‘Government Must Publish Clear Policy Statement on Justice Sector Reform’

The Nigerian Judiciary is, sadly, the most neglected and most underfunded of the three arms of government. The crucial constitutional role this arm of government plays in the nation, is basically taken for granted and the least appreciated, despite the Judiciary being the stabilising factor in any constitutional democracy. Last week, the immediate past Attorney-General and Commissioner for Justice of Ekiti State, Olawale Fapohunda, SAN took up critical issues about the justice sector in a chat with Onikepo Braithwaite and Jude Igbanoi in an invigorating interview, discussing possible and workable solutions from his wealth of experience as an administration of justice sector reform guru 

The Judiciary has been a subject of public discussion this year, specifically as it relates to decisions from the superior courts in election matters. Some senior Lawyers have ben quite scathing in their assessment of the judiciary some describing the Supreme Court in unprintable words. Do you think these largely negative comments are justified?

I think it is a good development that there is public interest in the workings of the Judiciary. It is of course, important, if not necessary, that our citizens be well informed about the workings of the three arms of government.  Indeed, we cannot hope to sustain and strengthen our democracy if our citizens are in the dark about how the pillars of our democracy work. Having said this, it is also important that the public discussion about the Judiciary or indeed, any other institution of government, is not based on misinformation. If you ask me, much of the debate about the decisions on election petition matters have been based on misinformation. This misinformation is fuelled by a combination of limited public understanding about procedure and practice directions on election matters, as well as the inability of a sizeable number of our people to accept the outcome of the recently concluded elections, particularly the Presidential election. I shudder when I see or hear non-Lawyers debating court decisions in print and electronic media. By the way, Lawyers have also not helped matters. You may have noticed that when Lawyers are on the wining team they describe the Judiciary in flowery words, but once they lose, they chorus negative comments about the Judiciary. I think the unprofessional conduct of Lawyers, is where the problem lies. Our rules are very clear about what to do, when we do not agree with court decisions. Nowhere in those rules, to the best of my knowledge, are provisions for any form of media attack on the Judiciary, or in many cases, the person of the Judges or Justices, as the case may be. I think our colleagues should realise that, we owe the judicial system a duty of care. It is in our collective interest that we stop giving legitimacy to the ‘Judiciary mob’.  By all means, let’s hold the Judiciary accountable. But, surely, we can do this decently in manner prescribed by our rules, that affirms the ‘learned’  that we so proudly call each other. 

In your opinion, what justification is there, if any, for the conduct of Lawyers who have made unsalutary comments about the Judiciary  in the media space?

 I understand the general frustration about our inability to make progress on reforms in the Judiciary specifically, and the justice sector in general. We are all victims of this lack of progress. Every aspect of our justice system needs review, in fundamental ways. I also agree that we cannot achieve the justice system of our dreams, if we continue on this current path. I have said elsewhere that the challenge before us, is to take our justice system in a different direction. The current system is opaque, and is neither in the interest of the country nor justice sector stakeholders. 

However, in my view, the solution cannot be to throw away our professional standing and join the fray of name calling and in many cases, hurling insults. I am more interested in finding solutions. In any case, it is not as if some of us are also not part of the problem. It may be useful to identify the strands of these unsalutary comments, that have dominated public discussion. First, there is the category of those Lawyers who have turned the media into the weapon for attacking the Judiciary, especially on matters of election petitions. Secondly, there are those who frequently make allegations of Judges collecting bribes or other forms of misconduct. 

I think the first category of Lawyers may require continuous education, about the important role of the legal profession in safeguarding our legal system. They need to know that by their actions, they are undermining the justice system. We simply cannot have this. The political season will come and go, what is constant is the justice system. The second category of Lawyers, should be made to provide concrete evidence in support of their allegations. It is simply not enough to make allegations of the sort, that we have seen being made in recent times. These Lawyers should do the country a favour, and come forward with specific details including names. 

While we have a responsibility to rid the Judiciary of those who misconduct themselves, I think the legal profession also has a a greater responsibility to rid the profession of those who make unsubstantiated allegations against the Judiciary. Indeed, it is part of our professional calling to speak up and speak out against all forms of misconduct in the justice system. Allegations without evidence, will not cure the system.

