Role of the Judiciary in Nation Building
The causes of anxiety and contestations range from the extreme foundational questions of whether the country ought to continue in existence, or on what terms if it continues as one nation. Also contested is the vertical structure of government or what is often referred to as the restructuring debate.
The horizontal dimension of the contestations focuses mainly on the role of the branches of government, including the judiciary; the extent they have fared to deliver good governance; the cost of governance and the cost of living; the pervasive cankerworm of corruption; the independence of the judiciary itself; the problem of executive lawlessness, the seeming ineffectiveness of the legislative branch and of course the serious problem of insecurity, among many other issues.
Within the time provided, the organizers have graciously limited me to address the role of the judiciary in nation-building. I shall attempt to do this not only by reminding ourselves of what we know and often overlook but also by proposing some novel interventions to strengthen the justice delivery sector.
My address is organized into three parts. I shall discuss the notion of nation-building and the role of the judiciary in that effort. Using the context of the topics proposed for this Law Week, I then highlight the tools by which the judiciary may play or be challenged in playing this role.
My address highlights the use of electronic devices in open courts and what implications it has on the Rules of Professional Ethics in the Legal Profession; the effect of pre-election and post-election matters on regular court fixtures and proceedings; and when issuance of conflicting court orders constitutes professional misconduct at the Bar and on the Bench. I shall then make some concluding remarks.
NATION BUILDING AND THE JUDICIARY
The modern notion of nation or nation-state is traceable to the Treaty of Westphalia, 1648 which ended the 30 Years’ War among European powers. The treaty affirmed the sovereignty of nations as a cornerstone principle of the idea of the nation-state. Like all concepts, the idea of the nation-state is not free from definitional imprecision. However, it’s widely acknowledged that four features are associated with the nation-state, namely: sovereignty, a defined territory, population and government. The idea of nation-building is intractable, because of its various strands and complexities. The idea is probably best described by focusing on its more important aspects. Without a doubt, nation-building is a process, which involves the construction of a territorial political entity defined by rules, norms, values and common citizenship.
Nation-building is also defined by the construction of public institutions which are the substratum of the nation-state; institutions such as the organs of government at the various levels, of which the judiciary is an integral part; the bureaucracy, the economy, the civil and traditional societies, among many others. The most consistent indicator of nation-building is dynamism. Nation-building is an evolving phenomenon, driven by women and men with vision and resolve.
The judiciary is an indispensable part of the institutional bulwark of every nation-state and nation-building efforts. Of all the branches of government, the judiciary occupies a very special place. It is the only institution that is traditionally charged with formally dispensing justice according to law and facts. This must be done without bias or ill-will.
However, the place of the judiciary is beyond adjudication; for if the judiciary is conceived only just as an instrument of arbitration or settlement of disputes, how can it qualify to be a public institution or one that can be mobilized for nation-building? This inquiry has attracted the comments of jurists. On this score, Lord Justice Thomas, Lord Chief Justice of England and Wales in “Centrality of Justice” a speech delivered at the Lord Williams of Mostyn Memorial Lecture (2015) said: “There is an emerging view that (the) judicial system is simply nothing more than the provider of an adjudication service either between the citizens and the State or between citizens. The view gains currency as it’s perceived that individuals, businesses, and local and central government come to the courts to use them as an adjudication service, just as they would go to a mediator, adjudicator or ombudsman or another private provider of such services…. The idea is fallacious…. A democratic state secures justice, in the widest sense for its citizens through an independent judiciary and justice system. It is in the same category as Parliament and the Executive. It forms part of the institutional framework (of a nation-state).”
The summary of this dictum is that the judiciary is in the same category as other (political) institutions of a nation-state such as the Executive and Legislative branches. Its role is not merely adjudicatory, which can also be performed by any other non-public institution. Thus, in a broader sense, the role of the judiciary is to sustain the nation-state and promote its perpetual existence through an unbiased dispensation of justice.
