Presentation at the Nigerian Bar Association Annual General Conference, Abuja 2015 on Current Developments in Judicial Reforms in Nigeria

PRESENTATION AT THE NIGERIAN BAR ASSOCIATION ANNUAL GENERAL CONFERENCE, ABUJA 2015 ON CURRENT DEVELOPMENTS IN JUDICIAL REFORMS IN NIGERIA

Introduction The words of the then Speaker of the Nigerian House of Representatives, Rt. Hon. Aminu Waziri Tambuwal at the public hearing of the bill for the enactment of the administration of Criminal Justice Bill vividly captures the need for continuous judicial reform of any nation. According to him “….human society is dynamic; the system of administration of justice cannot be static but must be improved to create more effective and efficient mechanisms, procedures and institutions for dealing with the new realities and challenges in the society. This is because it is impossible to have a sound economy without a solid foundation of good laws that can curb anti-social behaviours and other disruptive tendencies. As we develop plans and strategies for the economic and other forms of reforms, we also need to develop plans and programmes for creating sound laws and procedural systems consistent with our commitment to our legislative agenda.”

One cannot but agree with the above submission as a sound economy is the surest engine of growth and the shortest route to tackling the challenges that confronts any given society. No nation, therefore, can boast to have achieved the best of reform in its judicial system at any given time without putting measures in place that allow for the continuous reform of its justice sector in line with the changes inherent in human society which also translates to changes in the economy. The role of law in promoting economic development cannot be underscored because most of human lives and interaction with each other are regulated by law. Law serves an economic function because it recognises the freedom to do business within defined parameters. To 1

ensure a sound economy therefore, the legal regime must be equally sound and make provisions of an assuring platform for entrepreneurs and businesses that can create jobs towards alleviating or at least significantly diminishing poverty1.

Judicial reform requires both cultural and systematic change in the delivery of justice. Such a program include repealing/ amendment of antiquated laws, enactment of modern laws to meet the needs of ever changing socio-economic conditions, court modernization and restructuring, legal reforms and alternative dispute resolution mechanisms, training of judges, court personnel, and lawyers, students and civil society; and improved access to justice2.

At the fulcrum of the achievement of sound judicial reform by any nation is an improved access to justice. Access to justice implies that people in need of help find effective solutions available from justice systems which are accessible, affordable, comprehensible to ordinary people, and which dispense justice fairly, speedily and without discrimination, fear or favour and a greater role for alternative dispute resolution. It includes the judicial and administrative remedies and procedures available to an aggrieved person or one likely to be aggrieved by an issue; the fair and equitable legal framework that protects human rights and ensures delivery of justice.

Without effective access to justice there is no effective legal protection of human rights which invariably will promote self help and attendants crimes. That is why the legislatures or parliaments, governments and

1Review of laws for social and economic development in Nigeria byBolajiOwasanoye on Vanguard Newspaper, October 23, 2009. Available at http://www.vanguardngr.com/2009/10/review-of-laws- for-social-and-economic-development-in-nigeria.

2 Judicial Overhaul Urgently Needed In Nigeria by Charles Musa, Premium Times, July 11, 2013. Available at http://www.premiumtimesng.com/opinion/140724-judicial-overhaul-urgently-needed-in- nigeria-by-charles-musa.html.

courts of every country have a positive duty to translate the ideal of effective access to justice into practical reality. Effective access is everywhere, should enjoy the equal protection of the law if there is to be justice for all3.

The success of an effective justice system is measured not only by the number of cases that it manages to dispose of, but also and more specifically by the amount of litigation which is avoided because the rights and obligations of parties are ascertainable in advance. Where the justice system is reasonably effective and coherent, parties are able to ascertain the extent of their rights and obligations without systematic reference to the courts. In the context of judicial reform programs, the measures which need to be taken to reduce the duration of the litigation process are those relating to avoidable sources of delay, which tend to slow down and even halt proceedings unnecessarily4.

The growing awareness and recognition on the part of African governments, donor agencies/development partners and Civil Society Groups, that poor people, particularly women, the powerless and the disadvantaged, are the most vulnerable to all forms of crime and discrimination; and that in very many cases, formal justice systems fail to protect them, is a step in the right direction. This has recently necessitated the need for African governments to develop the capacity to ensure safety, security and access to justice for all5.

3The Establishment of Registry Offices: - Legal Justification, Form And Modalities Of Their Functioning by Professor MuhammedTawfiqLadan (Ph.D), Department Of Public Law, Faculty Of Law,Ahmadu Bello University, Zaria. A presentation made by an international conference on the theme “Strategies for the strengthening of the effectiveness of the ECOWAS Court of Justice organised by theECOWAS Court of Justice, Abuja ON 21-25 February, 2011 At Ange Hill, East Legon Hotel, Accra, Ghana.

4POLICY BRIEF: Use of Data in Criminal Court Performance Measurement November, 2012, Chicago Apple Seed Journal. Available at http://www.chicagoappleseed.org.

5 Op. Cit. footnote 3. 3

The importance of justice systems for improving the lives of poor people by ensuring that everybody has access to systems which dispense justice fairly, speedily and without discrimination cannot be over-emphasized. Failure of states to provide citizens with protection from crime and access to justice impedes sustainable development8. All people have a right to go about their lives in peace, free to make the most of their opportunities. They can only do so if the institutions of justice and law and order protect them in their daily lives.

States with poorly functioning legal systems and poor crime control mechanisms are unattractive to investors, so economic growth also suffers.

Nigeria judicial sector has undergone some remarkable reforms though had been variously criticized for a plethora of reasons ranging from corruption, lack/inequality of access to justice, slow dispensation of justice, high cost of justice, and a host of others. The problems have been attributed to a number of players in the sector including government interference (lack of judicial independence), lawyers, judges, prison officials, police, etc.

The submissions of the guest speakers at the public hearing of the Administration of Criminal Justice Act, 2015 organised by the House of Representatives in 2014 captures the perception of many on the Nigerian judicial system. The police, lawyers, prisons officials and even judges were accused of contributing to the slow pace of criminal justice delivery (which invariably includes the civil cases) by acts of omission or commission. For the Chief Judge of the Federal High Court, Justice Ibrahim Auta:

“Corruption is the only reason that can explain the snail speed at which the administration of criminal justice is moving in Nigeria. There have been sad instances where prosecuting lawyers consciously and deliberately let in loopholes in the

course of drafting their charges. The idea is to let the guilty accused escape from the clutches of the law.

