JUDICIAL clerkship brings valuable experience and exposure to situations that can’t be gained in the classroom with a unique perspective to practices and law firms. They are, therefore, highly valued as lawyers. There is no tradition of judicial clerkship in Nigeria. For us to understand the origin and traditions associated with the office, we have to turn to the USA and other jurisdictions.

The value of a judicial clerkship is substantial. A key credential for future law practice in any area, judicial clerkships are an incredible life experience. A judicial clerkship offers a unique opportunity to glimpse behind the scenes of a judge’s chambers and courtroom, to impact the law through the judge’s decision-making and, ultimately, to gain a life-long mentor.

Sometime around 1873, Horace Gray became the Chief Judge of the Supreme Court in the United States of America. This was the beginning of the Industrial Revolution, rapid increase in railroads and commercial activities. These and other matters also caused an increased workload in the courts. The practice was to inquire from the Dean of reputed Law Faculties for nomination of recently graduated and outstanding scholars to fill the position of judicial clerks. One of the first law clerks so appointed was Louis D. Brandeis. A name, which needs little no introduction to scholars of development of the law in the United States of America. Subsequently, Oliver Wendell Holmes joined the United States Supreme Court in 1882 and wrote in a letter: “We are very hard worked and some of the older judges affirm that no one can do all the work without breaking down.” He took up Gray’s practice of employing a new honor graduate from Harvard each year. By the time of Holmes’s retirement from the Supreme Court, in the 1930s, the institution of law clerks became entrenched in the United States judiciary. The path of starting of a legal career as a law clerk has produced many notable attorneys, chief judges, professors and captains of industry in the United States:

We can enrich our study of the position of a judicial clerk by examining the contemporary position in a few other jurisdictions:

There are jurisdictions where the position of law clerk does not exist. But in many nations, clerk-duties are performed by permanent staff attorneys or junior apprentice - like judges, such as those that sit on France’s Conseil d’État. Of particular interest to Nigeria is the practice in English courts of the existence judicial assistants. The permanent staff attorneys (Referendaires) and the Stagiaires (young law graduates) at the European Court of Justice are also   comparable to American Judicial clerks. Australian, Canadian, and Swedish practices also help illuminate the similarities and differences across nations.

Canadian courts accept applications for judicial clerkships from graduating law students or experienced lawyers, who have already been called to the Bar in Canada or abroad. Most provincial superior and appellate courts hire at least one clerk for each judge. Typically, students in their last two years of Law School are eligible to apply for these positions, but increasingly, experienced practising lawyers are also considered for these positions. The term typically lasts a year and generally fulfills the articling requirement for provincial law societies, which qualifies a person to become a practicing lawyer in a Canadian jurisdiction.

The most prestigious clerkship available is with the Supreme Court of Canada, followed by the Courts of Appeal of the three most populous provinces. The judicial clerks in Canada are usually selected based on a distinguished academic record, academic recommendations, strong research and writing skills and interviews with judges.

Many law clerks have gone on to become leaders of the profession. For example, the Honourable Madam Justice Louise Arbour, formerly of the Supreme Court of Canada, the International Criminal Tribunal for Rwanda and the International Criminal Tribunal for the former Yugoslavia and former UN High Commissioner for Human Rights, served as a law clerk in the early years of the programme.

In England and Wales, law clerks are called judicial assistants. It is possible to be a Judicial Assistant at the Court of Appeal and at the UK Supreme Court (formerly the Appellate Committee of the House of Lords). Only Supreme Court Judicial Assistants are appointed for a full-time, one year fixed term appointment. The formation of the Supreme Court in England represents an important step in the formal separation of powers in the UK. The judicial branch of government is given the prominence it deserves as the Law Lords’ dual membership of both the legislature and the judiciary caused confusion in the minds of the public as to who they were and what they did. The Supreme Court goes some way towards resolving these difficulties.

The UK justices are supported by eight “judicial assistants”. Like the law clerks of the Supreme Court of the United States, each judicial assistant is appointed for a fixed term of one year. The judicial assistants conduct legal research in relation to cases heard by the court and extra-judicial lectures and writings undertaken by the justices, as well as to summarise and review applications for permission to appeal. Serving as a judicial assistant provides young lawyers with an unparalleled insight into judicial decision-making at the very highest level, and allows them to make valuable contacts in the development of their professional careers.

The European Court of Justice (ECJ) clerks, or Référendaires, have some major differences with American counterparts because of the way the ECJ is structured. ECJ clerks, while hired by individual judges, serve long tenures as opposed to the one-year-clerkship norm at the U.S. Supreme Court. This gives ECJ clerks considerable expertise and power.  Their role is heightened because the European Union is composed of very different nations with disparate legal systems. ECJ clerks provide legal and linguistic expertise (all opinions are issued in French), ease the workload of their members, participate in oral and written interactions between chambers, and provide continuity as members rapidly change.  ECJ clerks act as agents for their principals – judges - and generally have more powers than judicial clerks in USA. The ECJ also admits a limited number of selected law graduates as Stagiaires whose duties are more similar to those of the law clerks of the U.S. Supreme Court.

In France, law clerks are called assistants de justice. They go through a competitive selection process to get accepted as law clerks. Most French courts accept applications for judicial clerkships from graduating law students.    Many law clerks are Ph.D. candidates in Law or candidates for a French competitive entrance exam such as the bar exam, French National School for the Judiciary, French National School of Public Finances, or French National School of Court Clerks .Law clerks are hired for two years renewable twice.

Depending on credentials and curriculum they can be assigned to the bench (magistrat du siège) or the prosecution (parquet or parquet général). Their work entails assisting the judges with writing verdicts and decisions and conducting legal inquiries and research.

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.