Military regimes are naturally adversative to civilian judiciary, so the sequential ouster of civilian constitutions in Nigeria by successive military regimes and the consequential discard of jury trial from our law books in 1976 were all a matter of course.
Regardless, the 1999 return of power to “ordinary civilians” was welcoming as it was deserved; the constitutional structure splitting civil government into three co-equal arms which consequently realigned the executive and legislative arms with the most modern democratic system seems to have left the judicial arm (which supposed to oversee and intercede between the other two arms) unfairly in an archaic cocoon out of which it has so far failed to live up to its responsibilities especially as it concerns criminal prosecution. It is in this light one is forced to examine why within all pretenses of judicial reform, Nigerian jurists seem to ignore jury trial as an effective tool against overwhelming corruption since jury trial would involve ordinary people, the victims, in deciding matters affecting the stealing of their commonwealth. Now, that is elementary; however, the real question is since Nigeria copied the US political system, why not its judicial system which had evidently worked so well to nurture such political system. So is it not forcing a square peg into a round hole if we depend on a judicial system, designed to preserve the crown, to sustain a political system intended to serve “we” the people?
So Nigerian lawyers such as I, who have had the benefit of practicing in the US, must have guessed correctly the US government’s response to Nigeria’s request for assistance in repatriating stolen funds. Out of desperation, or perhaps ignorant impulse, the Nigerian government in seeking the US assistance, seemed to assume that mere accusation or suspicion of crime was the only requirement needed to prompt a nation such as the US to mass repatriate “illegally acquired” properties found in its jurisdiction. So, those familiar with the US judicial system were not surprised, perhaps embarrassed, when the US responded by asking Nigeria to first clean up its judicial “house”, investigate and successfully prosecute those suspected of criminal corruption before expecting assistance in the repatriation of funds.
That bloody nose was deserved because for years Nigeria has paid lip service to judicial reform, especially a revolutionary overhaul that would align the judiciary with the presidential democracy. Yet, instead of an introspective response, Nigeria want into a fireman mode; tried to quench the fire but ignored its source. President Muhammadu Buhari quickly proposed special corruption courts to be located in each state and the federal territory and presided upon by “incorruptible” judges (the “needle in the haystack” search for those is still on). Also, the government began to parade the new Administration of Criminal Justice Act of 2015 as panacea against delayed prosecution usually caused by a uniquely absurd Nigeria criminal interlocutory appellate procedure. In addition, President Buhari empaneled the oddly named “Presidential Advisory Committee on Corruption” to do what exactly remains unknown. But whatever these initiatives are worth as efforts to “clean house,” without a comprehensive judicial structural overhaul testing novel and revolutionary ideas, those overtures would end up as insignificant drops of clean water into an ocean of murk. An inside-out approach first to jettison the enigmatic shroud separating the judiciary from the people must be part of the solution; otherwise nothing else matters.
The perception is widening among Nigerian legal practitioners, judges and all, that the schism of trust between the judiciary and the Nigerian public has reached a dangerous level. Apparently, the Nigerian public cannot trust judges any more than they can trust the litigating parties and their lawyers. Reasons for the uncomfortable level of public mistrust are many; but a notable one is that the Nigerian judiciary is powered mostly by legal practitioners, with due respect, whose heads seem buried in the sands of archaic colonial traditions. These influential members of the bar, proud of their colonial education and intimidated by contemporary technology, obtusely oppose the idea that modernity and contemporary democracy which Nigeria has adopted require a more people-oriented and open judicial system different from one of colonial allegiance. The judiciary which has resisted self-reform can be no more of a driving force behind the calls for energetic anti-corruption reforms in Nigeria as it should be. Worse, this clique of conservatives, insensitive to the high rate of injustice and corruption, has successfully convinced its protégé practitioners that the legal profession is cast traditionally in a shroud of mystery impregnable by mere mortals or “lay” people. Otherwise, why has the judiciary not considered the return to jury trial as part of its “clamor” for judicial reform especially in criminal prosecution since such was part of the judicial system before it was obliterated by the military in 1976? With this internal resistance to change, it is hard, perhaps impossible for influential members of the Nigerian bar and others involved admitting that perhaps the judiciary is failing because it lacks structural alignment complimentary to its people-oriented democracy. Nigeria cannot be socio-politically half pregnant; thus, the emulation of the US democratic system is incomplete and perhaps unworkable without a judiciary reformatted to sustain the system like in the U.S. The people, being the reason for the US form of government are not exempted from participating in any aspect of its democracy including the judiciary, as is the case in Nigeria. The election of judges in most US jurisdictions and the constitutionally guaranteed trial by jury are key examples of such participation ensuring that the people remain the center and focus of the system. It is a constitutional requirement that people may choose to elect their judges and that an accused person is given the option of being judged by a jury of his or her peers. Nigerian electoral complexities may render the election of judges impractical at this time, but the jury system should be an experiment worth trying if the Nigerian judiciary is to regain the confidence of Nigerians nay the world.
