The Constitution Alteration Bill, proposes far-reaching alterations to the way Nigeria’s judicial system is organized. The Bill includes important changes to the jurisdiction (and system) of appellate courts by creating a new Federal Court of Appeal as well as a new Court of Appeal for each State, and limiting the Supreme Court’s appellate jurisdiction to appeals from the Federal Court of Appeal. The Bill further limits the scope of what appeals can be taken to appellate Courts as of right, and gives appellate courts the right to reject an appeal after only having reviewed the record of proceedings and in the absence of formal hearing. With exceptions made for mostly constitutional (including fundamental rights) election, and political tenure matters, the Federal Court of Appeal will now be the final court of appeal for a host of cases.
The Bill increases the number of Justices who must sit on a panel from the current 5 to 9. It makes proposals to facilitate the speedy adjudication of cases on appeal, requiring that cases be heard and determined within 180 days (6 months). Additionally, the Bill makes novel provisions regarding the composition of appellate courts, requiring, in the case of the Supreme Court, at least 3 of its number to be selected from the Bar – 2 Senior Advocates of Nigeria and one Constitutional law professor.
The changes advanced by the Bill are extensive and touch on some of the critical problems in the delivery of justice and the state of the Judiciary. This Statement does not address all the proposed changes.
Proposals to Increase Timeliness in the Determination of Appeals
In seeking to reduce the length of time taken to adjudicate cases on appeal, the Bill requires that the hearing of cases by the Supreme Court and other Courts of Appeal be concluded within 180 days from the time the records of appeal in those cases are transmitted to the appellate court.
While the idea of constitutionalizing time standards to adjudicate cases may seem attractive, it may ultimately represent a facile, unproductive intervention that largely ignores the complexities, realties, and nuances of the problem of court delays. The challenges of trial delays are rooted, to a great extent, in the way the justice delivery system is modeled and functions; the system is laid-back, manual, wastefully expensive, unresponsive and lacks accountability. It needs to be re-hauled, requiring, particularly, to be transitioned to a more 21st century format, incorporating a range of digital tools and procedures that can deliver cheaper, speedier and more qualitative justice. There is a lot of work that will be involved to achieve this, but legislation will not likely move the needle forward if all it does is to paper over the cracks.
A2J ustice is a non-profit, non-governmental organization working to promote integrity, transparency, accountability and independence in legal and judicial institutions and to protect the rights of individuals and groups to justice. A2Justice is the 2009 recipient of MacArthur Foundation’s Award for Creative and Effective Institutions and also the 2010 recipient of the first- ever Nigerian Bar Association’s Gani Fawehinmi Award for Human Rights and Social Justice.
And this can be demonstrated by examining how other legislated time standards have worked. The Constitution (sec. 294) currently prescribes time limits requiring courts to deliver their judgments within 90 days after a trial has been concluded, and obligates courts to provide parties with copies of judgments within 7 days after delivery of the verdicts. Many courts systematically flout these constitutionally binding obligations. On the limits set for delivering judgments after a trial, many Judges simply order parties or their counsel to re-adopt their briefs after the 90-day period has elapsed, giving the impression that the judgment was delivered in a way that meets the constitutional time standard. As for availing litigants copies of judgments within 7 days, this has also been difficult to comply with. Some other legislations – such as the Administration of Criminal Justice Act 2015 have prescribed time standards for undertaking certain trial processes. This also has not worked, and there is very little evidence that there is anyimprovement in the time taken to conclude criminal trials since the passage of that Act so that courts have virtually returned to “default mode” in criminal trials.
Judicial Appointments and Composition of Appellate Courts
The Bill proposes to expand the range of vocational backgrounds from which appellate justices can be selected, providing that the Supreme Court shall be composed of at least 3 Justices who need not have held prior judicial positions; for the Federal Court of Appeal, it proposes that at least 10 Justices – 5 SANs and 5 Professors – be appointed into the court.
The goal of diversifying the backgrounds of Appellate Justices is a lofty one, one unfortunately, that the Judiciary has ignored for such a long time now. However, the approach the Bill has taken, notwithstanding all of its good intentions, is not the most efficient.
