NBA Pushes Justice Sector Reform to the Front Burner

Last week was a very busy one for the Nigerian Bar Association (NBA), as it held its Justice Sector Reform Summit at the Shehu Musa Yar’Adua Centre in the Nation’s Capital. The retinue of activities included special working sessions with Bar leaders, Lawyers, Judges and other stakeholders. The NBA President, Olumide Akpata and the Speaker of the House of Representatives, Olufemi Gbajabiamila, also signed a Memorandum of Understanding on behalf of the NBA and the House of Representatives. The two-day programme, culminated in the inauguration of the Electoral Committee of the NBA for its upcoming 2022 elections. Onikepo Braithwaite and Jude Igbanoi who attended the event in Abuja, report

NBA Will engage in the Process of Judicial Appointments

NBA President, Olumide Akpata, has urged stakeholders in the judicial sector to commit to herding constitutional and institutional reforms. Akpata pointed out that the decay in the nation’s justice sector, was the major reason for the Summit.

He said this at 2022 Justice Sector Summit tagged: ‘Devising Practical Solutions Towards Improved Performance, Enhanced Accountability and Independence in the Justice Sector’, organised by the NBA in collaboration with the Justice Research Institute, the Konrad Adenauer Foundation, the United Nations Office on Drugs and Crime, and the Justice Reform Project.

In his opening remarks, Akpata said “Today, I believe that our call to action must begin from our admission of the state of affairs of our administration of justice, that we are thoroughly dissatisfied with. There is a convergence of opinion of both the Bar and the Bench, that the Nigerian justice delivery system is not operating at its optimal best”.

Among the issues the NBA President said would be looked into at the Summit, is the process of appointment to the Bench of various courts in the country, which “must be manned by not just the best hands we can find, but also by incorruptible minds”.
He urged stakeholders to commit to statutory and constitutional reforms, institutional and funding reforms, and manpower reforms, for the desired change to take place.
The NBA President further said: “The lip service that we have paid to these reforms over the years, must stop from today”; while appealing to both the Bar and Bench to uproot every divisive tendency that is hampering the effectiveness of the justice sector in Nigeria.

AGF Malami Calls for Transparency in Judiciary Spending

At one of the working sessions of the Summit, the Attorney-General of the Federation and Minister of Justice, Abubakar Malami, SAN, urged the Judiciary to be more transparent in the utilisation of its budgetary allocation on its financial expenses. The AGF remarked that the Judiciary has consistently lamented about poor funding, and yet no one can tell how the money allocated to them was been expended. He therefore submitted that for the issue of inadequate funding to be addressed in the Judiciary, there must be a system in place that will allow the financial books to be opened.

He pointed out that, “the starting point is transparency and accountability. Let the books be opened”.

According to the AGF, even though the budgetary allocation of the Judiciary is higher than that of the National Assembly, the lawmakers seem to be better off than the Judiciary, “so there is the need to know how much is provided and how it is applied”. “The same way that the Executive opens its books for public scrutiny, the same way the Legislators and the Judiciary should open theirs”, he stated.
On the issue of appointment of Judges, Malami advocated the need for a legislation that will remove all bottlenecks that take away merit, in the process of selecting and appointing judicial officers.

He maintained that the current guidelines used in selecting and appointing Judges promote incompetence, adding that the consideration of the Federal character principle, further robs the Bench of merit when appointments are been made.

Speaking on the financial autonomy for the Judiciary, Malami recalled several efforts by the President Muhammadu Buhari administration to ensure that the Judiciary is truly independent, citing Executive Order 10 among others, which he regretted is being challenged in court. He however, called for consensus building among the three arms of Government, to realise the independence of the Judiciary.
Concept Note for the Proposed Justice Sector Summit by the Nigerian Bar Association and the Justice Research Institute; in collaboration with the National Judicial Council, the Konrad Adenauer Foundation, the United Nations Office on Drugs and Crime and the Justice Reform Project – 25th January 2022

Background

An effective, fair, humane, accessible and accountable justice sector that enjoys the trust and confidence of citizens and businesses alike is indispensable for upholding the rule of law, and is a critical building block for the socio-economic and political development of any nation.

