Lawyers have called for consideration of character and reputation in appointment of judicial officers. They made the call during the justice sector summit organised by the Nigerian Bar Association and the Justice Research Institute; in collaboration with the National Judicial Council, the Konrad Adenauer Foundation, the United Nations Office on Drugs and Crime and the Justice Reform Project on 25th January 2022
According to the Chairman of the Summit Organizing Committee, Dr. Babatunde Ajibade, SAN, who doubled also as the Chairman of the Judiciary Committee of Nigerian Bar Association, lawyers also advocated for appointment of judges from the Bar. They called for accountability regarding funds allocated to the judiciary, remuneration of judges by federal government to avoid interference by state governments, and abolition of stay of proceedings.

The Summit was chaired by the Chief Justice of Nigeria, Honourable Justice Ibrahim Tanko Mohammed, JSC, ably represented by Honourable Justice John Inyang Okoro, JSC. His Excellency, the Vice-President of the Federal Republic of Nigeria, Prof. Yemi Osinbajo, SAN, GCON was in attendance as the special guest of honour amongst other distinguished guests.

The proceedings commenced with welcome addresses by both the NBA President and the Chief Justice of Nigeria, in which they both emphasised the uniqueness of the Summit, being the first of its kind to be organised in a collaboration between the Bar and the Bench and in which the three arms of government were represented.

 

The keynote address was followed by a plenary session moderated by Dr. Olisa Agbakoba, SAN a former President of the NBA, with Honourable Justice Amina Augie, JSC; the Attorney-General of the Federation, Mr. Abubakar Malami, SAN; the Chairman of the House of Representatives Judiciary Committee, Mr. Onofiok Luke; and the President of the NBA, Mr. Olumide Akpata as panelists.

Read the full communique below

Communique

Justice Sector Summit organised by the Nigerian Bar Association and the Justice Research Institute; in collaboration with the National Judicial Council, the Konrad Adenauer Foundation, the United Nations Office on Drugs and Crime and the Justice Reform Project on 25th January 2022

1. Background
1.1 An effective, fair, humane, accessible and accountable justice sector that enjoys the trust and confidence of citizens and businesses alike is indispensable for upholding the rule of law and is a critical building block for the socio-economic and political development of any nation.

1.2 Despite all the efforts of the Judiciary, the other arms of government, civil society and international development partners to work towards the establishment and maintenance of such a system in Nigeria, the Nigerian justice sector has continued to fall short of expectations.

1.3 The National Judicial Policy developed under the auspices of the National Judicial Council (“NJC”) in 2017 identified the lack of efficiency of the judicial appointments process; lack of transparency and accountability in the judicial process and the administration of justice; poor judicial performance; the courts’ lack of capacity to promote and protect the rule of law; delay in justice delivery; the perceived inability of the Judiciary to sustain its independence; the poor quality of judgments; and the inadequacy of resources needed for the Judiciary to provide efficient administration of justice, among others, to be the reasons for the public’s increasing lack of confidence in the Judiciary.

1.4 With this background, the Nigerian Bar Association (“NBA”) and the Justice Research Institute (“JRI”) in collaboration with the National Judicial Council (“NJC”), the Konrad Adenauer Foundation (“KAS”), the United Nations Office on Drugs and Crime (“UNODC”) and the Justice Reform Project (“JRP”) organised a Justice Sector Summit (“the Summit”) which took place on 25th January 2022 at the Shehu Musa Yar’Adua Center Abuja to examine these issues.

1.5 The Summit had as its theme “Devising Practical Solutions Towards Improved Performance, Enhanced Accountability and Independence in the Justice Sector”. As the theme suggests, the Summit was designed to prescribe practical and actionable solutions to the problems in the Nigerian Justice Sector.

1.6 The Summit focused on three specific areas namely: (i) Judicial Appointments/Selection: Current Practices & Challenges; (ii) Rethinking Judicial Administration: Budgeting; Funding; and Accountability; (iii) Accelerating the Speed of Justice Delivery: Accountability & Performance.

1.7 The Summit considered proposals and recommendations contained in a draft Working Paper commissioned by the UNODC and KAS on the “Selection and Appointment of Judges in Nigeria”; a report issued by Access to Justice titled “Making Judicial Appointments Reform Work”; recommendations the NBA had made to the NJC for amendments to its Guidelines for the Appointment of Judicial Officers; a Bill presented to the National Assembly by the NBA proposing amendments to the judicature provisions in the 1999 Constitution; as well as various proposals to eliminate delays in the justice delivery process.

