The question of whether or not the Nigerian judiciary is totally independent of the executive arm of government is one that has continued to generate various interpretations. In an interview with BRIDGET CHIEDU ONOCHIE, a Port Harcourt-based lawyer, MR. FESTUS OGUCHE, appraisal of the operational relationship between the executive and the judiciary and concluded that while there were positive innovations in recent times, judicial independence is definitely not part of it. He also gave further insight into various issues affecting that organ of government.

The CJN recently boasted that the judiciary has achieved independence. In your view, how correct is this, considering the role of the executive in the appointment of judges?

We have gotten to a point in our national life that we must shun politics and address issues as they are. There is no talk about judicial independence in our country in the midst of all the challenges and upheavals the system has been subjected to over the years. It is just not there. Suffice it to mention that the mere existence of the judicature as an arm of government under a doctrinaire constitutional power separation arrangement, does not give any guarantee of independence or autonomy to a system beyond the constitutional pronouncement. I agree that there has been gains and innovations here and there in the system in the course of the constitutional evolution of Nigeria, particularly in the areas of charging judicial funds to the consolidated revenue fund, the establishment of the National Judicial Council, the hierarchical organization of the courts, the judicial code and the criteria for appointment of judicial officers, but the independence or autonomy of the system as we can now see from its functional perspective remains merely cosmetic. Truth is that the loopholes created by the constitution that engender extraneous interference particularly from the executive and political elites still hold sway.

To my mind, there should not be any half measures in putting together the requisite framework that will guarantee the independence of the judiciary as a constitutional imperative. Such independence must be total and complete – in terms of funding, appointment, and discipline. These are pre-requisites to the existence of a judicial system rooted in fairness and objectivity, and this will inversely make for a more functional justice ambiance that can stand the test of time. The ideals for an independent judiciary as we all have seen is a ruse and remains elusive so long as the power of appointment, removal, and discipline of judicial officers reside in the executive. We have seen in more recent times the regular abuse of such power, and in some cases, like that of Rivers State where the judiciary was held under siege over the appointment of the C.J of the state, and the court’s shutdown for almost two years. Other instances abound. We see a clear invasion of judicial sanctity and desecration of its hallowed integrity by political elites and state actors by the hounding and arrest of judges and the manner of their treatments in circumstances that even the National Judicial Council was helpless. This cannot continue. I believe that considering our experience, the judiciary can be made a self-regulating and self-accounting body and I think that will create the appropriate air of independence that would enhance its performance.

Does it not surprise you that months after, NBA was faulting the process leading to the removal of former CJN, Justice Walter Onnoghen?

The removal of Justice Walter Onnoghen as the CJN is the highest point of executive interference and maneuver in the judicial system. For it is itself bizarre, as even though our law tells us that it is he who appoints that can remove, the Interpretation Act from whence the provision is derived is inferior to the constitution. The constitutional procedure for the removal of the CJN was not followed and we all know what happens when a constitutional provision is ignored or circumvented by its operators. But today, Onnoghen has been railroaded into retirement and a new CJN is sitting pretty, and still giving everybody an assurance of an independent judiciary. Unfortunately, at the time the controversy raged, the NBA appeared bewildered with the reality of the situation and could not then have a thorough handle on the situation. We all felt that way as well, and it is now that everybody is getting to realize that the incident actually happened and a post-mortem becomes necessary. I guess that is what the NBA is doing, having been jolted from its slumber by the shocks of reality.

The reason for this is not far-fetched. It was not envisaged even in the wildest of imaginations that such a situation could arise, and thus, the NBA was taken unawares and lost in the whirlpool of the controversy of Onnoghen’s removal. The NBA just like everybody is now faced with the dawn of reality and is doing what it ought to have done when the storm was raging. But then, the lesson here emphasizes the need for more vigilance by professional bodies on issues that threaten their immediate constituencies and integrity. In other words, the banner of professional activism must at all times be raised in the face of a challenge to professional nobility. Now a precedent that is unknown to our legal tradition is now established, and this post-CJN removal activism by the NBA may not thrive in any efficacy, but it becomes a veritable point for the records to be straightened. It is also a reminder that such brazen happenstance should not occur the next time, and even if does happen, it would not be tolerated as much as it was when it happened. It is a move by the NBA to remind itself that it still holds the aces in ensuring that the hallowed temple of justice is not further desecrated and our elites are reminded of the words of Professor Ronald Dworkin that judicial sanctity cannot for any reason be sacrificed on the altar of political expediency.

