By Ebun Olu Adegboruwa, SAN
In recent times, the Nigerian Judiciary is increasingly being perceived as corrupt. The judiciary is composed of judicial officers who are human beings and therefore subject to the vagaries of human nature in its insidious form. While there are good, intellectually sound and upright judicial officers of impeccable character and integrity in Nigeria, it is sad to say that a very tiny percentage of judicial officers in Nigeria fall below the standard expected of judicial officers in the area of intellectual capability, uprightness, character and integrity and this reflects in the poor quality of judgments delivered by the various courts in Nigeria and the growing problem of conflicting judgments and the attendant confusion it brings in the legal system in Nigeria.
In my article on Transactional Justice published sometime in February, 2020, I took the honourable position in admitting that there is a growing disposition to purchasing judgments of judges by the highest bidder. My personal view is that most judges are incorruptible, above board and they decide cases according to law and their conscience, but the things that we hear about some judges are very troubling. In my aforesaid article I described Transactional Justice as follows:
In Transactional Justice, there are lawyers involved as couriers of monetary offers to judicial officers and it is prevalent mostly in election petition cases. The politicians have become so desperate that they will do just anything to cling on to power, by all means necessary. The ugly side of this is that once it is possible to influence a judge in a particular judicial transaction, then the door is open permanently for other subsequent influences, as for instance once you are able to sway a judge to tilt the even scale of justice in an election petition, then that judge becomes a permanent customer even in other regular cases, whenever the need arises. This is how it goes:
“The litigant hires the very best lawyers in the field of his case, pays them well to handle all legal issues in the open court and then turns around to hire other lawyers or individuals in the background, purely for networking. These latter set of people have no business in the preparation of the case on the merit, they are not involved in the settlement of pleadings or briefs of arguments and they care less about the knowledge and erudition of counsel on record, but to work to secure victory for the paying litigant at all cost, while innocent lawyers sweat themselves out in the courtroom on legal jargons. They know the text of the judgment well ahead of time.”
How does it sound that the judgment of a court is no longer based on law or precedents? Or that law has become totally unpredictable, even for the same set of facts? As such, lawyers are unable to properly advise clients who approach them for legal counsel, as we now have different decisions, even of the Supreme Court, in the same set of facts and circumstances. Whereas this can be due to human error precipitated by the workload of judicial officers based on the volume of cases that they handle daily, it is also said that it can be the result of Transactional Justice. Part of the Judicial Oath goes thus:
‘… I will discharge my duties and perform my functions honestly, to the best of my ability and faithfully in accordance with the Constitution of the Federal Republic of Nigeria and the law; that I will not allow my personal interest to influence my official conduct or my official decisions.’
Transactional Justice is allowing personal, family, social connection or financial benefit to influence judicial decisions. The trouble in all of these is that the rich and affluent, the ones so very well connected and powerful, will always get the upper hand in situations of Transactional Justice, which will be a game for the highest bidder. The poor man and his lawyer, the weak litigant and the lowly members of society, stand to lose in all cases where Transactional Justice is at play, as they simply cannot match the stakes. The negative consequence of Transactional Justice is that impunity, lawlessness and wickedness will continue to plague society, if the wicked and lawless oppressor cannot even be called to order by the court. The end result is further impunity by the common man who takes the law into his hand by resorting to self-help to attain justice and thus leading to full anarchy and the breakdown of law and order in the society.
To curb to a minimum the operation of corrupt and transactional justice practices within the judiciary, we must begin to consider a judicial Ombudsman framework that will be tasked with the responsibility of inquiring into complaints from court users. As there are whistle-blowing policies in executive administration there should also be such policy in place in the judiciary. Unlike in the other arms of government where officers found to be corrupt could be punished, suspended and allowed to resume their duties, there should be no middle ground or space on the Bench for those found to be partial and corrupt as they are unworthy arbiters of truth. There should therefore be zero tolerance for judicial corruption or misconduct.
Finally, there is the urgent need for constant training and re-training of judicial officers in the form of workshops, seminars and symposium for judges to update their knowledge and restructuring the appointment process of judicial officers to ensure that only persons of acceptable intellectual capability, character and integrity are appointed to the bench.
