Buhari must re-federalise our judiciary – Ogunye | Independent Newspapers Limited
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Buhari must re-federalise our judiciary – Ogunye

Posted: Apr 23, 2015 at 6:13 am   /   by   /   comments (0)

Jiti Ogunye is a Constitutional lawyer, rights activist and public commentator. In this interview with Senior Correspondent TUNDE OPESEITAN, Ogunye spoke on number of issues including the Supreme Court judgment upholding the election of Governor Ayodele Fayose of Ekiti State and a need to re-federalise the judiciary to bring about the needed judicial reform. Excerpts;  

How do you react to the judgment of the Supreme Court upholding the election of Governor Ayodele Fayose of Ekiti State?

Jiti Ogunye

Jiti Ogunye

Well, I think it is a judgment that will be thoroughly considered and read and read by lawyers and non-lawyers alike to really find out and determine whether the appreciation of the legal history of that 2006 impeachment exercise was correct. Now, as a living witness to that incidence, one can recall that in the period of the said impeachment exercise, eventually a State of Emergency was declared which effectively sacked Fayose from power. I said that because we can’t forget that story. Fayose was impeached; he claimed that he had not been impeached; another speaker was sworn-in and there was a power tussle and there was pandemonium and all that. It was in the course of all that the State of Emergency was declared which effectively sacked Fayose from power. So, if the Supreme Court is now saying that that impeachment exercise was inchoate, inconclusive and was not followed by Code of Conduct Tribunal trial and therefore cannot constitute a ground for the disqualification of Ayodele Fayose in the election that saw him becoming a governor again; I think that that decision of the Supreme Court is not one that we should treat with levity and see it as escapist. In other words, my view is that one cannot just say that the Supreme Court was being escapist and was playing the ostrich by reaching that conclusion. I think that the reason why this decision of the Supreme Court has generated so much interest is not so much because it is an extra-ordinary judgment; it is not because two lower tribunals – the Election Petition Tribunal and the Election Appeal Tribunal had reached one and the same conclusion and it is not the usual practice of the Supreme Court when the two lower courts had concurred, except there is a very strong legal prank to then upturn the verdict. So, as a lawyer I can tell you that you must have an extra-ordinary case before the Supreme Court before the Supreme Court will distort the findings of fact of two lower courts and then upturn the judgment. So, it is said in law that once there is a concurrence of findings of two lower courts or tribunals, the Supreme Court will not make it a practice to then upturn those findings except there is an exceptional ground to upturn the findings. So, from the perspective of jurisprudence, this judgment may not be faulted on that point, but because of the fact that in the election of Governor Fayose, Ekiti practically has been in turmoil owing in particular to his own unacceptable and objectionable governance style if we are to call it governance at all; owing to his reckless abuse of power; owing to his irresponsible conduct (and I’m using my words advisably) of taking on the judiciary by intimidating and interfering in the affairs of the judiciary; causing the invasion of the court and now taking on the legislature and then undermining the legislative business in the state and then making seven legislators to purportedly carry on legislative business in the state of a 26 member legislature thereby making himself a dictator in Ekiti State; running one arm of government which is the executive arm after intimidating the judiciary and subduing the legislature. Because of all these, generally people now have a kind of expectation of hoping against hope that perhaps the Supreme Court will help us resolve this conundrum and crisis. So, that is what has given this judgment this attention and expectation but we must try to demarcate between judicial reasoning, legal reasoning and political expediency or political correctness. So, it will be political correct given all Fayose has represented for him to be out of power, for him to be impeached because I believe he committed egregious and impeachable acts by preventing a House of Assembly from sitting; nothing can be more despicable under a Constitutional government than that. But we must demarcate as I have said between what the requirement of the law is; what legal reasoning is; what judicial reason is and what is politically expedient. So, in conclusion on that point, this judgment has been delivered. The Supreme Court is the final court of appeal in Nigeria and once the Supreme Court has given a judgment, although we may critic the judgment in articles, case review analysis and all that, but all of us are bound by the dictate of that judgment. That is what is contained in Section 287 of the Constitution. The decision of the Supreme Court is binding on all the parties. We hope, moving forward, that those who want popular justice for the Ekiti people can still go through the route of constitutionalism. This judgment has been delivered and everybody will have to live by it.

What agenda will you set for the incoming administration of Buhari/Osinbajo in terms of judicial reform?

