Streamlining the Exercise of Discretion in the Justice Delivery System in Nigeria By Douglas Ogbankwa Esq
Judges,Magistrates and Presidents of Area Customary Courts in Nigeria are very Powerful.
What they say and write is the Law ,which you must obey.
The latitude and discretion however given to My Lords ,Their Worship and Their Honour is however too wide and sometimes unfettered.This Could give room for abuse and peversion of Justice .
The following procedures in the Justice Delivery System in Nigeria,require guidelines to ensure uniformity of Application of the Law and Discretion.
1 The Need for Sentencing Guidelines :
The Concept of Sentencing is a creation of Statute and Case Law.If the body of Laws says you can give an option of fine ,why should a Judicial or Presiding Officer Order otherwise.The needless imprisonment of Citizens is one of the reasons our Prisons are congested. There should be a uniform Sentencing Guideline issued to all Judicial and Presiding Officers ,which they must subscribe to apply to the Letter.A Matter with the same facts and cricumstances should not be determined in a different manner.
This will obviate the abuse of Sentencing Powers of Judicial and Presiding Officer to preclude them to be too excessive or too mild
2.Granting of Bail:
The Granting of Bail by Judicial and Presiding Officers even require more streamlining as it the most abused of the discretionary powers of Judicial and Presiding Officers.
Bail is no longer entirely at the discretion of Court.The Administration of Criminal Justice Law Act and Laws of different States have indicated Matters in which a Judicial and Presiding Officer must grant bail.So ,it is no longer a privilege to the Defendant for such Matters indicated in the ACJA and ACJLs but a right,for which they could even seek redress ,if denied Bail.
To this end ,to ensure that the Law is followed in symmetry ,Guidelines should be issued stating all the Offences and conditions therein for Bail which should follow the Statute creating the Offence ,which should not be excessive or too mild. This is avoid allegations of bias.
Election Petition though sui generis ,appear mysterious and esoteric in the way and Manner the same Election Petition for example ,in the same State ,in two Constituencies ,with the same facts ,will be decided differently by the same panel ,with the facts being the same ,evaluated differently to reach a different conclusion .
This is completely unacceptable!
Election Petition is even more grave ,because it deals with the destiny of the States and the Country .
To this end ,I recommend that only retired Judges are used for Election Petition,so that cases in Courts will not suffer owing to the absence of Judges that go on Tribunal Duties.
There should also be penalties for Members of a Tribunal,who fail,neglect and/ or refuse to follow Judicial Precedents set by higher Courts of Records ,when the Matters are on all fours .
Same for Court of Appeal and a Supreme Court that reverses itself with out new facts or Law arising .
In those days ,the Supreme Court hardly reverses itself ,the proliferation of reversal of decisions by the Supreme Court is quite worrisome.
Members of Courts should no longer be Members of the NJC,whether Court of Appeal or Supreme Court. We can get a retired CJN or PCA to be the Chairman of NJC and retired Justices as Members ,by way of Constitutional Amendment.If you Complain against the CJN ,a JSC or a PCA who investigates it at the NJC and what will be transperacy of the Process ,knowing that they all Members of the Council .Even when they say they will recuse themselves there appear to be a conflict of interest in the Structure of the NJC,which requires an urgent review.
4.Tendering of Documents:Documents to be tendered in Court have minimum Standard of Meeting the admissibility test as indicated by Statute and Case Law.They should be followed to the Latter.Admission of Documents is not dicretionary ,it is madatory ,when it has met the admissibility test .There should be a uniform system in place by way of Gudelines to ensure uniform standard in the admission or rejection of a document at Trial , that has met the admissibility test or otherwise.
The Applicability of these Principles above will ensure a certainty of process and more fairnes in the Administration of Justice in Nigeria.
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