At 80, an eminent professor of law, Prof Itse Sagay (SAN), has seen the best and worst of the Nigerian judiciary.
He witnessed the “golden era” when the judiciary was truly the last hope of the common man.
It was an era the likes of Kayode Eso, Chukwudifu Oputa, Mohammed Bello, Augustine Nnamani and Chukwunweike Idigbe, among other great names, bestrode the Supreme Court.
Such jurists were known as the knights of judicial activism because they did justice despite operating in sometimes unfavourable circumstances. They even dared the military.
A strident critic of what the judiciary has become, Sagay longs for a return to the time when the Bench did justice to “all manner of people” without fear.
“I have lived long enough to have seen what it used to be as compared to what it now is,” he said.
Sagay spoke at a Roundtable on jurisprudence and philosophy of judgments in the Nigerian legal system, organised by the Presidential Advisory Committee Against Corruption (PACAC), which he chairs.
Speakers at the event said restoring the standards would require getting the appointment processes right.
Reminiscences
Nothing would give Sagay as much satisfaction as seeing the judiciary return to those lofty standards.
Calling out the institution as he often does, he said, does not mean he is hostile towards it. He only wants the best for it.
“The perception that I am unduly critical of judges and the judiciary is wrong. Let me declare this: “I regard the judiciary with great respect and awe.
“I am deeply upset when it falls below the high standard set for it and behaves like the typical Nigerian institution.
“You can say I love the judiciary to a fault. They must be perfect and remain the repository of honour, integrity and high moral authority. That is what makes the judiciary the supreme institution in the land.
“Therefore, my so-called hostility towards the judiciary constitutes a very unfair assumption. Criticising and making suggestions for a change or improvement in the philosophy of judgments is positive for everybody. It is merely a struggle to propel the judiciary towards glory, even perfection,” he said.
Sagay desires a judiciary that does justice and relies less on technicalities, and that is morally upright.
He said: “I remember a time when the judiciary of this country could not be associated with corruption. Nobody, no matter how bold and demon-possessed, would dare go to a judge’s chambers to offer him money, particularly at the very high level. A judge loses his high moral authority if he is in any way associated with corruption.
“Judges of the golden era created such a high standard that nobody looked at America or Britain for judicial leadership because we had the best judicial leaders in the world.
“We must devise a system for the appointment of judges which promotes confidence in their quality. We must institute a system for the promotion of judges which rewards productive justice rather than continuing with the present system, which is a combination of routine, in other words, turn by turn.
“Judges with whom we’ve spoken said their main problem was that their promotion is based on quantity rather than quality. I think that’s a major mistake in the system.”
‘Avoid technical justice’
Sagay also wants members of the Bench to dwell less on technicalities in dismissing good cases.
The SAN said: “Every judgment must pass one test, which is: has justice been done? If you have read a very highly learned judgment, which at the end of the day punishes the innocent and elevates the guilty, you have not done justice.
“Judges of the golden age created a high standard. If a case arose for which there was no remedy, they would provide the remedy. Where there was no law to protect the innocent, they would make a ruling that would bring the law into existence.
“Our judges can enjoy immortality by going back to the golden age of the judiciary. We brought nothing into this world and we’re going back with nothing.
“The only thing you can leave behind is your name, integrity and fame for what you have done when you had the power to do so. Let us go back to that golden era.
“Let there be justice in every judgment. Let there not be a repeat of the Zamfara and Bayelsa cases where victory was given to people who lost elections miserably and people are imposed as rulers.”
On how to get judicial appointments right, Sagay said the process must be open to scrutiny.
He said: “It is clear that countries like Nigeria need a more complex system of appointment in which several institutions are involved to check one another.
“To avoid the practice of gross lobbying and nepotism that presently undermine the appointment of judges, there is a need to seek the opinions of the local Bar and colleagues regarding the fitness of prospective appointees for office before forwarding their names to the National Judicial Council (NJC).”
Wanted: fearless, corrupt-free judiciary
The lead speaker, Yemi Candide-Johnson (SAN), believes judges must be held accountable for the public trust they hold.
The judiciary, he noted, is the guardian-protector of the constitution and the fundamental rights of the people and holds a balance between arms of government as well as individuals with competing rights and interest.
Therefore, judges must be true to their judicial oath and act impartially, honestly and efficiently.
Candide-Johnson said only an efficient and independent judiciary could command public confidence in the administration of justice and promote/protect the rule of law and human rights.
To achieve that, he suggested that every aspect of the judicial appointment process should be such as would command public respect and confidence that the best persons in terms of skill, learning, integrity and courage are recruited.
He proposed a model that does not exclude anyone who has the requisite qualifications and qualities needed and desires to be considered for appointment to the judicial office.