2. Proceedings
2.1 The Summit was chaired by the Chief Justice of Nigeria, Honourable Justice Ibrahim Tanko Mohammed, JSC, ably represented by Honourable Justice John Inyang Okoro, JSC. His Excellency, the Vice-President of the Federal Republic of Nigeria, Prof. Yemi Osinbajo, SAN, GCON was in attendance as the special guest of honour. Other dignitaries and stakeholders present were the Honourable Attorney-General of the Federation, Mr. Abubakar Malami, SAN; the Speaker of the House of Representatives, Mr. Femi Gbajabiamila, ably represented by Hon. Onofiok Luke, Chairman of the House Committee on the Judiciary; three other Justices of the Supreme Court, including Honourable Justice Amina Augie, JSC who delivered the keynote address; the President of the National Industrial Court and several State Chief Judges, Grand Khadis and Attorneys-General. Also in attendance were two past Presidents of the Nigerian Bar Association, several Senior Advocates of Nigeria, Chairmen of NBA branches and members of the profession as well as representatives of each the collaborating organisations. The Summit was a hybrid event, and in addition to the more than [x] number who attended in person, it had more than [x] number attending virtually.

2.2 The proceedings commenced with welcome addresses by both the NBA President and the Chief Justice of Nigeria, in which they both emphasised the uniqueness of the Summit, being the first of its kind to be organised in a collaboration between the Bar and the Bench and in which the three arms of government were represented. This was followed by a keynote address delivered by Honourable Justice Amina Augie, JSC in which she emphasised the need for a frank and open discussion, no matter how painful, acknowledging that such discussions were a necessary impetus for effecting positive change.

2.3 The keynote address was followed by a plenary session moderated by Dr. Olisa Agbakoba, SAN a former President of the NBA, with Honourable Justice Amina Augie, JSC; the Attorney-General of the Federation, Mr. Abubakar Malami, SAN; the Chairman of the House of Representatives Judiciary Committee, Mr. Onofiok Luke; and the President of the NBA, Mr. Olumide Akpata as panelists. The panelists addressed the theme of the Summit and highlighted that:
(i) the process for the appointment, selection and promotion of judges in Nigeria was unduly opaque and needed to be strengthened;
(ii) the inadequacy of the budgeting and funding for the Judiciary could not be established as a fact, unless and until the Judiciary would account more transparently for the funds allocated to it;
(iii) dilatory tactics by members of the Bar was a major contributor to the problems of delay in the administration of justice; and
(iv) incidents of harassment of judicial officers by agencies of the Executive must cease.

2.4 The opening session ended with closing remarks from His Excellency, Prof. Yemi Osinbajo, SAN, GCON, Vice-President of the Federal Republic of Nigeria. The highlight of His Excellency’s remarks was his acknowledgement that the conditions of service for judicial officers in Nigeria were unacceptable. He specifically acknowledged that there was no justification for the wide disparity in the remuneration and emoluments earned by judicial officers relative to their counterparts in the other arms of government. He also acknowledged the importance of providing judicial officers with much needed security and assurance that they would be provided for, even after their tenure in office. As concerns the issue of selection and appointment of judges, he highlighted the level of scrutiny applied in other jurisdictions in the forms of examinations, in some case repeated interviews, public hearings, vetting, public scrutiny etc., all speaking to the importance and sensitivity of high judicial office.

3. Deliberations and Recommendations
3.1 The opening session was followed by three technical sessions addressing the three areas of focus identified for attention by the Summit with specific recommendations and proposals tabled for consideration.
Judicial Appointments/Selection: Current Practices & Challenges

3.2 The first technical session focused on the identified weaknesses in the current procedure for the selection, appointment and elevation of judicial officers using as its basis the material referred to in paragraph 1.7 above.

3.3 It was agreed that the rules and the process regulating the judicial selection, appointment and promotion system in the Nigerian justice sector are inadequate as they are not sufficiently transparent to instill trust in applicants, the profession at large and the public and do not appear to guarantee that the best candidates emerge successful.

