Is this a wake-up call for the Nigerian Judiciary?

Reactions to the overnight raids of Judges/Justices residence have mostly been divided – maybe unnecessarily so – between two pole positions: one camp forcefully asserting that the actions were outrageous and disrespectful, and the other saying the State Security Department (SSS, aka DSS) has done no wrong. The latter says the Judiciary has been in need of a cathartic turn-around for a very long time and this could very well be what it needs to kick-start the process. President Buhari himself, says that the fight is not against the Judiciary, but against corruption.

Both positions can co-exist peaceably, and there are strong common grounds that unite the positions of the respective camps if we dispense with fringe parts unnecessary to maintain their central themes. The objection to the manner of the “sting operation” is not so much about the legality but, at the core, around its appropriateness. Were the midnight/overnight invasions appropriate and necessary for persons who posed no significant flight or harm risks? Or was it just an artifice, a brash, hawkish and arrogant display of state power operated as a two-edged sword: one edge intended to intimidate a set of judges known for their insistence on the rule of law, and the other perhaps to genuinely access information?

Looking at this from the prism of legalism alone can make us miss some fine nuances around purpose. Dictators use legalisms as well in the pursuit of supposedly legitimate state or political objectives as a proxy to carry out dubious intentions, like former Pakistani President Purvez Musharraf did when he filed petitions to Pakistan’s Supreme Judicial Council alleging several acts of misconduct against then Chief Justice of Pakistan, Iftikhar Muhammad Chaudhry. President Musharaff wanted to contest elections that would extend his stay in office in 2008 and he feared the Chief Justice would constitute a major obstacle to his ambition. The Pakistani judiciary deflected the President’s crusade and reinstated a popular Chief Justice back to office.

The judiciary wields the least coercive power of the State, and is itself quite vulnerable to attacks by other branches of government. The authority of the judicial branch is largely derived not from the physical accoutrements of power and force, but from the sense of social, civic obligation, and a recognition that the judiciary plays a role that requires society to respect the institution. This deference is socially mediated but its foundations are brittle and can be easily unstuck, so that persistent acts of disrespect can diminish the Judiciary’s social base, standing and authority: where that happens, the rule of law is really endangered. We fear, that the example set by the DSS would inspire wider confrontations with the Judiciary – and even States will do likewise to judges whose decisions irritate them.

The Judiciary’s shared responsibility for the affront: Failure to do enough can be costly.
When the dust of these controversies settles, the judiciary will need to ask itself some hard questions. It is not likely that any of those who have stood up to defend the judicial branch will by any stretch deny that the judiciary has let Nigerians down and has largely squandered the hopes many had of a resurgent judicature after Nigeria became a democracy. Among the fiercest critics of the Judiciary are many who belong to the legal profession and have had, at some point, taken great pride in the Nigerian judiciary.

From the time of our transition to constitutional democracy in 1999, Nigeria’s judiciary was in an undeclared state of emergency, just as the Justice Eso panel said. And the pointers were all over the place. After taking office as President in 1999, former President, Chief Olusegun Obasanjo brutally conveyed the prevailing sense of public discontent with the judiciary to Judges in conference, saying: “[t]here is prevailing disenchantment of the populace with the Judiciary – an attitude which has arisen out of the lapses or failings of the Judiciary”. In an address at the First Federal Integrity Meeting for Chief Judges in Abuja, 26-27 October, Bola Ige, then Minister of Justice told Judges “[t]here is evidence of growing public disenchantment with the entire court system…”

Fifteen years later (May 2012), Obasanjo again lamented that “the judiciary has been riddled by corruption, which has affected other sectors of the country. Justice has become the highest bidder takes all. That is what we have now”. In spite of these warnings, the Judiciary continued to rely on weak, oversight/complaint procedures to tackle corruption and failed to adapt its approach, even when it was clear that traditional methods were failing to contain the epidemic.

The Judiciary’s approach to fighting corruption suffers from a number of weaknesses, but three may be noted. First, the overarching burden it puts on complainants. The rule of “he who asserts must prove”, an axiom of the law of evidence, has only limited value in a field like this. It is self-evident that victims of corruption have very little access to the evidence, and are often not in a position to gather the relevant facts – telephone records, bank accounts, etc without assistance from criminal justice agencies. This means that only few can substantiate their allegations or suspicions that corruption had occurred or was about to. This attitude discouraged many with genuine complaints from coming forward. But even where this rule was applied, there were many a slip between the cup and the lip, and many complaints were not investigated.

Although better complaint intake and investigations procedures were introduced by the NJC in 2014, it was still based on “you allege, you prove”!

Second, the NJC disciplinary system is petition driven, not “allegations” driven. It means that even where damaging allegations against judicial officers are made public, unless there is a specific petition by someone against that judicial officer, the NJC will not investigate the story.

Lastly, the NJC was seen, in terms of outcomes, as systematically offering soft-landings to persons found wanting. Lately, the NJC tightened the noose, referring Judges for prosecution, but whether this represents a new perspective in the fight against judicial corruption in this respect needs to be ascertained, though, in the eyes of many, particularly the DSS, it was too little, and perhaps too late.  Over the years, while the NJC thought it was probably doing its job as well as it should, but outside its chambers, the impression was growing that it was quite laid back at best, and was letting illicit lucre become the new currency for judicial justice. With respect to the NJC, its approach did not clearly create sufficient disincentives or deterrents against corruption.

A Wake-up Call
This is a watershed moment for our Judiciary, and ought also to be a time for deep institutional introspection. Yet, something redeeming can come from the turbulence of a crisis, as it did in Kenya not long ago. At the time of negotiating Kenya’s 2010, the judiciary’s reputation was so bad and public discontent with it so high that the drafters of the 2010 constitution actually considered removing all serving judicial officers and requiring them to reapply. In the end, a new Chief Justice was recruited, and a new Judges and Magistrates Vetting Board was created to vet the suitability of all judges and magistrates in office prior to inauguration of Kenya’s 2010 Constitution. Many judges and Magistrates have been removed from office by this Board. The new Chief Justice of Kenya has undertaken major reforms to make the judiciary operate in a more transparent and accountable manner.

The Nigerian judiciary can draw some valuable lessons from these unfortunate incidents, the first of which could be to put its house in order. It must now draw a line in the sand and say: never again will we flounder and falter in our commitment to delivering true justice in Nigeria.

Otteh, the director, Access to Justice, writes from Lagos.