At some other times, the Ministries, Departments and Agencies (MDAs) prefer to assign cases to external solicitors who act as their conduit for extorting huge sums of money from the government coffers. Why do some of these MDAs prefer to use external lawyers whose charges are intimidating in place of seasoned and well- groomed lawyers already on the payroll of government? The short answer is corruption.”

In a bid to underscore the complicity of the various operators in the criminal justice system, Justice Auta said sometimes, defence and prosecuting lawyers might be ready to try a case only to be informed that prison officials have not produced the accused in court. At other times, he said, lawyers and judges “contribute heavily to the slowness and tardiness” in the dispensation of justice in Nigeria.

In 2009, two critical reports and studies evaluated justice sector reform efforts in Nigeria in the past twenty years. The impact review focused, among other things, on: -

(i) measures to strengthen judicial integrity and capacity through the development and implementation of a comprehensive strategy; (ii) measures to enhance access to justice and public trust; (iii) measures to actualize reform efforts relating to criminal law and procedure/practice, criminal justice sector case management and tracking, juvenile justice administration and penal reform agenda6.

6 Enhancing Access to Justice In Criminal Matters: - Possible Areas for Reform In Nigeria by MuhammedTawfiqLadan (Ph.D), Professor of Law Department Of Public Law, Faculty of Law, Ahmadu Bello University, Zaria. A Paper Presented at a 2-Day National Workshop on Law Development organized by Nigerian Law Reform Commission, Abuja on 12th – 13th January, 2010 at Rockview Hotel, Abuja.

Following the 2008/9 Federal Ministry of Justice Agenda for Transforming the Administration of Justice and State Legal Affairs, some legislative reform bills like the Freedom of Information Act, 2011, National Human Rights Commission Amendment Act, February 2011, Evidence Amendment Act, 2011, and the National Legal Aid Amendment Act, 2011.In August 2011, the Office of the Attorney General of the Federation and Minister of Justice, published a Strategy for the Implementation of Justice Sector Reforms in Nigeria whose vision is to provide fair, timely, accessible, and equal justice for all Nigerians, in an efficient manner regardless of their ethnic group, gender, marital status, age, economic status, disability, religion, belief, culture, language or any other attribute and to gain the confidence of the public in the administration of justice in Nigeria.

Speedy dispensation of justice will be aided where there are enough courts with environment conducive for trial, equipped with electronic recording devices, adequate manpower, and other facilities. Without these, the noble intention, which the proposed legislation seeks, might as well be another mirage.

The strategy focuses on the short and medium term goals on the following broad thematic areas like Criminal Justice Reforms; Human Rights; Institutional reforms and re-invigoration in line with international developments; Improved International Cooperation Mechanisms; Improved Accountability and Efficiency of Federal Ministry of Justice and allied Institutions.

It is evident from the above analysis that in developing countries like Nigeria the need for a fair and equitable legal framework, courts which are accessible and dispense justice speedily, improved customary justice systems and a greater role for alternative dispute resolution mechanisms as well as penal reform cannot be overemphasized.

Politicians and political office holders standing trial for corruption and abuse of offices are the greatest beneficiaries of this deficit in the criminal justice system. Often, trial drags to the point that conviction becomes unlikely, as witnesses may no longer be readily available; and where they are available, some facts relating to the case would have been distorted. There have been instances where some accused persons win election in the course of trial to an office they enjoy immunity from prosecution or manipulate the system7.

The task of this presentation is an attempt on the critical analysis of the developments in the reformation of the Nigerian judiciary. The reform will be discussed under four sub-topics of statutory reform with particular emphasis on the Administration of Criminal Justice Act, 2015, the reforms in the courts through the making/amendment of rules and issuance of Practice Directions, judicial pronouncements spanned from the decisions in Mojekwu v. Mojekwu and Ukeje v. Ukeje, and the problems and causes of delayed justice.

A. Statutory Reform

1) The Constitution8

The 1999 Constitution of the Federal Republic of Nigeria clearly prohibits any form of discrimination against a citizen on the grounds of ethnicity, sex, religion or political opinion, either expressly or in the practical application of any law in force in Nigeria.

Similar constitutional protection can be found in section 21 of the Constitution. This section provides that 'the state shall protect, preserve and promote the Nigerian cultures which enhance human dignity and

7Reforming the Criminal Justice System by IfeanyiUbah P. Forum, The Nigerian voice of 8 May 2013. Available at: http://www.thenigerianvoice.com/news/113251/1/reforming-the-criminal-justice- system.html.

8Constitution of the Federal Republic of Nigeria, 1999. 7

are consistent with the fundamental objectives as provided in this chapter. It may then be contended that any culture that is discriminatory against women within the context of section 42 does not enhance human dignity and is therefore not worthy of protection, preservation and promotion under section 219.

Section 42(1) of the 1999 Constitution provides as follows:

A citizen of Nigeria of a particular community, ethnic group, place of origin, sex, religion or political opinion shall not, by reason only that he is such a person be subjected either expressly by, or in the practical application of, any law in force in Nigeria or in any executive or administrative action of the government, to disabilities or restrictions to which citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religions or political opinions are not made subject.

The paper advances the argument that the state has meaningfully put in place measures to eliminate cultural practices that discriminate against women and has rather displayed an attitude of reluctance or lack of commitment or at other times, prevarication on women's rights.

Legislative intervention in this area of the law has vacillated between outright prohibition of discrimination against women and passive encouragement of it.

Another area the Constitution help in the development of reforms in the justice sector in line with global advancement is in quick dispensation of justice. The constitution envisages quick dispensation of justice when it provides in Section 36 (4) that:

Whenever any person is charged with a criminal offence, he shall, unless the charge is withdrawn, be entitled to a fair hearing in public within a reasonable time by a court or tribunal.