Despite all the efforts of the Judiciary, the other arms of Government, civil society and international development partners to work towards the establishment and maintenance of such a system in Nigeria, the Nigerian justice sector continues to fall short of expectations. Nigeria ranks 121 out of 139 countries on the Rule of Law Index of the World Justice Project (“WJP”) 2021. The WJP scores nations on eight factors including the state of the Criminal and Civil Justice System, where it measures, inter alia, whether criminal, civil and other judicial officers are competent and produce speedy decisions. It also measures the accessibility, impartiality and effectiveness of the Judiciary and other alternative dispute resolution mechanisms.

The National Judicial Policy developed under the auspices of the National Judicial Council (“NJC”) in 2017, identified the lack of efficiency of the judicial appointments process; lack of transparency and accountability in the judicial process and the administration of justice; poor judicial performance; the courts’ lack of capacity to promote and protect the rule of law; delay in justice delivery; the perceived inability of the Judiciary to sustain its independence; the poor quality of judgements; and the inadequacy of resources needed for the Judiciary to provide efficient administration of justice, among others, to be the reasons for the public’s increasing lack of confidence in the Judiciary.

Whilst the National Judicial Policy identifies a broad range of challenges confronting the Nigerian justice sector, other stakeholders in the justice sector have focused on those aspects of the challenges that they consider to be most fundamental.
The Justice Research Institute (“JRI”), has focused on the judicial appointments process. On August 8, 2020, the JRI held its first Law and Policy Webinar Series themed: “Selection and Appointment of Judges: Lessons for Nigeria.” The webinar examined the underlying weaknesses in Judges’ selection and appointment processes in Nigeria, and proffered recommendations for the creation of an ideal system that would attract and admit only the best candidates to the Bench.

Chaired by the Vice President of Nigeria, Professor Yemi Osinbajo GCON, SAN, the webinar featured senior Judges from Ghana, Kenya and the United Kingdom speaking on their respective judicial appointment systems. The webinar was also attended by Senator Ahmed Lawan, the President of the Senate; Rt. Honourable Femi Gbajabiamila, Speaker of the House of Representatives; and Hon. Justice Ibrahim Tanko Muhammad, CFR, Chief Justice of Nigeria.

The NBA on its part, has made elaborate proposals for reform of the judicature provisions in the 1999 Constitution, in a Bill it presented to the Constitution Review Committees of both Houses in the National Assembly as part of the ongoing Constitution Review process. The Bill focuses, amongst other issues, on the related problems of proper budgeting and funding for the Judiciary, and the need to separate the administration of the courts from the administration of justice. It also addresses a variety of steps proposed, to eliminate delays in the justice delivery process. In this regard, and in collaboration with the Justice Reform Project (“JRP”), the NBA has also put machinery in place to establish a Court Monitoring Scheme, designed to generate actionable data and statistics that would assist in identifying the primary causes of the delays in justice delivery.

Collaboration by Interested Stakeholders

The JRI planned to conduct a follow up webinar in 2021 on the judicial appointments process, to assess the output from its first webinar and take stock of any advancement that may have taken place as a result. However, it became evident that other stakeholders in the justice sector, specifically the NBA, the NJC, the United Nations Office on Drugs and Crime (“UNODC”), the Konrad Adenauer Foundation and the JRP were all planning a variety of initiatives, all aimed at addressing perceived challenges in the Nigerian justice sector. For example, the UNODC and the Konrad Adenauer Foundation had commissioned a study on the judicial selections and appointments process, with plans to host an event to publish the results and recommendations of the study.

