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- Issues and Proposals for Reform.
Laws are often described as a set of norms or
normative propositions made to regulate human
behaviour and balance social relations, with an end,
which is justice. Justice in its varying forms is an
essential ingredient of most people-based
governments, prominent among which is democracy. The
state of democracy and its dividends has been at the
top of debates among Nigerians in every sector of
the society since its advent in 1999. It is no news
that the political history of this country dominated
by years of military dictatorship, left an indelible
mark on the structures of governance and the psyche
of the people. An era when citizens were stripped of
all rights and dignity; laws ousted with defiance
and institutions of justice rendered powerless,
surely left monumental ruins and mental cobwebs that
would take some time to clear.
Consequently, the democratization process started
with programmes for institutional reconstructions
and attempts at individual reorientation
(exemplified in the Oputa Panel) particularly in the
justice sector. The sector here includes the
existing laws [substantive and procedural], policing
and law enforcement agencies, the courts, correction
and penal facilities and the society’s development
strategies and policies. Laws and law enforcement
agencies were subjected to reforms, judicial
activism was highly encouraged and several demands
were made for the rehabilitation of penal
institutions. The fact however is that five years
gone, and the nation is still struggling under the
yoke of military policies in civilian disguise and
the antics of a corrupt and unprincipled political
class.
Even with the marked contributions of the civil
society groups and international organizations, the
access to justice for the average Nigerian
especially in the rural communities where ignorance
and poverty take pre-eminence, leaves much to be
desired. This is inspite of the constitutional
guarantees to legal remedies and the individual
rights to fair hearing entrenched in various
statutes. The legal aid system is obviously comatose
and infact the entire legal system yearns for some
sort of repositioning before it becomes irrelevant
to the problems and aspirations of the people. The
aim of this piece is to briefly examine the notable
stakeholders and the inhibiting factors in the
administration of justice in Rivers State, and offer
options as to ways of easing the path to justice by
the common man. We believe most of these factors are
prototypes of similar problems in the rest of the
country.
The Nigerian Police has a broad statutory mandate,
which revolves around keeping law and order. The
Police have the most contact with the people and
this accounts for the profound disdain that trails
some of their excesses and brutal disposition. We
need not go through the fact that the police are ill
equipped for their task but does not in any way
justify the culture of impunity that is fast
becoming the norm in the Nigeria police Force. To
curb this ugly trend, the police administration last
year added a new model to their fleet of reforms,
called Community Policing. This was an organized
strategy aimed at making the police more of a
people-oriented arrangement. Here, policing
procedures will be based on an effective partnership
between the police and the host communities. It is
sad to note however, that most police officers
themselves claim ignorance of this
community-policing scheme while some others describe
it as merely ideological. Worse still, the
extortionists are still on the loose as more
mediocres are pumped into the Force.
Granted, some laudable attempts at reforming the
police have been made by the administrators but the
present security situation raises some serious,
upsetting questions. I would suggest that the
Communiqué developed from that Summit on Crime and
Policing (Held in Abuja, April 26-30 2004) which
paraded local and international experts in the field
of crime and policing, be given the attention it
deserves. The Police on its own can start by giving
human rights and the rule of law its proper place in
their operations, if it ever desires to enjoy the
credibility vital for its lawful duties.
Section 6 of the 1999 Constitution of Nigeria vests
the constitutional powers of adjudication on the
Judiciary. This power is exercised by the courts
established by the Constitution for the Federation
and the States, where all matters between persons
and between the government or any authority and any
person in Nigeria are forwarded for the
determination of any legal question in issue. The
judiciary is usually referred to as the custodians
of the people’s rights, the hope of the common man.
Whether this is actually the case may be doubtful.
Campaigns for the Alternative Dispute Resolution
processes have been repeatedly hinged on the
incurable delays and cost endemic in litigation.
Litigation under the common law system is now
perceived by many as a double edge sword. One the
one hand, it is an instrument of redress where
legitimate rights have been infringed but
potentially on the other hand, an instrument of
injustice and unfairness through delay frustration
and expense. Factors such as the long standing
provisions of the rules of court, the vagaries of
the interpretation of such rules as well as the
conduct of many practitioners have done more harm
than good. Procedural obstacles exemplified in
incessant adjournments, amendment of pleadings and
undue technicalities have not at all been helpful to
litigants.
The prosecution of most cases especially in the
Magistrate Courts is done by police officers and the
obvious incompetence of most of these officers have
been tragic for many. But what can we say since even
the work of the lawyers at the ministry of Justice
often suffer from poor allocation of resources.
Files go missing without trace and the mechanism for
following through the files are just not
coordinated. The office of the Director for Public
Prosecutions (DPP) is haunted with several problems
– Non availability of witnesses, inconsistent
attendance to court by IPO’s, incessant transfer of
IPO’s from station, lack of continuity where an IPO
is dead or no longer in service etc. The efforts by
some jurisdictions to establish rules for speedy
trials (e.g. the New Lagos High Court Rules) in a
bid to enhance the administration of justice though
commendable, still does not address the
constitutional rights to legal aid denied most
indigent litigants, which has caused unimaginable
hardship.