9 The problem is that Chapter two of the Constitution which this provision is part of had been held not to be justiciable by virtue of section 6(6)(c) of the Constitution. 8

2) The Administration of the Criminal Justice Act, 2015

Apart from the Constitution, the four major laws that collectively regulate our criminal justice dispensation include the Criminal Code, the Penal Code, the Criminal Procedure Act and the Evidence Act. These laws were at some point no longer in tandem with the challenges and realities.

The Administration of the Criminal Justice Act, 2015 essentially, seeks to ensure speedy and efficient administration of criminal justice in courts across the country. The law if given effect, has the potential to bring suspects to book within time, and thus aid the battle against corruption.

The Nigerian criminal justice system seems at some point to have lost its capacity to respond quickly to the needs of the society to check the rising waves of crime, speedily bring criminals to book and protect the victims of crime. This was attributed to the outdated form of the principal laws governing the criminal justice system (the Criminal Procedure Act and the Criminal Procedure Code)10

The Administration of the Criminal Justice Act, 2015 came as a response to Nigeria’s dire need of a new legislation that will transform the criminal justice system to reflect the true intents of the Constitution and the demands of a democratic society, eliminate unacceptable delays in disposing of criminal cases and improve the efficiency of criminal justice administration in the country. The Act was in fulfillment of the yearnings for a legislation to enhance the administration of justice in the country.

The Administration of the Criminal Justice Act repealed the Criminal Procedure Act, the Penal Code and the Administration of Criminal

10Innovative provisions of Administration of Criminal Justice Act 2015 by Prof. Akinseye-George.

Justice Commission Act11applies uniformly in all federal courts across the entire Federation12. Substantially, it preserves the existing criminal procedures but it introduces new innovative provisions that will enhance the efficiency of the justice system. In other words the ACJA 2015 builds upon the existing framework of criminal justice administration in the country. However, it fills the gaps observed in these laws over the course of several decades.

The Administration of Justice Act 2015 is a 495-section law that repealed the Criminal Procedure Act and the Criminal Procedure Code as applicable in all federal courts and courts in the FCT. But the Act regulates more than just criminal procedure, it covers, in most part, the entire criminal justice process from arrest, investigation, trial, custodial matters and sentencing guidelines. It is about all things criminal, from the cradle to the grave. All the provisions of the Act are geared towards ensuring that the system of administration of criminal justice in Nigeria promotes efficient management of all criminal justice institutions, speedy dispensation of justice, and protection of the rights and interests of the suspect and the victim of crime. It will achieve these objectives by restoring the capacity of the courts and law enforcement agencies, subjecting custodial and other processes to transparent and internal scrutiny, providing for non-custodial alternatives such as community service, providing opportunity to dispense with formal trial in certain circumstances, and giving further expression to various constitutional guarantees on human rights. All regulatory, institutional and even constitutional impediments to achieving these goals were removed. For example, the Act provides in S.306 that application for stay of proceedings shall no longer be heard until judgment and cannot operate to stall continuation of trial.

The main purposes of the ACJ Act 2015 include the following: To promote efficient management of criminal justice institutions and

11 Section 493

12Section 2. 10

speedy dispensation of justice, protect the society from crime, and Protect the rights and the interest of the defendant and the victim. The purposes of the Act are captured in section 1 of the Act. These indicate a deliberate shift from punishment as the main goal of the criminal justice to restorative justice which pays attention to the needs of the society, the victims, vulnerable persons and human dignity.

Unlawful arrest is one of the major problems of our criminal process and it is one of the reasons why police stations and prisons are overcrowded. Arrests are sometimes made on allegation that are purely civil in nature or on a frivolous ground. By section 10(1) of the CPA, the police could arrest without a warrant, any person who has no ostensible means of sustenance and who cannot give a satisfactory account of himself. This particular provision has been greatly abused by the police who use it as a ground to arrest people indiscriminately. The ACJ Act has deleted this provision.

Apart from the police, other agencies vested with power of arrest e.g. the Economic and Financial Crimes Commission (EFCC), National Drug Law Enforcement Agency (NDLEA), National Agency for Food and Drug Administration and Control (NAFDAC), etc had abused this power to arrest and detain relatives and close associates of criminal suspect in lieu of the suspects where they had challenges in apprehending the suspects. Section 7 should curtail this kind of abuses13.

Main features of the Act

(i) Notification of cause of arrest

Section 6(2) has a proviso which mandates the police officer or any other person to inform the suspect of his right to: (a) remain silent or avoid answering any question until after consultation with a legal practitioner or any other person of his own choice; (b) consult a legal practitioner of his choice before making, endorsing or writing any

13Op. Cit. footnote 10 11

statement or answering any question put to him after arrest; (c) free legal representation by the Legal Aid Council of Nigeria where applicable contrary to what was obtainable under the CPA.

This provision re-affirms section 35(2) of the Constitution of the Federal Republic of Nigeria, which provides that any person who is arrested or detained shall have the right to remain silent or answering any question until after consultation with a legal practitioner or any other person of his choice.

It is necessary to state here that the proviso in section 6 (2) is quite laudable since the suspect will have the benefit of not only being informed of the offence he has committed but also an additional advantage of counsel assisting in securing his immediate release on bail and ensuring that trial is expeditious. This would in turn prevent prolonged detention of suspects and hopefully bring about decongestion of the prisons.

(ii) Humane treatment of an arrested Person and prohibition of arrest on civil cases

The Act 2015 reiterated the human right constitutional provision of the right to dignity of person. Section 8(1) of the Act provides that: a suspect shall- (a) be accorded humane treatment, having regard to his right to the dignity of his person. (b) Not be subjected to any form of torture, cruel, inhuman or degrading treatment.

Section 8 (2) deals with the longstanding problem whereby people employ the machinery of criminal justice wrongly for civil matters. It is not uncommon for people to maliciously instigate the arrest and detention of others for a breach of contract, failure to pay debt owed or for other civil wrongs. This provision that “a suspect shall not be arrested merely on a civil wrong or breach of contract.” is a laudable one. It is believed that it would check arbitrary arrest of persons and torture by law enforcement and security agencies.

