Nigeria’s Legal System And Its Challenges

0
8198

The 2015 annual conference/lecture of the St. Paul’s Cathedral, Diobu, Port Harcourt which held recently focused on how the Nigerian legal system can be a source of hope and truly to the common man. It was centered on the menace of justice, corruption and continued dependence of the system on government.
Eminent legal luminaries as well as clergies and laities delivered lectures and speeches at the event which also marked the remembrance of the first African Anglican Bishop, Ajayi Crowther.
Among those who delivered lectures at the auspicious occasion were Sir Granville I. Abibo, SAN; Barrister Rosemary Inko-Dokubo, Barrister Florence Haminala represented by Barrister D. Dan-Jumbo, Ven. Chimela Samuel, Most Rev. (Dr) Ignatius C. O. Kattey and the Cathedral Archdeacon, Ven. John C. Adubasim.
Infact, for the church to draw a progressive analogy of the Nigerian Legal System clearly shows that there is indeed a problem. And for the St. Paul’s Cathedral to have chosen to focus this year’s event on Nigeria’s legal system means that the government needs to take an aggressive look into the system.
Sir Granville Abibo, a Senior Advocate of Nigeria (SAN) in his paper titled “The Nigerian Legal System and Endemic Corruption” said eradicating corruption completely may be a herculean task but could be achieved if a legal system that adheres to high standards of independence, impartiality, integrity and accountability is put in place. He noted that it is the direct duty of the judiciary to direct society to the attainment of truth and justice but that path of justice and truth is shrewn with the hydra-headed problems of corruption and the interference of the government of the day in the judicial system of the country.
The SAN insisted that the troubling legacies of corruption, executive control and manipulation of the judiciary continued to undermine the ability of the courts to effectively secure truth and justice. “These legacies create major obstacles to a fair trial in Nigeria. To this end, honest and impartial decision making, which is vital to the credibility of the judiciary, is relatively on the decline.”
He identified the attitude of politicians who pay lip service to the independence of the judiciary so that it cannot play its constitutional role effectively as another obstacle to the attainment of truth and justice in Nigeria. Citing Section 17(2) (e) of the Constitution which provides that the independence, impartiality and integrity of the courts of law and easy accessibility thereto shall be secured and maintained. Section 121(3) of the constitution, he added, provides that “any amount standing to the credit of the judiciary in the consolidated revenue fund of the state shall be paid directly to the heads of courts concerned.” These provisions have been complied with more in the breach.
Only recently, these provisions which received judicial pronouncement resulted in strike actions in various states in the country and it is still continuing in some states. The judiciary in Nigeria has not attained the independence required to enable it achieve justice and truth with inhibitions. It is still seen as under the appendage or apron string of the executive.
The manner of appointments of judges and magistrates as well as the absence of financial autonomy in the true sense of it have raise the recurring question as to whether the independence of the judiciary is a myth or reality, and whether the constitutional provisions which guarantee the independence of the judiciary is no more than a slogan in Nigeria.
These problems, according to Sir Abibo, have made it difficult, if not almost impossible, for citizens to realize the constitutional guarantee of justice which the judiciary ought to protect. As hydra-headed as the corruption malaise may be, with an independent and incorruptible judiciary, justice and truth can still be achieved because as he put it, “where there is a will, there can be a way.” As a matter of fact, corruption which is in all facets of our society and in our daily lives is a major obstacle to the attainment of justice and truth in any given legal system just as it is unavoidable a global and social phenomenon.
In the Nigerian legal system, the menace of corruption has engulfed our governance to a large extent. The legal system of this nation can be propelled to ultimately achieve justice and truth when things that can make the system function optimally are put in place. Sustained judicial reforms as is on-going presently in Ghana and the weeding of corrupt judges and magistrates from the courts will pave way to attainment of justice and truth as it is said that “a corrupt judge in society is worse than an armed robber.”
In her paper still on the Nigerian Legal System, Barrister Rosemary Inko-Dokubo disclosed that the Nigerian legal system is based on the English Common Law and legal tradition by virtue of colonization and the attendant incidence of reception of English law through the process of legal transplant. The English law, she said, has a tremendous influence on the Nigerian law, citing section 45(1) of the Interpretation Act which provides that the common law of England and the doctrines of equity and the statutes of general application which were in force in England on January 1, 1900 are applicable in Nigeria, only in so far as local jurisdiction and circumstances shall permit.