Jury trial is grounded in the age-old democratic concept that any unlawfulness is an act against the society and its people; therefore, the people under a democracy must be empowered to decide when their laws have been broken and the appropriate punishment for such violation. A jury trial is this where a panel of lay people chosen from a pool is required to determine guilt or innocence by ascertaining facts and applying the law as instructed by a presiding judge. For instance, if the crime of “theft” is legally defined as the “unauthorized taken of another person’s property with the intention to keep it forever,” it will be up to a jury empanelled to determine the guilt or innocence of a person accused of “theft” based on evidence and arguments presented by the prosecutor and the defense counsel, and according to the instruction of the presiding judge, decide whether the accused indeed “took” the victims property “without authority” and with the “intention” to keep the property “permanently.” There are no mysteries to jury trial as some Nigerian lawyers may be tempted to argue; indeed, if such mystery ever existed, especially in the colonial legal traditions, such has been long debunked by reliable judicial systems in various advanced countries, including the UK. If the US, as the most litigious country on the planet, and one with the largest number of earth-shattering precedents, can constitutionally sustain jury trial as a component of its democracy, then Nigeria has no excuse; thus most arguments against the adoption of jury trial can be safely dismissed as ignorant or self-serving.
One of those arguments is that ordinary folks, non-lawyers, don’t “know” the law or are not “learned” therefore cannot effectively serve in adjudicating a legal dispute. For a start, a prospective juror does not have to “know” the law or be “learned” because the only function of the jury is to determine the facts of the case and apply the law according to the instructions of a judge. Besides, the assiduous colonialist myth that lawyers are uniquely “learned” is a sad evidence of the conservative nature of the Nigerian judiciary; elsewhere, it is accepted that lawyers do not “learn” law in law schools, but basic legal concepts and foundations; and research, writing and advocacy skills. So, a jury trial compels lawyers to rely on acquired advocacy skills rather than any impressive ability to recite the law or quote prominent jurists long dead to influence a judge. Further, jury trial allows both the prosecutor and defence counsel to participate in the selection of the jurors. The tediously technical and thorough selection process is necessary to allow lawyers to select jurors exhibiting advantageous qualities and exclude those with prejudicial attributes. For instance, it would be unwise for a prosecuting counsel to allow a person who believes in divine male dominance to serve as a juror in a rape trial. So, if a lawyer so desires, he or she may search for legal knowledge as a component of selecting a particular juror; however, doing so may be dangerous because the more legal knowledge a juror has, the more the likelihood of second-guessing the lawyers instead of focusing on the case!!! So “knowing the law” or to be “learned” is not only irrelevant to serving as a juror, it could be harmful in some cases.
The other argument is that jury trial is not sustainable because Nigerians are seemingly predisposed to corruption. This is ironic because the predisposition to corruption if it exists beyond an assumption, cannot outweigh distrusting factors persisting in the administration of criminal justice in Nigeria. Currently, efforts to prosecute corrupt individuals seem not to stop at the doorsteps of the court. Prosecutors and judges are susceptible to immense political pressure from powerful and influential stakeholders. Legal practitioners all are known to exchange favors based on familial and friendship relationships because there is one in five chances that Nigeria legal practitioners all attended the same law schools forming relationships that extend into their legal carrier. And some lawyers rightly or wrongfully have been accorded senior status at the bar with attached privileges which may be misused furtively for miscarriage of justice. And then there are reported cases of outright bribery to obtain favorable verdicts. Even in the rare events of successful prosecution and guilty verdicts, individuals accused of corruption receive a slap on the wrist with nominal fines and light sentences. So, the “predisposition to corruption” argument fails because factors internal to the administration of justice, which may be corrected by jury trial, are responsible for sustaining corruption and breeding impunity, rather than an abstract natural predisposition to corruption. One can begin to imagine the possible results of the corruption cases brought against government officials if tried by the jury instead of the bench. Had he faced the jury, Lucky Igbinedion, accused of stealing billions of Naira definitely would not be that “lucky” to escape with a paltry fine.