(iii) Mandatory Inventory of Property

In order to encourage accountability and transparency, the Act introduced in section 10 a provision which states that a police officer making an arrest or to whom a private person hands over a suspect, shall take an inventory of all items or properties recovered from the suspect. The inventory must be duly signed by the police officer and the suspect. However, where the suspect refuses to sign, it shall not invalidate the inventory. This provision also directs that a copy of the inventory shall be given to the suspect, his legal practitioner, or such other person as the suspect may direct.

(iv) Recording of Arrest

Section 15 makes provisions for mandatory record of personal data of an arrested Person such as the alleged offence(s); the date and circumstances of the arrest; name, occupation and residential address of the suspect; and the suspect’s identification which include his height, photograph, fingerprint impressions, or such other means of identification and the process of recording shall be concluded within a reasonable time, not exceeding forty-eight hours.

(v) Establishment of a Police Central Criminal Registry

Section 16(1) of the Act makes provision for the establishment, within the Nigeria Police, a Central Criminal Record Registry. Subsection 2 of section 16 provides that there shall be established at every state police command, a Criminal Records Registry which shall keep and transmit all such records to the Central Criminal Records Registry.

Subsection 3 mandates the Chief Registrar of the courts to transmit the decisions of the court in all criminal trials to the Central Criminal Records Registry within thirty-days after delivery of judgment. Where there is default by the Chief Registrar to transmit records within thirty days after judgment, he shall be liable to disciplinary measures by the Federal Judicial Service Commission for misconduct. 13

The establishment of Central Criminal Record Registry will ensure that all arrests and judgments are well documented.

(vi) Electronic recording of confessional statement

Section 15(4) of the Act provides that where a person arrested with or without a warrant of arrest volunteers to make a confessional statement, the police officer shall record the statement in writing or may record the making of the confessional statement electronically on a retrievable video compact disc or such other audio visual means. Subsection (5) of section 15 provides that notwithstanding the provision of subsection (4), an oral confession of arrested suspect shall be admissible in evidence.

The enactment of this legislation is, therefore, an attempt to bring Nigeria in tandem with global best practices and modern trends in the justice sector. The full implementation of the Acts would also ensure that witnesses would always be adequately protected, while adequate compensation for victims would protect the society against crimes.

The Act would further ensure that more lawyers were engaged because the law eradicates the prosecution of cases by policemen who are not lawyers.

Nigerian criminal Justice is given its legal foundation through the constitution, most especially the portion of the Constitution which relates to the powers of the court, or jurisdictional mandate of the courts. Sections of the Constitution such as fundamental human rights particularly the provisions on right to liberty, right to fair hearing which deals with criminal justice. The state, in using its power to convict a person who has committed a crime must at the same time comply or respect the constitutional provisions on human rights.

Various institutions are involved in the administration of justice in Nigeria, they include the judiciary, police, the prison service and legal practitioners. Criminal justice is of different stages which commences 14

from when the police has a reasonable suspicion that a person has either committed a crime or is committing a crime, then an arrest will occur, then filing of criminal charges and the bail hearing, through to trial; continues in the case of conviction, through sentencing, imprisonment and release upon completion of sentence.

3) The Child Rights Act There has never been a time when children were completely bereft of protection. The Convention on the Rights of the Child enjoins that:

State Parties shall undertake to disseminate the Convention’s principles and take all appropriate legislative, administrative and other measures for the implementation of the Rights recognized in the present Convention.

Against this background, the Child Rights Act was passed in 2003. The structure of the Act was informed by the mandate to provide a legislation, which incorporates all the rights and responsibilities of children, and which consolidates all laws relating to children in a single legislation.

The Child Right’s Act, promulgated in 2003, was basically an attempt to compile all laws and issues concerning children, into one legal document. With regard to juvenile justice System, the Act contains definite provisions, aimed at protecting children from the harsh process of the criminal justice administration. The Child Right’s Act, provides that no child shall be subjected to the criminal justice system or to criminal sanctions, but a child alleged to have committed an act which could constitute a criminal offence if he were an adult, shall be subjected to the child justice system and processes set out in the Act.

The provision entails the abrogation of any form of punishment for any person below the age of eighteen years regardless of the enormity of the offence committed by such a person. Police investigation and

adjudication in the court are to be used as measures of last resort, where the offence is of a serious nature. Even where a child is prosecuted and found guilty of an offence, restriction of liberty is still a measure of last resort. When a child is apprehended, the court or police, as the case may be, shall, without delay, consider the issue of release. Detention pending trial shall be used only as a measure of last resort and for the shortest possible period of time.

Some States of Nigeria have also enacted their own State laws on Child Rights. In addition to setting out a list of child related offences, including child marriage, child labour and child abuse, the Act provides for the establishment of “Family Courts”. These courts operate at the High Court and Magistrate Court levels. They have jurisdiction to hear all cases in which the existence of a legal right, power, duty, liability, privilege, interest, obligation or claim in respect of a child is in issue, and any criminal proceeding relating a child.

Section 264 (1) of the Act, provides for the establishment of a committee to be known as the State Child Right Implementation Committee (referred to as “State Committee” in the Act) The State Committee has the functions to initiate actions that will ensure the observance and popularization of the rights and welfare of the child as provided for in the CRA, CRC, and the AU Charter on the Rights and Welfare of the Child and the Declaration of the Worlds Summit for Children.

4) Trafficking in Persons (Prohibition) Law Enforcement and Administration Act, 2003

Prior to 2003, there was no anti - trafficking in persons legislation in Nigeria. Section 1 (1) of the Act established a multi dimensional crime fighting Agency known as the National Agency for Prohibition of Traffic in Persons and Other Related Matters (NAPTIP). The law was subsequently amended by Trafficking in Persons (Prohibition) Law

Enforcement and Administration (Amendment) Act, 2005 to give practical translation to some of the enforcement powers of the Agency.