Moreover, the issue of independence in the Judiciary
has been constantly identified as a must if
individuals are to be sure of justice in any regime.
By this, is meant freedom from interference with the
exercise of the judicial function by either the
executive or legislative branch. It could also mean
independent of any form of corruption from all
facets. An independent judiciary is indispensable to
impartial justice under the law. A judge is expected
to uphold and exemplify judicial independence in
both its individual and institutional aspects. In
the discharge of judicial duties, there is need for
some values of independence, integrity,
impartiality, propriety, respect for equality,
competence, diligence, and accountability beyond
open courts because the survival of the rule of law
depends, in the end, on a respected and uncorrupted
judiciary.
The United Nations Basic Principles on the
Independence of the Judiciary (endorsed by the
General Assembly in 1985) also requires more than
lip service from the government and the people. The
Principles state inter alia that:
The Independence of the Judiciary shall be
guaranteed by the State and enshrined in the
Constitution or the law of the country. It is the
duty of all governmental and other institutions to
respect and observe the independence of the
Judiciary.
The Judiciary shall decide matters before them
impartially on the basis of the facts and in
accordance with the law without any restrictions,
improper influences, inducements, pressures threats
or interference, direct or indirect from any quarter
or for any reason.
Conversely, recent events show the habit of
disobedience to court orders on the part of most
political office holders, who invoke all sorts of
immunity to stand above the law. It is also
important to note the inadequacies in the
appointment, remuneration of judges and poor funding
of the judiciary. The judiciary should be given some
kind of financial independence that will enable them
improve on the structure and infrastructures
necessary for the administration of justice without
going cap in hand to the executive to beg for funds.
It is a kind of independence that will enable the
judiciary draw up its own rolling plan in accordance
with its needs and the demands of the time. Also,
the appointment of judges should be the
responsibility of independent judicial commissions
appointed by the executive with the approval of the
legislature. Once appointed, the judge should be
shielded from pressures to adjudicate with a view to
pleasing those who must renew the appointment.
However, indefinite tenure does not mean lack of
accountability.
Judicial activism was almost non-existent during the
military era where judges resign with the
phrase-“Our hands are tied”. Sadly, even in this
democracy, few judges show the sagacity required to
build the confidence of the people in this very
important arm of the government. The courts are
still seen in some quarters as the apron strings of
the executive or the ‘sacred cows’. I will not
however, fail to commend the courage of judges like
His Lordship, Justice B. A. Georgewill of Bori High
Court, Rivers State; who in the Diginee’s case (Suit
No. BHC/45M/2003) utterly condemned the unwholesome
practice of arrest by proxy readily adopted by the
police as a shortcut to proper investigations
required in most criminal matters. Such judges keep
the hope of the people alive!
There is no better place to uphold the core values
of democracy than in the judiciary. To this end,
civil liberties and the rule of law must be obeyed
in practice and not in breach. The scourge of
ignorance especially in the rural communities must
be tackled and all officers of the law must take
this as a call to duty. To enhance this objective,
the government must be persistently reminded to
promote the standard of living, to fend for the poor
and disadvantaged segment of the society. This is
because the right to life or dignity would mean
nothing to a poverty- stricken Nigerian. The rule of
Law might be ignored by the youth without a means of
livelihood. However, the sages say, Knowledge is
Power. Thus, social empowerment must prepare the way
for a sustainable economic empowerment.
Legal practitioners in their daily endeavours are on
a good pedestal to promote civic empowerment. The
Constitution of the Nigerian Bar Association has as
one its objectives – ‘The encouragement of the
establishment and maintenance of a system of prompt
and efficient legal advice and aid for those persons
in need thereof but who are unable to pay for same’.
There are many Nigerians in this category and it
must be noted that, leaving a larger proportion of
the citizenry seeking for alternatives to legal
remedies is dangerous. I shall re-emphasize this
point with the rejuvenating submission of Justice
Chukwudifu Oputa (Rtd) that:
“ Meeting this essential need of the poor for access
to justice should not be seen as a work of optional
charity. It is not. Rather, it should be seen as a
measure of self and societal preservation, a form of
social insurance. The danger in denying the poor and
unemployed access to justice lies in the fact that
those who cannot go to court to press their claims
(in words and arguments) may seek redress against
society in street and mob violence. When wrongs
cannot be righted by legal means (because the
aggrieved party cannot as much as reach the Courts)-
he has no access to judicial justice. The frightful
danger is that the injured party may resort to other
and sometimes drastic and anti social remedies.
Society will stand to lose by constricting it.
Society therefore will have to do something about
access to justice by the poor and unemployed members
of our communities” (ACCESS TO JUSTICE in LAW AND
PRACTICE, Journal of the Nigerian Bar Association,
Vol. 1 No. 1 @ pg.5).
Strategic networking with civil society and
Non-Governmental Organizations effectively engaged
in such programmes will provide a formidable
partnership geared for change.
C. M. ORJI KALU Esq.
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