THE RULE OF LAW

The Challenge of the Nigerian Nation
By Andrew Obinna Onyearu

On assumption of office on 29 May 2007, President Umaru Musa Yar’Adua expressed the view that upholding the rule of law was a corner stone of the manner in which his government will undertake the responsibility of governance.  On 27 August 2007, speaking at that year’s Nigerian Bar Association Annual Conference, he reiterated the view that a growing culture of disrespect of the rule of law appeared to be one of the greatest challenges that the Nigerian nation has to deal with. He suggested, again, the commitment of his government to establishing a culture of respect for the rule of law and constitutionality which would endure. In particular, he observed that

“….. the pre-eminence of respect of rule of law and order in the determination of the survival and progress of every human society has its roots in the beginning of human history and as spiritual essence … It is a self evident fact, that the more a society has the respect for the rule of law, the more civilised that society is, the more justice, the rule of law and fairness thrive in a society, the more stable, developed and prosperous that society is. As a nation, one of our greatest challenges has been the evolvement of the culture of disrespect for the rule of law, unbridled corruption, endemic crime, violence, infrastructural deficit and a general malaise in the polity, these all constitute a direct manifestation of disrespect for the rule of law”.

This commitment to observing the rule of law has reassured many about the disposition of this government to engage executive interface with the machinery of justice in the country. The purpose of this policy is self-evident and also manifestly clear. It is designed to send a loud and reassuring message to Nigerians and the international community that one of the key positions of the government in relation to its conduct of business is that the rule of law must, in all applicable circumstances, prevail to regulate conduct and relationships between affected parties, whether or not the government is involved.

Many commentators at home and abroad have hailed this policy not only for its reassuring effect, but also as clearly defining a commitment to this critical aspect of the administration of justice for which it has openly and whole heartedly agreed to be accountable. As widely desirable and applauded as it is, the rule of law is not an isolated principle. Adherence to the rule of law has been central to the growth of several developed nations because its observance goes to the very root of the structure of the society itself. It is that principle that ensures that in the unlikely event that differences of opinion require to be arbitrated upon, those who do so are both equipped to and are able to dispense justice freely, fairly, comprehensively and decisively to those who come before it for such intervention. It is reassuring to know that this policy is welcome by many within the country but also that several key persons of authority have openly begun to and continue to subscribe to this position.

As recently as January 2004, the then Attorney General Minister of Justice Akin Olujinmi produced and widely circulated plans for the government encapsulating an agenda for reforming the justice sector in Nigeria. As was commonly understood at the time, this reform structure, proposed over a 3-year period between 2004-2007 was supposed to drive a process with the enshrinement of the observance of the rule of law at the apex. This agenda contained a 17 point explanation of the means by which Government was proposing to achieve that drive. Critical amongst these were access to justice; reforming the criminal justice system; reviewing, strengthening and repositioning the Federal Ministry of Justice; making the judicial sector more transparent and accountable; convening meetings of Attorneys-General; setting up a Judicial Performance Commission; maintaining discipline at the bar; publication and release of reviewed laws of the federation; constituting a national consultative courts committee on justice sector reforms; promotion and protection of human rights in Nigeria; increased adoption of international treaty obligations; decongestion of court business; continued legal education; enhancing partnerships with the private sector; qualitative judicial appointments; reviewing the policy on the death penalty; legal education reform; improved relationship with the Nigerian bar association and greater funding for justice sector reform.

A closer examination of the reform agenda and its constituent demonstrates, in some measure, some of the key issues that the Government needs to address in order to achieve a desirable appreciation and entrenchment of the rule of law. To achieve this objective, there are fundamental principles that will have to be accepted by the populace at large. First, the culture of disrespect for the law and its agencies must be steadily corroded. Whilst, in many respects, this culture is essentially attitudinal, the advocates of the principle and those for whose benefit it is being propagated have to covenant, mutually, to respect the law, wheresoever they come in contact with it. This will begin from respecting constituted authority, however small and menial they appear. The second critical factor to its possible success is that the government must not only commit to it but must be seen to do so. The government commitment and the position are now clear. The practical effect of its actions will now remain to be seen. The third factor and perhaps of equal or even greater importance, is that the infrastructural framework for achieving the placement of the rule of law at its rightful position must not only be secured but also practically implemented. Central to achieving this objective are two key features namely a real and credible attempt to achieve justice sector reform and the infrastructural support to achieve this.

There are those who consider that there has been some in road made into achieving some of the change in the justice sector that is required but it is clear that Nigeria still has a long way to go in achieving this extremely laudable objective. Amongst many suggestions, the government must, as soon as is practically possible seeks ways and means to address some of the most burning constraints that continue to plague its success.

