Time and The Judicial Process

An overhaul of the country’s judicial process is long overdue

Mr. Donald Trump has yet to spend one month in office as President of the United States of America. But within this period, concerned citizens and state attorney generals have taken him to court and won; the presidency has filed appeals and lost serially and, in a matter of days, these appeals have been determined and the outcomes implemented sometimes on the same day. It is indeed noteworthy that the Nineth Circuit Court of Appeals of three judges exchanged their arguments by phone and email and ended up with a unanimous well argued verdict. All of these processes took less than two weeks.

What the contest between President Trump and the judiciary over his chain of autocratic executive orders, especially the immigration ban, has revealed is the strength of American democracy. Underneath it all is the use of the judiciary to tame the dictatorial temptations of an elected president. Unfortunately, the opposite is the situation in Nigeria where individuals have overpowered the system such that justice is no longer for the weak.

Against the background that it also took the British Supreme Court a matter of days to rule on the power of parliament in the Brexit matter, the pertinent questions are: why is it that in Nigeria the judicial processes take ages and most often end up with some shameful array of commercial judgments, sometimes delivered long after the public has forgotten what the matter was about? Why can’t our system serve court notices by email instead of relying on colonial bailiffs to physically chase people around after the same bailiffs have informed the defendants to disappear? Why are lawyers allowed to file frivolous injunctions that are meant to upend justice?

Delay in the hearing of cases in Nigeria is largely caused by lawyers, judges and judicial staff. Our judges are ever ready to indulge and encourage lawyers to waste the precious time of the courts. This is despite the fact that the 2009 fundamental enforcement procedure rules have the most efficacious provisions for enforcing human rights in the world. The anachronistic doctrine of locus standi and statutes of limitations has been abolished while preliminary objections shall be argued together with the substantive matters. An application for the enforcement of fundamental rights shall be fixed for hearing within seven days (or less in case of extreme urgency) but our courts allow delay by bailiffs who may not serve the processes and lawyers who may ask for adjournments on frivolous grounds.

Under the Administration of Criminal Justice Act, 2015 the practice of staying proceedings in criminal trials has been abolished. Trials are to be conducted day by day and if adjournment has to be granted it shall not be more than 14 days. But senior lawyers have now developed the illegal practice of subjecting witnesses to unending cross-examinations lasting several days. Clearly, the trouble with our judiciary does not end with ‘Ghana must go’ judges. It entails a total systemic overhaul which is a political action. But who will carry this out except the same politicians who are often the initiators and beneficiaries of judicial delays?

Interestingly, the rules of procedure of our courts prescribe a more speedy process than what obtains in most jurisdictions including the United States. That is why the Supreme Court recently ensured that all pre-election disputes were determined before the Ondo State governorship election. However, the same court is yet to conclude similar cases in Abia and a few other states. Yet in time bound cases the apex court is empowered to announce a judgment and give reasons at a later date. Since election petition tribunals sit on Saturdays, there is nothing precluding regular courts from also hearing and determining urgent cases on Saturdays.

The delays in our judicial system are deliberate acts of individual lawyers and judges which of course is an extension of a national culture of tardiness and corruption in most spheres. For it to stop, there is need to restore integrity to the bar and the bench in Nigeria.