Aside from judicial independence, what other measures would you prescribe for a more enhanced judicial atmosphere and justice delivery system?

To have a viable and acceptable judicial ambiance that will provide and guarantee a justice delivery system that will meet the standards of justice and gain the respect and confidence of the populace in a 21st-century world entails much. Our judicial system in the past years happened to be one of the best with our judicial officers appointed into positions in some African countries and parts of West Indies with some attaining the highest judicial positions in those countries. So the problem is not really with the nature of our jurisprudence or legal tradition, having been derived from a noble civil and common law jurisdiction and colonial heritage.

For years, both the bar and the bench stoutly maintained the hedge around the judicature and ensured its protection from extraneous influences. There was little attempt then to influence the course of justice because the standards were quite high. Even, the military as much as possible maintained a respectful distance in its interactions with the judiciary, and the courts did not hesitate in calling them to order when they err or exceed their bounds even in the face of decrees laden with numerous ouster clauses. Judicial sanctity was preserved and the essence and purity of the stream of justice crystallized. Then there was no National Judicial Service Commission, but every judge understood and maintained an impressive level of decorum and candour in the dispensation of justice.

Today, that lofty esteem that was the lot of judges is no more, and public confidence in the system is drastically low. The hedge of protection has been broken by undue manipulations and interference by the executive arm and political elites. We have also seen severally, the failure of the NJC to meet up to its constitutional obligations which according to Wikipedia, is one of protecting the judiciary from the whims and caprices of the executive. Yes, we have seen that scenario in the Ayo Salami and the Walter Onnoghen cases where the executive engaged in arm-twisting techniques in shoving highly placed judicial officers aside and circumventing rules to have their way. Just the other day, a judge granted bail to Sowore in a circumstance, which I think was more than stringent. Being the prosecutor and a party in the proceedings, it does not lie on the federal government to determine the issue of bail and it cannot on its own whims impose connections for the grant or refusal of bail by a court of competent jurisdiction. We earnestly hope that the resolution of that issue will again not be another surprise from the NJC.

Over the years, particularly since this democracy, there have been attempts by successive governments to get the courts and NJC to kowtow to their positions, and they only obey orders of courts and abide by the rule of law when it suits their interests and purposes. The appalling thing is that this is happening in a democracy, where constitutional principles and the rule of law ordinarily should prevail. These are clear symptoms that things are not quite the way they should be, and there is serious imperative to overhaul the system through vigorous reforms.

What would be the proper antidote to this degeneration to curb these negative features in our system?

I will go straight to answer your question. The other day, the body of SANs made calls for the creation of constitutional courts to handle political cases, and allow the regular courts to handle the everyday civil and criminal cases. That is a call in the right direction, and that is how it obtains in many advanced systems, even common law jurisdictions. This is also the case for the creation of specialized courts both in common law and hybrid judicial systems.

For instance, you could have courts that deal with specific areas of law such as admiralty, cyber law, intellectual property, international human rights law, medical law, etc. No matter the depth of the knowledge of the judge and his versatility, he cannot be an expert in every area of law, and reliance on existing case law in arriving at judicial decisions may not in all circumstances meet the justice of every particular case. Thus, specialization in certain areas of law would enhance a judge’s performance in the overall interest of the justice delivery system. This is more so, considering the fact that most of the judges are trained in municipal law, and there are several areas of law that require a profound knowledge of comparative principles and jurisprudence. I had the encounter, some few years ago, of a judge stating in his decision that the rights under Chapter IV of the Constitution are the only rights that can be enforced as fundamental rights in our courts. Surprisingly, some other judges hold that view in spite of the impact of international human rights law on domestic legislation and the expanded scope and application of the UN Human Rights instruments and the African Charter, which is domesticated within the municipal system.