The Act recognizes that victim protection is central to combating trafficking effectively and provides certain relief for victims of trafficking. Under section 50 of the Act, the Agency shall ensure that:

(i) a trafficked person is not subjected to discriminatory treatment in practice on account of race, colour, gender, sex, age, language, religion, political or other opinion, cultural beliefs or practices, national, ethnic or social origin, property, birth or other status, including his status as a victim of trafficking or having worked in the sex industry;

(ii) a trafficked person has access to adequate health and other social services during the period of temporary residence;

(iii) a trafficked person has access to the embassy or consulate of the country of which he is a citizen or where there is no embassy or consulate, ensure access to the diplomatic representative of the state that takes charge of the country's interest or any national to protect him;

NAPTIP in its determination to rein-in human trafficking in the country in 2014 secured additional 13 convictions. These convictions were from various Federal High Courts across the country which brought about the total convictions to 271 as at 2014.The convicted Human traffickers who are at present serving various jail terms, were arrested by operatives of NAPTIP in different locations within the country and subsequently arraigned in Courts.

The Trafficking in Persons (Prohibition), Law Enforcement and Administration Act 2003 (as amended in 2005) was repealed by the Trafficking in Persons (Prohibition) Enforcement and Administration Act,

2015. The repeal became necessary as the Act was found to be inadequate to effectively combat the evolving crime of Trafficking in Persons (TIP), with several new trends which were not taken into consideration at the time of enactment in 2003.

The criminal justice system is progressively confronted with several offences, which were not criminalized even though they were stipulated in the Palermo Protocol.

Some salient features of the new Act to include:

(i) Criminalizing the removal of organs in line with the Palermo Protocol which has been ratified by Nigeria.

(ii) Restructuring of the Governing Board of the Agency to include relevant government agencies such as the Federal Ministries of Justice, Women Affairs, Foreign Affairs, Nigeria Police Force, Nigeria Immigration Service and National Intelligence Agency. It also made provision for the inclusion of civil societies organisations. This is to ensure a comprehensive and strategic policy response in the national anti-trafficking efforts.

(iii) Change in the nomenclature of the Chief Executive of the Agency from Executive Secretary to Director General. This is to reflect the command and control structure of the Agency as a Law Enforcement Agency.

(iv) Prohibition of the employment of a child below the age of 12 years as a domestic help, while the exploitation of a child under the age 18 years who is employed as a domestic help is also prohibited.

(v) Stiffer punishment for aggravated circumstances like defilement of a child.

According to the Director General of NAPTIP the re-enactment of the Act is a landmark achievement as Nigeria now has one of the most advanced institutional and legal frameworks for combating TIP world- wide. Nigerian’s anti trafficking legislation and policy promotes the protection of the rights of victims, adheres to the principle of non criminalization of victims and provides for their protection and assistance, irrespective of immigration status. The act recognizes the need for internal cohesion among critical stakeholders in the fight against TIP and strengthens operational and law enforcement response to trafficking in persons.

B. Judicial Reforms in the Court

The various heads of the Nigerian courts have fared well in their responsibility to bring about reforms in the judiciary by putting in measures in form of Rules and Practice Directions to aid quick and effective dispensation of justice.

Supreme Court (Criminal Appeals) Practice Directions, 2013, the purpose of which is to establish a specialized system of case management in the Supreme Court of Nigeria, that will provide for the fair, impartial and expeditious administration of Criminal appeals arising out of all Criminal Appeals relating to the offences of Terrorism, Rape, Kidnapping, Corruption, Money Laundering and Human Trafficking. The Practice Directions came in a bid to effectively tackle the offences listed above which have assumed new dimensions14.

The Court of Appeal has also been on its toes in this direction and has continuously made new rules and issue practice Directions to aid quick and effective administration of justice in various areas. A new Court of Appeal Rules was made in 2011 and Election Tribunal and Court Practice Directions 2011.

14 See the Explanatory Note. 19

In 2013 a Court Practice Direction was issued by the Court which purpose as captured by its section 2 is to establish, a specialized system, of case management in the Court of Appeal, that will provide for the fair and impartial administration of criminal and civil appeals arising out of cases terrorism, rape, kidnapping, corruption, money laundering and human trafficking and interlocutory appeals challenging the ruling of the court below on an interlocutory application heard in that court. The rules made under this Practice Direction shall be construed and applied to eliminate unnecessary delay in the transmission and conduct of appeals and reduce the expense and time spent on appeals by all parties before the court; The Court of Appeal has also issued Fast Track Practice Direction in 201415.

The Federal High has also not been left out. It has issued various Practice Directions in line with the dynamics of the sectors which it exercises jurisdiction. AMCON Practice Directions, 2013 which essentially aims to assist the Federal High Court in dealing with AMCON claims quickly and efficiently. The court is enjoined to administer and interpret the direction purposively, with a view to securing swift determination of every claim.

Practice Directions, Amendment to Order 48 Rule 4 Federal High Court (Civil Procedure) Rules 2009 - Penalty for Non-Compliance intended to ensure that cases are not unduly delayed by filing of document outside the time allowed by the Rules, and to address Counsel/Litigants induced delays.16

Practice Directions, Criminal Trials Relating to Offences, of Terrorism, Kidnapping, Trafficking in Persons, Rape, Corruption and Money Laundering Cases, 2013 intended to fast track the criminal trials in the Court and to ensure that delays in criminal trials are largely eliminated.

15Sections 2-3.

16 See the Explanatory Note to the Practice Direction. 20

Federal High Court (Criminal) Practice Directions, 2013, the purpose of this practice Direction is to establish, a system of case management that will provide for the fair and impartial administration of criminal cases and the rules made under this practice direction shall be construed and applied to eliminate unnecessary delay and expense for the parties involved in the Court justice system.

C. Judicial Pronouncements

1) Mojekwu -vs- Mojekwu [1997] 7 NWLR 283

Nigerian women had faced myriad threats to and violations of their fundamental human rights, including unequal access to education and employment; yet, access to justice is hampered by poverty, ignorance, cultural- and faith-based inhibitions, cost, and corruption in the administration of justice.

The issue of protection of rights of women in Nigeria has been a thing of great concern and attracted global attention. It is a long time agitation and not just a recent development. Majority of the women folk suffer one form of discrimination or another for the reason of being women and wrongful perception of the society that women belong to a subordinate class.

The problems of oppression, exploitation, discrimination and subjugation of women are neither new phenomena, nor peculiar to Nigeria. They are global problems. It appears that the majority of womenfolk suffer one form of discrimination, exploitation, oppression or the other probably because they are women and are therefore regarded as members of a “subordinate” class.