You have been in the forefront of the advocacy for the upward review of judicial salaries and allowances, which has remained static for close to two decades. It has been a year since the NBA Committee which you are the Alternate Chairman, made a wide range of proposals to the Government/RMAFC. Your Committee proposed a 200% increase in their basic salaries across board, why has the Federal Government not responded appropriately up till now, as judicial officers are still on the same salary scale? It is common knowledge that Magistrates are even in a worse condition. 

To be honest, the advocacy for the review of judicial remuneration has been a long and tortious one. It is simply frustrating that successive governments at both levels, pay lip service to this issue of poor remuneration. Thankfully, the NBA President has made this issue a priority and has brought a much needed reinvigoration to the exercise. Yes, the NBA Committee on judicial remuneration, proposed an upward review of  200% of the basic salary  across board for all judicial officers. We also proposed several new allowances, in recognition of workload and lifestyle of judicial officers. For example, we proposed a Lifestyle Allowance in response to the limitations on the  lifestyle of judicial officers imposed by the Judicial Code of Conduct. By their code of conduct, Judges who are in need of loans can only borrow money from recognised financial institutions. They are prohibited from taking friendly loans or accepting gifts, including those of a monetary nature. Furthermore, Judicial Officers are encouraged to lead isolated lives with few friends and acquaintances. This has implications on the Judges’ support network. It is unethical for a serving Judge, to be involved in any business venture. A Judge therefore, is fully dependent on Government for sustenance. These limitations impose real financial burdens, not borne by other public officers. 

We continue to engage the National Judicial Council on these proposals, and I am confident that we are on the same page. We have had formal meetings with President Tinubu, and the leadership of the National Assembly. We have  met with the Attorney-General of the Federation, in the hope that he will adopt our proposals as that of the Federal Government. Our desire is that these efforts will be reflected in the 2024 Appropriations. This is why we presented a comprehensive briefing note on the subject-matter, to each member of the National Assembly. I am pleased to note that the right questions on judicial remuneration are being asked by members of the National Assembly, in the ongoing budget consideration process. We hope the National Assembly will go further, and enact the appropriate legislation that will lead to the upward review of judicial remuneration. 

Some of our proposals will require constitutional amendment. For example, in recognition of the independence and uniqueness of the Judiciary, we recommended  that Judicial officers  should be remunerated according to an independent salary scale to be known as the Judicial Service Pay Scale (JSPS). This will further enable judicial salaries to be subject to regular reviews, that are distinct from those carried out in respect of the civil service. In our view, this should  be achieved through a separate legislative scheme for salaries, allowances, conditions of service and retirement benefits for judicial officers. To achieve this in concrete terms, we proposed a ‘Judicial Office Holders Entitlements Bill’ to create a Judicial Office Holders Entitlements Panel, to replace the Revenue Mobilisation Allocation and Fiscal Commission as it relates to the Judiciary. We will continue to engage the Presidency and the National  Assembly. 

Our approach to the Magistracy and other lower courts, is different. We recognise that Magistrates suffer some of the worst conditions of judicial service. It is true that some progress has been made in some States and the FCT, on this issue. However, the picture across the States is not a pleasant one. Our Committee is currently putting together a facts and figures briefing note on the remuneration of lower courts, in aid of our discussion with State Governors.

Thank you for this clarification, but, I am sure that you are aware that some Lawyers have said that your Committee is only focused on judicial remuneration and not judicial accountability.  They mention for example, the issue of appointment of Judges, the need to reform the National Judicial Council, among others.

It is simply not true, that we have focused solely on judicial remuneration. Our position is that, there is no justification for judicial officers to be on the same salary for up to 20 years. This, in our respectful view, must be the starting point for any conversation on judicial reform. Judicial remuneration today is no longer at a respectful level in comparison to other public and political office holders. I know as a fact, speaking with several judicial officers, that  the  inability of successive governments to make progress on the issue of fair and reasonable judicial salaries has damaged the morale of the Judiciary. It should be said that the guarantee of a minimum reasonable pay package, is not meant for the benefit of the Judiciary. Rather, financial security is a means to the end of judicial independence, and is therefore, for the benefit of our country. 