Consequently, it was resolved that rather than having separate initiatives and events with the potential for dissipation of efforts and impact, these organisations would come together to host a one-day Justice Sector Summit aimed at addressing the most pressing challenges confronting the Nigerian justice sector.

The stakeholders realise that a one-day Summit cannot address all the challenges confronting the justice sector, and they have thus, narrowed the focus of this particular Summit to the three broadly interrelated challenges and one related initiative highlighted in the introduction above. It is hoped that this Summit will become an annual event, which will enable the stakeholders monitor the progress that is made and track the changes that continue to require implementation.

The Challenges to be Addressed

a) Establishment of a Solely Merit-Based Judicial Selection, Appointment and Promotion System

There is a general acknowledgement that the current judicial selection, appointment and promotion system in the Nigerian justice sector is inadequate. The rules regulating the process do not provide sufficient transparency to enable the best candidates emerge, and also undermine the independence of the Judiciary by making judicial appointments susceptible to judicial, as well as political influence.
The Summit examined the various recommendations made in the study commissioned by the UNODC and the Konrad Adenauer Foundation, as well as the recommendations made at the JRI’s Law and Policy webinar held in August 2020 relating to the best means of overhauling the system. Primary focus was on amending the NJC’s Guidelines for the Appointment of Judicial Officers, but attention was also be paid to the procedure applicable at the State Judicial Service Commissions, which is where a significant proportion of the process for the appointment of judicial officers is initiated. Consideration was also given to necessary constitutional reforms that are required in this regard, that could be implemented as part of the ongoing constitutional review process.

The specific areas the recommendations addressed amongst others are:

(i) Methods to be adopted and steps to be taken to increase the level of transparency in the judicial appointments process by the wide advertisement of vacancies, and of the names and identities of those who apply to be considered for appointment to judicial office with ample time provided for feedback.

(ii) Methods to be adopted and steps to be taken to implement a rigorous and merit based system of testing applicants for appointments to judicial office, to ensure that they have the knowledge, capacity and temperament required for the office.
(iii) Methods to be adopted and steps to be taken to implement a rigorous and merit based system of screening and selecting applicants for promotion to the higher courts, which must be based on an objective assessment of their performance in their present courts.
b) Securing a different approach to budgeting and funding for the Judiciary

It is generally acknowledged that, the justice sector in Nigeria is underfunded. Successive administrations have overseen a reduction in the amount voted for the Judiciary in the annual budget, this amount reducing initially in absolute terms, and more recently, as a percentage of the total budget.

This problem has been compounded by a lack of clarity in the extant constitutional provisions with regard to where the responsibility lies for funding the Judiciary as between the Federal and State tiers of Government, and a concern about the consequential impact on the Judiciary’s independence. This has led to litigation between the 36 States and the Federal Government; has led to previous and still threatened strike action by the Judiciary Staff Union (JUSUN); and has led to the clamour for financial autonomy of the Judiciary.
The Summit examined the issues arising from this, with particular emphasis on the need to separate the mechanics for financial autonomy of the Judiciary, from the inadequate budgetary provision for the Judiciary at all levels. The Summit addressed the inadequacy of the funding for the Judiciary, and the directly related problem of inadequate manpower (quantity); inadequate manpower (quality); inadequate support staff (quantity and quality); and inadequate infrastructure and technological support. The Summit also examined constitutional reforms that have been proposed by the NBA and others, as a means of addressing these problems.

The specific areas the recommendations addressed amongst others are:

(i) Steps to be taken to establish clarity as to which tier of Government bears responsibility for funding the Judiciary at various levels, and the source from which these funds are to be allocated.

(ii) Steps to be taken to establish a process of planning and budgeting for the Judiciary at various levels that anticipates the Judiciary’s present and future needs, and does not take advantage of the Judiciary’s relative lack of expertise or involvement in financial and budgetary matters, relative to the other arms of Government.