First, there must be manifest and visible evidence of the engendered political will in this regard. This is fundamental to the implementation of any reform process. This can only occur in one of two ways, namely, by developing and retaining interest by government in legal reforms and second, by an enhanced drive for additional financial resources to achieve this. At the risk of stating the plainly obvious, the availability of additional resources will strengthen those charged with the responsibility of implementing reform programmes. Credible projects designed to implement the regime of reform must be designed. It is considered imperative that international assistance and involvement is courted, especially in the current environment where mutual international interaction is being encouraged in the reform of the economy. This, in many respects would also enhance the confidence that is returning into the investment climate in the country particularly because, over and above all else, the development of the rule of law within the business committee represents one of the most assured features of a successful economy.

There must be an exhaustive and comprehensive review of the regime of reform. Many programmes have been drawn up, in the past. It is necessary that government takes a measured look at the regime of the reform. Regretfully, the government seems ill-positioned, at the moment, to undertake this reform because, for a variety of reasons, the financial resources provided remain meagre and inadequate. A graphic illustration of this situation can be gleaned from the resources allocation to the Federal Ministry of Justice, this being the central authority for the management of the justice sector in the federation. In the 2008 Appropriation Bill, the allocation to the Ministry amounts to approximately N10 billion (£42.5m). The Federal Ministry of Justice is the service ministry that provides legal services to the Federal Government of Nigeria. Its functions include representing the Federal government in Court in all legal matters; it offers legal advice to the ministers and extra-ministerial departments; it is responsible for drafting statutes, laws and instruments at the behest of all the arms of the Executive. In a developed country, to provide those services would command a substantial bigger responsibility entailing higher allocation.

Cite this position in the context of an admired – and admirable – comparison, the US. Closely following this illustration is a bird’s eye view from a somewhat smaller economy, the UK. The Department of Justice in the United States is led by the Attorney General and comprises over 40 component organisations. There are four strategic goals, namely the prevention of terrorism and promoting the nation’s security; the enforcement of federal laws and representing the rights and interest of American people; assisting state and local efforts to prevent and reduce crime and violence; and to ensure the fair and efficient operation of the Federal Justice system. Its annual budget for the financial year, 2007 was $23.7 billion. Its equivalent in the United Kingdom is the Department of Constitutional Affairs (previously known as the Lord Chancellor’s Department). Its identified responsibility is to promote the development of a modern, fair, cost effective and efficient system of justice, objectives not dissimilar to those of our Federal Ministry of Justice. Apart from its responsibilities in relation to Scotland and Wales, this department has six major executive agencies including Her Majesty’s Court Service; the Legal Services Commission (which administers Legal Aid) and the Tribunal Service. Its resource budget is over £4 billion. Admittedly, these are illustrations from bigger economies, but the support in resource terms is reflected in the results that are achieved. Granted, our resources are significantly less but a genuine attempt to imitate this approach will see serious improvement in the outcomes.

Conversely, over the years, reform in the justice sector in Nigeria has been crippled by a sparseness of resources, not to mention the debilitating effect of a long period of military dictatorship. Reform in Nigeria can only proceed at a slow pace which means that the areas of emphasis, determined by priority, must be ascertained. Even within those areas identified, a further definition is significant, principally because the type of change that is necessary to put the justice sector on a stronger footing cannot be achieved by rapid, wholesale change. The will to accept change and resources to implement these are simply features that are lacking.

It is necessary to establish and grow a base for designing and implementing practical reform programmes. From within government, the offices responsible must be expanded; empowered and more appropriately staffed. The Attorney General, the Chief Legal Officer for the Federation has substantial and quite engaging responsibility which must be amply supported by competent, experienced and exposed personnel. At present, even advisorial support to the presidency is visibly limited, unlike the United States, where government attracts the best “brains” and performers. As with other sectors, public service in the justice sector appears to hold appeal, other than at the highest level, for a large number of people for whom private sector involvement is not available. Executorial support in current government structures is weak. First, serious thought should be given to either splitting the Justice Ministry or creating a Minister of State’s position. The case for this sub-division has been argued with force, in the past, such that it is pointless repeating its virtues. In the short term, the Ministry’s daily administrative business should be undertaken by the Minister of State, leaving the AG to act, properly so, as the Chief Legal Adviser to the Government. The position should be filled by a “technocrat”, someone with experience of managing within an administration of justice environment and, possibly, with cross border experience, this being a necessary feature to reform our existing, somewhat puerile processes. There should be a Rule of Law unit within the Presidency, this serving as an active, middle-management point necessary to provide operational content to the work of the presidency and the Ministry of Justice. This should be headed by a Special Assistant especially as the President does not now have a paid special adviser on legal matters. “Rule of Law” Units, similar to Due Process Units, should be set up in all Federal Ministries with reporting obligations to the corresponding unit in the Presidency. The presidency itself should be unburdened, even at the risk of creating more ministries. The several “reportees” to the President, however well intentioned their original job descriptions were crafted, cannot, in all honesty, expect to engage Presidential supervision with the desired frequency. Decongesting the Presidency will create more response channels of accountability and supervising ministers will have to accept greater responsibility for the actions of those for whom they are responsible. This decentralisation has plainly inherent and obvious benefits.