The issues of human and women's rights in African countries have always been complex. This is so, not because of a lack of recognition of these rights, but rather because of cultural barriers and practices that

have made the realisation of these rights a rather more difficult task in Africa than is the case in the western world.

A woman is not entitled to own land, or even the right to inherit family property as she is always bypassed, wherever there is a male child to inherit the father’s property in her stead. This is however not peculiar to Nigerian women alone, millions of women around the world lack land ownership. Property is said to be a source of personal protection, from intruders and from the climate as well as for other property. It is also said to be the base and sometimes the ‘legitimacy’ for further territorial or commercial acquisition, without the right to ownerships, there is no source of security, identity, shelter, leisure, which then become issues of welfare or ‘needs’ rather than claims.

However, the case of Augustine Nwofor Mojekwu vs Caroline Mbafor Okechukwu Mojekwu marked a turning point in the inheritance right of women when the court decided the “Oli-Ekpe” custom of Nnewi in Anambra State under which males and not females inherit their father’s property as unconstitutional.

The appellant, Mr. Augustine Mojekwu, relying on the Ili-Ekpecustom of Nnewi in Anambra State, had instituted action against the respondent, Mrs. Caroline Mojekwu, claiming that he was entitled to inherit her deceased husband’s property. The basis for his claim was that the deceased, his paternal uncle, was survived by the respondent and two daughters. Being all women, they were excluded from inheriting property under the Ili-Ekpecustomary laws applying to the deceased.

The appellant’s Counsel argued that the Ili-Ekpe custom allowed the deceased’s closest male relative to inherit if he had no son. The closest male relative would have been the appellant’s father, who was also the deceased’s brother. However, the appellant’s father was dead and the appellant had become his heir. As a result, the appellant claimed ownership of the deceased’s house situated in the town of Onitsha, which the deceased had built on the land he had acquired from the 22

Mgbelekeke family of Onitsha. The respondent claimed that her son, Patrick, who had predeceased his father, had fathered an infant son who should inherit the property. Disputing this fact, the appellant claimed that Patrick had died without a son. Summary of the Court of Appeal’s discussion Based on the facts and on evidence adduced, the Court of Appeal found that the Kola Tenancy governed the devolution of the house. As a result, despite the disputed fact whether Patrick had a son at the time of his death- recognizing the Kola Tenancy as the applicable customary law rendered the absence of a male heir irrelevant since it allowed the respondent’s daughters to inherit their father’s property.

Justice Niki Tobi J.C.A. (as he then was) while delivering the lead judgment stated that:

“Nigeria is an egalitarian society where the civilized sociology does not discriminate against women. However, there are customs all over which discriminate against women folk which regard them as inferior to the man folk. That should not be so as all human beings male and female, are born into a free world and are expected to participate freely without any inhibition on ground of sex. Thus, any form of societal discrimination on grounds of sex, apart from being unconstitutional is antithesis to a society built on the tenets of democracy, the ‘Oli-Ekpe’ custom, which permits the son of the brother of a deceased person to inherit his property to the exclusion of his female child is discriminatory and therefore inconsistent with the doctrine of equity.”

Furthermore, the Court determined the Oli-ekpe custom to be repugnant and applied the Repugnancy Doctrine. This doctrine prescribes that the courts shall not enforce any custom as law if it is contrary to public policy or repugnant to natural justice, equity and good conscience. The Court also pronounced the custom contrary to human rights guarantees in the Nigerian Constitution and in the

Convention on the Elimination of all forms of Discrimination against Women, which prohibit discrimination on the ground of sex.

The case was further appealed to the Nigerian Supreme Court. The names of the parties to the case changed because, when the decision was delivered in 2004, Caroline Mojekwu, the original party to the case, had died. As a result, her daughter, Mrs. Iwuchukwu17, was substituted as a party to the case.

The issue for determination before the Supreme Court was whether the Court of Appeal erred in holding the Oli-ekpe custom to be repugnant and contradictory to the gender equality provisions provided under the Constitution of Nigeria and pertinent international human rights instruments.

The Supreme Court upheld the Court of Appeal’s judgment as the kola tenancy was indeed the applicable law, and thus the respondent and her family were rightfully held to be the owners of the property in issue18.

2) Ukeje -vs- Ukeje19 (2014) LPELR-22724(SC)

Ruling an Igbo custom as discriminatory and in conflict with Sections 42 (1) (a) and (2) of the 1999 Constitution, the Supreme Court nullified the practice in its judgment on the appeal filed in 2004 by Mrs. Lois Chituru Ukeje (wife of the late Lazarus Ogbonna Ukeje) and their son, Enyinnaya Lazarus Ukeje, against Mrs. Gladys Ada Ukeje (the deceased’s daughter). Gladys had sued the deceased’s wife and son at

17Mojekwu v. Iwuchukwu[2004] 4. S.C. (Pt.II). 1.; (2004) 11 NWLR Pt. 883, P. 196.

18The case of MojekwuvsEjikeme(2000) 5 NWLR Pt. 65 7 P. 402confirms the decision of the court of appeal and held that, it is unconstitutional in the light of the provision of Section 42 (1) of the 1999 Constitution to hold that a female child cannot inherit from her deceased’s father’s estate in Igbo land without the performance of the Nrachi ceremony.

19(2014) LPELR-22724(SC); Suit No: SC.224/2004. 24

the Lagos High Court, claiming to be one of the deceased’s children and seeking to be included among those to administer and inherit their deceased father’s estate. The trial court found that she was a daughter to the deceased, who died intestate in Lagos in1981, and was qualified to benefit from his estate.

The Court of Appeal, Lagos, to which Mrs. Lois Ukeje and Enyinnaya Ukeje appealed, upheld the decision of the Lagos High Court in favour of Gladys, prompting the Ukejes’ appeal to the Supreme Court. The Supreme Court held that the Court of Appeal was right to have voided the aspect of Igbo native law and custom that denies female children inheritance, especially of estates located in their home towns and villages.

