REPORT OF COLLOQUIUM ON ACCESS TO JUSTICE AND THE RULE OF LAW HELD AT EXCELLENCE HOTEL, OGBA-AGUDA, IKEJA-LAGOS FROM 2^ND-5^TH NOV., 2000.

OPENING SESSION (3^RD NOV., 2000)

CHAIR: Dr. Jibrin Ibrahim

Speaker: Barrister James Okpara

Rapporteur: Mr. Otive Igbuzor

The programme started with a welcome address by the Convener, Citizen’s Forum for Constitutional Reform (C.F.C.R.), Dr. Jibrin Ibrahim. In his address, the Convener welcomed all participants to the colloquium. He noted that at inception, the forum identified seven critical areas as the main focus of its intervention in the constitution reform work. These areas are:

1. Citizenship and Residency Rights
2. Federalism (to address the over-concentration of powers at the center)
3. Engendering the language and content of the Nigerian constitution
4. Derivation Principles and Revenue Allocation
5. Constitutionally entrenched independent commissions
6. Freedom of Association and Political parties
7. Social and Economic Rights.

The Convener pointed out that after organizing colloquia on the seven critical areas, it became clear that there was the need to take on two more issues:

1. Access to Justice and the rule of law
2. The role of the security forces and security sector reforms.

 The Convener then introduced Prof. Bereket H. Selassie of University of North Carolina who is in Nigeria on the invitation of the Presidential Technical Committee on review of the 1999 constitution.

ACCESS TO JUSTICE –BY BARRISTER JAMES OKPARA

The constitution is the ground norm of a country. The constitution is an agreement or contract between the citizens of a country. If a person is not involved in the making of an agreement, he/she cannot be bound by the agreement. This is why it is crucial that the people be involved in the making of a constitution. It is therefore imperative that Nigerians be involved in the review of the 1999 constitution. In the final analysis, the draft copy of the constitution should be subjected to a referendum.

It is well established that countries which have well-entrenched and flourishing democracies have Judicial system that are free, strong, well motivated and unbiased. The Judicial systems in such countries are independent in every sense of the word and are well equipped to dispense justice to all and sundry without hindrance or prejudice.

It is the belief of citizens that justice shall be done as stated by their courts (which are creations of their constitutions) that strengthens their constitutions and democracy. The Judicial system of a country is the foundation or basis of the country’s constitution and ultimately, democracy. The judiciary is the custodian of constitutional governance and democracy.

The problems with our judicial system in Nigerian are almost entirely that of administration of justice. The constitution provides clearly that we are all equal before the law. Moreover, all our previous and present constitutions grant citizens of the country-unrestricted access to our courts where they can conduct their cases either by themselves or by a legal practitioner of their choice. The obstacles or impediments to a citizen’s access to justice in Nigeria include ignorance of the populace, poverty, corruption and bad or non-existent infrastructure for the administration of Justice.

The following ideas will lead to improvement  of the Judiciary in Nigeria:

·        The Judiciary must be made self-accounting.

·        A body of eminent persons and former jurists and legal practitioners of unimpeachable reputation should do the appointment, regulation and discipline of judicial officers.

·        Agencies such as the legal aid council must be statutorily well funded, manned and equipped.

·        There should be public enlightenment on the constitution.

·        Certain categories of judicial officers like Attorney General and Directors of Public and Civil prosecution should be elected.

DISCUSSION

In the discussion that followed the presentation, a number of issues were identified for in depth discussion.

The issues identified include the following:

1.      Composition, Tenure and Function of the National Judicial Council:- This issue was exhaustively discussed. After much deliberation, It was agreed that the  NJC should be retained. However, the powers to appoint and discipline judges and collect and distribute funds should be deleted. Rather, it should be perform broad policy formulation roles. It should be restricted to function as a parliament made up of both Federal and state judicial officers on the basis of equity.

2.      Funds- The judiciary at the federal level should draw their funds from the consolidated revenue fund. The funds should be managed directly by the judiciary. The approval of funds for the federal judiciary should be done by the National Assembly while that for the state judiciary should be done by the state Houses of Assembly. A mechanism should be put in place to ensure that disbursement is not dependent on the whims and caprices of the executive.

3.      Tenure of Chief Justice of Nigerian and State Chief Judges:- They should be elected by their peers for a single term of 5 years without the possibility of renewal.

