In this edition, BusinessDay Law Editor, THEODORA KIO-LAWSON, speaks with co-author of the new book, ‘Ministering Justice, Administration of the Justice Sector in Nigeria’, Olasupo Shasore, SAN.
Shasore, who is a leading lawyer and partner in the law firm, ALP (Africa Law Practice), is recognised internationally for his proficiency in dispute resolution, particularly, Litigation, Arbitration and ADR.
He is also experienced in the administration of justice, having served in various capacities including as Attorney General & Commissioner for Justice, Lagos State (2007-2011); former Chairman, Lagos State Law Reform Commission; past president, Lagos Court of Arbitration; chairman, National Arbitration and Dispute Resolution Reform Committee; and former Chairman, Arbitration and ADR Committee of the Nigerian Bar Association Section on Business Law (NBA-SBL).
During his time as Attorney General, Shasore chaired the Mortgage and Property Law Reform Committee, which produced and recommended the Mortgage & Property Law (2009). He also authored the Home Ownership and Mortgage Policy (2011)
His other works include, Jurisdiction & Sovereign Immunity in Nigerian Commercial Law (Practice and text book – 2007); and Commercial Arbitration & International Practice in Nigeria, Co-authored with Adeyemi Candide-Johnson, SAN (2011).
Ahead of the presentation of this latest book, written alongside Akeem Olajide Bello, PhD, Shasore shares his views on the current state of the justice sector, administering justice and other critical issues plaguing the legal profession in Nigeria. EXCERPTS…
Would you say that the justice sector reforms, which took place, while you were chairman of the Lagos State Law Reform Commission have been impactful to the state? If so, what were some of these reforms?
Yes, I believe so. I will however add that reform is a dynamic and ongoing process. There are no expiration dates for reforms. It should be seen as a continuum. So to say that there has been impact, is to say that the reforms we made to the rules, such as reforming institutions and reforming the way systems are operated, have indeed brought some measure of efficiency to the system.
By and large, I believe that our reforms were successful in the area of legislation and the administration of criminal justice, so much so that it is being replicated in several states of the nation.
“We changed the Criminal code, as it applies in Lagos State. It was the first wholesome alteration of the Criminal Code since 1917. It was apparent to us that a hundred year old statute, could no longer serve the purpose for which it was enacted an we had to do something about that. Other reforms involved, plea-bargaining, compounding offenses and restorative justice, which is a modern day development in the criminal justice system.
Speaking of restorative justice, for us, the fact that you can never put a legal seal to the fate of a victim outside the remedies that the state can seek, has become a growing trend. If you visit the Ministry of justice today, the desire to discuss and settle the effect of the crime on a victim is one of the subjects that is being put in place.
The Administration of justice and the justice sector reforms are recurring subject matters at most legal seminars, conferences, symposia and fora. What is the most daunting task/challenge we have with administering justice in Nigeria?
Nigeria has some of the best statutes in the world, some of the most deeply researched and thought-out rules, and like you said, papers are delivered frequently on the subject. So while some of these may require slight reforms to suit present day realities, I do not think that the real problem is with our rules, because we do not lack legislation.
What we lack is competence, capacity and character in the operators of the rules and the justice sector.
A critical look at vital segments of the sector will reveal these lapses.
“What is the Character and competence of the police? What is the Competence, character and capacity of the judges appointed? What is the competence, character and capacity of the prosecutors? And what is the value system they are driving towards? These are the operators of the justice sector that I speak of.
At this point, what we need is a new compass that would give us a directional change; driving policies in the justice sector today. In the 80s’ Nigeria had a selection of the best legal minds at the Supreme Court. In was in that era that the tone was set for ‘substantive justice’ as opposed to ‘technical justice’. That for me was a policy statement coming from the bench stating that the court was no longer interested in technical justice. What this meant was that there was no technicality that could stop them from serving justice.
This was a directional change. It is from such directional changes that judgments can then take their leads. And you can apply these directional changes to an array of disputes. Then you would have judges who would be ready to push ‘technicalities’ aside and focus on the substance of the cases before the. This is the kind of value system we need to bring back by realigning our compass. Let us ask ourselves sincerely “What is the direction of the bench (judiciary) today?
Is there a significant difference between the judgments in that era and those of these times?
Sad to say but there’s a huge difference and some of it has been man-made by a lack of capacity. Now you would find an ill thought-out judgment, which scarcely deals with the real issues because of the lack of capacity, while some of the issues may either be constitution-driven or as a result of the rules in question.
Let’s take the issue of ‘jurisdiction’ for instance. You hear the constant argument in court, which states “My Lord this court lacks jurisdiction,” and the judges latches on to it and that’s it. The case makes no headway for the next 25 years just because of ‘jurisdiction’. This is rules-driven. Why do we have so many subject-matter courts? I have never supported the exclusivity of jurisdictions in courts, because it’s an invitation to avoid the merits of a dispute. In fact, it/s an easy invitation for a dispute before the dispute.
Do you think the use of technology has brought any significance to the process of administering justice in Nigeria?
The resistance the judicial system has had towards the use of technology is ‘control’. Automating systems is an act of transparency. When you automate systems, you remove the human element from the justice sector. It lets in a breath of fresh air and takes away the opportunity for corruption. That’s why during our time, we introduced verbatim reporting in our courts.
