Judging the judges

In the 1970s, when I was a boarder in a rather snooty missionary secondary school in the ancient hills of the Old Plateau state, we once staged a play, The Incorruptible Judge, by the playwright Olu Olagoke (Evans Brothers 1972). It was a story about how a ‘bigman’ sought to use his wealth and power to bend the arc of justice to his own favour. He met his Waterloo in the hands of an upright, courageous and incorruptible judge. The play taught us youngsters that truth and right will ultimately prevail against avarice, impunity, sin and wickedness. The morale of that story has remained etched in my memory since those good old days.

It may surprise many to learn that economics and law go together. Economics is about how to produce, distribute and manage the wealth of nations. Law is about the making and enforcing of the authoritative rules created to ensure public order and the Aristotelian good life. The lessons of the last half-century of world development make it abundantly clear that without property rights and the consistent enforcement of contracts economic prosperity will be well-nigh impossible. Free markets and effective public institutions are essential to the building of prosperous democracies. But markets and institutions must be governed by effective laws and regulations. A free market without rules is like playing Hamlet without the Prince. For emerging economies such as ours, a judicial system reputable for its professionalism, independence, impartiality and fairness is essential to attracting foreign investors and hooking up to the global integrated marketplace.

Talking about rules is really talking about the laws and about the system of adjudication that exists in every society. At the core of it is the body of the laws – the entire corpus of jurisprudence as it has evolved since time immemorial – and the lawyers, courts and judges that ensure that the law is upheld and justice prevails. One of the precepts deriving from the collective wisdom of the ages is that the rule of law is always to be preferred against the rule of men, however strong. This fact has been settled since the medieval edicts of Magna Carta and Plantagenet England.

The greatest strategists have always known that war is far too important to be left to the generals. In the same vein, I would venture to say that the law is far too important to be left in the hands of the lawyers. When I confided to a lawyer friend that I was writing a critique on the Nigerian judiciary he went into a feat of spasmodic apoplexy. Apparently, the wisest lawyers know better than to question the wisdom of the judges, and least of all their lordships at the apex of the judicature. To do so might not augur well for one’s legal career. So I’m told.

We Nigerians are going through a lot of introspection these days. The spirit of the times is in favour of change. The current incumbent of the High Magistracy of our great federal republic has pitched his banner against corruption. In late January this year, while addressing the Nigerian community in the Ethiopian capital of Addis Ababa, he remarked that perhaps his greatest ‘headache’ in the war against corruption is the Nigerian judiciary. Some people looked askance at that remark, saying it amounted to ‘interference’ with the independence of the judiciary. In fact, the subsequent spate of judgements that went against the APC ruling party were interpreted by some as the judiciary metaphorically thrusting their mid-finger spitefully at an intemperate and rather meddlesome Executive.

But come to think of it: President Muhammadu Buhari did have a point. Every well informed citizen in this country knows that our judiciary is no longer quite what it used to be. No less than the Chief Justice of the Federation, Dahiru Musdapher has lamented that public opinion takes a rather dim view of the third arm of government. Addressing a conference on justice and socio-economic rights not too long ago, our highest law lord opined that a corrupt judge is “more harmful to the society than a man who runs amok with a dagger in a crowded street. The latter as you know can be restrained physically. But the former deliberately destroys the moral foundation of society and causes incalculable distress to individuals while still answering, Honourable”. He went on to lament that “the society we serve is not entirely satisfied with our performance. Hard as it may be to accept, we feel it is less important to focus on whether this assessment is fair or not. The important thing is for us to transparently come to terms with the prevailing realities, accept the gap in expectations and do our utmost to bridge it”.

I could not agree more with both President Buhari and Musdapher CJ. It seems obvious to me that the quality and integrity of our judiciary is not always what it should be. There is anecdotal evidence of widespread bribery and corruption, lax standards, dwindling professionalism and all sorts of wayward rent-seeking behaviour. Tales of judges scrambling to join electoral tribunals in an unseemly manner are legion.

It is not just about the quality of judges, it is also about the entire machinery of justice. In many of our courts there is no electricity or basic stationery. The bailiffs are said to be unpaid for the most part and have to resort to extorting money through extra-judicial means. Court clerks can make case-files disappear overnight in the mountain of judicial archives, only to resurface when the price is right. Cases can be made to drag on for more than a decade. Justice delayed, as the old saying goes, is justice denied. According to the judicial procedures of our country, courts are expected to open at 9.00 am. A lawyer friend told me of a female judge who turned up at 4pm in the afternoon. She had kept everyone waiting in the sweltering heat since 9.00 am. She offered absolutely no apologies.

From what we hear, salaries of the men and women of the bench are not good enough to attract the most able lawyers from the Bar. Contrast this with Britain, where the Lord Chancellor/Chief Justice is the highest paid public servant in Her Majesty’s realm. Electoral politics has made things worse. Our defective constitution, manufactured by unknown creatures, put in enough legal loopholes to make money for lawyers and to tempt the judiciary with filthy lucre. And all of it at the expense of our fledgling democracy.

The roots of the problems go back to some of the political problems of the First Republic. During the 1962 infamous treasonable felony trials involving Obafemi Awolowo and his colleagues, Judge Sowemimo sentenced the old sage to a decade of incarceration while making the Delphic utterance that his hands were tied. The judiciary in those days were obviously not immune to political pressure. And such pressures often resulted in the miscarriage of justice or to judgements that favoured the strongmen and political titans of the day. Reminds me of an obiter by Lord Denning, the greatest English judge of the twentieth century: “Unlike my brother judge here, who is concerned with the law, I am more concerned with justice.”