Overall, the overarching goal, in terms of judicial recruitment, must be to ensure that (appellate) courts are manned by the ablest persons, Nigeria’s very best foot forward. Appellate courts, particularly the Supreme Court, are courts that mediate important questions of policy, governance, values, the role of law in varied social, political, economic and environmental contexts, and the rights of citizens. It is critical that those who have to answer these questions are persons who can do a lot more than provide a literal interpretation of a statute or engage in a “cut and dried” application of judicial precedent.
That is why reforms must go beyond the format of reserving slots for lawyers from other backgrounds. If we only follow that path, the changes the Bill seeks to introduce won’t make much difference in terms of outcomes, given the very limited numeric weight of the “reserved slots” on the overall sizes of the appellate courts. For the Supreme Court, the “reserved slots” make up only between 14-17% of the courts total size, and for the proposed Federal Court of Appeal, that’s even less. About 10%.
A much better approach, we contend, is to provide a constitutional framework outlining the key principles that must be applied in appointing judicial officers of all courts. The Bill should provide that judicial appointments, – from the High Court to the Supreme Court – shall be on merit, and that procedures to achieve this must be transparent, independent and based on principles of equality and accessibility. It should then establish the mechanisms to achieve this, including using independent institutions to supervise this process outside of the existing bodies. If this process works as it should, there will be no need to reserve specific slots for members of the Bar or academia, because everyone will have a fair and equal shot at the opportunities of holding judicial positions and the goal of selecting the most qualified persons will be within reach.
This is the approach taken by the National Judicial Council’s Guidelines on the appointment of superior court Judges. The 2014 Guidelines prioritize the criteria of “merit” and a “level playing field” for appointments into all “superior” judicial offices. If these criteria are fairly and consistently applied in judicial recruitments, they will produce stronger results than this Bill seeks to do. The problem is, the Judiciary has nearly always sabotaged and sidelined the Guidelines every time it has had to fill judicial vacancies.
What the Bill can do then, is to strengthen the force of these principles by constitutionalizing their application in making judicial appointments. The Bill could then promote diversity by providing for the deliberate inclusion of under-represented constituencies where the merits are matched. Women, for example alongside persons with disabilities that do not affect their fitness for office should be included in this list. We can, in fact, adopt the position that the Judicial Appointments
Commission of the United Kingdom has taken in these matters, being that: “Where two or more candidates in a selection exercise are judged as being of equal merit, we can give priority to one or more candidates from underrepresented groups through our equal merit approach”.
Reform of Judiciary Must Address Questions of Judicial Accountability
There are important gaps in the justice delivery system that a Bill of this nature ought to close but has not offered to. One of them is the lack of judicial accountability. It should not fall to the legislature to resolve the internal and unique problems around the delivery of justice, except the Judiciary feels that legislative intervention is needed. This is what the independence of the Judiciary should mean. Unfortunately, the Judiciary has not done much itself to improve the overall quality of the delivery of justice and public confidence still remains low in institutions of justice. Why should the Judiciary not be more accountable for ensuring that Nigeria operates a credible, dependable, efficient and fair system of justice? A bill of this nature should resolve to ask more from the Judiciary, about what it has done with its autonomy. For we believe that an institution that is created to hold individuals and other branches of government accountable for their actions, must itself offer some accountability to the people it serves.
Access to Justice urges the promoters of the Bill to revisit it again, and require from the Judiciary, a stronger share of the responsibility – and accountability – for resolving many of the issues raised in the Bill. If the Judiciary fails to do so, there are possible interventions that can be explored. Removing matters of judicial administration – and even appointments – from the hands of the Judiciary, and placing them in the care of professional administrators, as is done in some countries, might just be an example of what can be explored. But as for the Bill’s proposals for heavy “judicial restructuring” Access to Justice is not sure we are at the point where that hammer is called for, assuming it can even solve the problems being addressed.
Joseph Otteh ‘Deji Ajare
Convener, Access to Justice Project Director, Access to Justice