Olawale Fapohunda

By Olawale Fapohunda

 Dr. Mutunga, Transformer of the Kenyan Judiciary

In 2015, the Nigerian Bar Association (NBA) invited the Chief Justice and President of the Kenyan Supreme Court, Dr. Willy Mutunga, to give the keynote speech at its Annual General Conference. The decision to invite Dr. Mutunga was based on our knowledge of what he had done to transform the Judiciary in Kenya.

As the special envoy of the President of the NBA, my mandate was not to come back to Nigeria without a firm acceptance of our invitation. Mutunga’s invitation was not about teaching us current developments in law, but to show the possibilities that exist when the office of The Chief Justice becomes the rallying point for achieving progressive change in the justice sector.

It may be helpful to know that, Willy Mutunga inherited a judiciary that struggled with much of the issues that our judiciary is grappling with today. Corruption, constant threats to independence of the judiciary, including an absence of financial autonomy, backlog of cases, absence of transparency in the functioning of the judiciary, archaic systems and procedures, the overbearing sense of self–importance of judicial officers, that made judicial reform difficult. All these combined to rob the Kenyan judiciary of the trust and respect of Kenyans.

One could write a book on how Mutunga transformed the Kenyan Judiciary. He continues to receive accolades from his country, and all over the world, even after his retirement last year. In my view what was truly inspiring, was his ability to bring justice to the level of the ordinary Kenyan.

My Experience in Kenya

I had first hand experience of this on my arrival at the Jomo Kenyatta Airport, Nairobi. I had approached a Kenyan Immigration Officer who on citing my Nigerian Passport simply asked me to go into a side room, apparently for further questioning.

There were many of us ‘aliens’ who were given this ‘further questioning’ treatment. It must have been my height that caught the attention of the supervisor, a very stern looking officer who just seemed to have made up his mind that we were a threat to Kenya’s security. I had watched uncomfortably how he kept asking questions, and never seemed to be satisfied with the answers he was getting. He loudly asked me about my mission in Kenya. When I told him that I was there to see Willy Mutunga, his countenance changed immediately. At first I thought it was a case of ‘the fear of the big man’, until he took me into his office and gave me an unsolicited debriefing of Mutunga’s great strides in the Kenyan Justice Sector. I was thereafter, promptly cleared and given VIP passage to the taxi rank. As if I needed validation of what I had just heard, the taxi driver talked about Mutunga non -stop all the way to the Kenyan Supreme Court Building. He spoke at length about how the poor and vulnerable see Mutunga as their champion. Mutunga’s simplicity and willingness to engage with the poor and vulnerable, where his sterling qualities. I was stunned when on my arrival at the Kenya Supreme Court, the taxi driver refused to accept the negotiated fare. He told me that he could not in good conscience accept money from Mutunga’s guest.

I look forward to that day when the ordinary Nigerian will celebrate our Chief Justice as the beacon of justice for the poor and vulnerable.

Hit the Ground Running, Hon, Justice Onnoghen

The confirmation of Honourable Justice Walter Onoghen by the Senate as the Chief Justice of Nigeria (CJN), despite all the real and imagined intrigues around the confirmation process, offers new hope in this direction. If there was any time that the judiciary and indeed the justice sector needs the head of the Judiciary to talk directly to the many challenges facing the sector, that time is now. True, we expect more than words.

Expectations

The main challenge before the CJN is to rekindle the confidence of judicial officers and their belief in the importance of their exalted offices, while at the same time, restoring the hope of Nigerians in our justice system. The CJN must break down all conservative tendencies that continue to militate against achieving reforms in the judiciary. My Lord needs to urgently put together a set of radical reform initiatives of the like the ‘never been seen before’, in the history of Nigeria. The guiding principle must be the recognition that what Nigerians need today, is not a Chief Justice of the Supreme Court, but a Chief Justice of Nigeria. There is world of difference. All the Courts in Nigeria and access to justice related institutions must be the constituency of the CJN. Indeed, like in Kenya, the office of the Chief Justice must be the rallying point for reforms in the justice sector. Important areas of intervention should include a commitment to strengthening the independence, responsibility, efficiency and transparency of the judiciary; responding to the interrelated problems of delay, cost and complexity in the justice system; promoting and implementing a zero tolerance principle with respect to corruption within the judiciary; making litigation less complex; encouraging appropriate and timely settlement of disputes; diverting matters to more suitable dispute resolution processes.

Proposals

To achieve these in concrete terms, I will like to propose a number of practical steps for the consideration of the CJN.

Publication of CJN’s Agenda

As an important first step, the CJN should consider publishing his vision and agenda for the judiciary and administration of justice in Nigeria. It is important that his agenda is built on the widest possible consensus of justice sector stakeholders and public opinion. Judicial reform is an issue of national seriousness, and all must play their part in addressing it. The suggested agenda should include a combination of administrative, legal and constitutional interventions.

Establishment of National Council for Administration of Justice

Administratively, the CJN should consider facilitating the establishment of a National Council for the Administration of Justice- made up of representatives of the three arms of government, with a clear mandate to oversee the implementation of required reforms in the judiciary and justice sector. Achieving a justice system that works in the interest of Nigerians, cannot be the exclusive preserve of the judiciary. The Judiciary should provide leadership for the other arms of government.

Establishment of CJN Panel to Review Judiciary Corruption Cases

Other suggested administrative interventions should include, the establishment of a High Level CJN Panel to review all cases of corruption in the Federal and State Judiciaries. The Judiciary should take the lead in cleansing itself of those who give the institution a bad name.

Establishment of Independent Judicial Benefits and Compensation Committee

The CJN should also consider the establishment of an Independent Judicial Benefits and Compensation Committee, to undertake a comprehensive review of salaries, allowances and benefits of all Judicial Officers in Nigeria, including lower court judges. The Commission should be required to submit a report with its recommendations to the CJN, for onward transmission to the National Council of States for deliberation and implementation. There is the need to remove incentives for corrupt behaviour in the judiciary. I find it simply unhelpful to insist that judicial officers who are not able to survive on their salary, should resign.

Appointment of Court Administrators

The CJN should also give consideration to the proposal for the appointment of Court Administrators in all courts, to take over some administrative functions of the various Heads of Court, such as procurement, case-management, budgeting, renovation of courts.

Review of Supreme Court Rules

On legal and constitutional reforms, the CJN should support a review of the Supreme Court Rules, to ensure that only cases of constitutional significance or that deal with life and liberty, are heard in the Supreme Court as of right. There is the need to begin to reverse the narrative of backlog of cases in the Supreme Court.

Support Judicial Integrity Bill

It has also been suggested that the CJN should support the Judicial Integrity Bill that is being proposed by a number of public interest lawyers. The bill (i) lays down judicial standards, (ii) provides for the accountability of judges, (iii) establishes mechanisms for investigating individual complaints for misbehaviour or incapacity of a judge (iv) provides a coherent mechanism for the removal and discipline of judges.

Constitutional Amendment regarding Composition of the NJC

Perhaps, of much significance, is the proposal for constitutional amendment leading to the review of the composition of the National Judicial Council (NJC). The inherent flaws in the organisational structure of the NJC, impacts negatively on the efficiency and the public perception of the judiciary. Specifically, consideration should be given to the holistic review of the membership of the NJC.

These interventions will not solve all the challenges facing the judiciary, but they provide important first steps to bring justice closer to Nigerians and restore their faith and confidence in the justice system.

Olawale Fapohunda, Managing Partner, Legal Resources Consortium, former Attorney-General of Ekiti State