A Case for the Bifurcation of the Nigerian Judicial and Legal System
This article by James Abati goes through different levels of the Nigerian legal and judicial system, making a case for the bifurcation of quite a few of the institutions and offices within the sector; separating the office of the Attorney-General and Minister or Commissioner of Justice; separating the roles of Barristers and Solicitors, as is done in the UK; having Federal and State/Community Police; also having a States and Federal court system, each going all the way to their own Supreme Court, asserting that these divisions will make the Nigerian system function more effectively and efficiently
Introduction
To begin, I would like to make a distinction between a legal and judicial system. A legal system is the all-encompassing body of Constitution, statutes, regulations, law enforcement, courts, and legal professionals, with emphasis on the legal professionals, which is a key component of today’s advocacy for the bifurcation of the Nigerian Legal system. A Judicial system, on the other hand, is the court based, Judiciary led, interpretative arm of government, which is vested with the responsibility of interpreting, applying and enforcing law, and resolving disputes to deepen jurisprudence within the Nigerian legal ecosystem.
At present, Nigeria operates a Federalist legal system where the Constitution, law enforcement, courts and legal profession derive authority to exist and operate from a centralised Federal system. For instance, in the United States of America, which our democracy is designed after, States are empowered to enact their own Constitution to clearly outline the structure of governance within the federating unit, to enshrine and protect individual rights, and delegate powers not delegated to the Federal Government.
Presently, under the Nigerian legal system, there is only one Federal Constitution, which was bestowed to the nation by the military leaders during the transitional interim National Government of General Abdulsalam Abubakar. The Constitution is not truly rooted in its preamble which quips: “We the people…”; rather, it was imposed on the people of the Nigeria without any democratic or representative input from the people.
With the advent of democracy in the Fourth Republic, this Constitution has been able to exist as the working template of the entire Federation, with periodical amendments on certain issues of national importance by the National Assembly – albeit through rigorous processes and procedures. This rigidity is rooted in Section 9(2) of the Constitution, which provides that: “Act of the National Assembly for the alteration of this Constitution, not being an Act to which Section 8 of this Constitution applies, shall not be passed in either House of the National Assembly unless the proposal is supported by the votes of not less than two-thirds majority of all the members of that House and approved by resolution of the Houses of Assembly of not less than two-thirds of all the States”. This has led to stalemate, on significant matters of national importance.
Writer’s Postulation
The postulation of this writer is that, a bifurcation of the Nigerian legal system as it relates to legislative processes and procedure, will enable the State Houses of Assembly legislate themselves on matters pertaining to the States, while the National Assembly will legislate itself on matters pertaining to the Federal Government with the requirement of concurrence only on matters that relate to the generality of the country’s population and Federation as a whole. This would lead to true Federalism as envisaged by our founding fathers, and devolution of powers for Enhanced Local Autonomy and Responsiveness, Fiscal Decentralisation (Resource Control), Promotion of Healthy Competition, Protection Against Central Tyranny, Effective Management of Diversity, Increased Citizen Participation and Improved Judicial Independence.
Bifurcation of Law Enforcement
Additionally, similar bifurcatory mechanism is required in respect of the nation’s law enforcement bodies, and its legal practitioners. The case for bifurcation of the law enforcement bodies within the Nigerian Federation is an ongoing discussion, with several advocacies and attempts at State and Community policing in recent times, such as OPC, Bakassi Boys, Amotekun and Ebube Agu.
It is needless to say that, the current Federal system of policing is inadequate and ineffective with the current staff strength of approximately 371,800 personnel in a country of well over 180 million citizens. Other than the abysmal personnel strength, the terrain knowledge factor is also an issue: how can Police officers from Lagos or Ibadan effectively police a remote village in Sokoto or Borno, without geographical wherewithal? The knowledge and intelligence gap will be so evident owing to their alien status within the terrain. Also, in terms of intelligence gathering, it will require more time and effort to gain the trust of the local community, due to trust deficit. For this reason, the advocacy for Community and State policing, cannot be overemphasised. The collective benefits outweigh the well-touted apprehension/fear of abuse by the State Governments. With the present Federal law enforcement system, this fear still exists with countless cases of abuse by the Federal Government, only that the Federal Government has a monopoly of misuse. More so, this fear of abuse fuelled by political interference can be curtailed, by adopting a system whereby the public elects Police Chiefs, as is the case with Sheriffs in the United States. If we can adopt such a measure, we can begin to focus on the benefits – Improved Intelligence and Crime Prevention, Increased Trust and Legitimacy, Tailored Local Solutions, Reduced Response Times, Accountability, Collaboration and Lower Crime Rates, for better security of lives and property of the citizenry. I dare repeat: the benefits of State and Community policing, outweigh the disadvantages.
