts:
CSOs’ call for judicial reforms owing to alleged corruption in the system
I have had occasions to urge that people should be a lot more thorough and cautious when they are talking about corruption in the judiciary because it appears that since judges don’t come out to defend themselves, there seems to be a free day for everybody to cast aspersion and even input corruption on them and the Judiciary . The issue of corruption is a nationwide problem and everybody agrees that the corruption index in Nigeria is very poor. So it is a systemic crisis all over the country.
I will tell you as somebody who has practised law for many years, that if you are looking for a system in this country that has tried to be up and doing and keeps to what is expected of it constitutionally and statutorily, the judiciary is probably number one. If you look at matters that come before courts, it is difficult for you to suggest that the judges are corrupt. Some people have not done any evaluation but they just shout that there is corruption. How do you say a judge is corrupt because he gave a judgment that is not favourable to you?
You don’t remember that judges are required to give reason for every decision taken. For every decision taken by the court, there must be a reason for it compared to a place like the parliament that passes a law and you don’t even know the motive behind the law because there is no requirement to give reason for a policy decision that is made by government. Except you make a request for it, you don’t even know the reason behind it but every decision made by a judge, the reason behind it must be given.
I am not denying that people have accused the judicial system of corruption but the issue should be that anybody who has proof, should have the courage to stand up to be counted because the judiciary has a machinery for discipline like the National Judicial Council, NJC. There is also the State Judicial Service Commission. All of these are mechanisms available but hardly will you see anybody going there and they claim that there is corruption.
Need for reforms
Of course there is a need to reform the judiciary as many issues need to be addressed. For me, the immediate one is the problem of delays. We have a big challenge with delays in judicial proceedings. Many people have lost confidence in the judiciary more than any other thing because of delays. There are too many delays in the court process and there are many reasons for that.
Number one is the problem of having to centralise the processes. What do I mean? Every single matter can potentially end up in the Supreme Court. Even if it is just a dispute over one piece of land in Benin City, or in Abeokuta, it ends up in the Supreme Court. At the end of the day, you will discover that the matter can go on for up to 30 years or more. That is very bad and we all need to avoid that. I have suggested severally what I would describe as judicial federalism, or the federalisation of our judiciary.
What I mean by that is that not every matter should be allowed to go as far as the Supreme Court. We should have a system whereby matters of state should begin at the state level, and end at the state level. We should have state courts strictly given the powers to adjudicate on state matters. These should be matters which the state has powers to make laws on so that we can have a High Court and the Court of Appeal of the states funded by the states not by the Federal Government. This will ensure that matters like land disputes can start from the state High Court and end up in the Court of Appeal.
That will reduce delays in our court processes tremendously. So if there are matters of serious constitutional questions, they may go to the Supreme Court, and the Supreme Court should be able to have the discretion whether to hear the matter or not.
Judicialisation of politics
My second suggestion is for us to avoid what I describe as judicialisation of our politics. What I mean by judicialisation of politics is that you will find out that for the past number of years, particularly starting from about 2007, we now have a flood of litigations over electoral issues, particularly even pre-election matters, so that currently, most of the courts are inundated with pre-election matters.
They never actually seem to end and they give little time for other matters to be heard, because virtually every court in Nigeria has to deal with one political question or the other and which is very wrong. It is also the cause of delays, and in fact, it is the cause of serious costs of litigation thereby bringing a lot of pressure on the courts. So for me, there is a need for further constitutional alteration which will terminate the whole idea of pre-election matters.
There is no reason why disputes over nomination of candidates should be a subject for litigation. If a political party decides that these are my candidates for elective offices, so be it. The Supreme Court has said that if you are not happy with a political party, go and join another one or form a political party of your own.
You don’t have to go to court because political parties are not public creations, they are not created by any statute or by the Constitution. So why should the public time and resources be devoted to settling disputes that are essentially private because parties are just gentlemen’s clubs. If you look at the situation very well, matters that are not political receive hearing in a way that they don’t input corruption.
The litigants take it in their strides, matters of banking, matters of contract disputes and others, but these matters are being delayed currently because of the judicialisation of our politics.