THE JUDICIARY AND NATION BUILDING IN NIGERIA
Let me now attempt to highlight the institutional role of the judiciary in nation-building efforts in Nigeria within the context of the main topics to be discussed in this Law Week.
Use of electronic devices in open court and the Rules of Professional Ethics
Information Communication Technology (ICT) is now an integral part of modern life. If this was ever in doubt in the justice administration, the COVID-19 pandemic has erased the doubt. But for a virtual hearing, which the Supreme Court of Nigeria correctly endorsed as valid, the entire justice delivery process of the country would have ground to a complete halt at the height of the pandemic, with serious negative consequences for law and order.
Nonetheless, a lot is still not clear about the extent to which electronic devices may be used in our justice delivery process. In particular, to what extent may electronic devices be used to conduct a court proceeding without running afoul of the duty imposed by the Rules of Professional Conduct for Legal Practitioners (RPC) 2007, especially Order 30 which provides that “A lawyer is an officer of the court and accordingly, he shall not do any act or conduct himself in any manner that may obstruct, delay or adversely affect the administration of justice”?
Neither the RPC nor the rules of court make clear provisions when electronic devices such as laptops, Android phones, IPads and the like, which are of tremendous assistance to lawyers for research and storage, can be used in the court. The result is that judges, as custodians of their courts, exercise unfettered discretion to decide whether or not to permit such usage. As a matter of fact, most courts completely bar their use.
Nigeria can take a cue from other jurisdictions where formal guidelines have been passed to clarify the circumstances when electronic devices are permitted to be used in court. For instance, New Zealand has passed the Lawyers’ Use of Electronic Device in Courts Guidelines, 2021 declaring that counsel may use electronic devices in courts, provided that they remain mindful of their professional obligations as officers of the court and their duty to their clients; the context of the use; and the fact that the use of electronic devices for film, photographs or sound recording is prohibited. The Guidelines define “electronic devices” to include electronic devices of any kind including laptops, cellphones, smartphones, etc. The Guidelines are expressly made subject to the direction of the judicial officer presiding. Where there’s any doubt about the grant of permission, the Registrar of the court is to be consulted.
Effect of pre-election and post-election litigation on the dockets and calendar of superior courts
We have entered the election season yet again. From previous experience, the period, which continues after the general election, causes serious disruptions to the dockets and calendar of courts and invariably undermines the judiciary’s role in dispensing justice as part of its grand responsibility in nation-building.
Due to the intensely contentious and time-bound nature of election-related matters, many regular matters suffer serious delays arising from the time and efforts taken to attend to election-related matters to the detriment of other matters.
Unfortunately, there is no significant policy or legislative intervention to alleviate the situation. The situation appears to be beyond the capacity of the judiciary to alleviate. They may require constitutional and legislative interventions. Due to the limited number of judges in the superior courts of the country, there are not enough justices to handle these pre-election and post-election matters, without causing disruptions to the quick dispensation of justice.
With the passage of the new Electoral Act, it appears that only the Federal High Courts may suffer more from such disruptions, especially in pre-election matters. This is because sections 29 (5) and 84 (14) of the new Act now confer exclusive jurisdiction on the Federal High Court to adjudicate pre-election matters. Matters pending before the appellate courts are also very likely to suffer the same fate as the Federal High Court. Above all, the entire superior courts will suffer the disruptions from post-election matters since election petition matters are adjudicated by-election tribunal panels with serving High Court judges assigned from outside their states of service as chairmen and members. Appeals from those tribunals go up to the Court of Appeal and terminate at the Supreme Court, especially for gubernatorial and presidential elections.
As a way of ameliorating the delays, the Body of Senior Advocates of Nigeria (BOSAN) has suggested the establishment of special-purpose courts with exclusive jurisdiction to adjudicate pre-election and post-election matters, while appeals from the proposed courts should terminate in the Court of Appeal, with appeals from the latter court on only constitutional questions terminating at the Supreme Court. From a perfunctory point of view, this suggestion appears to make a lot of sense because if adopted, it frees the regular high courts from the disruptions currently being witnessed.