(iii) Steps to be taken to ensure that funds budgeted and allocated to the Judiciary, are treated as a first line charge on the accounts from which these funds are to be allocated and given priority.

(iv) Steps to be taken to ensure accountability and proper auditing of the Judiciary for any funds allocated to it, and to insulate judicial officers from any direct involvement with contracting, procurement or disbursement of public funds, and thus, shield them from inappropriate investigations or enquiries that would demean their authority.

c) Identifying the primary causes of delays in justice delivery in Nigeria, and devising and implementing workable solutions to address this problem

The delays in the Nigeria justice sector, have become an embarrassment. The President, the Vice President and the CJN have all spoken about this in recent times, at various public fora. Foreign courts have passed derogatory comments concerning this. The citizenry who are supposed to see the courts as the last hope of the common man, have lost hope in the ability of the justice sector to deliver results within anything close to a reasonable time. The cliché that justice delayed is justice denied is exemplified by what happens in our justice sector, and as the Vice President mentioned recently, unlike other jurisdictions, the problem in Nigeria is not access to justice, but exit from justice!

The Summit examined the causes of this problem, and proffered solutions. At a basic level, it is believed that the problem is interrelated with the previous two the Summit dealt with. A judicial appointments process that is not merit-based will result in the appointment of a significant number of judicial officers who lack the capacity and skills required for the job, and this will, of necessity, contribute to delays in the disposal of cases. The inadequate budgeting for and funding of the Judiciary will mean that there is an inadequate number of judicial officers to deal with the work load, and that the remuneration and conditions of service in the Judiciary will not be adequate to attract the type of talent required in sufficient numbers. The inadequate budgetary allocation also results in an inability to put the right type of infrastructure, technology, support staff, etc. in place to aid the efficient disposal of cases.

In addition to this, there appears to be an anachronistic attachment to archaic methods of practice, and the penchant for dilatory conduct on the part of members of the Bar and Bench who fail to realise that society has a right to demand and expect swift and efficient judicial services that resolve the substance of the disputes that are submitted for determination, rather than one that dwells on technicalities and procedural niceties.

The Summit examined all these issues, and proffered solutions for adoption, including the overhaul of the rules of practice and procedure, and the rules of evidence designed to eliminate the opportunities for resort to dilatory technicalities that create room for delay. The Summit also pushed for the justice sector to make optimum use of available technology, to aid advances in efficiency.
It looked into the various low hanging fruits that can be implemented to address some of the problems already identified, such as enhanced use of virtual hearings for the disposal of paper applications that do not involve oral witness evidence; the award of enhanced and full indemnity costs as a consequence of any dilatory conduct or unpreparedness on the part of counsel or parties; the scheduling of cases for specific times and duration; the elimination of the “court is not sitting” phenomenon to the barest minimum.
The Summit also recommended an increased capacity and willingness by judicial officers to deal with unmeritorious matters at an interlocutory stage, and an effective manner in which to punish dilatory conduct on the part of counsel and litigants by compensatory costs order and disciplinary proceedings where necessary.

Also addressed was the absence of a service culture in the justice sector, and the need for Judges and Lawyers to recognise that they are service providers whose reason for existence should only be measured against whether the public is receiving the desired service efficiently, not as a favour or as a matter of grace; the inadequacy of the disciplinary system at the Bar and the Bench, which makes it difficult for the Bar and the Judiciary to enforce proper conduct as well as the inadequacy of confidence on the part of judicial officers to maintain control and discipline of their courts to ensure efficient proceedings.

d) Implementing a Comprehensive Court Monitoring Scheme

The NBA is taking steps to establish a comprehensive court monitoring scheme, in which accredited Lawyers will observe and report on court proceedings in a select number of pilot jurisdictions, with the intention to roll this out right across the country in due course. The purpose of the scheme is to generate statistics and actionable data, that will establish the weighting that ought to be given to the various causes of delay in the justice sector. The NBA’s court monitoring scheme, is an effort to identify the true causes of delay in the justice sector.

