Following the trail of his predecessors to “redeem the battered image of the judiciary,” the Chief Justice of Nigeria, Justice Walter Onnoghen, lent a hand to the anti-corruption drive of President Muhammadu Buhari, when he directed the chief judges of courts in the country to create special courts solely for adjudicating on cases of corruption and financial crimes.
This is a good step but there are still dark spots. Commendable and realistic as the CJN’s order seems, the idea of chief judges earmarking some particular High Courts with jurisdiction for solely financial crimes and corruption cases raises questions of constitutionality. And beyond the technicalities and procedures of law, Onnoghen’s directive also raises fundamental queries about the efficiency of special courts to fight corruption decisively, since the resolve to rid public office, and, specifically, the judiciary of corruption, was what informed the directive in the first place?
Undoubtedly, when the Justice Onnoghen gave this order at the commencement of 2017/2018 Legal Year and the swearing-in of 29 distinguished lawyers conferred with the rank of Senior Advocate of Nigeria (SAN) in Abuja recently, he knew the monstrosity that befell his constituency with its attendant public odium. He also understood the task he had and the need to advance the reforms begun by his predecessors. Little wonder, vehemence, and accusation were very pronounced in his directive.
He ordered heads of courts “to clamp down on lawyers who deploy delay tactics in criminal matters before them.” He threatened that erring judicial officers, “would be dealt with decisively and shown the way out swiftly.” Whilst he solicited the cooperation of the public in this fight, he advised them, “to refrain from making unsubstantiated and malicious allegations against judicial officers.”
Since the tenure of former CJN, Justice Mariam Aloma Mukhtar, who first made the public admission of the pestilential dimension of massive corruption on the judiciary, there has been a steady movement of reforms in that arm of government. Onnoghen’s immediate predecessor Justice Mahmud Mohammed continued from where Mukhtar stopped by admonishing judicial officers especially judges with threatening imperatives that they “… must never again be used as tools to truncate our nation’s democracy…” Thus, the steps taken by the judiciary as part of strategies to curb corruption in public office and redeem its image have been consistent and are commendable. This tenor of the language of reforms is no different from his predecessors.’
Whilst the passion of the CJN to safeguard public morality and the common good is understandable, it is unlikely whether Chief Judges of courts can create special courts by fiat; for their legality would be called to question since the Constitution does not confer such powers on them too so do. According to Section 6, subsection 4(a) of the Constitution of the Federal Republic of Nigeria (as amended), the powers to establish courts other than the ones highlighted in subsection 5 of Section 6 of the Constitution, lie in the National Assembly and State Houses of Assembly.
In the same vein, Section 36 (1) provides that cases between legal persons could only be determined by “a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.” Furthermore, Section 46(1-3) stipulates respectively, the powers of the chief judge of a high court, the “original jurisdiction to hear and determine any application made to it in pursuance of this section,” and the discretionary powers constitutionally conferred on the CJN to make rules of practice and procedure for the high courts.
The implication of these constitutional provisions to the matter of special courts is that neither the Chief Justice of Nigeria nor the Chief Judges as directed by the CJN can establish special courts or select a court for the sole purpose of adjudicating financial crimes or corruption cases. However, this is not to deny the pragmatic and functional nature of special courts. For the benefit of enlightening the general public, there is the need to understand what a special court is. What is the meaning of ‘Special Courts’? What makes them special? What characterizes them in such a manner that they differ from regular courts?
Special courts are no judicial anomalies. They are “bodies within the judicial branch of government that generally address only one area of law or have specifically defined powers.” As rendered by the Farlex Legal Dictionary citing West’s American Encyclopedia of Law: “Special courts differ from general-jurisdiction courts in several other respects besides having a more limited jurisdiction. Cases are more likely to be disposed of without trial in special courts, and if there is a trial or hearing, it is usually heard more rapidly than in a court of general jurisdiction.” In other words, when there is a dire need for the speedy and expeditious hearing of cases special courts are usually established.
Besides, they usually “do not follow the same procedural rules that general-jurisdiction courts follow. Often, special courts proceed without the benefit or expense of attorneys or even law-trained judges.” As a matter of fact, the United States of America, a country whose democratic system of government Nigeria has adopted, is said to have an array of special courts in its judiciary.
It is commonplace that exigencies like compromise, gratification, and delays caused by corruption, poor handlings, and obsolete equipment have gravely affected justice delivery in the country. Although the situation is bad, it is not irredeemable. And so any step in the right direction is commendable. Nigerians cannot afford to be hopeless, hapless and rudderless in their quest for moral transformation. Whilst enforcement of the law against culpable and willful contravention should be encouraged, one should also recognize that corruption is not peculiar to the judiciary or to public officers alone.
There is need to recognize also the systemic dimension of corruption that has made it a culture amongst Nigerians. It would be foolhardy to suppose that stringent measures against corrupt judicial officers and the establishment of special courts would make corruption disappear. Thus, seen as a big picture, the fight against corruption demands collective efforts of all and sundry. It demands total unlearning of the pervasive culture of corruption, through value education and re-orientation. Such value-orientation must also be reflected in the law, which lawyers and judicial officers prey upon to frustrate cases of financial crimes and perpetuate corruption.
All told, Special Courts demand a new bill and a review or amendment of the constitution to provide a procedural guide for the special circumstances that warrant the courts in the first place. Their peculiarity may necessitate a situation where they would be federated and decentralized, and may even require the jury system because of integrity and independence of the people involved. Establishing Special Courts prior to new laws that should bring to effect a new order is like putting old wine in new bottles. And this may be, after all, what William Shakespeare would have described as a tale told… that is full of sound and fury signifying nothing.
Source: The Guardian