Natural predisposition to corruption or not, the point is that jury trial is a proven weapon against corrupt practices in any society, but it is not totally impervious to corruption. But corrupt tendencies of jury trial are insignificant when compared with those of bench trial because it is factually less difficult to influence one judge than a juror sitting among others. Of course, the zeal of an evildoer cannot be undermined, but ignorant determinations to taint the jury often fail even when executed with the fearsome resources of organized crime syndicates like the Mafia and the KKK. The logistics of tainting a jury can be discouraging; it involves a dangerous gamble regarding the integrity level of a juror, his or her influence among other jurors, and how the juror would actually vote at the verdict point. Nevertheless, jury trial would be less controversial and impractical if random selection of jurors drew only moralists always willing and able to resist corruption. However, jury trial has worked because of its critical protective elements such as the highly technical selection of jurors from a sizable pool of people, anonymity of jurors, and sequestration when necessary. Now, these protections may not be unconquerable by the “Nigerian factor” but they are stronger assurances of integrity more than Nigerian bench trial where access to judges and social interactions with influential members of the bench are not only unrestricted but also actively encouraged. There are many other innovative means to secure the jury from undue influence but such cannot be said for the bench, just watch as lawyers pay undue homage to judges and scramble to be noticed at social functions hosted by judges or their families.
Nigerians cannot be classified as primitive, and the country does not lack well-informed and educated individuals. Therefore, it cannot be argued that the country is not sufficiently sophisticated for jury trial. In the US, jurors are pooled from voter’s registration or driver license databases. Such databases exist in Nigeria since 1999 for the purpose of conducting elections in addition to those collected for national identity cards, driving license, bank verification number (BVN), and travel passports. Beyond age and citizenship, or perhaps ability to understand English, there are few other bases to statutorily bar any citizen from being pooled as a juror because, remember, lawyers will still have the option during the jury selection process to disqualify potential jurors based on background information indicating the person’s fitness to participate judiciously in a jury.
Admittedly, jury trial is administratively complex; in an atmosphere lacking automated or electronic court administration, it can be frustrating. Almost every jurisdiction in the US has adopted electronic court record system where ordinary activities such as filing a court process or retrieving case records no longer require a trip to the court house but can be accomplished virtually from the desk top situated anywhere in the world. In contrast, and as evidence of its stagnant nature, every aspect of the Nigeria justice administration, from the court clerk to the judge, is still handled manually. There are no court reporters or stenographers and electronic recording of court procedures is rare. Instead, as if intimidated by word processors, judges are required to record proceedings and deliver their judgment in writing, not typed, but long hand, signed in green and stamped in red. Need a case record, be ready to search endlessly in dingy badly lit file rooms among dusty and insect-infested documents piled high without any discernable archiving method. So, when it comes to the restoration of jury trial, physical and procedural circumstances of judicial administration in Nigeria may present a frustrating, but not insurmountable challenge. The reason is that if a comprehensive overhaul of the judiciary would mean anything, it should first address and fix the outmoded aspects of court administration; otherwise, any other reform initiatives, whether or not they include jury trial, cannot be accomplished. Such was the case in Lagos State where a few years ago electronic filing was introduced to expedite court procedures. The initiative has failed because it was not preceded by crucial electronic record management and access. Members of the Nigerian judiciary may not easily understand these technologies because of their predisposition to manual processes, but they can always seek readily available international assistance.
Presidential democracy was totally new to us in 1999, yet we have managed to survive this far even to the extent of an electronic-based electoral process, not alone, but with critical assistance from the international community. The legislative structure and procedure as well as modern policing and investigative methods were established with expertise and training provided and funded by the international community. It is about time the judiciary seek and open itself to international assistance in achieving a comprehensive overhaul of the system. I doubt whether the US Department of Justice, its European counterparts, or other voluntary non-governmental agencies around the world would rebuff an overture by the Nigerian judiciary to assist in critical judicial reforms necessary to support our nascent democracy in all aspects including comprehensive review, recommendations, training, and funding. Such overture does not render the Nigerian judiciary as inferior compared to others, but it would represent a sincere and serious effort to restore the public’s faith and trust in the system. As it regards jury trial, its restoration would definitely be an effective tool against official corruption because it empowers the public yet it does not have to be generally applicable to all trials or to all courts. Rather, if curbing corruption is the main purpose of the restoration, jury trial can be mandated for cases of corruption and other serious crimes. As an experimental start, it may also be limited to certain courts such as the Corruption Court being considered by the new administration; the limited application in that would terminate the rather laughable endless search for incorruptible judges.
The Constitution guarantees fair hearing in all cases, especially in criminal matters where public prosecution is the norm. Conclusively, though it was part of the judicial system prior to 1976, and perhaps because of the military regimes’ natural aversion to civilian controlled judiciary, the Constitution, authored by the military, does not consider jury trial as an option that promotes fairness, discourages judicial corruption, and ensures citizens’ participation in the judiciary like the other two arms of our democracy. This omission has become a handicap in the administration of justice and the judiciary’s ability to function effectively in adjudicating corruption cases, thus breeding further impunity. According to President Buhari, this burden of corruption has become the most serious threat to Nigeria’s democracy and must be confronted frontally. The re-adoption of jury trial, taking the temptation-laden responsibility and stress of adjudicating criminal matters especially in cases of corruption, away from the judges would assure success in this regard.
Muyiwa Sobo, Esq., writes from Abeokuta, Ogun State