3.4 It was agreed that the composition, structure and processes of the bodies entrusted with the responsibility for making judicial appointments and promotions could be perceived as concentrating too much authority in the Chief Justice of Nigeria as the Chairman of both the Federal Judicial Service Commission (“FJSC”) and the NJC, as well as in the Chief Judges of the States as Chairpersons of the State Judicial Service Commissions and in other Heads of Courts, as the sole authorities responsible for generating the shortlist of applicants that would be sent to the FJSC and the NJC.

3.5 It was agreed that there was no clarity as to the criteria to be applied for the appointment or elevation of Justices to the appellate courts.

3.6 It was agreed that these weaknesses undermine the independence of the Judiciary by making judicial appointments susceptible to judicial as well as political influence.

3.7 The Summit arrived at the following resolutions and recommendations:
(i) Consider measures to make the judicial selection, appointment and promotion system more transparent, including by a rigorous adherence to the provisions of the current rules stipulating the requirements for publication of vacancies.
(ii) The most important criteria in the appointment of judicial officers is their character and reputation, and that this could only be ascertained by giving wide publicity to the names and identities of those seeking appointment as judicial officers and providing ample time and opportunity for members of the legal profession and society to comment on their character and reputation and suitability for high judicial office.
(iii) The current practice by which certain States and appointing authorities in the exercise of their discretion, administer written tests and oral interviews to ascertain the proficiency of applicants for appointment to judicial office to determine their knowledge of law and their experience with the practice and procedure of the courts to which they seek to be appointed, should be standardised and made mandatory.
(iv) The conduct of these tests should be conducted by a central body, possibly the National Judicial Institute (“NJI”) and structured in such a manner as to insulate it from the possibility of being subverted.
(v) The interview process for applicants who scale through the proficiency tests should not be perfunctory, but should be robust and be designed to enable a thorough review of the applicant’s character and reputation and of any adverse comments that may have been received in relation to the applicant’s suitability for appointment.
(vi) The provisions of the current rules, which anticipate that the pool from which appointments are to be made to the appellate courts would include persons other than serving judicial officers should be adhered to and that consideration should be given to establishing a fixed quota of such appointments from other sectors of the legal profession.
(vii) The elevation of serving judicial officers to the appellate courts should be based on objective criteria, the most important of which should be the quality of their judgments in their existing court, followed by their character and reputation.

Rethinking Judicial Administration: Budgeting; Funding; and Accountability
3.8 The second technical session focused on the challenges with administration, budgeting and funding for the Judiciary. It had been a generally accepted fact that the justice sector in Nigeria is underfunded. Whilst this session did not disprove this generally accepted fact, it threw up interesting issues related to the administration of the Judiciary that need to be addressed as a corollary and precursor to addressing the underfunding of the Judiciary.

3.9 The primary issue raised by the session in this regard was foreshadowed by the comments made by the Honourable Attorney-General of the Federation and the Chairman of the House of Representatives Committee on the Judiciary in the opening plenary session. Both these representatives of the two other arms of government made the point that the underfunding of the Judiciary could only be established as a fact, if the Judiciary was willing to open its books and finances to budgetary scrutiny. It was asserted that this had not been the case hitherto.

3.10 In its proposals for amendments to the judicature provisions in the 1999 Constitution, the NBA had proposed the creation of new bodies at the Federal and State levels to take responsibility for the administration, budgeting and funding of the courts, thus separating the administration of the courts from the administration of justice. The NBA asserted that these proposals would address the questions of appropriate budgeting for the Judiciary whilst also ensuring accountability for the funds allocated.

3.11 The proposals were the subject of vigorous debate in which it was pointed out that the composition of the proposed bodies could further undermine the independence of the Judiciary as the headship and composition is weighted in favour of the Executive. It was also noted that the creation of these additional bodies could potentially increase the costs of governance.

3.12 However, the problem of inadequate funding coupled with insufficient accountability on the part of heads of courts at all levels for the management and prioritisation of the funds allocated was accepted as a given.

3.13 The lack of clarity in the constitutional provisions relating to the source of and responsibility for funding the State and Federal judiciaries was also discussed and debated, without prejudice to the outcome of ongoing litigation concerning this issue.

