Olusegun Adeniyi: When judiciary goes on trial

Olusegun Adeniyi YNaija

As the story goes, a lavish society wedding had just taken place and after all the legal and social rites, the couple retired to their house. At night time, as the man joined his wife on bed and attempted to consummate the relationship, the wife withdrew from under the pillow, a court paper, an injunction perpetually restraining the husband from claiming “his entitlements”. Well, what actually made the story believable is that the said injunction, according to the man who told me, was obtained at an Abuja Court!

Whether we want to admit it or not, the judiciary is becoming a source of concern especially as we move to the crucial 2003 general elections. The situation is so bad that some politicians now find it far cheaper to use the courts to scuttle events than to procure the services of thugs. Spurious court injunctions now surface at important public functions such that nobody is certain that the naming ceremony of his/her child, the graduation of his/her ward or the holding of their company’s AGM or perhaps even the writing of this column would not be disrupted by a court injunction obtained from dubious sources as our Judges now device “home-grown” solution to the biting economic situation.

However, what is particularly worrisome about what is going on today in Nigeria is that we seem to have regressed back to the era of the famous “Secret of rule” (arcana imperii) of the past. That is why court injunctions that should be openly sought and received have become secret weapons of mischief. The latest of such was the court injunction that necessitated the cancellation of the All Nigeria Peoples Party (ANPP) Convention of 27th July, 2002. The injunction was served on the party by the National Legal Adviser of the Independent National Electoral Commission (INEC), which had the responsibility of supervising the convention on the day in question!

The Chief Justice of the Federation, Justice Mohammed Uwais recently decried this unhealthy development when he cited examples of Judges who grant injunctions to stop the House of Assembly in their states from passing bills as well as those who grant injunctions on matters already settled by the Supreme Court. According to Uwais “…the only inference one can draw from such behaviour is that the judicial officers so involved cannot feign ignorance but are acting deliberately in bad faith for improper motives…I have heard it said that some legal practitioners act as agents for litigants in giving bribe to Judges..”

I don’t think one can add more to what the highly respected Chief Justice has said. But it is sad that injunctions have now become to some High Court Judges what handouts are to some hungry university lecturers…

I wrote the foregoing on this page exactly 14 years ago (August 2002) in a piece titled “Can you get me a court injunction, please?” And I find it very sad that it could have been written yesterday; given what is happening within our judiciary today where conflicting orders are issued on the same subject matter by courts of coordinate jurisdiction. If anything, the internal crisis of the opposition Peoples Democratic Party (PDP) has exposed the underbelly of our judiciary with a particular judge in Abuja acting in the manner of the fictional Chief Nichodemus Ologbenla a.k.a. Eleyinmi, of the “Village Headmaster” fame, dishing out judgements that, according to the appellate court, have “turned the law on its head”.

Curiously, while the disgraceful episode lasted, the Chief Judge of the Federal High Court (FHC), Justice Ibrahim Auta, never deemed it fit to stop different judges from hearing the same case in Lagos, Abuja and Port Harcourt judicial divisions of the court at the same time. The National Judicial Council (NJC) also failed to protect the image of the judiciary by calling the judges to order. The consequence of the ugly drama is the erosion of confidence in the judiciary as members of the public have been led to believe that in Nigeria, justice is now for sale to the highest bidder.

It is important to state from the outset, as most regular readers of this page would attest, that I ordinarily refrain from being critical of our judiciary. In all the years that I have written this column, I can count the number of articles I have written on men of the bench. It is deliberate. I hold the judiciary in very high esteem and that partly explains why I elected to call my column Verdict. My position is simple: To the extent that the judiciary is central to holding a functioning society together, it is important that we avoid anything that would impugn the credibility of our men and women on the bench. But in the light of what is happening in our country today, I don’t think we should continue to pretend that all is well in the justice sector.

In my 17th March column on this page titled, “Judicial Black Market: Anambra as Case Study”, I recounted the story of my experience in June 1993 when, following the suspension of the presidential election (through a contrived order of an Abuja High Court), three governors (two from the south and one from the north) were giving orders, on phone, to politicians in their states to go and secure court orders compelling a release of the result. “Looking back today, the real issue was not that the governors wanted and got the court orders they requested but rather that each was specific as to which judge whoever they were sending should go to. What that implies is that it is not all judges that are susceptible to such manipulation. However, the danger, as I pointed out in the past, is that in a society where you have a preponderance of judges who can give any court order (and definitely not for free), the system is in jeopardy”, I wrote back then.

Of course one can argue that the incident happened under the “Kabiyesi era” when, as some judges contended back then, the military authorities at the time were so powerful that they had to be placed above the law. Unfortunately, if anything has changed, it is that the list of such people considered above the law in our country has been expanded with the justice administration reserved only for the poor.

Last week, one Muhammad Umar, a resident of Kwamba, in Suleja, Niger State, was sentenced by an Abuja Grade 1 Area Court to one month imprisonment for stealing a mobile phone from a former governor of the state, Dr. Babangida Aliyu, at an Abuja Mosque. But whatever you may say about the Judge, at least he was more reasonable than his counterpart in Osogbo High Court who, in 2013, sentenced a 31-year-old Kelvin Ighodalo to 45-year imprisonment for stealing a mobile phone from the pocket of Governor Rauf Aregbesola.

