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Musdapher: The voice not heeded (1)

By Muhammed Adamu
IN his suave, genteel, self-effacing stride, and maybe even in his judicial worldview, he seemed like a judge who preferred that ‘settled judicial waters’ be left undisturbed. And why, by the way, should ‘settled judicial waters’ not be left undisturbed?

In fact, Justice Dahiru Musdapher had fought always to bring ‘unsettled’ judicial matters to a just and final ‘settlement’. And for those who knew him well, he was as much a believer in ‘the law in statute’ as he was of ‘the law in action’.

Yet they had called him the ‘establishment judge’. And when he was to be made the Chief Justice, CJN, a flurry of campaign had strut the media space insisting he was the converse of the ‘judicial activism’ required to get the Judiciary out of its ‘season of anomie’. Because they said that after Justice Katsina-Alu, the judiciary could ill-afford another ‘pacifist’ judge, to continue on the judicial path of least resistance –insinuating that Musdapher was an ideologue of the ‘expository’ school of jurisprudence, and that he would view the law existentially ‘as it is’ (like conservatives do), and not mutatively ‘as it ought to be’ (like liberals do).

Former CJN, Dahiru Musdapher
Former CJN, Dahiru Musdapher

They also cited Musdapher’s controversial role in the Salami-Katsina-Alu saga, alleging that he was complicit with one in favour of the other -or as many others had insisted, that he was merely uncooperative with both, in deference to the truth and in reverence of his long standing collegiate relationship with both of them. Be that as may, it was not in doubt that he told the truth that he knew, even though many insisted -like Bill Clinton on Lewinsky- he ‘withheld information’.

Judicial  vineyard

All the same, ‘conservative’ Justice Musdapher may have been; but certainly not in the pejorative sense of the word. If Musdapher was judicially ‘conservative’, it was not because he sought to preserve –like conservatives do- everything judicially ‘good or bad’; but rather he was ‘conservative’ to preserve what he believed at all time was judicially right. But for Musdapher, there were always issues to be ‘conservative’ about, as there were issues to be liberal about.

In the end Musdapher had successfully walked the judicial tight rope to inherit what he rightfully deserved –the judicial vineyard, as the nation’s highest judicial officer. On the 28th of August 2011, Justice Dahiru Musdapher was appointed Chief Justice of Nigeria, CJN making him the 12th head of the judicial arm of government, after Justice Aloysius Katsina-Alu. And considering the many judicial and juridical challenges predating his appointment –especially those bordering on the ethical and moral substructures of the Judiciary- it was clear that the new Chief Justice had inherited an institution at the lowest of its systemic regress and at the height of its public disapprobation.

Over the years, the Nigerian Judiciary had come to be identified more as a zone of despair especially for the common man seeking justice, than as the proverbial ‘last hope of the common man’ that it ought to be. The judicial process had acquired a sickening notoriety for unwarranted tedium in arriving at justice; it had become especially characterised by unending delays, unfair judgments, abuse of the rules of precedence, advocatorial incompetence and most worrisome of all, corruption at virtually every level of judicial administration.

These and many other especially ethical and moral deficits in the judicial system cast Nigeria as a byword for judicial indiscretion and a reference point for the perversion of justice and corruption of the due process of law. But it was not only the ethical and moral substructures of the Nigerian Judiciary that were in dire need of redress. The administrative infrastructure too needed total overhaul . At virtually all levels of court administration the system had been run aground: decrepit and dilapidated court rooms, inefficient filing and case management systems, case congestions, etc.

Equally in sorry state was the technological infrastructure of the Judiciary, which was either non-existent or at best obsolete where it existed. Courts were still stuck with the old-fashioned ‘long hand’ mode of taking evidence, absence of simple auto-mated technologies like transcribers, cameras, conferencing facilities, virtual registries, etc. In a fast globalising world of technology, Nigeria’s judicial system had remained obstinately impervious to change and was thus left behind as the virtual cave-man of the global judicial village. Yet even court processes were plagued by complex rules of practice and procedure un-amenable to speedy dispensation of justice.

Even its Continuing Education system had virtually collapsed; so that over the years legal re-education, a very vital ingredient of judicial regeneration, had been on a free fall, inevitably occasioning serious decline in the intellectual capacities of judicial officers to dispense justice fairly and according to law. The consequences of these naturally manifested in a downturn in the judicial system’s public image. The Nigerian Judiciary lost the confidence and good faith of the public.

Deficit in public confidence necessarily led to the disenchantment of a justifiably despondent citizenry that believes even today, it is always at the receiving end of a corrupt and inept justice system. Judicial transparency, juridical equity and fairness had, over the years, been allowed to hit rock bottom, -so much that the eminent jurist, Justice Kayode Esho in a memo to the new Chief Justice (Musdapher) once said with excruciating bluntness:

“There has been no time in the history of the Judiciary of this nation that the institution has sunk this low”. This was four years ago! It is an understatement to say that things have even got worse.  In fact, now with judges colluding with lawyers to sell justice to the highest bidder, we are already in a season of ‘judicial anomie’; and the willingness of Nigerians to subjugate before the law can only erode the more.

