t’s not just the judiciary; it’s the entire legal system
A lot has been said and written lately about the Nigerian judiciary:
its issues, challenges and what needs to be done to fix things and
make things better. Just last week, in the editorial of Ms. Funke
Aboyade, We All Stand to Lose, she wrote in defense of the judiciary
in the wake of the missiles directed at it from Senator Omisore.
Everything she said is true but as she called on the Bar to ‘defend
the integrity of the Judiciary AS AN INSTITUTION’ I have two
questions. One, why do lawyers and Nigerians think that, in light of
the pervasive rot and consistent degradation of almost every thread of
our social and political fabric, the Judiciary would remain untouched,
pristine, the glowing beacon of hope, justice and integrity? And two,
do institutions make the men or do the men make the institution?
If you have never had cause to have any interaction with the legal
system (which I define for this purpose as the judiciary, the lawyers
and the administrative process of law including court administrators,
rules of procedure, law, enforcement etc.) then you are extremely
fortunate. Never mind if you have had to swallow a lot of pain and
inequity to avoid dealings with the legal system, you might still be
technically better of for it. As a lawyer and a party to a child
custody suit I have been curious enough to find out about the
experience of others within the Nigerian legal system and as such I
can speak about our collective experiences which can be adequately
captured in three truisms/sayings.
In Nigeria, justice delayed is not justice denied. Indeed we take
great pride in the fact that cases can take over 20 years to resolve
and we are not concerned that this practice is one of the reasons why
Nigeria remains at the bottom of the international ‘ease of doing
business’ index. A lawyer recently explained to me that because the
rules of procedure allow a defendant who has been served with a claim
42 days to file a defense, this means before the court can even begin
to look at the case, there is already a built in delay. And if the
defendant asks for more time, of course it will be granted because it
is necessary to be fair, never mind the plaintiff who has to wait.
This way, a matter which can be adjudicated within a week can take
years as the party who wants to avoid ‘justice’ just keeps taking the
maximum time offered and keeps asking for adjournments. As litigants
we hear about how over worked the judiciary is but I can’t help
wondering; if judges got through their cases a little faster maybe
they would not be overwhelmed with what are actually a backlog of
cases?
Two, the Nigerian legal system believes that we are all guilty until
proven innocent. That can be the only explanation for some of the
absolutely amazing court rules that we have. I’ll take just one
example: parties to a suit have to apply in writing for an order of a
court made specifically for them. Let me explain. Imagine you have a
child custody case which is taking the usual course of time a case
takes in Nigeria. So you request that since the party withholding the
child is comfortable with the length of time the case is taking, the
child be allowed to spend the voter registration imposed holiday with
the party who is seeking a more equitable situation. The court grants
the order on a Wednesday and says it is effective from Saturday
January 15 to Thursday January 27th. Saturday rolls around and the
order is not complied with. So you contact your lawyers and proceed to
having the following conversation.
‘How do we enforce this order that the court delivered?’
‘Hmmm, you have to wait because we have to apply on our law firm
letterhead paper for a signed copy of the order.’
‘Really why? The order was granted for my benefit, why do I have to
apply for it? ‘Those are the rules, we will apply on Monday.’
When the written application on letterhead is finally ready, what do
you know; the judge is unavailable to sign the order and will remain
unavailable for a week, thus making the order meaningless for its
purpose. Still trying to understand the reason for this rule that
parties have to apply for an order which the court granted them, a
judge explains that it is to ‘prevent fraudulent people from being
able to fake orders’. How about automatically preparing two copies of
the order, signed and dated, and asking the lawyers to pick up these
orders and sign a log book acknowledging receipt? Better still, how
about scanning the order and emailing it only to the parties to the
suit? Oh, our rules of evidence do no accept electronically generated
data so it is unlikely that it would want to use the medium that
everyone in the 21st Century use to communicate, thus effectively
shutting us in the dark ages as far as email, sms or God forbid the
information out there on the Internet is concerned. This means that
the system is so convinced that all Nigerians are fraudulent that it
will rather let an injustice happen over and over again than let one
person abuse the system.
And the third thing is our own special slant on attorney client
relationship – you can never be sure who your lawyer is really working
for (especially in child custody cases). We are a patriarchal society.
Fact. Children are considered the property of the father. Fact. The
preponderance of child custody cases are brought by women who have
been unlawfully denied custody of/access to their children. Fact.
Women are generally economically and socially disadvantaged – at least
in comparison to men. Fact. By deduction, this means men in child
custody suits can afford to pay off the women’s lawyers to stall, give
bad advice or just be plain negligent and unavailable. I have heard
this complaint in at least two different cases and I am sure there are
more but as Ms Aboyede quoted in the article ‘it is hard to prove
corruption’…maybe because paper receipts are not required for the
transaction and electronic transfers are not admissible.
The point is, it is not the judiciary alone which should be beaten up
and scrutinized (to no recognizable results one might be tempted to
add); the lawyers, the rules of procedure, the court administrators,
everyone and everything must come under the microscope. Other than the
judiciary however, only a few other parts of the legal system are
periodically in the news. A few months ago, right on schedule, we got
the annual ‘law school exam paper leak’ stories, then it was former AG
Aondoakaa being stripped of his ranking as a senior advocate of
Nigeria (a welcome rarity) but rarely do lawyers and court
administrators and their practices come under scrutiny.
Judges come from lawyers, lawyers come from students and students come
from society, bringing us to the issue of men and institutions. If
there are no honorable men can or will the institutions be honorable?
And can the institutions be honorable if the men within it are not?
The answer to me is clear – the judiciary and the entire legal system
cannot be in isolation of the state of the nation. If the state of the
nation is good, then the state of the judiciary and the legal system
will be good. What we have is a reflection of the society we live
in…we can’t all be covered in smut, violence and oppression and
somehow the legal system remains lily white. We need a total overhaul
of the technical aspects of the legal system and a re-education on the
essence and ethics of the system: to provide real justice, to be fair
and to be open and transparent. One of the first things you hear as a
student of law in the United States is that the American judicial
system would rather nine guilty people go scot free than to let one
innocent person suffer. We like to say justice is blind because it
means that justice does not recognize class, power, status, race,
ethnicity, religion – just right or wrong or what is fair and
equitable. In Nigeria we need justice and the entire legal system to
be blind to anything which will influence its decisions and at the
same time, we need eyes, binoculars and magnifying glasses to ensure
that the administration of justice is real and practical not a fairy
tale which hardly anyone (but the most die hard romantics including
myself) believes in anymore.
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