There are a number of issues, which go hand in glove with our judicial remuneration agenda. You mentioned the issue of judicial appointments. Certainly, there is the need for an urgent review of how our Judges are appointed.  I am particularly concerned about the invisible wall that seems to have been placed in the path of  senior Lawyers in private practice, who aspire to sit on the Bench in the Supreme Court or Court of Appeal. These courts should be the place where our brightest and best sit. I cannot understand why deliberate effort is not being made to attract the best from the array of brilliant senior Lawyers from private legal practice. 

Our judicial reform agenda also includes a call on  the Chief Justice of Nigeria, to be more visible in administration of justice in the States. There is nothing wrong with the Chief Justice paying unscheduled spot visits to courts across Nigeria. This, is in addition to visits to Correctional Centres and other places of detention. We have also suggested that the Judiciary gives consideration to the publication of an annual report. This will assist justice sector stakeholders and indeed, citizens alike, to better understand the achievements and challenges facing the Judiciary . 

You said that the Chief Justice of Nigeria should visit State courts and places of detention. In your view, should the Chief Justice play any role in Police and Correctional Services reforms?

Absolutely, the Chief Justice should play a leading role, not just any role, in reforms that will lead to Police and Correctional Service reforms. The reason why we seem to have made limited progress with justice sector reform broadly, is that no one is leading the process. What we have had over the years is ad-hoc, disjointed and uncoordinated approach to reforms in the justice sector of which the Police and Correctional Services are important institutions. There has been a suggestion for the establishment of a National Council on Administration of Justice chaired by the Chief Justice of Nigeria, with the mandate to provide a platform for Government and non- government interests to meet, agree and implement concrete interventions that will lead to sustainable reforms of our justice system. In my respectful view, the Chief Justice should be leading reforms in the sector.

But, we have had developments in the areas of Police and Correctional Service reforms. The laws establishing both institutions have been improved in significant ways. Are you saying that law reform is not enough? 

Yes, I am saying that the reform of the Nigeria Police Force, for example, will require a wide range of reforms over and above enacting a new Police Act. It is obvious that despite the new Police legislation, public perception of corruption, impunity and failure to control the law and order situation continue to plague the Police Force. Few will disagree that the present challenge is how to reverse this perception and transform the Nigeria Police into a true public servant, capable of elevating the sense of security of Nigerians. All that needs to be done in the area of Police reform can be found in the reports of the several high level committees established by successive governments since 1999. Regrettably, the findings and recommendations from these initiatives have largely gone unimplemented. 

I thought that if there is one lesson to be taken away from our ‘#EndSARS’ experience, it is that Nigerians are considerably unhappy with the Police, especially its system of inquiring into complaints against Police abuse. Investigation of Police officers by their own is widely regarded as unjust, and understandably does not inspire public confidence. No Police accountability mechanism can be considered fair if it fails to inspire public confidence.  Among other recommendations, it has been suggested that President Tinubu considers appointing an independent Police ombudsman with strong authority to receive complaints from the public on matters of Police corruption, including delay in investigation of crimes, abuse of power and extra-judicial killings  

Concerning the Correctional Services like the Police, there has been a new legal framework. This by itself, has not achieved the desired reforms that will lead to better treatment of inmates and staff alike. The problem of the unacceptably high number of persons waiting endlessly for their trial, has not been solved.  I am a strong advocate of removing the Correctional Services from the oversight of the Ministry of Interior, and placing it in the Ministry of Justice. The reason for this is simple. The Ministry of Interior jointly supervises the Correctional Service and other paramilitary services like the Fire Service, The Immigration Service and the Civil Defence Corps. The duties of the Correctional Services are fundamentally different from that of the Fire Service,  Immigration and Civil Defence Corps. Therefore, a situation where they are treated in the same way and administered by one administrative body, will continue to militate against the efficiency and   effectiveness. 