Alternatively, we should think of adopting the principle of judicial federalism to re-organize our superior court system. This will require constitutional alteration. States should be afforded the opportunity, separate from the federal government, to establish their own superior courts to adjudicate state or state-related matters, including setting up special courts as they deem fit, to hear election matters both at first instance and appellate levels, with the Supreme Court granted discretion to hear or reject final appellate jurisdiction in constitutional questions. This will add to the currently insufficient pool of judicial personnel available to dispense justice, with the NJC using the dictates of the quota system to limit what number of judicial appointments that may be made into the High Courts and other superior courts.
On the other hand, I believe we should think seriously about discouraging “judicialization” of politics or the relentless propensity of politicians to drag the judiciary into settling pre-election, and even post-election disputes. I believe pre-election matters relating to internal party disputes are political questions, which ought to be settled politically. To this end, I believe we should think seriously of strengthening or restoring the principle of internal affairs of political affairs as affirmed in Onuoha v. Okafor (1983) NSCC, 494 in which the Supreme Court held that the decision of who a political party fields under the Electoral Act of 1982 were at the discretion of the leader of the party (in conjunction with the then electoral management body). This jurisprudence remained until 2006 when a new Electoral Act opened up the judiciary to a floodgate of pre-election litigations from which the judiciary has not recovered.
When do conflicting court orders amount to professional misconduct at the Bar and on the Bench?
One unfortunate phenomenon which has exposed the judiciary to ridicule in recent times is the issuance of conflicting court orders by a number of Federal and State High Courts. This occurs when High Courts issue contradictory court orders in respect of the same subject matter and parties or class of parties. This is made possible through lawyers who engage in forum shopping, by going from one court to another in search of pliant High Courts that can grant their clients favourable court orders, usually filed ex parte; or even in some cases, with notice to the defendants.
Despite the strict prohibition of the unwholesome practice, some lawyers and judges have continued to engage in them thereby eroding the confidence in the justice delivery system, and the nation-building role of the judiciary.
Only a few months ago, seven lawyers (including a Senior Advocate of Nigeria) were prima facie indicted by an investigating committee of the Nigerian Bar Association (NBA) for professional misconduct for engaging in inducing the issuance of a conflicting court order. They have since been brought to face the Legal Practitioners Disciplinary Committee (LPDC) for trial, with the spectre of serious disciplinary consequences hanging on them.
Earlier in September last year 2021, the Chief Justice of Nigeria, Rt. Hon. Justice Ibrahim Muhammad directed the National Judicial Council, to commence a disciplinary hearing against three judges indicted for issuing conflicting court orders. In the end, all three were found culpable and barred from getting promotion for periods ranging from two to five years.
Flowing from the above, the question posed in this Law Week is when does the issuance of conflicting court orders amount to professional misconduct at the Bar and on the Bench? Although judges possess discretion to issue ex parte orders, they are under the obligation to be judicial and judicious while considering such applications. In any event, there are administrative guidelines which a judge is expected to abide by before issuing such an exceptional order. Where there are indications that the order was made under pressure, on account of forum shopping, in flagrant disregard of the duty imposed on the judge, or in violation of the guidelines, such a judge is indictable for engaging in judicial misconduct, with dire disciplinary consequences.
The same goes for a lawyer who allows himself to be used for forum shopping on behalf of a client resulting in the issuance of a court order which conflicts with an existing one or calculated to countermand an earlier order of the court. Any lawyer found to have been involved in such unwholesome practice is in my opinion in gross violation of Order 1 of the RPC, which provides that “A lawyer shall uphold and observe the rule of law, promote and foster the cause of justice, maintain a high standard of professional conduct, and shall not engage in any conduct which is unbecoming of a legal practitioner.” Such a lawyer is also in violation of Order 30 of the RPC earlier cited which directs that a lawyer as an officer of the court shall not do any act or engage in any conduct that adversely affects the administration of justice.