4.      Age of retirement:- 7o years applicable to both federal and state judicial officers.

5.      Self-accounting- The judiciary should prepare its budget, defend it and the fund released directly to it. The executive shall release all funds to the judiciary as approved by the legislature.

6.      Separation of Attorney General and Minister of Justice:- Prof. B. Selassie and Mr. Sonny Onyegbula to make a proposal.

7.      Domestication of Treaties:- Section 12 of the 199 constitution should not be amended i.e. International treaties should be passed by the National Assembly in order to domesticate them.

                                        4^TH NOVEMBER, 2000.

There was a recap of the previous day’s proceedings after which participants broke into two groups.

Group One: Constitutional amendments including the role of government and the civil society.

Group two: Mechanisms for improving access to justice and the rule of law including the role of government and civil society.

GROUP ONE REPORT

The National Judicial council: Sections 20-22 of the third schedule, which prescribes the composition, and powers of the National Judicial Council (NJC) should be amended. Section 20 should be amended so that the council shall comprise the following members:

1.      Chief Justice of Nigeria (NJN) who is the chairman.

2.      One other justice of the Supreme Court who is elected by his colleagues.

3.      The president of the court of Appeal.

4.      One other Justice of the court of Appeal elected by his colleagues.

5.      All thirty-eight chief Justices in the country.

6.      One other judge from each of thirty-eight High courts elected by their colleagues.

7.      Three presidents of the Customary Courts of Appeal taking geographical spread into consideration elected by the presidents of the Customary Courts of Appeal.

8.      Three Grand Khadis of the Sharia Court of Appeal taking geographical spread into consideration elected by the Grand Khadis of the Sharia Court of Appeal.

9.      One NBA member nominated by the bar.

10.  Two retired judges appointed by the CJN

All members will have five years tenure. Meetings will be held every quarter.    

The deputy chairman will be elected by the body.

 Section 21 should be amended so that the powers of the council shall be:

            a. Advise the president and Governors on any matters pertaining to the judiciary as may be referred to the council by the president or the Governors.

            b. Appoint, dismiss and exercise disciplinary control over members and staff of the Council and disburse all monies, capital and recurrent, for the service of the council.

            c. Deal with all other matters relating to broad issues of policy and administration.

The Office of Attorney General and Minister  of Justice:

The office of the Attorney General and Minister of Justice should be separated. Below are the suggested functions of the AG and Minister of Justice.

FUNCTIONS OF THE AG

The office of the AG should handle all criminal matters. Such functions should include prosecution of cases and supervision of the work of the DPP. In the performance of his/her function, the AG should be insulated from political pressures. As an officer of the law, his/her role is quasi-judicial and should therefore enjoy the requisite autonomy.

Note: We should compare the (new) South African constitution under which the AG is answerable to parliament with the UK practice. We should do this with a view to ensuring that the AG does not fall prey to political pressure.

Functions of the Minister of Justice:

The Minister of Justice should be responsible for policy matters. This may mean revision of existing laws and transfer of functions from another Ministry e.g. Ministry of Internal Affairs, which deals with internal security.

Whether matter of immigration and naturalization matters should also be handled by the Minister of Justice is debatable.

The Minister of Justice should also be responsible in matters of law reform and legal education and research.

As a member  of the government of the day, the Minister of Justice has a role, in many jurisdictions, in the recruitment of judges and other members of the judicial service. In some countries, he/she chairs the Judicial Service Commission and is responsible for the nomination of its members. This should not be emulated in Nigeria’s case. But the Minister should play some role in the process of recruitment in a consultative capacity and in terms of proving and receiving information and candidates for the membership of the Judicial Service Commission. But the Ministers should in no way intervene in the conduct of the JSC’S duties when it determines the entry into, progress within and exit from judicial service or in the discipline of judges.

Other Constitutional Amendments

The functions of recommending Judicial officers for appointment should be performed by the federal J.S.C or state J.S.C as the case may be and not the National Judicial Council. Consequently, the National Judicial Council in sections 231 (1), 231 (2), 231 (5), 238 (1), 238 (2) 238 (5), 250(1), 250 (2), 256 (1), 256 (2), 256 (5) 261 (1), 261 (3a&b), 266 (1), 266 (3a&b), 266 (5) should be replaced by the federal judicial service commission. In the same vein, the National Judicial Council in sections 271 (1), 271 (2) 271 (5), 276 (1), 276 (2) 276 (3a&b), 276 (5), 281 (1), 281(2), 281 (3a&b), 281 (5) should be replaced by the State Judicial Service Commission. Moreover, the federal high court is not well spread and will deny access to justice when it excludes the jurisdiction of the state high court in many areas.

