Guardian

IN Germany, there are two different kinds of law clerks. Students of law who, after law school, have passed the first of two required examinations join the Referendariat, a time of two years consisting of a series of clerkships: for a civil law judge, a criminal law judge or a prosecutor, a government office and finally at a law firm. This clerkship is not to be confused with an internship since it is a paid position that is regulated by law .In the Federal Supreme Courts and the office of the Federal Prosecutor General, the duties of law clerks are performed by wissenschaftliche Mitarbeiter (“scientific assistant”). With a few exceptions, they are lower court judges or civil servants, assigned for a period of three years to the respective Federal Court, and their clerkships serve as a qualification for a higher judgeship. However, some justices of the Federal Constitutional Court (who have the right to select their wissenschaftliche Mitarbeiter personally) prefer clerks from outside the courts or the civil service, especially those who are or were professors of law and who often hire people from academia (sometimes even young law professors). The clerks of the Federal Constitutional Court are deemed very influential and are therefore dubbed the (unofficial) Dritter Senat (“Third Senate”) as opposed to the two official “senates” of 8 justices each, which form the court.

For India law graduates from the country’s best law schools go through a competitive process to get accepted as law clerks. The Supreme Court of India and several High Courts of India offer paid law clerkships that are considered very prestigious. These clerkships usually last for one year and may be extended at the discretion of individual judges. The Registry of the Supreme Court of India invites applications in January each year for ‘law clerk-cum research assistant’ positions. The selected applicants are then allocated to work under the sitting judges of the Supreme Court. Usually, one ‘law clerk’ is assigned to each judge for one year, though some justices are known to engage two or more law clerks at a time.

The ‘law clerks’ usually begin their one-year service period in July each year, soon after the completion of the LL.B. degree, though there have been instances of ‘law clerks’ serving after having accumulated some work experience.

Also, students from law colleges all over India are given the opportunity to act as ‘legal trainees’ under Supreme Court judges during their vacation periods. The institution of law clerks is still a recent development in the context of the Indian judiciary. Anecdotal references indicate that some justices are hesitant to rely on ‘law clerks’ on account of concerns with confidentiality, especially in politically sensitive disputes.

However, their services are heavily relied on to go through the written submissions in order to prepare for the preliminary hearings that are held to decide whether a case should be admitted for a regular hearing on merits. In recent years, the contributions of law clerks to research for judicial opinions has become increasingly evident on account of increasing references to foreign precedents and academic writings.

Ireland Judicial Fellows provide support to judges of the High Court comparable to that provided to judges of the Federal Courts of the United States, the Courts of Australia and the European Courts in Luxembourg and Strasbourg. During 2008, ten judicial fellowships were awarded for a two-year period to law graduates who are also qualified to practise as barristers or solicitors. We can, therefore, conclude that there is a rich culture of engaging Judicial clerks or assistants in many commonwealth and European jurisdictions as exist in the United States of America.

No thorough examination of the desirability or otherwise of incorporating the use of Judicial Clerks in the Nigerian Legal System without considering the impact of Information Technology on the dispensation of Justice in Nigeria. We concede that there has been vast improvement in the use of lap-tops, internet and computer technology in the administration of justice in Nigeria; frankly, it is the difficult to teach some older hands new tricks! It is usually easier for people born in the last two decades to have had earlier exposure to the use of IT skills in their learning process. This in itself is another argument in favour of incorporating the use of young graduates as Judicial Clerks or assistants to help the present crop of Judges with Internet based research and case retrieval.

Any appraisal of a random court registry in Nigeria reveals the deficiencies occasioned by the absence of incorporation of information technology into the Nigerian Judiciary. Difficulties of tracing court processes, access to relevant files by both judges and litigants and the absence of database of decided authorities in Nigeria is the major cause of conflicting decisions by different courts, as it is difficult for a judge to have unimpeded access to other decided authorities on similar cases. The manual systems of documentation retrieval and recording of cases in long-hand by the judges in court adversely affects the dispensation of justice and contributes to the delay in trials. In this 21st Century where the world has gone digital the Nigerian judiciary cannot afford to be left behind in the analog world where files and judicial activities are manually conducted.

To reposition our judiciary persons who have had very recent exposure to developments in Information Technology should be given the privilege of working with the Judges in the dispensation of Justice as clerks or assistants.

Conclusion:

We strongly recommend based on the observations made above that the Honourable Chief Justice of Nigeria commence as a pilot trial project that the top twenty five graduates o the Nigerian Law School in the present year be offered the opportunity of serving as Judicial Clerks in the Supreme Court for their National Youth Service Corp posting.

We are mindful that under the 1999 Constitution (now the 1999 Constitution as amended), fashioned after the American presidential system of government with its division of powers among the three arms of government culminating in a complex system of checks and balances; the mandate of the Nigerian judiciary, as encapsulated in section 6(6): “Extend(s), notwithstanding anything to the contrary in (the) Constitution, to all inherent powers and sanctions of a court of law” and “to all matters between persons, or between government or authority and to any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person.”

Strenuous arguments can be made out against any delegation of Judicial Powers, which are constitutionally conferred. It must be stressed that in advocating this scheme there is no intention to make Judges abdicate the responsibility of deciding cases. It is our respectful submission that almost three quarters of most rulings and judgments consist of a review of the case as presented, restating decided authorities in the form of cases etc, This is the part of the work which we advocate that our Judges can be spared so that they can focus their effort with improved efficacy in arriving at just conclusions.

In any event, we believe that this is an opportunity for Judicial activism, which will ensure that the interpretation o the exercise of Judicial Powers will be done in a purposeful manner that allows the incorporation of such aids that will positively impact the administration of Justice. For as U. S. Supreme Court Judge, William Rehnquist said:

The framers of the constitution wisely spoke in general language and left to succeeding generations the task of applying that language to the unceasingly changing environment in which they would live Y Where the framers Y have used general language, they have given latitude to those who would later interpret the instrument to make that language applicable to cases that the framers might not have foreseen.

The challenges facing the judiciary are multidimensional and multifarious, some of which are more or less institutional or inherent in nature. The Judiciary has grown tremendously in size and stature over the years. While this growth is rapid and largely desired, there has been some discordance in movement and coordination, like a child that grows too fast. For instance, this rapid growth and necessitated the creation of sixteen Division of the Court of Appeal with the attendant problem of conflicting judgments of the appellate court. The judiciary comprise of judicial officers who are human beings and therefore subject to the vagaries of human nature in its insidious form. The cliché “Justice delayed is justice denied” is an old cliché but is symptomatic of the situation in the Nigerian judicial system where civil and criminal cases drag on for years, aided by highly technical procedural rules of the court which are capitalised upon by litigants to delay the resolution of cases before the courts.

We respectfully rest our submissions that the appointment of Judicial Clerks under appropriate supervision will go some way in mitigating some of the difficulty faced by Judges in Nigeria.

•Omole is a Lagos-based legal practitioner