As we enter the pre-election, election and post-election seasons, it’s important that members of the Bar and the Bench are reminded to rise above sharp practices such as we have identified. Sadly, despite the frequency of this admonishment and the harsh consequences of engaging in such deplorable practices, some members of the Bar and the Bench persist in their ways. For instance, only a few weeks ago, the Federal High Court Holden in Ibadan, Oyo State struck out a suit seeking to nullify the controversial section 84 (12) of the Electoral Act for want of locus standi. Later, another Federal High Court Holden in Umuahia, Abia State gave a judgment nullifying the subsection, without considering the locus standi of the applicant. This is an embarrassing situation which must be avoided by every means possible, otherwise, the entire justice delivery system will be ruined irreversibly.
In this regard, the Nigerian Bar Association must continue to demonstrate zero tolerance for it. In addition to continuing to activate its disciplinary processes against any lawyer engaged in the obnoxious practice of inducing conflicting court orders, the NBA should provide specific guidelines setting out when a lawyer may be cited for inducing issuance of such orders and tying the guidelines to the duty owed by lawyers as specified in the RPC. The Bar must have a robust monitoring team in each branch to identify such obnoxious episodes and promptly report them.
On the part of the Bench, I call on the NJC to sustain its disciplinary processes against judges culpable for issuing such orders. On a happy note, I am glad that only recently on May 11, 2022, the NJC issued a new Policy Direction to heads of superior courts nationwide setting out strict rules regarding where political and election-related disputes may be filed. The new policy provides direction on how heads of courts and judges are to handle political and election-related matters before courts of coordinated jurisdiction. This is to prevent waves of conflicting decisions from such courts of coordinated jurisdiction.
The policy applies to cases in which the Independent National Electoral Commission (INEC), any political party or its officers or natural persons are parties. It applies when such parties are “suing or sued for declaration in relation to any action taken or to compel or restrain any action or omission with respect to the affairs of a political party or any election into a public office”. Such suits whose outcome will likely have “effect or compel persons or actions beyond the territorial jurisdiction of any one state” must be filed at the High Court of the Federal Capital Territory (FCT) Abuja.
Where such suits are within the exclusive jurisdiction of the Federal High Court, the Policy Direction provides that “they shall be filed or received at Abuja and assigned by the Chief Judge of the Court”. However, where “such suits wherein the cause of action arose in a state and the relief seeks a declaration or to compel or restrain a person (s), natural or legal, within that State’s territory, with no consequence outside the State, shall be filed, received or heard only in that state”.
Therefore, to the question of when a conflicting court order constitutes misconduct both at the Bar and on the Bench, the Policy Direction issued by the NJC is a helpful road map, at least as it concerns political and election-related matters. I, therefore, urge lawyers, especially those who specialize in such matters, to obtain a copy of the Policy Direction and thoroughly imbibe it, to avoid flouting it, and suffering the consequences of the violation.
Let me conclude my address by emphasizing that the judiciary is indeed the custodian of the justice delivery system, which is an indispensable part of the process of nation-building. It is expected to play its institutional role of dispensing justice without compromise, fear or favour. Where it fails in this regard, it provides fertile ground for the failure of any nation-state. One of the clearest signs of state failure is the inability of its institutions to guarantee justice, leading to a resort to self-help and a complete breakdown of law and order.
As worshippers in the temple of justice, both the Bar and the Bench have enormous responsibility to prevent this calamitous situation of anarchy, which can happen when citizens lose trust and confidence in the judiciary and the justice delivery system as a whole.
My Noble Lords, Distinguished Colleagues, on a final note, I commend the Chairman of the Effurum Branch and the organizers of this Law Week for providing a platform to cross-fertilize ideas on how the Bar can discharge its sacred duty to the justice delivery system while supporting the judiciary as an indispensable part of the nation-building efforts in Nigeria.
Omoregie (SAN), a Professor of Comparative Constitutional Law and Governance at the National Institute for Legislative and Democratic Studies (National Assembly), FCT, Abuja, delivered this keynote address at the opening ceremony of the Law Week organised by the Nigerian Bar Association (NBA), Effurun Branch on Wednesday 25 May 2022.