How has this technology been utilized and how has it impacted the administration of justice in Lagos State?
Most of it is still being used in our courts, at least the courts I have been appearing in but you still find it being resisted by the human elements in the system. If the production of a certified true copy of a court proceeding, which is a piece of paper is produced by the press of a button, it takes away the opportunity for a clerk to hold you to ransom. However, the reality is, having to chase a clerk or registrar almost a week to get this copy. This is the human element and the proper use of technology will take away the opacity of the system.
Tell us about the book and the objective behind it.
Public service is a calling. In ensuring that you discharge this calling properly, you must record it and in recording it, you must make it accessible to the people. This is one of the reasons behind this book.
The other reason was to be able to make a case for directional changes in the justice sector. Part of it, is devoted to given some sort of roadmap to the future.
About the Co-Author, Dr Akeem Olajide Bello
Dr Bello and I have been collaborators for quite some time. We worked together at the Lagos State Ministry of Justice. So modest effort reflects some of the reforms we led as a team over a period of four to eight years.
Moving from reforms in Lagos to the bigger picture, Nigeria, what insight have you brought to bear in this book? Is it insight from tested reforms in Lagos or a more global perspective?
Essentially, many of the reforms have been tested in Lagos but applicable across the country. Some of these, as a national agenda and others as a state agenda for different states. So, we couldn’t speak about Lagos in isolation as far as the justice sector was concerned.
I refer to the operators of the justice sector as “Children of different mothers,” because in Nigeria, by the sheer dysfunction of our constitutional arrangement, you see that the four (4) lead actors in the justice sector – the Police, the prosecution, the courts and the prisons are controlled differently. Two of these are federally controlled, while the other two are controlled by the state. This causes the dysfunction and the clash in authority and it’s a shame that we haven’t been able to disaggregate this control and conflict between the four actors.
There’s no reason why all four actors cannot be employed by the same executive. Why are there no state prisons? Why is there no state police? So they can be fed by state courts and prosecuted by state prosecutors.
When a policy planner begins to plan for the justice sector, whether at the state or federal level, you are caught with this dichotomy all the time and it makes the process of administering just such a herculean task. And this is where the conflict exists.
The book is big on history. Are you hopeful that the historical perspective the book brings would help drive these conversations?
We believe so. The case that we make is that the book would help policy planners would take an elevated look at the system, and to see the issues a lot clearer. That it is one value chain. From the point of investigation to incarceration and thus should be dealt with in one continuum. Breaking it up into various operating systems and operators who are controlled by people who do not speak to themselves, is not a productive way for any system to work.
In this regard, what are best practices globally?
In the state of New York, all these actors are under the control of one set of policy planners. The entire value chain is open to one group to plan for – from the state police to the state penitentiary.
Earlier, you did talk about the character and capacity of policy planners and operators of the justice sector as an essential part of justice reform, how would you describe those we have in there today?
There’s too much incompetence in the system. Corruption is a big deal but incompetence is the bigger enemy of the progress of a workable system. Incompetence if tackled will take care of the issue of corruption. It’s an incompetent police force that ensures corruption festers.
What are some of the proposed reforms in this book?
We must pay more attention to how we fill our human capacity in the justice sector. There is clearly something wrong with a judicial appointing system that is designed to ensure that Chief Registrar is automatically appointed a judge, irrespective of his character and competence. There is something wrong with a system that is seniority-driven instead of capacity-driven.
An appointment system that is based on mere seniority cannot be efficient. Notable is the fact that we were not always like this. We have had judges who were appointed to the Supreme Court without being judges before. Justice Elias wasn’t a judge before his appointment. Augustine Nnamani also wasn’t a judge before his appointment to the Supreme Court and those were some of our brightest legal minds of all times. So this ‘lock-step’ seniority appointing system has not brought out the best in us.
In this book, we make a case for looking at judicial appointments as a critical part to ensuring character, competence and capacity in the justice sector. We propose the same for the prosecution system and the police.
Sharing his views about current developments in the justice sector and reform initiatives, Shasore spoke briefly speak about the objectives of a group which he is a part of, known as the Justice Reform Project (JRP), He said,
Given the necessity of the situation, the objective amongst other things is to reset the value system the justice sector; to salvage the respect for the Rule of Law; and to salvage the public perception of the justice sector.
The inevitable result for the loss of full confidence in the justice sector is a recipe for anarchy. Presently, we are not so far from it and unless some sort of directional change is brought about immediately, we would head for the worst. This directional change is our mission.
As Nigerians and vital stakeholders in the justice sector, we must begin to realign our compass. We need justice sector operators who are able to align the system in the direction of progress, transparency and integrity. We have had incompetency in the justice system for far too long.
The reason a group of us have come together is to ensure that this project is not just another opportunity to speak against the shortcomings of the system. While I am not at liberty to formally speak for the group, there is understanding that as members our obligations and commitment to the project are geared towards ensuring that stakeholders are moved in a way to bring directional changes in the sector.
Are you concerned about colleagues who do not share your views and approach to reform?
“We couldn’t care less, because something had to be done. There’s rot even within our cadre and the public deserves to know that there’s one last chance for the profession to regulate itself from within.