The NBA is fortified in its effort to implement a court monitoring scheme by the discovery that the NJC has also implemented a court monitoring scheme, Corruption and Financial Crimes Cases Trial Monitoring Committee (COTRIMCO), albeit one that was limited to monitoring the proceedings in matters relating to financial crimes.

The NBA scheme will generate data and statistics that will enable the justice sector assess the performance of the Judiciary, as well as the Lawyers that appear before them, thus, enabling objective decision making as to the primary causes of the delays in the system. Statistics such as the average disposal rate of cases in the various courts; the average number of cases that the courts deal with on any given day, irrespective of the number of cases on their docket; the various reasons for cases not proceeding to hearing on the days scheduled for hearing, and the stakeholders most responsible for this as between the Bench, the Bar, the support staff or the litigants themselves.

Inauguration of Members of the NBA Electoral Committee

The President of the Nigerian Bar Association, NBA, Mr. Olumide Akpata, on Monday, January 24, 2022 inaugurated the members of the Electoral Committee of the Nigerian Bar Association, ECNBA, ahead of the 2022 elections.

Akpata, while delivering his inaugural speech at the NBA Headquarters, Abuja, noted that if there’s any Association that should conduct free and fair elections, it should be NBA, because the Association stands as the conscience of the society.

Akpata said: ‘the Pedigree of members of Committee gives hope that our profession is in safe hands”; and he assured the Committee of cooperation from the leadership of NBA. He expressed concern however, that contrary to how things ought to be, the Association’s elections have always been engulfed in controversies. He further noted that, the controversies are what led to setting up an Electoral Reform Committee by him.

He said, “I am pleased to welcome you all to the inauguration of the Electoral Committee of the Nigerian Bar Association. This event is indeed, a very important function in the context of the future of the Nigerian Bar Association.
“Human society has always acknowledged the need for a leadership, in order to guide the affairs of mankind and direct the society to its goals and aspirations. The means by which that leadership is arrived at in a democratic setting, has always been through free, fair and credible elections.

“For us in the NBA, the same principles hold true. Indeed, if there is one Association whose leadership must proceed from a free, fair and transparent electoral process, then it should be the NBA for obvious reasons. We stand relative to the society as its conscience, and hence, must be seen to be above board.

“Unfortunately, we have not acquitted ourselves in this light. Evidence of this, is found in the controversial nature of the elections that produced the last three National Officers of the NBA.

“It was consequent upon the above, that I made the reform of our electoral process as one of the key pillars of our campaign manifesto. In a bid to secure the execution of that mandate, you may recall that one of my first official acts as the President of this great Association, was to empanel an Election Audit and Reforms Committee headed by Ayo Akintunde, SAN.
“The mandate of that Committee was clear: to audit the last three elections of our National Officers, with a view to drawing lessons which will be used to improve our subsequent elections.

“The report of the Committee’s work will become an invaluable resource for the Constitution Review and Amendment Committee which gave legislative force to the recommendations of the Election Audit and Reforms Committee, by codifying them in the recently amended Constitution of the NBA, as adopted at our last Annual General Conference (“AGC”) in Port Harcourt.”

Akpata expressed hope that the new ECNBA will do better in the 2022 elections of the Association, considering the pedigree of members of the Committee. He also assured the ECNBA that the Association will give the Committee full support, to ensure that the Committee delivers well in its mandate.

“As we prepare for the next round of election of National Officers, I am confident that the issues that aggregated to blight the outcome of the elections of our recent history will not repeat themselves this time. We owe it a duty to bequeath to our profession and its members, an election which they can be proud of; and which as far as practicable, is free from any form of controversy.
“I am fortified in this belief by the fact that the Chairman of this August Committee – Mr Ayo Akintunde, SAN was also the Chairman of the Election Audit and Reforms Committee which undertook the groundwork of what is today, a template we can rely upon to deepen the quality of our electoral process.

