Financial autonomy for judiciary a mirage – Adeniyi, ex-Lagos AG

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The former Attorney General of Lagos State, Kazeem Adeniyi, SAN, in this interview with BABATUNDE TITILOLA, speaks on various issues facing the Nigerian Judicial sector, and how improvements can be made in the administration of justice.

With your experience at the Bar, what improvements in the Nigerian justice system have you noticed when you compare it with other developing and developed countries?

The Nigerian Justice System has evolved over time albeit at a very slow pace, either by drawing comparisons with other developing/developed countries or even from years of independence. It is also true that our justice system might not be where we want it to be yet but it certainly has developed in terms of number of institutions, access, efficiency, improved and modern procedures and processes to mention a few.

Over the years some remarkable improvements have been introduced particularly in some of the major cities like Lagos, Abuja, Port-Harcourt and some states in the Northern part of the country, like Borno State. In the area of infrastructure, a great number of court buildings have been built and renovated by the government and this has led to the decongestion of the courts. The government has also made conscious efforts to recruit judicial workers with enhanced working tools and remuneration. However, there are serious and credible complaints about the transparency of the recruitment of judicial officers and the exclusion of lawyers from recruitment into the Supreme Court in particular.

Also, some of the courtrooms have been automated in order to reduce the workload of the judges who still write in longhand. Some other improvements are the gradual introduction of e-filing of court processes, although it is still bedevilled with poor implementation. The use of e-mails and text messages as means of communication and service of court processes is another area of improvement in the justice system. There are also online platforms for research purposes as well as regular attendance at seminars and conferences by judicial workers.

The introduction of front loading, pre-trial processes, compulsory mediation, virtual hearing etc. have somewhat reduced adjudication time but unacceptable delays remain and are a serious clog in justice delivery. However, credit must be given to the National Industrial Court which, as a matter of principle, makes a definite effort to ensure that most cases in that Court are timeously dispensed with.

What would you say are the major issues facing the justice system in the country?

The term ‘justice’ has become a household word such that whenever it is mentioned or used, it almost always does not need any definition. Clichés such as ‘justice delayed is justice denied’ and ‘the court being the last hope of the common man’ have become rife in the Nigerian legal system. These clichés have been inextricably linked to our law courts and justice system such that one does not need to be told that it is one of the main expectations from our courts. Suffice it to say, that justice is the fair treatment of people; a legal system by which people and their causes are equitably judged and the fair and proper administration of our laws. When it comes to the administration of justice, judges have big roles to play. Lawyers also have roles to play in ensuring that justice is administered.

The importance of a competent, independent and impartial judiciary in preserving and upholding the rule of law cannot be over-emphasised. Three major things play an important role in sustaining the judicial system of a nation and the administration of justice. The three things are public confidence in the independence of the judiciary, public confidence in the integrity of the judges that man those courts and impartiality and efficiency in the administration of justice.

In Nigeria, one of the major problems is the creeping threats to the independence of the judiciary from the incidents of intimidation by some security agencies under the control of the executive arm. The recent reports of strong-arm tactics by security agencies targeted at judicial personnel is a very bad and retrogressive development. Once the judiciary is intimidated then all positive infrastructural, technological and personnel developments become meaningless, hollow and worthless because justice can no longer be delivered without fear or favour.

How would you explain the relationship between the lawyers and the judges? Has it improved or it has dwindled?

The Bar and the Bench have in many instances been described as inseparable and dependent on each other in the quest to sustain and dispense justice according to law. This unique relationship exists in no other profession and in no other walk of life and oftentimes depends on the mutual assistance and respect of each group toward the other. The Bench and the Bar, no doubt, occupy pivotal roles in the administration of justice and I believe that it is only by working harmoniously together that the Bar and the Bench can advance the course of justice and promote a just society where rule of law is observed and human rights respected. Rules 30 to 38 of the Rules of Professional Conduct for Legal Practitioners impose obligations and duties on lawyers in the conduct of their matters in court and in their dealings with members of the Bench. It enjoins lawyers to observe a high level of decorum and professionalism in the discharge of their matters in court. It also establishes the requisite standard of behaviour or comportment expected of lawyers in their dealings with members of the Bench. A lawyer’s duty to the court relates to his or her status as a professional who serves, not only clients, but also the public interest. In other words, a lawyer may not be able to act in a way that serves the client’s best interests if doing so would put the administration of justice and the community’s confidence in the profession at risk. A lawyer’s duty to the court also helps define the limits of his representation of a client. As co-ministers in the temple of justice, members of the Bench are also saddled with a corresponding duty to discharge their judicial functions with a high level of professionalism. This minimum standard of acceptable behaviour for judicial officers is imposed and prescribed by the code of conduct for judicial officers.