The other issue is with the inspection of our Correctional Centres. I recall that as a Commissioner with the National Human Rights Commission, I was a Visitor to our Correctional Centres  under the Correctional Services Visitors scheme. I quickly realised that an important weakness of the Visitors regime, was that  there was no formal process for me to report on my findings, either to the management of the Correctional Services, the relevant Ministries, the National Assembly or the President. In addition, none of the external agencies or individuals identified for conducting visits can do so on a full time basis. This all meant that the process, while extremely useful and important, is relatively ad-hoc. There is also the knotty matter of improving the salaries and conditions of service, of the men and women who work in the Police and Correctional Centres.

Still talking about the Chief Justice of Nigeria, in the last quarter of the year, the baton at the Supreme Court will change hands. What are the main issues which you believe that the incoming Chief Justice should tackle first?

I think the mission as often stated by His Lordship, the Chief Justice of Nigeria, must continue to be the building of a judicial system which is efficient, independent, transparent, professional and accountable to Nigerians, one that ensures the rule of law and the observance of human rights and contributes to reclaiming the trust of Nigerians in the Justice system. Promoting and implementing the zero tolerance principle with respect to corruption within the justice system, as well as improving the justice delivery in a manner that contributes to the creation of a climate that is favourable for economic growth and job creation are important deliverables. 

Talking specifics, a first consideration should be to build on positive development in the judiciary in 2023. The most important, in my view, is the attainment of the full complement of Justices of the Supreme Court. It is noteworthy, that we have finally broken that jinx. The immediate issue now is how to make the numbers count. I am under no illusion that the full complement of the Supreme Court, will automatically result in a drastic reduction of the cases before the court. Making numbers count, must not be left to the Supreme Court. I am aware that one of the proposals being put forward by the Nigerian Bar Association  on the review of the Supreme Court Rules, is a provision that ensures that only cases of constitutional significance or that deal with life and liberty are heard in the Supreme Court, as of right. 

I agree that the time is right for the Chief Justice to be more visible in the administration of justice, specifically across the States. I look forward to that time when the Chief Justice will undertake unscheduled visits to State High Courts and lower courts, to get a first hand appreciation of how justice is being delivered across Nigeria. It would also be a thing of joy, to see the Chief Justice visiting Correctional Centres and other places of detention, with a view to ensuring that persons are not wrongfully detained. 

The office of the Chief Justice should be deliberate in enlightening Nigerians, that the Judiciary is not solely preoccupied with election petitions. That the fundamental human rights of Nigerians, including access to justice especially for the indigent, should be top on the priority concerns of the Judiciary.

You earlier spoke about a proposed National Council on the Administration of Justice to be Chaired by the Chief Justice of Nigeria. Can you provide more information on this? 

In broad terms, we are today struggling with enabling reforms in our justice system largely because of fragmented institutional structures and the resulting lack of co-ordination among the numerous levels of government and relevant justice institutions. The idea of a single forum in which the three arms of government, agencies with a justice sector mandates and civil society organisations, meet to discuss and agree on concrete interventions for the justice sector has long been proposed. The need to ensure the reinforcement of recent reforms in the justice sector and the prompt follow-up of outstanding reforms, requires an implementation and monitoring body. The proposed Council will provide high level policy making, implementation and oversight of interventions in the Justice Sector. Its membership should include State and Non-State Actors from the justice sector. Its mandate will be to ensure a coordinated, efficient, effective and consultative approach in the administration of justice and reform of the justice system.

Its deliverables will include ensuring that the independence of the Judiciary is fully respected; the Defendant’s right to a fair trial is respected; vulnerable individuals in the justice system, whether as Defendants or victims, are treated with full respect for their rights and granted adequate protection; and all Nigerians have equal access to the justice system. 

Administratively, the Council will, among others, formulate policies relating to the administration of justice; implement, monitor, evaluate and review strategies for the administration of justice; facilitate the establishment of Court Users Committees at the States level; and mobilise resources for purposes of the efficient administration of justice.

As we start a new year, what are your expectations from the administration of President Tinubu? Do you think that the administration is ready for the type of far-reaching reforms required to reposition the justice sector, specifically the Judiciary, Police and Correctional Services?

