By Joseph Chu’ma Otteh
A people with a written Constitution incorporating a Bill of Rights, a free judiciary and a robust civil society should be in a position, as we are, to blame its Judiciary, at least in some sense of being an accomplice, if such a country misgoverns, or aborts the dream of its original founders.
We can see this result when a judiciary indulges itself in the luxury of thinking that constitutional adjudication can be undertaken in an ideologically neutral space, unconstrained by, and isolated from the realities of its people, their history, their economic, social and political conditions as well as their aspirations, struggles and hopes.
This is often the sense one gets from Nigeria’s 50th independence anniversary reflections.
The post-military Nigerian judiciary has often allied itself, by the types of decisions its judges formulate, with those who squander our rights to be governed responsibly and accountably; with those who subvert the manifestos of our constitution and disavow its egalitarian philosophy.
Our judiciary basically neutralizes the declaration that our State social order ‘is founded on ideals of Freedom, Equality and Justice. How? By the judiciary’s failure to synchronize the Constitution’s philosophy [yes, our Constitution has a social philosophy!]with theirs.
By not infusing the precepts established by the Constitution into their determinations and by refusing to remain faithful to the Constitution’s directive principles.
Cynics argue that the Constitution itself comes short of mandating the enforcement of these idealisms when they are crossed by government, but they should remember that the Constitution insists that the Judiciary, alongside the other branches, must assume the ‘duty and responsibility’ to ‘conform to, observe and apply the provisions of this Chapter of this Constitution’.
This is why I think that Nigeria’s judiciary, in many ways, is partly responsible for the stultification of the Nigerian dream, and now must, in some act of atonement, be instrumental to the struggle for its redemption, or else, be declared persona non grata.
At this turn, we must ask the question that Justice Kayode Eso asked long ago: The Nigerian Judiciary: What vision for the 21st Century? (Eso, Further Thoughts on Law and Jurisprudence 2003)
‘Is Judicial Justice becoming hostile to Social Justice?’
Nigerian courts have resisted status quo change by blocking citizens’ participation in government to ensure good governance, to the point that the courts themselves were negating the Constitution’s avowed insistence that ‘the participation by the people in their government shall be ensured …’ by denying citizens standing to sue wrongdoers in power.
Citizens sought to stop unconstitutional diversions of public revenue, but were stonewalled by courts. Citizens sought to make public officials account for public funds as well as recovered monies, but were resisted by the courts.
Citizens sought to compel government to pay salaries of public servants that were many months in arrears, but courts said they did not have locus to do so; citizens sought more equitable ethnic distribution of public offices, but again were rebuffed by the courts.
However, there are distinguished exceptions to this chequered portrait. In the times of military despotism and absolutism, the Nigerian Judiciary stood up, many a time, to be counted as we saw in in Lakanmi v. A.G. (West), Governor of Lagos State v. Ojukwu, (INEC v. Musa), (AG Abia v. AG Federation, Attorney General Federation v. Abubaka, Obi v. INEC.
Yet, our Judiciary has not reproduced these lines consistently, and across board, particularly for the small litigant, the social or economic underdog.
A student who had gained admission to a University (and was to graduate) on the basis of school certificate examinations was told later that the examinations were cancelled because of examination malpractices he had not been personally accused of, or heard from, in defence.
The Supreme Court questioned the procedure by which the applicant came to court, and struck out the suit (WAEC v. Akinkumi). In striking out the case, the Supreme Court did not get into the merits of the case.
It merely said the procedure by which Akinkumi came to court was wrong! This student spent five years in the University before he found that his results were withheld.
From the time he instituted the suit in the high court of Lagos State in 1999, to the time the Supreme Court determined the case in 2008 was another nine years! After fourteen years, Candidate Akinkumi would need to begin the case afresh, or else begin his life afresh.
Should we, at this turn of time, saddle ourselves with a jurisprudence of exclusion attired in garments of legalese? Could the Supreme Court have found-or indeed, was it under a moral obligation if it could not find a legal one – to hear that case on its merits, in view of our Constitution’s directive to guarantee ‘easy accessibility’ to courts of law [section 17(2)(e)?
Beyond the law: Other Blots on the Landscape
Therefore, while the challenge before our Judicature includes rendering fearless decisions, it also transcends it and extends to ‘finding ‘turn around’ situations in the political economy for the disadvantaged and vulnerable groups’, to borrow from fomer Indian Chief Justice, P.N. Bhagwati.
Has the Nigerian judiciary tried to ‘wipe the tear from every [Nigeiran] eye’ that has endured decades of exploitation, degradation and alienation? Has the judiciary redrawn its protocols of access and rules of procedure to ensure that people of this class can seek to be relieved of their denials and oppression in the shortest possible time at the lowest possible cost through the intermediation of courts of law?
Can court rules which require equal filing fees between multinational corporations suing to enforce contracts the size of national budgets and rural farmowners dispossessed of their lands by affluent land speculators make sense?
Why should it be just to judicial administrators that a suffering widow should abandon her claim for redress over a company’s negligence that has caused the death of her husband because she cannot raise exorbitant filing fees?
Why should it make sense to us that a Judge can grant an injunction to prevent corruption agencies from arresting alleged looters and cannot grant an injunction to stop the demolition of houses in land the government wishes to parcel out to developers?
How has the judiciary dealt with trial delays from docket congestions that tax the patience of every court user, litigant and lawyer alike, and disincentivizes the desire for redress? Has our judiciary undertaken some introspection and said, as a matter of policy, every federal and state judiciary must integrate ICT to create better efficiencies in the use of time, reduce costs, labour and other processual waste in the judicial system? Why do our judges use nineteenth century infrastructure and expect to meet the challenges of the twenty_first century?