From the referral to the specific, the elimination of delay must be pursued within the court system. There should be uniform court rules in all the states in Nigeria and the Federation. The existence of multiple systems in Nigeria is a persisting and unacceptable weakness. It is unsatisfactory and untidy. There is no longer a credible case for the different systems as this stifles uniform development across the country. Once the rules are designed, there should be an appropriate transition period or, in the alternative, specific arrangements are incorporated into the new uniform rules to deal with litigation, (whether civil or criminal) arising before the inception date. The case for uniform court rules has been made with lucidity in the past, but it is appropriate to state, in general terms, that it brings about certainty in the actual administration of the justice system in so far as courts are involved. Once it is appreciated that it may require further legislation to give effect to such uniform rules, there is no persisting justification for sustaining different rules in different parts of the country.

Document based court work should be encouraged. Protracted court hearings and ceaseless deferments (adjournments as we know them) appear to be one of the most discerning aspects of the Nigerian judicial system. Lagos State has made enormous strides. The progress in this state shows that change is attainable. The conduct of litigation should be reduced, as far as is possible, first and almost exclusively to writing, only to be embellished in exceptional circumstances, by oral additions. Those that are not to be in existence should be introduced. Aspects of civil litigation that should be reduced almost exclusively to writing and introducing to the current system include pleadings; request for information; chronologies; skeleton arguments for all interlocutory/substantive applications before trial; witness statements of evidence; written experts opinion; provision for the exchange of legal authorities by schedule and attachment of all such authorities in relation to all civil litigation. The criminal process can also benefit from substantial introduction of document-based work.

In facie curiae judgements, being the end product of the judicial process must also be subject to quite serious reform. Even at the highest level, the practice of reducing voluminous judgements running into several pages should be actively discouraged. The prevalence of this practice at virtually all levels of the judiciary leaves some concern. There are, in the current dispensation, abundant examples of the epidemic of judgement obesity. It is evident that the delay that can arise from the quite difficult and imposing pressure to produce judgements often dictated by the material placed before the Courts by advocates can never represent an apt advertisement for open and accessible justice. On delay in producing judgement, the time is now apt to introduce the recording and transcribing of court proceedings for all cases. This can be commenced where the time that is occupied by the court in the case exceeds 3 hours. In this event, transcripts can be ordered and produced for Judges only in relation to required aspects and not necessarily in relation to the entire case. There should also be an increase use of research assistants who are trained specifically in being able to provide administrative assistance to the Judges and court. This training should be incorporated into the University programmes and also provided on-the-job. Resources must also be applied to the operation and support for a Judicial Studies Board whose role will be to act as an agency providing training for all levels of judicial officers in the country as a whole. Training and continued education for the Judges must become obligatory. The necessity for the training will be to prepare the Judges for major overhaul of the judicial system and the advent of the implementation of the system not previously known to them. The training should be mandatory to both state and the federal judges with state governments being required to bear the costs for their judicial officers.

The entire system for the provision of legal aid to the indigent population and those on low incomes must be brought to the top of the agenda. The current system in place is under supported and severely underfunded. It is almost completely ineffective and reflects poorly, in comparison with similar schemes that exist elsewhere in the world. The system that currently exists reflects a disturbing lack of appreciation of an avenue that now represents a visible source of curtailment of access to justice. Without the access to the machinery of justice, it is impossible for those for whom the rule of law has been created to appreciate it.

The current position of government denotes Nigeria’s appreciation of a world-wide criterion of social and economic development. It is a belated but much desired starting point. This position must be applauded, against the backdrop of the realisation that a substantial amount of political movement needs to be maintained in order to truly assert the position of and continuing government that the observance of rule of law has become necessary to found recognised development and growth in Nigeria.

Andrew Obinna Onyearu is a Solicitor who practices in Nigeria and the United Kingdom