Call for review or enactment of a new Constitution
My view is that there is nothing wrong in reviewing our Constitution because you can never have a perfect document. Even if you abolish or set aside the current Constitution of Nigeria and create a new one, sooner than later, people will also complain. So are you going to be constantly abrogating the Constitution and setting up new ones? No. What you would expect is that we should not make it a routine exercise whereby we are always proposing constitutional reviews because of the high costs of doing so. We can have a practice by which we have periodic reviews. There is nothing wrong with that. We can propose that every 10 years, we will look at the Constitution again, and see whether there is need for improvements within which period, people can be debating on all the various concerns here and there.
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Most of the constitutional reviews that we have had, have not really made any impact as we would expect in dealing with many of the problems we complain about in the Constitution. The foremost problem that Nigerians complain about now is the flawed manner in which we have constituted our federal system but unfortunately for the past 25 years, many of the constitutional reviews have not touched on the issue of federal reforms. It is only the last set of the 9th Assembly, that was able to introduce some amendments or alterations dealing with the federalism question and only three or four sections dealt with that.
For instance, the opening up of the electricity sector that came recently, the Constitution now granted the state to also handle electricity their own way and then to also participate in railways which is the only significant intervention as far as federalism is concerned. Every other alteration has not been too significant so I think, therefore, that I do not agree with those who say that we should abrogate the current Constitution. I think that to achieve that, we will need a lot of consensus, how do we abrogate it, how do we wake up and say this is no longer our Constitution.?That will require the entire National
Assembly coming together to agree, then the executive branch will also be in the process and of course members of the State Houses of Assembly as required by Section 9 of the Constitution, will also have to play a role so that is a very extreme approach. We all know what is called incremental reforms of constitutional provision. So what we have been engaged in since 2010 has been what can be described as incremental reforms and there is nothing fundamentally wrong with that. Many countries across the world have had to do the same thing and ours should not be different. I do not share the view that we should do a zero sum approach to constitutional reform because for us to have a fresh constitution, we will still have a new set of concerns.
Don’t forget that this is a very big country, very diverse with different interests here and there and we must be able to accommodate all these various interests. So far, I think the NASS has not performed very poorly in this exercise but I am concerned about the cost of routine reviews. So I will suggest that we should perhaps give some period of time because we cannot be doing this almost every Assembly. We can do it every second Assembly, or every third Assembly so that all these thoughts can eventually be accommodated and aggregated.
Let me just add and this will also require constitutional alteration. I think that it is important that the people should be brought into the picture as far as constitutional reforms are concerned because currently the people only participate through their representatives and I don’t think it is consistent with the norms of constitutional review.
There has to be a system of referendum whereby after every exercise has been done, you can now subject it to a referendum of the people so that they will be able to have a buy-in. Currently, the people feel alienated from the whole process. No matter how you try to organise public engagements, it can never be the same as when you ask the people to vote on constitutional review proposals instead of just asking the president to assent which will depend on his wishes and interests.
Emergence of new association for lawyers
The constitution is clear that there is freedom of association and the Nigerian Bar Assocation, NBA is an association. So anybody can go and form a new body of lawyers and call it by whatever name but the NBA is a special body for the reason that it has constitutional recognition. It has statutory recognition as well so those other bodies will have to also fight hard to be given such recognition and that will be an uphill task.
If you look at the Constitution of Nigeria, the NBA is mentioned, the NBA has a representative in the NJC. The NBA is not created by government but yet it has representative there, it has representation in the Council of Legal Education, it has representation in many other statutory bodies so if they register themselves, they will see how they can struggle to get to where NBA is. I wish them well but I will be very surprised if they can go ahead because the NBA has a lot of history and strong pedigree. I believe in the constitutional process so if the Constitution says they have freedom of association, so be it.
DIA arrest of journalists
It is not tolerable for the military to do that. It can never be tolerated at all. The military must abide by the law of this country. It cannot be a law to itself. You cannot subject any civilian to military law. It is not done so if there is any episode that requires the security to intervene, the military has no role to play. You can’t be in a democracy and then you compromise the tenets of democracy no matter the circumstances.