Justice Bode Rhodes-Vivour, who read the lead judgment, held that no matter the circumstances of the birth of a female child, such a child is entitled to an inheritance from her late father’s estate. Consequently, he averred, the Igbo Customary Law which disentitles a female child from partaking in the sharing of her deceased father’s estate, to be in breach of Section 42(1) and (2) of the Constitution, a fundamental rights provision guaranteed to every Nigerian. The landmark judgment, therefore, declared the discriminatory customary law, void.

D. The problem and causes of delayed justice

The maxim “justice delayed is justice denied’’ is a universal truism in legal practice. It axiom implies that if legal redress, which is available for a plaintiff, is not forthcoming within a specified period; it has the same effect as having no redress at all. Consequently, the belief is that if justice is not dispensed promptly; it is tantamount to lack of justice.

… great injustice is done to a plaintiff if he or she has to put up with the wrongdoing of a defendant for a long time, with no end seemingly in sight.20

The issue of delayed justice in Nigeria has become a source of concern to proponents of legal reform, particularly those who feel that the court or government is too slow in resolving legal issues. Some attribute this to the fact that the extant legal system of the country is too complex, overburdened or affected by extraneous factors such as political interference21.

The judicial system in Nigeria is beset with several deficiencies which attributable to several factors that make it very difficult to obtain justice and quick resolution of disputes in courts. From the complexity of the extant legal system, overburdening, poor training of judicial officers, institutional weaknesses, personnel problems, procedural deficiencies and technicalities in the judicial system. The flawed appointment process of judicial officers and the enthronement of mediocrity over merit which breeds incompetence is also at the heart of the problem and at the heart of incompetence is corruption, which is manifest in the process of appointment of judges.

The judges and the lawyers contribute immensely to the problems of delayed justice in Nigeria. Judges and lawyers themselves are unanimous that the greater percentage of the problems of delayed justice are caused by judges and lawyers. This spans greatly from corruption and incompetence. Some judges have been accused of corruption and incompetence. Lawyers as well aid and abet judges in corruption coupled with the inefficiency of some lawyers to handle cases. Giving an insight into the causes of delay in justice, Justice Dahiru Musdapher, a former Chief Justice of Nigeria (CJN), argued that

20Dealing with delayed justice syndrome by TalatuMaiwada. Daily Post on January 30, 2014. Available @dailypostng.

21Ibid. 26

judges were largely responsible for the perceptible delay in the dispensation of justice.

Some judges, wittingly or unwittingly, aid this process by failing in their duty to be firmly in control of criminal proceedings in their courts, thus allowing these gimmicks to go on unabated,’’ he alleged. Almost every criminal trial, especially on serious charges of corruption, is now preceded by endless objections and applications to quash charges22.

Sharing similar sentiments, the former Chief Justice of Nigeria Justice Mariam Mukhtar, noted that corruption at the bench was responsible for the apparent lethargy in Nigeria’s judiciary, leading to protracted adjudication. According to her:

“The judges adjudicate anti-corruption and criminal litigation but they allow litigation to continue indefinitely, while the criminals walk away and the people forget.

If you steal a goat or a thousand naira, you go to jail, but if you steal crude oil or a billion naira, you plea-bargain and walk away scot free; a sublime piece of mysticism and nonsense.”

For the Chief Judge of the Federal High Court, Justice Ibrahim Auta23:

22The Judiciary and the Challenge of Satisfying Justice Needs of the 21st Century: Putting Our Foot Forward. A Keynote Address at the Judicial Reforms Conference by Chief Justice of South Africa, Justice MogoengMogoeng on 7th July, 2014 in Abuja.

23The submissions as a guest speakers at the public hearing of the Administration of Criminal Justice Act, 2015 organised by the House of Representatives in 2014.

course of drafting their charges. The idea is to let the guilty accused escape from the clutches of the law. At some other times, the Ministries, Departments and Agencies (MDAs) prefer to assign cases to external solicitors who act as their conduit for extorting huge sums of money from the government coffers. Why do some of these MDAs prefer to use external lawyers whose charges are intimidating in place of seasoned and well- groomed lawyers already on the payroll of government? The short answer is corruption.”

Accordingly, Chief Afe Babalola, SAN, has this to say of the problems and challenges of delayed justice when he said:

“One of the worst traitors of the legitimate aspirations of any nation is a Judge, who makes decisions, not because he or she believes them to be correct, but because he or she seeks to please a friend, a manipulator, a corruptor, a “constituency” or a lobby or pressure group. That is corruption of the worst kind. Corruption must therefore be dealt with mercilessly and speedily especially when committed by Judicial Officers. It must be realised that a knowledgeable but corrupt judge is a great peril to the administration of justice.”

On the side of incompetence and ill-preparedness of lawyers and judges the Learned Silk said:

“An ill-prepared lawyer will seek an adjournment at the first opportunity, and a judge who lacks the intellectual capacity to adjudicate a case will indulge such lawyers and adjourn even the simplest of rulings. If a lawyer lacks the necessary competence for the prosecution or defence of any given case, he unavoidably becomes a hindrance and liability to the course of justice which under normal circumstances he is supposed to serve. The law reports are replete with cases that were

painfully lost by nothing but the ignorance and incompetence of lawyers.”

He said there had been several instances where lawyers frustrate the hearing of court cases, especially when they know they have weak defences. Some go to the extent of writing false letters stating that they were otherwise engaged in the Court of Appeal or Supreme Court when in fact they had no case pending in those courts. Such conduct is clearly unbecoming or unworthy of any lawyer.

Mr. Odein Ajumogobia, SAN24, believes delays have unfortunately become a recognised and accepted strategy in escaping justice. According to him:

“It obviously serves the defendant well when he has no defence or simply needs to buy time to answer a complaint and is therefore only interested in putting off the anticipated final decision by the court for as long as possible.

The most common causes of delays and abuse are the preliminary objection (the outcome of which is appealed up to the Supreme Court); frivolous arguments and false affidavits; longer adjournments due to full dockets; lack of strict adherence to time limit provisions and scheduling (with no severe and deterrent cost); poor service of court processes (with parties claiming they were not ‘properly’ served); frequent amendment of processes (which foist adjournments and further amendments); abuse of the right of appeal, and

24Former External Affairs Minister.

lack of enough punitive costs which should be in millions of naira for deliberate time-wasting25.”