I will be the first to admit that, progress in the justice sector has been painfully slow. From 1999 to date, our experience has been a tragic case of one step forward many jumps backward. To be fair, we have had laudable developments in the sector, some of which I have spoken about. The problem is that these interventions, either in the area of law reform or institutional strengthening, have proved too insignificant to achieve a radical change in the way we administer justice. The reason why we seem to be crawling our way to reforms is that, over the years, the Presidency has not seen the justice sector has a key governance priority. To be blunt, the rhetoric has simply not matched the delivery. 

President Tinubu has stated his commitment to reforms in the justice sector. His track record of reforms in Lagos state speaks volumes, at least, about his appreciation of the issues and what needs to be done. Repeating the Lagos success story on a national level, will not happen overnight. The multiple and many times overlapping institutions at the Federal and State levels, the need for consensus on the importance of the justice sector, the necessity of shared appreciation and joint action in responding to emerging crime and security concerns, and the adoption of practical steps, going forward, require strong leadership and commitment from the President.

 My worry is that, given the gamut of what needs to be done, the administration seems to have adopted ‘a softly softly’ approach, contrary to the radical hit the ground running alternative which, in my view, is what the justice sector requires at this time. The budgetary proposals currently being considered by the National Assembly, is evidence of this softly softly approach. The proposed budget for justice sector institutions, does not show the desire of the administration to urgently take our justice system in a different direction. Rather, the justice sector budget reads like one aimed at maintaining the justice system in its current form. If that is the aim, it would be truly depressing.   

In 2024, I will expect that the administration publishes a clear policy statement on justice sector reform. Justice sector reforms stand a better chance of success, when the government has a clearly stated policy. There is the need for a clear national policy on justice sector reforms, setting out the official vision of  the reform objectives, and committing government to specific reforms necessary to realise that vision. This is an important reference point, for any strategic approach to justice sector development. In addition to the need for a policy commitment to reform, government intervention in the justice sector is more likely to be effective and coherent, if detailed plans for reform have been prepared. Ideally, such plans should be developed nationally, in a participatory way that involves public consultation, including consultation with institutions active in the justice sector at the Federal and State level. Such plans should set clear benchmarks, and frame reform as a process rather than a single event. The good news is that, we do not need to go through this process. Everything that needs to be said and done, can be found in the existing reports put together by the previous Presidential Committees on justice sector reform. 

The key intervention areas for me include, the upward review of judicial salaries and allowances. The Presidency should also support existing constitutional reform proposals, aimed at enabling an independent salaries and review entity for the Judiciary. Reforming the process of appointing judicial officers, including removing institutional obstacles that prevent the best and brightest Lawyers in private practice from being appointed to the Supreme Court or the Court of Appeal, are important areas for consideration. 

Concerning the Police, the Tinubu administration should respond to citizens concern about the Police and policing in Nigeria. I am not aware of any Presidential initiative that is working on putting together reports of the various #EndSARS Panels, with a view to drawing lessons and putting in place specific interventions to ensure that the horrors of that episode do not happen again. We seem to be complacent that we have turned that page. I have seen nothing on ground, that gives such assurance. The idea of a independent Police ombudsman should be given consideration. There is also the need for clarity, with respect to the salaries and allowances of Police officers. I want to know if the review approved by President Buhari, was approved. 

With respect to the Correctional Services, we need to do a lot more than paying the fines of inmates. We now know that the issues bedevilling our Correctional Centres, including the large awaiting trial population is simply no longer an issue of law and justice, but of national security. This national security component challenges us to adopt a different approach, to the way we manage our correctional facilities. If this large awaiting trial population is the main impediment towards achieving reforms in our Correctional Centres, it goes without saying that we need to decide whether the Ministry of Interior or that of Justice is more suitable to oversee the Correctional Services. I do not imagine that the administration will solve all the problems in the justice sector that have accumulated since 1999 and beyond, in one year. I believe what  is to place the sector on the path that will invariably lead to sustainable reforms.   

Thank you Learned Silk.