Well, the fundamental issue with the judiciary has been stated and restated and that is that Nigeria is a federation. If indeed Nigeria is a federation, we cannot be having an over-centralised or a somewhat unitary judiciary. What do I mean by this? Our judiciary is like a cone, it is like a pyramid. It has a small tiny soft and a very broad base. The base comprises several states high courts and federal high courts and other such courts and cases in these courts are so many in the country that the appellate route they go through are many divisions of the federal court of appeal. From all these courts, cases emanate to one and only and all powerful Supreme Court. The constitution says that the Supreme Court can have 21 justices but no point in recent time has the court had the full complement of those 21. So, we have the Supreme Court operating with 15, 18 justices just like that. Even if that court is to have the full complement of justices, how can one court of 21 justices take appeal from criminal matters and civil matters across the country aside exercising its original jurisdiction of adjudicating on disputes between states and federal government? How can that one court take up these cases? So, you now have a situation whereby in the docket of the Supreme Court, criminal and civil cases languish therein for 5, 6 years and so we have a terrible backlog of cases. We can’t be talking about judicial reform without dealing with the structure of the judiciary. People miss this point and start thinking about how can we fast track cases; how can we ensure that cases are determined within a number of time; how do we have more judges; how do we ensure they don’t write with long hand. If they like, let them talk about it forever, they still cannot take those criminal and civil appeals given the way I’ve explained it. So, you need to re-federalise the judiciary; you need to go back to the basis. States ought to have their own appellate process or if the states are considered to be too small to have that, we can have zonal appellate structure such that Lagos, Oyo and Ogun states for instance or the Southwest can have an appellate structure and then at that level you have that. So, in essence, the federal judiciary will only take federal causes alone. That is how it is in the United States; that is how it is in all federation. What has happened is that the distortion of the Nigerian federation which was reflected in the unified police force that we have because we have not always had it because in the past they had native authority, which reflected in the abolition of the Western Court of Appeal where people like Esho, Madaripon and the others, have before the Obasanjo regime unified the entire system and made it a federal court of appeal in 1976 or thereabout. So, we will need to go back to that era and restructure the judiciary. I’m not the only that is saying this and this has actually been my consistent position for the past 10, 15 years and recently Justice Ayo Salami who had the rare privilege of presiding over the court of appeal and who should know had made this kind of appeal and I think that that was at the Gani Fawehinmi lecture about 2 years ago where Justice Salami said we needed to go back to that system if we are indeed keen about judicial reform. So, moving forward, if the administration that is talking about change and they are talking about fighting corruption in the judiciary without coming with this restructuring, they will just be scratching the surface because it is a fundamental problem that must be addressed and I must add that this need to take place within the context of the general need to restructure the country. When we say restructuring, we are not just talking about the geographical space alone or the collapse state; that may be part of it but that is not the only thing we are saying. So, you will need to go back to that. Secondly, when you deal with the fundamental reform, you then need to deal with what I call administrative or operational reform in the judiciary. That is what people have been spending time and energy talking about. They don’t describe it as such but I’m just summarising it as such because all the talk about paying judges well and doing this and that, are all operational and administrative reform. So, they have to go through those operational reform such that the quality of justice delivery will be enhanced in terms of the quality of the judgment itself. We need to think for example about judges’ cases ratio. You know those who deal with education will tell you that the case of assimilation of students can be enhanced when you look at the teacher/student ratio such that if you look at a class and you have about 50 students or pupils and you have one teacher, how can that teacher personalise knowledge dissemination as to effectively impact on the lives of students. So also is the case of a judge. When a judge is having about 50, 60 cases, do they evaluate their performance rating regarding all these? Thirdly, you really cannot be talking about judicial reform without talking about legal or law reform. People now see the correction properly to say that they are separate. When you ensure that the judiciary is operationally and administratively sound to fight corruption and all that, if the law the judiciary is going to interpret is well done, what have you achieved? You have achieved nothing. So, all those cumbersome and archaic rules of court will have to be thoroughly looked into. I’m optimistic that the Vice President-elect, Professor Yemi Osinbajo is a professor of law and a lawyer who has also had the best of practice. He was in the academia before he became the Attorney General of Lagos State where he introduced several law reforms to that state. For example, Lagos State in 2004 pioneered the reform of the Civil Procedure Rules to introduce the frontloading processes and thereafter many of other states copied it. As we speak, some states are still using the Uniform Civil Procedure Rules of 1987 for example even in Edo State. So, I think that this kind of reform can be then taken to the national level. Recently, the Justice Sector Bill was recently passed and I think that that can also help the entire reform process in good stead. So, it is not just the economy that we are talking about; it is not just about politics and politics that is broken has to be reformed. And I think that these are the areas we have to pursue vigorously for us to see the desired changes in the judiciary. I know that driving change is not easy and I know that people will resist the reform. For example, a lot has been said about the possibility of injecting fresh blood into our apex court. As it was in the time past, there was this old ideas of having judges moving from one level to the other and they become so conservative and pro-establishment that they resist new thinking. Why can’t we have people from outside like professors of law, who are accomplished; the lawyers in practice who are accomplished appointed straight to the Supreme Court? I mean what is so unique about appointing judges to the apex court from the Court of Appeal? What you find out is that many of them now have what you call an ownership psychology and so they resist the possibility of appointing fresh blood into the Supreme Court. Another point is that we should look at the possibility of separating the Supreme Court from being the Constitutional Court as well as the general court that handle all cases. I mean, it is absurd for an appeal to be filed in the Supreme Court and for the next five or six years, the case is not heard. What then has happened to the popular maxim that justice delayed is justice denied? This are some of the issue we have to deal with and I think that Professor Osinbajo, being a professor of law will be able to drive that. For the first time, we are having a professor of law at the highest level; we have been having all sorts like zoologist, architects and so on but now, we should expect much more.

But how do we address the issue of conflicting judgments if the judiciary or the apex court is decentralised?                            

You see, to even use the word decentralize is not apt although for the purpose of our discussion, we will adopt that terminology. We are talking about a federalize judiciary. But to answer your question straight away, when you have this decentralised judiciary and you have an appellate process at the level of the state, the state high courts have their jurisdictional compass and so when you have court of appeal of state or zonal court of appeal or zonal supreme court, they will be taking cases that are within the jurisdictional purview of states. So, the decision of the highest court at that level will be binding on the lower court at that level including the state court of appeal or the zonal court of appeal of that state on subject over which the supreme court of that zone will have jurisdiction. Now, for the federal judiciary, you also have the federal high court, you have the federal court of appeal as they call it federal court of appeal circuit in the United States and you have the supreme court. So, the Supreme Court of Nigeria will still be there and can take very limited constitutional appeals even flowing from the zonal appeals of the state. That is how it is organised elsewhere. For example, after the state supreme court in the United States, they have states high courts, they have states court of appeal, and they have state supreme courts there.