State of courts across the country
It is a problem of funding and the challenge of judicial independence that has suffered for many years but thank God part of the things that 9th Assembly did was to clarify what the 8th Assembly did by ensuring that the judiciary has financial independence. We have new provisions which clearly indicate that the funds of the judiciary will now go directly to heads of courts so that there is no longer the case where you have to get executive approval before you can commit funds meant for the judiciary for their use. It is still a relatively young constitutional intervention. Many states have not fully activated the process that is why citizens must also stand up to be counted.
Any report ought to dig deep into these statutory reforms and see why they are not working because in the 8th Assembly, when the Constitution was altered and the judiciary of the states and the federal was granted autonomy, no action was taken until President Buhari decided to pass an executive order in which he tried to specify what should be done so as to give effect to the constitutional provisions.
What the 9th Assembly did was to take up the gauntlet to now try giving more specific energy to the intention to make the judiciary actually autonomous. So I expect that the media should now join in the chorus to see that these things are given effect instead of people being emotional. For instance, recently in Rivers State, the Assembly there tried to pass a new law which will give effect to this constitutional provision and the governor did not sign. I was embarrassed when I started seeing opinions supporting the governor for standing up to the Assembly when in fact the action of the Assembly was to ensure that the constitutional provisions are given effect to. So sometimes we are unable to differentiate between our emotion and the constitutional letter. So all those things in terms of the poor infrastructure of the courts is as a result of the financial emasculation of the judiciary at the state level especially.
Exploitation of the Cyber Crime Act
The cyber crime Act is subordinate to the Constitution. The Constitution guarantees every citizen of this country freedom of expression. It also says that there shall be no derogation from freedom except in a manner that is acceptable in a democratic society. So if there is anything that is suggested in the Cyber Crime Act that the constitutional guarantee of the freedom of expression is being compromised, then you should be able to seek protection in the Constitution that guarantees freedom of expression which is superior to any law. Anybody who considers himself to be a victim should get a solicitor to do the necessary thing which could be suing and seeking damages and if the police is involved, there is the Police Service Commission (PSC) which is the external oversight of the police which you can lodge complaints to about the police.
The way out of kidnappings across the country
It has been lingering for many years and I think that the core problem really is that we are still caught in paralysis as far as organizing our police system is concerned. I think by now we should be tired of talking back and forth about policing. There is no doubt that we are under-policed in this country. Apart from the fact that we don’t have enough Police officers, we also do not have a properly organized Police system. We can’t have a Police system that is run from top down.
There is nowhere in the world that it is done that way, not even in the unitary system. If you go to the UK which is a classical example of a unitary system, every Police in every province is independent. The metropolitan Police in London will not direct the Police in Glasgow on what to do. It is like that in other places so we need to be able to have a police system where we will operate in such a way that there will be command independence at the community level, state level and even at the national level. They can work in collaboration. Currently our Police are not properly organized. We need to reorganize our police. There is a call for decentralization which is needed. Only about 300,000 policemen policing over 200 million people, the system needs to be decentralized.
Resolution of communal conflicts to avoid the Okuama experience
For me, the matter is on-going, investigations are on so it will be difficult for anybody to comment on such specific issues but I will say generally that it is very sad that people who have signed to defend the country will be treated that way. My appeal is that the government should take every step in line with the law to bring those who perpetrated that crime to book but we must not violate the law why trying to bring lawless people to book. That will be uncivilized and barbaric and will be unacceptable.
Assessment of the President Tinubu administration
The government is relatively young, less than a year in office but the government has done very well. It will be difficult to give any holistic evaluation of the performance but what we can see and those who are experts in the area will tell you that some things have been done rightly. I am happy that President Tinubu has always said that he has no cause to complain because he asked for the job and he must do the job. But I think there are two problems which seems to be defying solution.
The first one is the problem of stabilizing our foreign exchange and the second problem is insecurity which has been a major challenge. I call on the President now to give effect to some of the things he said during his campaign like recruiting more people into the security agencies. He should employ more people into the army, they can be short service terms. It is done elsewhere like in India, it could be five years six years short service within which period they will be trained on skills and all that and they can involved in all kind of things like in emergencies.
