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In defence of the Nigerian judiciary

By Obi Nwakanma

I have a friend who is a distinguished High Court Judge. He is one of the most honorable, incorruptible men I know. His modesty, and his deep intellectual capacities, his humane, balanced, and measured worldview, and his profound lack of materialism is the sum on which great character is measured. I have never discussed his work as a judge with him, nor would he even indulge me: we talk chess, poetry, the differences between the stoics and the epicureans – he more stoical, and I batting for the Epicureans – the religious life, he of the Episcopal conviction of the High Anglican church, and I a failed Catholic. Things like that. I say this because, more often than not, the Judiciary in Nigeria gets the bad rap.

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Going by my measure of my friend, I think we still have honorable judges. Deeply efficient and broadly learned judges who could discern the law, and offer balanced judgment. And this is not to say there are not many bad apples among them. There certainly are. And these are the ones that give the judiciary its bad name. But many judges are fine gentlemen and women, who have chosen the  long and narrow path of the bench, than the broad highways to great wealth and fame often the lot of lawyers, many of whom already have their chambers established in hell, and will end there in good time when it pleases providence. But it is important to recognize that the job of the judge is thankless and difficult.

Next to the teacher, that long suffering professional, who is often taken for granted, the Judge is who, should there really be heaven, shall make it there before the priests and the pastors, who at least have learned to collect their own tithes on earth. The teacher receives the worst remuneration, is overworked, and is undervalued: s/he watches as the child s/he taught goes on to earn salaries in one year far beyond what his teacher had earned in an entire career. Today, the teacher works in the worst environment; is utterly disrespected, and is the butt of the jokes of those who ought to know better that where there are no teachers, there are no civilizations. Teachers have the two short ends of the stick: former students who make it, are too busy in self-adulation to remember their teachers and the long sleepless nights it took to make them successful.

Those who fail, blame their teachers for making their lives difficult, and thus their failures. Same with judges: when they offer judgment, those against whom they exercise justice call them “corrupt” because they are dissatisfied. Those to whom they offer justice rejoice but often do not appreciate the mental and psychological tolls it takes on the magister. It is often not imagined what a judge goes through, the agony of choice, the moral anguish, the depth of self-mutilation it takes when a judge has to sit on the throne of judgment to condemn another man to death, and order that a life be taken, and sign the warrant of that judgement that ends that life, even if that life has been expended in crime.

A friend of mine once told me, how his father, then a well-known judge, would pace his study all night, before writing his judgement, particularly if his judgment involved a capital punishment. Sometimes judges recuse themselves from a case if they feel themselves too close to its process.  It requires fearlessness and a depth of insight, an equanimity, the kind impossible for narcissists and self-indulgent men to be that kind of judge. It takes great character for a judge to recuse himself from a case of which he feels conflicted. It is great honesty for a judge to understand the limitations of his own learning, and thus depend on his research assistants or interns to riffle through case files to dredge out precedents that might enable him/her come to fair justice.

And justice must be fair, not depredatory or costly. True judgement heals. It is not recriminatory. Indeed justice is so difficult to achieve that what true men of high consciousness seek is compassionate justice. Measure for measure is an illusion. The best judges are pragmatists. They look at the facts of the case, and examine the social as well as legal benefits inside case law, and come as close within the construction of the law as possible to deliver judgement. There are two kinds of judges – the conservative, rigid constructionist judges, often called “textualists” in legal philosophy or jurisprudence, who follow the strict interpretation of the constitution. These judges stand more often on the principle of stare decisis, the idea of precedent inherent in the original text of the law.

A cursory look at Nigeria’s legal history or case law will show that the likes Justice Adetokunbo Ademola, Dan Ibekwe, and Taslim Elias, were strict constructionists. There is also the other kind of judge – the activist judge, who relies on the spirit of the law for his or her interpretation. There is for these kind of judges an understanding of the subjective conditions of the law whose warrants therefore demand a broader, human sense – a certain humanism if you like – in the dispensation of justice. Among such Nigerian judges were Chukwudifu Oputa, known as the “Cicero of the Bench,” Kayode Esho, Anthony Aniagolu, and among the new generation, Justice Bode Rhodes-Vivour. It was once a distinct honor to be appointed to the bench in the Nigerian legal system. A generation of Nigerian judges stood between Nigerians and the rampaging tyrannies of the military dictators that ruled between 1966 and 1979, and between 1983 and 1999. Nigerians had a modicum of protection in the sense that Nigerian judges kept a sense of justice still alive.

In some cases, many were used by the dictators to force down unpopular decrees. But in many instances, brave, and incorruptible judges stood up against the soldiers. Where parliament was suspended, the judiciary remained the last bastion of the ordinary Nigerians. We still say that to this day, in acknowledgement of the sterling roles played by judges and magistrates in stemming the sense of utter hopelessness. An independent judiciary however must be truly independent.

Courts must be properly provisioned. Judges must have the benefits of research associates, and must be cushioned against deprivation. They must be properly and frequently remunerated because judges are human too. They may be liable to corruption if forced to it by conditions that fund corruption.

A nation that wants true justice and functioning courts must never starve its law givers, and its law enforcement institutions, or make them subservient to immoderate power. That seems to be the situation today. Judges are at the beck and call of politicians because they have been subjected to want. Judges should have no other income, and where they once had independent means, must place their inheritance in blind trust. But such judges must be properly taken care of by the state which owes them good houses, creature comforts that they could obtain if they were to dedicate their lives to making money; a security of tenure, and social security that guarantees them comfortable and regular pensions on retirement. Years ago, I did see the father of an old school mate of mine, once a powerful permanent secretary in government, waiting for a bus on the streets of Owerri. He was unable to maintain his old jalopy or afford a new one. Such visible examples of people who served without taking, but who live later in the humiliation of needless poverty, make it impossible for honorable men and women to serve selflessly.

I think these are the great fears today among honorable men who could have ended their lives on the bench. They do not feel certain about the security of the bench which has also been devalued by the aggression of the executive arm with which the judiciary normally should be coeval. I know that the judges pay come straight from the consolidated fund. But in Imo state, under Mr. Ethelbert Anayo Okorocha, judges were owed salaries in arrears (as were teachers and other public sector workers). But for what? And without consequence. As governor, Okorocha ignored judgements against his activities, including the judgment to restore the local government accounts which he seized for eight years. He was not called before the Imo state Assembly to explain himself, nor was any impeachment hearings held.

This is the trouble when people elect a “photo” Assembly such as we had in Imo state, which did not understand that it had the powers to stop the governor, to pass a local government election bill, which if the governor vetoes, could be overridden, and that they had oversight on the financial operations of the government of Imo state, and that without their authority, the governor could not spend state money. Imo is the example of where the legislature failed utterly to support the people, and the judiciary to rein-in an elephant in the china shop. So, shame! On the last parliament of Imo state led by Ihim. But I salute the men and women of the Imo state judiciary for the many judgements they served on that administration, and hope that this new government will abide by the rule of law. And there again is one of the conundrums of justice: it is about time for the National Assembly to pass the Police Reform and Law enforcement Act, that will take police functions from the President and hand it to the office of the Prosecutor-General, an arm of the Ministry of Justice that will report, not to the president, but to the judiciary, through the Ministry of Justice.

The National Assembly should then create six directorates of public prosecution, to whom the AIGs of the Federal police must answer. For if the police remains the toy of the president, or the executive branch, there will be no end to tyranny or executive rascality. Today, judges answer to the police, rather than the other way round because they have no power over the police. This must stop.

 

 

 

 

 

 

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