Again, the NJC must be imbued with extra-strength and viscosity to enable it to function in a manner devoid of fear or intimidation from many quarters, including the executive. We have seen that the body can succumb to executive bullying. That should not be. The constitution has imbued that body with the responsibility for the appointment and discipline of judicial officers. The only snag is that it can exercise its authority subject to the advice, recommendation, and approval of the executive. We are saying that the NJC be made subject to itself, the rule of law and the constitution. Then the mode of exercising its authority should go beyond the number of cases a judge disposes within a particular space of time, to the nitty-gritty and content of the judgments. Indeed, what is important here is not the number of judgments, but the quality of the decisions in terms of the extent to which they conform to the interests of law, particularly the principles and standards of justice. It is not that judicial discretion should be left entirely to the whims of the judge for even the law set the standards for the exercise of discretion, which in all cases must be judicial and judicious. The danger is that the exercise of discretion could turn to an unruly horse and create indiscretions and travesty if left entirely to the judge.

There are decisions of courts, which should not be matters of appeal, which the NJC can look into depending of course on the extent of their departure from standards. By so doing, the NJC would not be seen as usurping judicial functions, but acting constitutionally to curtail gross judicial error and deviations from the course of justice in fundamental areas and impose sanctions on such officers. The circumstances of each case would determine the extent to which a particular decision would be the subject matter of scrutiny by the NJC in the absence or prior to appeal. The criteria may be set by law.

There is also the need for a more comprehensive and exhaustive judicial code of ethics beyond the 10 paragraphs rules we currently have as to encapsulate within it some notable areas of errors, and indiscretions. The revised code of ethics for judges in China has 96 Articles. India has a code of 16 sections with each section containing several sub-sections touching on every aspect of the Articles contained in the Chinese code. Kenya has 17 sections and each section contains numerous sub-sections that touch on almost every aspect of judicial indiscretion.

Just like the Canadian code, a modern judicial code should include the statements, principles, and commentaries, which describe the very high standards towards which all judges strive, in accordance with the requirements of judicial independence and the standards of law. A judicial code should not just be made up of rules of dos and don’ts. There is also the need to look into the composition of the NJC, and consideration should focus on lessening the number of sitting judges on the membership and the inclusion of more individuals from professional bodies, NGO’s and other groups.

Is it true that the high cost of litigation charged by lawyers is partly responsible for the increase in impunity since most aggrieved persons cannot afford to pay for legal fees?

I will not impute the impunity to the cost of legal fees charged by lawyers. Impunity is a function of the combination of the failures in governance, decadence in societal values and the incompetence or weakness of democratic institutions. All these collaborate in the ambiance we find ourselves resulting in the crises of confidence in our judicial system. A lawyer must earn his fees and his charges are both regulated by law and rules governing his professional conduct. And outrageous charges are forbidden. The current economic situation in the country comes with its huge financial strains and deprivation, and this could account for the decline in enthusiasm by lawyers to engage in pro bono litigation.

But then, you also have to look at the high filing fees which are even more of a restricting factor than a lawyer’s professional fees. I agree with you that access to justice must not be curtailed by high litigation costs, but then, we must start somewhere to systematically lower these costs. There are provisions in almost all the state and federal courts that come in aid of indigent litigants, but I strongly doubt if they have availed any single indigent citizen.

By the time you calculate the high cost of legal education including every financial burden that makes one a lawyer plus the post-law education fees and court charges, then, you will have a good idea on the reason for the decline in pro bono cases and public interest advocacy and litigation.

I heard that in some states, letters of adjournments by lawyers are processed and payments made by them before they can be received and attended to. It is as bad as that. It is gravely wrong for government authorities to conceive the judicial system as an avenue for wealth generation. This could divert the focus from a system of which cardinal orientation is one for dispensation of justice, to one solely for the generation of state revenue. It distorts the whole essence and goal of justice for which the courts are created and enabled under the constitution.

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