3.14 The Summit arrived at the following resolutions and recommendations:
(i) While there might be a need for increased funding for the Judiciary, the basis for such need must be properly established and must be juxtaposed against the need for proper budgeting and full accountability with a responsibility on the Judiciary to account for any and all funds allocated to it, as is expected of all other arms of government.
(ii) There is a need to strengthen the administration of the Judiciary by engaging professionals with the appropriate training and capacity for the management and administration of complex business organisations, while allowing judicial officers to focus on their primary responsibility of dispensing justice.
(iii) The objective of professionalising the administration of the courts must be carried out in such a manner that it addresses the legitimate concerns in relation to the accountability of the Judiciary for funds allocated to it inadequate budgetary skills and discipline and inappropriate prioritisation of needs; against the need to ensure that the independence of the Judiciary is not undermined or eroded.
(iv) This can be achieved by ensuring that professionals to be engaged with the appropriate training in management and administration of the courts report to the Judiciary, but are accountable to the government as a whole.
(v) The funding of the superior courts of record should remain the responsibility of the Federal Government in order to limit the risks of political interference by State Governments.

Accelerating the Speed of Justice Delivery: Accountability & Performance
3.15 The third and final technical session dwelt on the causes of delays in the Nigerian justice sector and proposals and steps that should be implemented to address this unfortunate phenomenon.

3.16 The discussions at the session acknowledged the patent connection between this issue and the two preceding issues. It was acknowledged that the speed of justice delivery is affected by the inadequate quality of judicial officers arising from a skewed judicial appointments process that is not merit-based. It was also acknowledged that poor administration, budgeting, prioritisation of the application of funds and funding of the Judiciary, has resulted in an inadequate number of judicial officers to deal with the work load. Moreover the poor remuneration and conditions of service in the Judiciary will not attract the type of talent required in sufficient numbers. The inadequate budgetary allocation further results in an inability to put the right type of infrastructure, technology, support staff, etc. in place to aid the efficient disposal of cases.

3.17 The discussions also centered on the dilatory conduct on the part of members of the Bar and Bench who fail to realise that society has a right to demand and expect swift and efficient judicial services that resolve the substance of the disputes that are submitted for determination rather than one that dwells on technicalities and procedural niceties.

3.18 The Summit arrived at the following resolutions and recommendations:
(i) It approved the NBA’s proposals to set up a comprehensive court monitoring scheme that would enable the profession determine with accuracy and generate statistics identifying the primary causes of delay in court proceedings and thus make remedial action more targeted and scientific. This would complement existing monitoring schemes such as the Administration of Criminal Justice Monitoring Committee created by the Administration of Criminal Justice Act/Law and the Corruption and Financial Crimes Cases Trial Monitoring Committee (COTRIMCO) set up by the NJC.
(ii) It approved a shift of orientation that would require the Judiciary to exercise the power already provided to it in almost all the rules of court to award costs on a full indemnity basis to compensate parties who are the victim of lack of preparedness on the part of opposing counsel or litigants and to incentivise counsel to shun dilatory tactics.
(iii) It approved a shift of orientation that would require the Judiciary to use the case management powers already provided to it in almost all the rules of court to ensure that the admissibility of documents to be relied on at the hearing / trial of matters are dealt with either as a pre-hearing / pre-trial issue, or as a post-hearing / post-trial issue to be dealt with in closing submissions, so as to ensure speedy conclusion of matters.
(iv) It approved the proposal for the enactment of provisions that would abolish the right to stay proceedings in matters pending interlocutory appeals, except in very limited and narrowly drawn circumstances.
(v) It endorsed the NBA’s proposals for a constitutional amendment that would enable all the superior courts of coordinate jurisdiction created pursuant to section 6 of the Constitution to exercise a power of transfer to the appropriate court, whenever their subject matter jurisdiction is successfully challenged, rather than striking the matter out as well as a proposal restricting the right of appeal against such determination. Thus eliminating the phenomenon of lengthy litigation and appeals about which of the superior courts of record of coordinate jurisdiction is the appropriate court to hear a matter.
(vi) It endorsed the enhanced use of virtual hearings for the disposal of paper applications that do not involve oral witness evidence; the scheduling of cases for specific times and duration; and the elimination of the “court is not sitting” phenomenon to the barest minimum.

Dr. Babatunde Ajibade, SAN, FCIArb
Chairman, Judiciary Committee
Nigerian Bar Association
On behalf of all the Organisers, Justice Sector Summit, 2022