Have not people traveled from different ends of our country to attend court dates only to be told on the scheduled dates that the judge has not arrived from a journey overseas? Does the judiciary undertake to reimburse the costs of these needless journeys and provide covers for the travel risks associated with them also? Where is the evidence that the Judiciary actually cares about how its work is perceived by the consumers of its services?
Questions of Integrity and Independence
Fifty years after, how have our courts observed the constitutional directive that the ‘independence, impartiality and integrity of courts of law and easy accessibility thereto shall be secured and maintained’? Our judiciary has endured the ridicule of many corruption scandals, yet tries to keep a straight face. Respectable voices have warned that corruption has eaten too deep into its soul, yet our Judiciary is happy to be called the least corrupt branch.
The National Judicial Council, the judicial ethics watchdog’s work has sometimes been useful, but too often politicized.
Leaving that aside, what about perceptions of independence? A Chief Judge of one of our States announced publicly that a novelty football match between the State High Court Judges and the members of the Legislative branch of the State will be played as part of activities commemorating the start of the new legal year! In days gone by, no one would probably think of such a fun-fare gathering of politicians and ‘justicians’. While in office, judicial officers often isolate themselves from the social marketplace, to sustain the idea of their independence. If our judges need to produce some entertainment, why not play this coveted game amongst themselves?
The State where this event will take place retains over fifty judges and their number can deliver four or five football teams, which they can name after such greats as Chelsea, Barcelona, or Inter Milan if they like. Or, even, to be patroitic, after Eyimba, Kwara United or Julius Berger.
They can even choose to play against Court of Appeal Judges in the State, or even retired Judges. Why court the fellowship of those over whose cases you preside so often? What good will it do to the Judiciary’s image perception? Why eat into the little capital that’s left to the judiciary’s reputation.
Fifty years after, has the Judiciary insured that its bureaucracy is efficient and its environment largely corruption-ree? After litigants pay all the official filing and service of process fees, why do they still need to ‘negotiate and pay’ ‘fees’ to court bailiffs to ensure their processes are served, which is a repetition of payments for services the judiciary has already undertaken to perform?
Does the Judiciary not close its eyes to its own weaknesses and hold others responsible for its own failings? Does the Judiciary not realize that the hapless court user will ultimately be unfairly taxed and burdened with the costs of the courts inefficient bureaucracy? Who should clean up and straighten the Judiciary in this regard?
The Attorney General, or the legislature, or perhaps even the lawyers?
How about using the law to relieve those who suffer the loss of their liberty and dignity, and sometimes are in the ‘shadows of death’ at the hands of torturers in law enforcement centres?
Why do many of these people opt to settle their cases at police stations, negotiating bail money with gluttonous law enforcers than come to court to find reprieve? Is help from courts in urgent situations involving the downtrodden often not a hopeless dream when it takes sometimes weeks to assign a fundamental rights enforcement application to a judge for hearing?
Have courts not dismissed fundamental rights actions because one technical rule was not religiously complied with, and refused to give justice to beleaguered claimants?
Where is the sensitivity of our Judiciary to our socio-economic state of being, a reference so urged by the Nigerian Supreme Court in Ariori v. Elemo? The same kind of spirit that has led the Indian Judiciary to re-create rules of standing to open up a new access to court route it calls ‘epistolary jurisdiction’ for the benefit of indigent folk?
Even the holy book charges ‘Defend the poor and fatherless: do justice to the afflicted and needy.’ Psalm 82:3. For again, though the courts must take ‘rights seriously’, it has a higher responsibility, as constitutional scholar Upendra Baxi posits, to take ‘suffering seriously’.
Nigeria has largely squandered the bright promises of its independence, and bad governance has left a majority of Nigerians impoverished, despoiled, despondent and angry. 92% of Nigerians, the statistics say, live on less than $2 a day.
Nigeria has the highest income disparity rate globally and a few days ago, the Executive Director of the National Primary Health Care Development Agency Dr. Muhammad Ali Pate, revealed that Nigeria, again, has the worst maternal, newborn and child mortality rate in the world with an estimated 52,900 women and 250,000 newborn babies dying yearly from causes that are largely preventable.
Yet, our judiciary has largely remained agnostic and indifferent to these conditions, looked the other way while Nigeria was being plundered and defiled, and in some cases, kept keen watch for those defiling her. A once proud, respectable Judiciary has shaken off its dignity and prestige by alienating itself from its own people.
Our judiciary needs to awaken to newer realities of its institutional and instrumental role in nation building, and accept the moral responsibility that comes with the knowledge that its own actions or omissions, its ideology or want of it, its own strength or weakness, can keep Nigeria long enough in the doldrums to ignite forces of radical or even violent change, or create the juristic conditions for peaceful and ordered change.
The life of the law, Justice Oliver Wendell Holmes of the American Supreme Court said long ago, has not been logic, but experience. If law is found only in logic, we should then join the graveside chorus, which our judicial brethren must take pride in, ‘justice is dead, long live the law’.
There is still time to shape a new direction for the Nigerian judiciary and the Chief Justice of Nigeria needs to provide leadership to set a new order for things; we need to tear down a number of juridical concepts, and build new ones.
We need to confront heady obstructions, and straigthen crooked paths. We need to do the hard-work to make things work, and not keep our heads buried in the sand.
We need to confront our convenient pretences, and accept inconvenient truths. Justice Katsina Alu has enough time to begin the process of rebuilding, perhaps not enough to complete it, but whatever he does now will be credited to his legacy.
When the coming generation looks again at the Nigerian judiciary fifty years from now, let them write a different story.
Let them say the Judiciary has won back the friendship and the respect of the Nigerian people.