Tough times require tough measures, the security situation in the country has deteriorated to a point where State and Community policing can no longer be optional, it is imperative on the Government to revamp its security architecture to the level and standard of sophistication applicable in well developed climes.
Bifurcation of Nigerian Legal Practitioners
On the issue of bifurcation of the Nigerian legal practitioners, the appeal of this writer is for the separation of the qualification of legal professionals from the present Barrister and Solicitor of the Supreme Court of Nigeria, to either Barrister or Solicitor of the Supreme Court of Nigeria, not both. The reason is clear: in more advanced climes, Barristers and Solicitors have separate qualifications, allowing them to specialise in different areas. Solicitors focus on client management and preparing cases for trial, as well their core specialty of advisory services and legal administration, while Barristers specialise in advocacy and providing expert legal opinions.
This division ensures independent, expert representation in court, creates checks and balances in complex cases, and maintains high standards in both professions. Furthermore, such division allows for deeper training and distinct regulatory bodies. For instance, in the U.K., Solicitors undergo a year long LPC training, as prerequisite of their qualification as a Solicitor, while Barristers undergo a year long BPTC training, both trainings independent of each other, unlike the lumped up Barrister-at-Law (BL) training obtainable in Nigeria. Likewise, there is greater oversight on Barristers and Solicitors, which are governed by separate regulatory bodies: the Bar Standards Boards (BSB) for Barristers and the Solicitors Regulation Authority (SRA) for Solicitors, unlike the compulsory Nigeria Bar Association (NBA) regulation in Nigeria. We desperately need to update and modernise our legal conventions, systems and practices, to be in tune with global best standards and practices.
Another case point of the case for bifurcation of legal professionals in Nigeria, is the contentious Attorney-General of Federation and States/Minister and Commissioner of Justice designation portfolio within the Federal and State Executive Councils. The point has been made by several commentators and writers, that the role of the AGF/AGs ought to be strictly legal, devoid of political considerations, as is the case in the USA, while the Minister/Commissioner of Justice portfolio can be retained as a political designation. This separation will ensure that the AGF/AGs remain the Nation and States’ Chief law officers, loyal to the Constitution, accountable to the people, and charged with the responsibility of safeguarding public interest by ensuring laws are properly enforced without political interference, while the Minister/Commissioners of Justice focus on implementing Government policies in the justice sector, under the direction of the President /Governor, who holds executive power.
More importantly, upon separation of both offices, the AGF/AGs should be strictly by election, as is the case is most of the American States. Distinguished public prosecutors and legal practitioners shall be eligible to present themselves for election into the office of the AGF/AGS, so that there’s a proper vetting of their legal agenda before election to the office to ensure accountability and neutrality in the discharge of their constitutional functions.
Furthermore, on the issue of the bifurcation of the judicial system, the court system should be delineated into State and Federal court system, where the matters falling within the jurisdiction of the States can be effectively and efficiently dealt with within the State legal ecosystem, from the State High court to the State Appeal court and then the State Supreme Court, while Federal matters are similarly dispensed with in line with the Federal legal ecosystem. The adoption of such a system would lead to greater improvement in the administration of justice within the Nigerian Judicial System, by reducing the burden on the existing courts, expanding the capacity of the courts and increasing the time, efficiency and speed with which justice is served.
Conclusion
In conclusion, we need to adapt and change with the times, as the Latin maxim says: “Tempora mutantur, et legesmutantur in illis” (Times change, and laws change with them). We cannot continue to apply a system that has consistently failed to provide the necessary oversights, safeguards and protections required in modern day Nigeria, while the world continues to evolve and render our operating systems nugatory. We need bold reforms and ideas, which can only be implemented by sincere, upright and honest leaders.
My hope is that we one day get it right!
James Abati, Lawyer, Public Commentator, Lagos