However, the real lesson is that these Judges that are ever quick to sentence some poor fellows who steal what are no more than tokens from our big men would not apply the same principle when these big men stand before them in trial for more serious crimes. That then explains why, at the swearing-in-ceremony of a former CJN (Dahiru Musdapher) on 27th September, 2011, the then President, Dr. Goodluck Jonathan, not only decried the “widespread perception of a growing crisis of integrity in the judiciary”, he also said most memorably: “A partisan judge compromises his or her oath of office and acts unfairly. A corrupt judge disgraces the Bench on which he or she sits and the title that he or she wears.”

The former president was speaking in context. So endemic is the issue of corruption in the bench that a respected former Nigerian Bar Association (NBA) President, Chief Wole Olanipekun, SAN, once called for the setting up of a judicial commission of inquiry to get to the root of the matter. “Unless and until a commission of inquiry is set up to look into all these corrupt and bribery allegations against judges and lawyers alike, where names will be named and particulars supplied, where reservations will be expressed openly, where instances will be given etc, I doubt if our judiciary will ever be cleansed”, said Olanipekun in his 10th May 2013 Akintola Aguda Memorial Lecture titled “The Law as an Endangered Species”.

Such a proposition may seem drastic but I honestly believe we are almost getting to that point where we may need an open inquisition into the activities of some judges. For instance, in the last one week, since I decided I was going to write on this issue, I have been privileged to see several petitions against some of our judges, many of them very damaging. There is a particular Chief Judge in one of the South-east states who can almost compete with Alhaji Aliko Dangote in the kind of wealth credited to him, raising questions about what exactly he has been selling. I have also read several reports of inquiries into the activities of some other judges by the NJC.

Not only are some of the allegations and findings mind-boggling, what they suggest is that most lawyers actually know these judges by their reputations. They know the ones that would brook no nonsense in their courts and they also know those they can trade with when they want “jankara judgements”. So, even if the idea of an open inquisition may not be plausible, given our kind of environment, it is important that the NJC be strengthened in such a manner that it can easily investigate allegations against judges and act immediately. The danger of lack of such process is to have a situation in which lawyers would be calling out judges as former National Human Rights Commission (NHRC), Dr. Chidi Odinkalu, did five years ago with the current FHC president, Justice Ibrahim Auta.

Therefore, I believe this is a time for critical stakeholders to intervene before the people lose faith in the judiciary because if and when such happens, then we will have anarchy on our hands. In his paper titled “The Anti-Corruption War in the Nigerian Judiciary: How Far? How Well?” delivered at the Faculty of Law, University of Ilorin, Kwara State in honour of Chief Folake Solanke, SAN, on 21st May, 2013, Mr. Femi Falana, SAN, had borrowed from the wisdom of David Philip Pannick to warn of the consequences of such state of affairs in the Nigerian judiciary.

In his book, “Judges”, published in 1987 by the Oxford University Press, Pannick, a leading Queens Counsel and member of the House of Lords, had written: “Some judges have received more than their just deserts for injudicious behavior. In the 13th century, Andrew Horn alleged that in one year (four centuries earlier) King Alfred caused 44 judges to be hanged as homicides for their false judgments. In 1381, a mob pursued the Lord Chancellor, Simon de Sudbury, and cut off his hand. One year later, Lord Chief Justice Cavendish was killed after being apprehended by a mob and subjected to a mock trial in which he was sentenced to death. In 1688, the infamous judge Jeffreys, by then the Lord Chancellor, went into hiding when James II fled the country. Jeffreys was captured in Wapping when he was recognized in a tavern by a man who had been a dissatisfied litigant in his court. (The man had won his case but Jeffreys had been rude to him and kept him waiting). Jeffreys was put in the Tower of London, where he died in 1689.”

In Nigeria, we have had situations where politicians are openly heckled as thieves and some have had to survive mob attacks by whiskers. We must not allow a situation in which the people would also openly turn against our men and women on the bench. But for that not to happen, the NJC has to find a way to get rid of those whose judgements are traded like commodities on the stock exchange markets!

All said, at the bottom of the crisis of integrity bedeviling the Nigerian judiciary is a flagrant abuse of the concept of rule of law. The rule of law is underwritten by a number of fundamental assumptions. It assumes that the law is fair to all and that all citizens are equal before the law and therefore can approach the court expecting to get justice irrespective of their station in life. It also assumes that those who will interpret the law and dispense justice will be above reproach and remain impartial. It is moreover predicated on orderly conduct to the extent that the judiciary in most dispensations is allowed to be self-regulating, hence its independence.

Unfortunately, recent developments within the Nigerian judiciary, especially the cascade of spurious judgments and the frequent instances of misconduct among judges, only point to a betrayal of nearly all those foregoing assumptions. Yet, when judges are compromised, public confidence in the rule of law as the basis of order in the society also evaporates. But the NJC can save the rest of us from the prospect of disorder. As things stand in Nigeria today, it is also in its enlightened interest to do so. May the day never come when an enraged public would begin to stone or disrobe otherwise eminent judges in the market place in the quest for true justice.

This article was first published on ThisDay Newspapers

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