The new order, he said, must put in place a mechanism for assessment of the suitability of candidates, including, but not limited to, careful screening, interview and assessment of the evidence presented by the candidate.
He recalled that in 2018, a former Chief Justice of Nigeria (CJN), Justice Mariam Aloma Mukhtar, decried the corruptive prevalence of lobbying and favouritism in judicial appointments at the cost of merit.
Candide-John said: “The current opaque system of judicial appointments defeats legitimate public interest in the quality of judges.”
To guarantee that the most capable justices are selected, the SAN said a successful candidate should demonstrate independence and impartiality; possess an outstanding knowledge of the law; and have excellent oral and written communication skills and analytical competency.
On the independence of candidates, he said: “To evaluate their background, all candidates should be made to furnish a sworn statement containing a comprehensive list of clients, contractors, former work and professional colleagues, as well as business and professional entities in which they have a stake or have been involved with, in the past.
“At the public interview, such background and its potential impact in the post a person is applying to should be assessed thoroughly.”
The candidate, he added, must be known for reputable conduct and a spotless record of integrity.
Also, the candidate must show a commitment to the judiciary as a public institution; demonstrate a commitment to the protection of human rights, democratic values and transparency, and must understand the social and legal consequences of one’s decisions.
‘Make NJC more independent’
Candidate-Johnson believes the NJC should be much more autonomous and independent.
He said: “The current council is dominated by a single powerful judge. For legitimacy in the public mind, the majority of members should be appointed by persons with ties to the democratic process, rather than unelected special interests.
“Independence would suggest that the ultimate appointing authority would not be allowed to select any member of the council.
“Judicial independence requires that the selection of its members be spread out among several groups so that no one political party or interest group can influence the selection process.
“The council should reflect the diversity of the community as well as the diversity of its segments.
“Legitimacy will be enhanced if both lawyer-members and laypersons can participate in selection as well as regulation and discipline of judges.”
Blame NBA also, says Falana
Activist-lawyer Femi Falana (SAN) blamed the Nigerian Bar Association (NBA) for not doing enough to bring sanity to the profession.
To him, a disciplined Bar makes a disciplined Bench.
He said: “If the judiciary is bad, then the lawyers who go to the Bench are bad or worse.
“Petitions are taken seriously by the NJC. That is not so with the NBA. Any lawyer in Nigeria can do what he or she likes and gets away with it.
“So, unless we are prepared to reform the NBA, in terms of disciplining of our members, we’re not going to get it right. These are the products that go to the Bench. You can’t blame the judges alone.”
He said while the NBA is busy organising annual conferences and bar dinners, it must not jettison its role of disciplining erring lawyers.
A member of the Justice Reform Project (JRP), Dr Babatunde Ajibade (SAN), who moderated the virtual event, believes emphasis must be placed on merit in judicial appointments.
“That golden era arose because the judges were appointed through a painstaking process that ensured that it was only the best of the best that got onto our Bench. The judiciary is probably the most important arm of the government. The challenge is a grave one.
“We must put in place a system where merit and identifiable criteria play the predominant role in judicial appointments. The justice sector must carry out significant introspection,” he said.
‘Judges can learn on the job’
For the Court of Appeal President, Justice Monica Dongban-Mensem, some of the criticisms are off the mark.
She said while only the best should be appointed to the Bench, those appointed do not necessarily need to know everything.
She rejected critical comments by the NBA President, Olumide Akpata, who lamented that some of the 18 judges currently being recruited could not answer basic legal questions.
Justice Dongban-Mensem said: “Somebody said there is room for learning and the President of the NBA took offence that somebody said that people will learn on the job. Who doesn’t learn on the job?
“Prof Sagay, did you know everything you should do when you were appointed as chairman of PACAC? Has he not learnt some things? Has he not started looking at some other things differently? I mean, we all learn.
“In the Court of Appeal, we sit in panels and we help each other. Somebody may know more about something. Some of the judges of the Court of Appeal may not have had the privilege of sitting on maritime cases.
“Will you deny them the opportunity of being appointed on the Court of Appeal Bench because they do not know the meaning of maritime law? Don’t they know other things? Will they not learn from others? These are some of the things that inform our decisions.
“So, people should be a little bit kind with the judiciary when they go out and try to criticise and throw everything away. I can assure you that there are men and women of integrity in the judiciary.”
‘Politics part of appointment process’
The Court of Appeal President thinks political influence in the appointment process does not mean the best cannot emerge.
“The interests are varied. We are different parts of the nation. You cannot keep politics out of the appointment into the judiciary.
“They (judges) are representing their people. So, you can stop politicians from advocating for (sic) people from their regions to be represented in judicial appointments.
“But I can assure you, that is not what guides…. We look at all of these things and take the best.
“If our bests have not been good enough, there is room for improvement. We are still learning. We have not closed the bus.”
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