The Nigerian lawyers and the judges have enjoyed a robust and symbiotic relationship over the years which has led to the growth and development of the Nigerian legal system. As we can see from the agitation for better welfare for judges, the lawyers have joined hands with judges to clamour for better remuneration. However, there is definitely still room for improvement in the relationship.

What is your honest review of the procedures for seeking justice in Nigeria?

Nigeria practices legal pluralism. This implies that different legal systems coexist in Nigeria. These are: common law, customary law and Islamic law. These systems of law exist for the sole reason of ensuring that those who practice them, or are subject to them, obtain justice. Ideally, justice is expected to be always dispensed fairly and swiftly without bias, fear or favour. This is because justice is the end of law as the law is a means to justice.

However, the situation in Nigeria is still a work in progress. Access to justice is still slow and expensive for a lot of common people despite the various well-meaning efforts by government to make it easy.  The process of getting remedies, especially in civil courts, is hampered by the dockets of courts and delays that accompany the trial process. There is insufficient manpower and most of the officials are not fully trained in the dispensation of their responsibilities. Also, sharp practices by some unscrupulous legal practitioners also hamper the effectiveness of accessibility to remedies and reliefs.

How do you think the NBA can drive the improvement and development of legal practice in Nigeria?

The NBA has always facilitated and provided leadership for critical reforms in the transformation of our justice system. However, those reforms have not fully addressed several challenges our justice system is grappling with daily. The model of practice where lawyers work to ensure all can benefit from the protection of the law, including the vulnerable as a result of their poor economic situation, education, minority status or their gender has always been a talking point within the legal profession. However, a lot of these ideas die with their ideologists.

In recent times the training and lawyers’ welfare initiatives by the NBA have been laudable but it certainly must return to its glorious days when its words carried the desired weight.

What particular area do you think lawyers can improve upon in their practice?

The sad reality is that we have too few lawyers working in public interest. The legal profession has to meet that need if it must retain a central position in our justice system. The current reality is that public perception of lawyers and the justice system is very low. We need to respond to people’s perception that lawyers are only interested in representing only high paying clients. This kind of perception creates the impression that the law profession is self-centred with no sense of humanity.  It appears, therefore, that the nature of the challenges in our profession, our system of justice and indeed the entire society require proactive leaders that live in the reality of today.

What do you think about the career progression of government lawyers? Do you think they are enjoying promotion, increase in salaries and compensations as they should?

During my time as the Attorney General of Lagos State I had a first-hand experience of the work ethic, challenges and expectations of the state counsel who, simply put, is that professional designated to clear the problems created in other areas of government. The professionalism and dedication to duty of many of the state counsel (who are some of the best brains) despite the constraints they operate under was remarkable and was very revealing. I must say that the circumstances foisted on them by the civil service in terms of remuneration and limited growth in the service is a major disincentive for several of them. Unlike other professionals who enter the service at a higher grade level thus enabling them to reach the pinnacle of their cadre in much fewer years with several offices of permanent secretaryship attainable, the state counsel has been limited in growth within the civil service.

It is a fact that, in the past, the Ministry of Justice in Lagos produced a sizeable number of judges in the state judiciary because of their vast and diverse exposure to litigation. But until recent appointments, state counsel appointments into the judiciary dwindled for a plethora of reasons causing a serious top-heavy hierarchy in the ministry aided by the misconception that limits the career of the state counsel to the Ministry of Justice.

During my service years, we realised this anomaly and tried to assuage the situation by appointing senior state counsels as permanent secretaries, executive secretaries and general managers in ministries and agencies outside of the Ministry of Justice. In a nutshell, I strongly believe the reward system for this category of state officials must be broadened.