Section 251 of the constitution dealing with jurisdiction of the federal high court should be amended. The phrase “Notwithstanding anything to the contrary contained in this constitution” in section 251 (1) should be deleted. Also section 251 (1)(d) (e) (f) (g) (j), (n), (o), (p), (q), (r), (s) and (x) should be deleted. These sections contain items such as operation of companies, bankruptcy and weight and measures that State High Courts should have co-ordinate jurisdiction. Also, sections 251 (1) (s) and 252 (2) should be deleted because they have been taken care of in section 251.

Sections 236 which gives power to the CJN to make rules for regulating the practice and procedure of the supreme court; section 248 which gives the president of the Court of Appeal the power to make rules for regulating the practice and procedure of the Court of Appeal; Section 254 which gives the Chief Judge of the Federal High Court the power to make rules for regulating the practice and procedure of the Federal High Court; Section 259 which gives the Chief Judge of the High Court of the FCT Abuja the power to make rules for regulating the practice and procedure of the High court of the FCT, Abuja;  Section 264 (Grand Kadi of the Sharia Court of Appeal), Section 269 (president of the customary Court of Appeal), Section 274 (Chief judge of a state) Section 279 (Grand Kadi of the Sharia Court of Appeal of a state) Section 284 (president, Customary Court of Appeal of the state) should be amended. The rules for regulating the practice and procedure of the Courts shall be in accordance with enabling laws.

Section 291 should be amended to read any judicial officer appointed to the courts under this constitution should cease to hold office when he attains the age of seventy years. Sections 291 subsection 2-4 should be deleted.

Section 285 dealing with election petition should be deleted. Election petition issues should be addressed in the electoral law.

Role of Government-

·        Government should ensure that the presidential Technical Committee and the National Assembly pursue a process led participatory approach to the constitution review.

·        Government should involve civil society organizations in the process.

·        Government should subject the draft constitution to a referendum before final approval.

Role of Civil Society-

·        Submit a memorandum to the National Assembly Committee

·        Produce a model constitution that can be used for advocacy.

GROUP TWO REPORT

HOW TO IMPROVE ACCESS TO JUSTICE AND RULE OF LAW

1.      Financial autonomy

2.      Judicial service, distinct from the civil service commission

3.      Improvement in law related civic education in which the NGOs would be financed by the government to undertake.

4.      Integrity and other good qualities should be considered in the appointment of judges.

5.      Good remuneration for judicial officers and their staff.

6.      The government should implement the already agreed condition of service for judicial officers.

7.      Appointment into the Judiciary should be open and transparent.

8.      The legal aid council should be properly funded and staffed by competent people to increase access to justice by indigent members of the public.

9.      Taking cases to the court should be made less cumbersome and less expensive. The Indian example is appropriate here.

10.  The government and civil society should try and encourage mediation as a way of resolving conflicts rather than going to court.

11.  The prisons should be made more habitable. The basic necessities of life should be provided to people in incarceration to ensure that their fundamental rights are protected.

12.  A case for the inclusion of the constitutional court which should be the highest court in the land on constitutional matters.

How can we improve access to Justice?

a.         If the judicial system is strengthened and made self accounting where they have the right to determine what they want to do without interference from the executive and the legislature. There should be an in built guarantee to ensure that the judiciary gets its allocation.

b.                  For the rule of law to prevail, there has to be self-accounting.

c.                   The judiciary must start building its own service structure.

d.                  There should be a separate arm of service called the judicial service just like we have the Civil service and Local Government service.

e.                   There should be law-related education in the school system. Legal education should be taken to the people. There should be a national Commission for Civic Education.

f.                    The lower bench should be separated from the higher bench. It should not be automatic for magistrates to be made judges.

g.                   There should be consistent advocacy on the judiciary.

What can the Government Do?

·        Make the Judiciary self accounting

·        Provide conducive atmosphere for the proper functioning of the judiciary

In the discussion that followed, it was agreed that there was the need to do more research on the separation of the office of the Attorney General and Minister of Justice, and the role of the Constitutional court.