She defined corruption as the abuse of bestowed power or position to acquire a personal benefit, pointing out that corruption may include many activities including bribery and embezzlement of funds. Government or political corruption occurs when an office holder or other governmental employee acts in an official capacity for personal gain.
Quoting an economist, Ian Senior, corruption is an action to secretly provide a good or a service to a third party so that he or she can influence certain actions which benefit the corrupt agent has authority. Daniel Kaufmann of the World Bank expanded the concept to include ‘legal corruption’ in which power is abused within the confines of the law – as those with power often have the ability to make laws for their protection.
In Nigerian constitution, this is called the immunity clause.
Barrister Inko-Dokubo classified corruption as petty, grand and judicial corruption. Petty corruption occurs at a small scale and takes place at the implementation end of public services when public officials meet the public; for example, the exchange of small improper gifts or use of personal connections to obtain favour. Grand corruption is defined as occurring at the highest levels of government in a way that requires significant subversion of the political, legal and economic systems. Such corruption is commonly found in countries with authoritarian or dictatorial governments but also in those without adequate policing of corruption.
Judicial corruption refers to that related to misconduct of judges and magistrates through receiving or giving bribes, improper sentencing of convicted criminals, bias in the hearing and judgement of arguments and other such misconduct. Judicial corruption emanates from the system of appointment of judges where the governor or president of a state or country appoints and the judge will not have the will to refuse any request made to him by the governor or president. This is a matter of he who pays the piper dictates the tune.
In his keynote address, Bishop Ignatius Kattey described ‘legal’ as anything done according to the ‘law’, which takes different forms and issued by the legislature or common decisions from the courts. When a law is in a statutory form, it tends to be prescriptive and detailed as against the descriptive, which has to do with the law of nature. Prescriptive laws are civil and criminal law which is concerned with law as a system of rules that tends to order human behavior.
While criminal law deals with crimes or offences, which act through the police, court penal system and prosecutes and penalises offenders, the civil law governs the relation of persons to each other, provides solutions through compensation, enforcement and restraint. By Bishop Kattey’s interpretation or concept, the law, with respect to the legal system, is an institution that is established for the good of humanity. This, according to him, buttresses the fact that our legal system should be accorded respect as a hope not the last hope of the common man.
He quoted Robert Egbe as saying “our problem is actually the will power to implement the laws even as enacted. Enforcement is difficult and as long as we don’t enforce our laws, even if we make death the penalty for corruption, you will find out that the institutions will not even apply it.” Yisa Eneyramoh, a writer of law and society also argued that corruption in the judiciary cannot be wiped out until all hands are on deck. “Contrary to the much talked about corruption in the Nigerian judiciary, only 64 out of the 1,020 judges serving in the Supreme Court have so far been punished by the National Judicial Council (NJC) for various offences bordering on corruption between 2009 and 2014.”
According to Eneyramoh, “corruption in the judiciary cannot abate unless and until the Federal Government stops regarding such criminality as the family affair or a private matter for the judiciary.” Said Kattey: “As a church, we desire to play our role in harassing the integrity of the Nigerian Legal system rather than condemn this institution, and to derive and proactively add an inspiration to our members who work in this capacity; and to the nation at large that the Nigerian legal system can be a veritable tool to human and societal development. But this can only be made possible when we take a leap to promoting truth, justice and learning to adopt “the benefit of doubt syndrome.”
Barrister Florence Haminala said it is possible to deliver judgement against a case that involves the government but noted it was a dangerous decision unless the judge would be prepared to write his will. The society must rise up and condemn the ills in the country’s legal system, she stressed.
For the Nigerian legal system to function effectively and dispense justice and truth in the courts there is need for transparent appointment process for judges and magistrates, merit and competency, rather than ethnicity taking a centre stage, Care must be taken to appoint vibrant, competent persons of integrity and competent judicial officials to the bench. According to Charles Hungles: “An honest, high minded, able and fearless judge is the most valuable servant of democracy, for he illuminates justice as he interprets and applies the law.” Corrupt judges must be wiped out of the system.