There have been accusations that justice is being bought with power and money. Do you think the underfunding of the judiciary is what makes the system vulnerable to the control of the rich and powerful?

Constitutionally, the judiciary is not an extension of the executive or legislative arm of government and ought not to be susceptible to the whims and caprices of both arms. These arms of government are independent of one another but operate in synergy in providing good governance to the people. In real terms, among the three arms of government, the judiciary is the least funded. While the executive and the legislature negotiate better deals (budget preparations, approvals etc.), the judiciary is left at the mercy of both the executive and the legislature for funding. The consequence is that it does not get enough funding to deliver on the mandate given to it under Sections 6(1) and (2) of the Constitution. How democratic a nation is, can be ascertained by the powers the judiciary is permitted to exercise. Therefore, it is safe to say that underfunding (whether deliberate or not) of the judiciary is one of the factors that make it vulnerable to the control of the rich and powerful. However weak recruitment, insufficient oversight and discipline in the judiciary also make it vulnerable.

Before the National Judicial Council gives approval to a state to recruit additional or replacement judges, they must show verified capacity to provide adequate welfare in terms of accommodation, vehicles, medical facilities etc. However, the pertinent question that must be asked is how many states are providing globally acceptable welfare for our judiciary today? Sadly, the answer is not enough states.

Young lawyers are becoming more politically rooted in their practice due to monetary compensation. This will somehow affect the way they perceive justice. Is the poor remuneration of the young lawyers by their law firms contributing to the money-driven justice system that we have now?

Generally, poor remuneration of lawyers whether in public or private practice breeds poor ethical standards which ultimately rubs off on the entire administration of the justice system. There is certainly a need to improve on wages of lawyers especially in these harsh economic times, but it must be balanced with the value the lawyers are bringing to the table. Many young lawyers are disillusioned with the economic conditions and the relatively poor remuneration they are faced with after going through university and law school. On the other hand, law firms are faced with the challenge of how much real income they are generating to sustain the agitation for improved wages. There is no gainsaying that a lot of traditional legal work is being eroded by unlicensed entities and I believe the NBA is trying to do something about this but more needs to be done quickly. However, in the final analysis, poor remuneration should never be an excuse for compromising the ethics of a lawyer. There are always options rather than selling one’s conscience for money. Nonetheless, it is a dangerous and alarming situation where the lawyers who are the handmaidens of the justice system may contemplate compromise of their ethics to survive the economic harshness.

There have been discussions on judicial independence. But these discussions do not include financial autonomy. Why is this so? And how do you think the judiciary can function in the face of financial autonomy and judicial independence?

The judiciary is the bastion of any democracy. It is the guarantor of economic and socio-political progress in society and for it to be able to achieve its objectives, it must be free of any pressures. Judicial financial autonomy is a component of its independence and the political class must ensure this to preserve and indeed encourage a free and fair adjudicatory system.

The need for judicial independence cannot be overemphasised and is rooted in Section 6 of 1999 Constitution (as amended). The funds for the administration of justice should ideally be on a first line charge and remitted directly to the judiciary upon appropriation. However, there are other schools of thought that think judges should not be involved in the day-to-day administration of provision of infrastructures because they lack the expertise that can assist them in the financial management of resources and execution of projects. However, the overriding consideration is to ensure that the judiciary is not hampered by the executive and legislature, that the judiciary is meant to have an oversight, in terms of judicial adjudication.

In recent times the issue of financial autonomy and independence has become a front-burner issue especially with the President, retired Major General Muhammadu Buhari’s Executive Order No 10 which has generated a lot of discussion and positive actions by some state governments. I have discussed this issue elsewhere and as a person who has served in government I know as a fact that the issue of full financial autonomy for the judiciary may be a mirage for now. There must be some major structural financial changes that the executive and indeed the legislature especially at the state level must be prepared to carry out. Until those wholesome changes are made there will still be constraints on a fully financially independent Judiciary. I suggest the NBA initiates a conference with major stakeholders to address this issue. This conference should have major decision makers like governors, state commissioners of finance, the Federal Attorney-General and State Attorneys-General and Heads of Courts who will do a deep dive on these issues and come up with functional, workable, and actionable solutions, not rhetoric.



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