The judiciary comprise of judicial officers who are human beings and therefore subject to the vagaries of human nature in its insidious form26.While there are good, intellectually sound and upright judicial officers of impeccable character and integrity in Nigeria, it is sad to say that a sizeable percentage of judicial officers in Nigeria fall below the standard expected of judicial officers in the area of intellectual capability, uprightness, character and integrity and this reflects in the poor quality of judgments delivered by the various courts in Nigeria and the growing problem of conflicting judgments and the attendant confusion it brings in the legal system in Nigeria.

To curb the menace of delayed justice judges must possess the necessary judicial qualities of integrity, deep knowledge of the law, honesty and a sense of justice itself and become masters of their courts. When a judge posses the necessary skills to dispense justice and takes charge of his court it will discourage lawyers, who hid under the guise of seeking adjournments, to perpetrate their machination to delay the determination of their cases. Judges must be ready to refuse and discourage arbitrary objections and applications by lawyers effectively stalled the main court proceedings resulting to delayed justice.

Conclusion As stated earlier at the beginning Nigeria judicial sector has undergone some remarkable reforms in line with the ever changing society but not without short falls which is attributed to a plethora of reasons ranging

25 See Joseph Jibueze in this concluding part of a report on the judicial system, on other factors aside sabotage, blackmail and undue delays contribute to the snail speed of the justice system.

26(Stacey) Hebden Taylor , Retribution, Responsibility And Freedom: The Fallacy Of Modern Criminal Law Froma Biblical-Christian Perspective E. L. The Positivistic and Scientistic Attack Upon The American Penal System

from corruption, lack/inequality of access to justice, slow dispensation of justice, high cost of justice, and a host of others.

It is the view of the writer that Nigeria, to a very large extent has progressed significantly in its justice sector reforms. It efforts are visible in the repeal and amendment of antiquated laws and enactment of modern laws to landmark decisions by the court. The effects of these reforms had been felt in the area of equality of men and women, child right, human rights, etc.

The enactment of the ACJ Act 2015 which repealed the Criminal Procedure Act, the Penal Code and the Administration of Criminal Justice Commission Act for the promotion of efficient management of criminal justice institutions and speedy dispensation of justice, the protection of the society from crime, and the protection the rights and the interest of the defendant and the victim which is in line with the present societal challenges is laudable. These indicate a deliberate shift from punishment as the main goal of the criminal justice to restorative justice which pays attention to the needs of the society, the victims, vulnerable persons and human dignity.

The enactment of the Child Rights Act which structure was informed by the mandate to provide a legislation, which incorporates all the rights and responsibilities of children, and which consolidates all laws relating to children in a single legislation is also a milestone in right direction.

The enactment of the Trafficking in Persons (Prohibition) Law Enforcement and Administration Act, 2003, the subsequently 31

amendment by Trafficking in Persons (Prohibition) Law Enforcement and Administration (Amendment) Act, 2005 to give practical translation to some of the enforcement powers of the Agency and the repeal of the Trafficking in Persons (Prohibition), Law Enforcement and Administration Act 2003 (as amended in 2005) and the enactment of the Trafficking in Persons (Prohibition) Enforcement and Administration Act, 2015 further justifies the writer’s position. The repeal became necessary as the criminal justice system is progressively confronted with several offences and the 2003 Act was found to be inadequate to effectively combat the evolving crime of Trafficking in Persons (TIP), with several new trends which were not taken into consideration at the time of enactment in 2003.

Nigeria is also a signatory to most of the International instruments on Women’s Rights, especially The Convention on Elimination of All Forms of Discrimination against Women (CEDAW), The African Charter on Human and Peoples’ Rights and the Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa(hereinafter called African Women’s Protocol), The Convention on the Rights of the Child, The Palermo Protocol, and host of others.

The country has also gone further to domesticate some of the provisions of the African Charter in the 1999.

The transformative Rulings in the cases of Mojekwu -vs- Mojekwu, Mojekwu –vs-Ejikeme, Ukeje -vs- Ukeje, is timely, because the role of women in modern society has changed from what it used to be. Everywhere, women are assuming more leadership responsibilities than the traditional society envisaged. With more access to education and opportunities, women in Nigeria, as everywhere, are making more positive contributions to the society. Discriminatory practices against them are, therefore, not justifiable. They do not only wreak havoc in families, they are also dragging down the pace of societal and national development.

The judgments had been a watershed that had gone a long way in enhancing the status of women in the country. The judgments had provided the impetus for the challenge of other discriminatory customary practices against women, widows, children and the handicapped in the society.

These Courts’ decisions no doubt represented a turning point in Nigerian jurisprudence, as the judiciary scrutinized the customary laws of inheritance through a human rights lens. As a result, the case has been cited severally by women’s human rights activists and proponents. Thus, these cases were regarded as landmark decisions in advancement of women’s rights in Nigeria, being the first time ever that an International Convention on Women’s human rights was judicially recognized. The cases further had represented a change in judicial attitude to women’s right as the cases gave hope to all women; their rights to inheritance were given a judicial recognition.

The making of Rules of Court and the issuance of Practice Directions by the Heads of the various Courts for the purpose of which of establishing specialized system of case management in the Courts, that will provide for the fair, impartial and expeditious administration of justice are commendable. But in all these, there is always room for improvements.

The reforms must be tailored toward the eradication of delayed justice to restore to confidence of the people on the judiciary as the last hope of the common man, as justice delayed is also justice denied. Judicial officers must be closed monitored by NJC and NBA to keep a check on their activities. Training and retraining is paramount to aid quick and efficient dispensation of justice.

Lawyers on their part as ministers in the temple of justice must shun all acts capable of impeding effective judicial reforms that will aid efficient and timely dispensation of justice. NBA must be prepared to monitor lawyers and where found to have indulged in any unprofessional

conduct must be made to face the Disciplinary Committee to face out all the bad eggs in legal practice who collaborate with clients to corrupt judges in order to get favourable judgment.

Thank you.

Obi Okwusogu, SAN, FCIArb 13 Town Planning Way, Ilupeju, Lagos