The National Judicial Council (NJC) issued new Policy Directions last week to remedy “… the multiplicity of litigations of political suits at different Courts of coordinate jurisdiction across the nation, resulting in conflicting orders on the same issues and facts”. Access to Justice regards the NJC’s intervention on the matter as a “one-step” progress towards dealing with a longstanding problem but not the solution to the problem.

First, aspects of the Directions raise constitutional questions about whether the NJC has not overreached its powers and encroached into the rule-making powers of individual courts, whether State or Federal.

Second, the Policy Direction forbids cases to be assigned or entertained by any courts once “facts or issues have been ruled upon” presumably by another courts. This rule creates a real risk that Chief Judges will refuse to assign any cases filed in court where they believe that a case has facts or issues that have been “ruled upon”.

Cases filed in court may not come in a straight jacket. Therefore, any assessment by a Chief Judge that a case has facts or issues which have been “ruled upon” may be a patently wrong or unfounded one, or at least may be contestable. The Policy Directives do not offer litigants the opportunity to make representations to a Chief Judge before or even after a decision is made by the Chief Judge to preclude the assignment of the case.

This power is also arguably unconstitutional. Sec. 36 of the 1999 Constitution provides that every person is entitled to a fair hearing in the determination of his civil rights and obligations, while Art. 7 of the African Charter on Human and Peoples’ Rights guarantees every person the right to have their causes heard.

This means that, whatever is the merit of the case, a litigant has the right to present their case to an adjudicating authority. To give Chief Judges the power to close-off the door to the exercise of this important constitutional right peremptorily is particularly obnoxious and objectionable. It is mostly after a case has been presented at trial that it will fall to be decided whether “facts and issues” in a case have been the subject of a previous litigation. And not before it. The Judiciary ought to be foremost in showing greater sensitivity to protecting rights of access to court and not restricting it.

Again, the Policy Directions fail to address the accountability of individual Judges for failure to exercise proper diligence when adjudicating over election/political cases. Added to this, the NJC’s track record in dealing with Judges found guilty of misconduct for issuing improper ex parte orders is slack and poor, and has little deterrent value.

Placing “erring” Judges on a watch list and suspending their elevation “when due” is hardly a cogent palliative, particularly given that under the NJC’s Appointment Guidelines, Judges are “not due” for elevation as of right, but must pass an open, transparent and merit-based competitive process to get selected for appointment to a higher court. Even at that, many Judges could be content with their current positions and not desire to be elevated in the first place, and so those sanctions mean next to nothing to them.

Abuses of judicial power by Judges are evidence of a deeper distress within the Judiciary that implicate broader questions of competence and possibly corruption. Yet, the NJC’s interventions mostly deal with the symptoms of the recurring abuses and not their underlying causes. The NJC must offer a more tailored and effective plan for ending judicial abuse of its powers.

Overall, while the Policy Guidelines of the NJC are well intended, they do not offer the best formula for dealing with the problems they address. They concentrate too much power on Chief Judges that can be abused and used to violate constitutionally protected rights of fair hearing. They also fall short in articulating a better approach to dealing with abuses of adjudicational authority by erring Judges.

Signed

Joseph Otteh
Convener

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