There is also the pernicious impact of military government and the culture of militarism. Following the famous Lakanmi case, when the Supreme Court opined after the January 1966 coup, that the military government was merely a change of batons rather than a revolution. This meant that our apex court saw continuity in constitutionalism rather than a break in the law even in the presence of a military praetorian guard. The Ironsi administration, in response, quickly promulgated a Decree No. 28, rendering null and void and of no effect the opinion of the Supreme Court. Henceforth no court in the land could declare any military decree or edict to be ultra vires the constitution of Nigeria.

Our first Chief Justice, Sir Adetokunbo Ademola, was a Cambridge educated Egba prince of high learning and culture. A distinguished jurist and statesman, he successfully steered the judiciary through the traumatic years of the first republic. In a time of upheavals, he did his part, in collaboration with the higher civil servants, in persuading northern military officers not to secede from our federation as they had intended to do. According to one commentator, “It has been said that a Chief Justice must be a statesman, a master of the court’s internal protocols, able to inspire, cajole and compromise, a man of integrity, who commands the respect of his colleagues. Sir Adetokunbo was all these and more. Never relenting in protecting the dignity of the court and the independence of the judges, he was able to secure, to an appreciable extent, the respect of the other arms of government.”

After Ademola CJ retired in 1972, he was succeeded by Taslim Olawale Elias, in my estimation, the greatest jurist Nigeria has ever produced. A legal scholar of world stature and first Dean of the Law Faculty of the University of Lagos, Elias was Attorney General and Minister of Justice before ascending to the Supreme Court. Unfortunately, Elias was also blamed for some of the draconian decrees that the military came up with. A distinguished Fellow of Nuffield College, Oxford, his legendary and unequalled learning, sadly, did not make of him an angel of liberty. When General Gowon fell from power in 1975, the Murtala military government summarily removed the Chief Justice of the Federation, an unprecedented blow to the independence and sanctity of the higher judicature. Elias was later to become President of the World Court of Justice at The Hague.

Sir Darnley Alexander, a West Indian jurist, was made Chief Justice in 1975. Some believed that the military wanted a pliant head of the judiciary who would not stick out his neck against military diktat. In that respect, they could not have had a better Chief Justice, who himself was succeeded by a gaggle of judicial ‘yes men’. The long night of tyranny had sparks of lightening by judicial activists such as Gani Fawehinmi, Tunji Braithewaite and Akinola Aguda. But they were merely ploughing the sea.

Among the Chief Justices that, in my view, stood courageously in upholding the independence of the judiciary during the darkest days of military rule, I would single out Mohammed Bello CJ and Idris Legbo Kutigi CJ. Apocryphal or not, the story goes that after overthrowing Ernest Shonekan’s interim administration, General Sani Abacha drove into the home of Kutigi CJ, one evening, presumably to seek his blessings for some of his draconian scams. The story goes that the Chief Justice ordered the general to leave his premises at once.

It is saddening to note that men and women of great standing are now rare in our higher judicature. One looks in vain for the men and women of the order Kayode Eso, Akinola Aguda, Udo Udoma and Chukwudifu Oputa. Where the illustrious men and women of the law are whose judgements are quoted among the venerable law lords of England and in the great law reports of the Commonwealth of Nations?

I do not know how it came about that our judiciary has been turned into a civil service apparatus where everybody awaits their turn up the greasy pole, whether or not they merit it. There is no civilized country in the world that appoints its highest jurists on the basis of so-called ‘seniority’ alone. It is a pernicious system that short-circuits our legal system, blocking the emergence of the most gifted of our jurists. In America, in India, in Singapore and in the other great democracies of the world, the Chief Justice is appointed from a cohort of the most eminently qualified jurists – eminently qualified not only in learning but also in character and reputation. A Chief Justice often leaves an imprint on an entire generation. From 2006 to 2016, in the space of a mere decade, we have had no less than seven Chief Justices, serving an average of 1.4 years. In succeeding order: Mohammad Lawal Uwais, Salihu Modibbo Alfa Belgore, Idris Legbo Kutigi, Aloysisu Katsina-Alu, Mahmud Mohammed, Mariam Muktar Aloma and Dahiru Musdapher. I respectfully bow before these great men and woman of the Supreme Court, but I beg to disagree that it is the best way of getting the most able judges to lead our judiciary.

My recommendation is that we need to revise the 1999 constitution drastically to excise the intricate ambiguities that do no good to our national system. We must also reform the judiciary and empower them to exercise their function of upholding law and justice. We must reserve the highest salaries for the Chief Justice and Justices of the Supreme Court. In return, we must abolish the taxi-cab tradition that does no service to our system of justice. We must restore the honour and dignity of the judge while resolutely weeding out the bad eggs.

I conclude with the words of Jacob Ajayi and Yemi Akinseye-George, in their brilliant biography of the late Kayode Eso : “The judge…has power over the lives and livelihoods of all those litigants who enter his court. He decides who goes to the gallows or to prison…By his decision, a judge precipitate a civil war or cause a revolution or bring about a peaceful transformation in the affairs of a given society…Similarly, the court, as an organ of the state, is the citizen’s bulwark against the tyranny and lawlessness of the executive and the legislature, and against all forms of oppression and threat to life, liberty, prosperity and the pursuit of happiness”.

 

Obadiah Mailafiya