“Indeed, the pedigree of other members of this Committee gives one hope that our profession is in good hands. I must however, acknowledge in advance that the task of this Committee is no less daunting. Yet, it is one certainly not beyond the abilities of the Committee.

“As I conclude, may I on behalf of the National Officers, assure you of the support and cooperation of the Association within the limits permitted by our Constitution, towards the execution of the mandate of the Committee as contained in its Terms of Reference.
“With these few remarks, it is my honour to officially inaugurate the Electoral Committee of the Nigerian Bar Association 2022”, Akpata said.

The ECNBA which is the charged with the responsibility of conducting biennial elections into the Association’s leadership, is vested with the mandate of conducting the NBA National Executives election slated to hold later this year. Akpata had at the last NBA National Executive Committee (NBA-NEC) quarterly meeting in Abeokuta, announced the appointment of members of the Electoral Committee to conduct the 2022 National Officers election. The Committee which is chaired by Ayo Akintunde, SAN also includes: Mabel Ekeke, Secretary; Human Rights Activist, Prof Chidi Odinkalu; former NBA Treasurer, Aisha Ado-Abdulahi, and leading ICT expert, Mr Basil Udotai.
NBA Signs MoU With House of Reps on Law Reform

Office of the Speaker of the House of Representatives, last Monday, formally signed a Memorandum of Understanding, MoU, with the NBA to collaborate on law reforms for the promotion of good governance and sustainable development.
Speaking at the event that held in his office that attracted the leadership of NBA led by its National President, Olumide Akpata, Rt. Hon. Gbajabiamila said that the collaboration between the two bodies since the inception of the 9th House has witnessed positive results in the passage of some critical laws in the country.

He said: “This is basically the formalisation of something that’s already working. The signing of the MoU may seem symbolic, but I see it beyond that. I see it as a way of deepening our democracy and developing the country, which we all so passionately love. Contrary to what a lot of people think, I always believe that governance is about collaboration; it’s about everybody. It’s not about politicians alone, it’s about everybody, so we’ve got to maximise our efforts and potential, to bold, bigger and better things for this country.
“For me, this is a critical collaboration between two very important sectors. This is a public-private partnership between the Legislature and the NBA.

“I am glad that law reform is a core mandate of the NBA, and for us too, law reform is part of our core mandate. When we repeal and amend laws, we are reforming laws. It’s gratifying to know that we actually have a shared mandate, but what we do with that shared mandate is what will determine how far we can take this”.

The Speaker commended the leadership of the NBA and what it has been doing for the profession, while emphasising the commitment, speed and diligence with which it worked and collaborated with the House on Police and Electoral law reforms, among others.
“I don’t think there’s been a time that the Legislature and NBA have worked so seamlessly together, towards making Nigeria a better place”, he noted.

Earlier in his remarks, the NBA President, Olumide Akpata, appreciated the Speaker and the House for being most accommodating with regard to collaboration, and the potential of making progress together. He said that at the heart of the Association’s mandate was the pursuit of law reforms; Akpata noted that the NBA was desirous of working with the Legislature to bring to bear legislation for good governance, while noting that law associations are part of the legislative process in some countries.

He added that the signing of the MoU was to remedy the past situation, where the NBA seemed not to be keen on working with the Legislature. He recalled the signing into law of the Police Service Commission law as a result of the collaboration between the House and NBA following the 2020 #EndSARS protests, saying it showed what collaboration of this nature can achieve. He informed and solicited the Speaker’s assistance, about the Legal Practitioners’ Bill that is before the two chambers of the National Assembly.
Mr Akpata also commended the Speaker and the House, for the office space given to the NBA within the National Assembly complex. The Special Adviser to the Speaker on Policy and Strategy, Dubem Moghalu, had earlier explained that the MoU was to formalise the ongoing operation between the Office of the Speaker and the NBA, particularly on the issue of law reform.