Executive interference with the judiciary
In October 2016, Nigeria’s Department of State Services (DSS) raided the homes of seven senior judges, including two Supreme Court justices and arrested them on charges of corruption. This move against the symbolic custodian of the rule of law and justice was unprecedented in the country and a deflation of the ego of the Judiciary. The executive arm of government has however continued to remain an unbroken record in interfering with the statutory tenures of judges. A classic example is the purported suspension and removal of the number one Justice of the Federation in the build-up to the 2019 elections in flagrant disregard of the powers of the National Assembly and the National Judicial Council in regulating the affairs of its Judiciary. The point was well made by the Executive to the Judiciary – we own you and your institution must continue to carry out its function to the extent it does not offend our interest and biddings. And just when we thought we had seen it all, the same scenario reared its ugly on October 30, 2021 when armed security operatives stormed the home of Honourable Justice Mary Peter-Odili in purported execution of an illegal search warrant. As we say it often in Nigeria, nothing has changed.
Of all the challenges to the Judiciary, the government’s strong-arm tactics is the most potent way the Judiciary is influenced in its performance as a fearless and impartial arbiter. Where it has become the norm that a sitting judge can be abruptly stripped of his immunity without recourse to the provisions of the law, then the Judiciary can finally be seen as the victim of state authoritarianism. Where then does the last hope of the common man run to when it is being humiliated and intimidated by the other arms of government? A colleague opined lately that the judiciary is now officially to be known as the lost hope of the common man. I pray it doesn’t get to this point.
The second part of executive recklessness which is becoming a norm is where the Executive through the machinery of the security agencies has fallen to the lowly times of outright disregard and disobedience of subsisting court orders and the rule of law. Strangely, it is the same Executive that would run to the judiciary to avert an impending strike action by a pressure group in the polity. The notable pronouncement of the Supreme Court in Governor of Lagos State v. Ojukwu (1986) 1 NWLR (Pt. 18) p. 621 as regards enthronement of anarchy in disregard of the decisions of the court of law still remains relevant over three decades. The Court held thus:
“If the Government treats Court order with levity and contempt, the confidence of the citizen in the Courts will be seriously eroded and the effect of that will be the beginning of anarchy in replacement of the rule of law. If anyone should be wary of the orders of the Court it is the authorities; for they, more than anyone else, need the application of the rule of law in order to govern properly and effectively.”
It is beyond debate that the draconian practice of the Executive of picking and choosing which order or directive of the courts it would comply with has been the focal point undermining the rule of law and socio-political stability of the nation. As all governments of the day are bound by the final decision of the Supreme Court on all electoral matters, so also should every authority, entity and government agency slavishly comply with subsisting orders and directives of any court of law.
The NBA and the Bench are thus left to take the bull by the horn and be more involved in Legal and Judicial activism against the tyrannical disposition of the Executive. The Judiciary should therefore be bold to checkmate the excesses of the Executive and the second arm of Government. The words of Late Kayode Eso, JSC relives itself once more, when he stated that:
“Like judicial activism, people who are not knowledgeable enough regard both judicial activism and legal activism as legal rascality. That may be, because when well-construed, strong advocates are usually not the passive ones as only strong Judges, not Kabiyesi interpreters of the law live forever.”
A Judge who is incorruptible and above board must therefore remain fearless in administering justice, regardless of the potent fangs from any executive agency or body. It was the legendary philosopher, Cicero, who about 2000 years ago echoed that: “Amid the clash of arms the Law is silent.” Barely 70 years ago, Lord Atkin, that quintessential, courageous, erudite common law jurist thought otherwise, and cherishingly echoed the ever-immutable dictum:
“In this country (England) amid the clash of arms, the laws are not silent. They speak the same language in war as in peace. It has always been one of the pillars of freedom, one of the principles of liberty for which on recent authority we are now fighting, that the judges are no respecter of persons and stand between the subject and any attempted encroachment on his liberty by the executive, alert to see that any coercive action is justified by law.”
From my humble reflection on the challenges of the Nigerian Judiciary, once we can get the appointment of judicial officers right, provide adequate funding, shun and uproot greedy and corrupt officials, and finally guarantee non-interference with the duties and roles of the Judiciary, the Judiciary will be on an upward trajectory in safeguarding true democracy in the nation.