Amazement  and disgust

From the date of his appointment as the new Chief Justice, it was obvious that Justice Musdapher had his job already cut out for him. And although time was grossly at a premium for his barely eleven-month tenure, nonetheless Justice Musdapher was the first to embark on a holistic judicial reform programme involving –again for the first time- a no-hold-barred public exposé of the rot in the Nigerian Judiciary, to the chagrin of many judges and lawyers, and to the amazement and disgust of the public.

And so on the 19th of September 2011, at a Special Session to mark the Commencement of a New Legal Year, Justice Musdapher inaugurated his tenure on a rather fiery, revolutionary –but nonetheless sobering- note, as he publicly laid bare the entrails of the Nigerian Judiciary to reveal the many ills in the bowels of this once hallowed institution, which before now it would have been some kind of a judicial taboo to talk about outside of the judges’ chambers.

Justice Musdapher spoke about the “dangerous and unprecedented invasion of the judicial arm of government” by what he described as ‘prevalent societal currents’ (a euphemism for corruption), which he admitted was fast chipping away at the institution’s capacity to dispense justice. He spoke about the growing chronic inefficiency in the judicial system, which he said was making the Judiciary un-responsive to citizens’ thirst for justice especially in a democracy pregnant with the expectation of quick dividends.

And even as he warned that the inability of the Judiciary to provide remedy to the growing menace of cut-throat politics, election rigging, corruption, nepotism and ethnicity was becoming worrisome, Justice Musdapher also lamented “the gradual but steady flight of decorum, ethics and rules of professional conduct” from the Bench and from the Bar, -a situation which he said had begun to bear unpalatable consequences especially with many ministers of the Temple of Justice becoming willing perverts of the course of justice rather than the searchers after truth they were trained and indoctrinated to be.

Urgent  cleansing

By openly admitting to the existence of a judicial Augean Stable requiring urgent cleansing, Justice Musdapher had fulfilled first the righteousness in the maxim of equity which requires that ‘those who come to equity must come with clean hands. And having confessed to the malignant state of affairs in an institution to which he belonged, Justice Musdapher had set for himself the moral basis not only to mount the chivalry charge of redemption but also to assume the role of an avenging angel for the Nigerian Judiciary.

In the next eleven months of his tenure, Musdapher would go on a virtual public-speech-making spree often deliberately designed for him to create platforms for to bring the public domain sometimes deeply esoteric judicial matters hitherto unfit for public consumption. It was the Chief Justice’s clever way of sending an SOS to the Nigerian public, suggesting that judicial matters had long transcended the threshold of benignity and could soon get incurably malignant. But was anyone listening?

The Chief Justice, unlike an Executive President, does not have the luxury of judicial fiats to command the righting of judicial wrongs. Outside of his judicial and quasi-judicial powers, the administrative discretion of a Chief Justice does not extend beyond the assignment of cases and -with other men of divergent, often conflicting legal views- to preside over the NJC on matters strictly of discipline.

Musdapher was the first Chief Justice not to follow the sedate, publicity-shy style of his predecessors. He was not about to keep quiet and sanctify the aura of judicial secrecy that had always shrouded the operations of the judicial system. In fact, his was a very public tenure motivated by the resolve to constitute himself into a one-man bureau of dissemination to get the message across to the public that the Nigerian legal system was dogged and bedeviled no less by deficient laws and moribund procedures, than it was by the presence of insensately corrupt judges and lawyers in the Temple of Justice.

And because his ideas on how to reform the Judiciary were considered somewhat revolutionary especially for such a sedate institution, Musdapher thought he needed to enlist the moral support of the victim-public in order to entrench the reform. In fact, he had always said that reforming the Nigerian Judiciary was not the task of any one group but a collective battle that required input from all stakeholders. And to get the public to own the reform Justice Musdapher had picked especially popular and controversial causes that resonated deeply with the people.

He spoke openly against the idea of ‘plea bargaining’ describing it as “a novel concept of dubious origin” which senior lawyers in collaboration with some judges had smuggled into our legal system in order “to provide soft landing to high profile criminals who loot the treasury entrusted to them”. It immediately resonated with the critical public that had come to believe that there are always two laws: one for the rich and one for the poor.

Judicial  legislation

Justice Musdapher spoke painfully also about the habit of most judges always allowing lawyers –and especially so called Senior Advocates- exploit, to their clients’ benefit, technicalities inherent in the law, -technicalities which over the years neither Parliament (through legislation) would pick the gauntlet to amend, nor judges themselves through judicial legislation, to remedy. Once Justice Musdapher passionately pleaded to a gathering of judges and lawyers, “In the name of justice, matters should be decided on their merits and not technicalities.”

Yet, most Nigerian judges have persisted always in elevating legal technicalities above the overarching need to engender justice. Many of them appear to have a sneaky penchant for glorifying ‘procedure law’ –making the attainment of justice a chance game- over and above ‘substantive law’ -which more likely guarantees justice.

To be continued
Re: TInubu’s right of first refusal

MY Senior colleague and elder brother, Mohammed Haruna corrected me on the often subconscious use of ‘Jagaban’ including by us northerners who should know better, to refer to Tinubu’s title of ‘Jagaba’.

‘Jagaban’ as he rightly corrected is adjectival for the noun ‘Jagaba’. If you use the adjectival ‘Jagaban’, then it must go with its noun ‘Borgu’ (Jagaban Borgu).

“So it’s either Jagaban Borgu or simply Jagaba. Just as it’s either Sardaunan Sokoto or simply Sardauna”.Appreciated Sir.


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