Nigeria’s judiciary in retrospect: The vicissitudes of third arm of government
It is the only arm of government that survived all the military incursions between 1966 and 1979 as well as from 1983 to 1999 when the current democratic dispensation started. While the soldiers usually sacked the executive and the legislature, they did not touch the judicial arm of government, but would rather want to ensure it buckled under its dictation.
During the military era, many judicial officers cowered out of fear of victimisation, harassment and subsequent removal by military rulers, while fortunately; a few others courageously stood their ground and upheld the sacred oath of dispensing justice without fear or favour.
Fortuitously, the military era turned out to become what most stakeholders describe as “the golden years” of the judiciary, especially at the apex court. The periods also evoked what is today known as judicial activism, as Supreme Court justices resisted the lawless tendencies of the military by delivering landmark judgments against the regimes and their institutions. Those were the days the late Justices Chukwudifu Oputa, Kayode Eso, Mohammed Bello, Chukwunweike Idigbe, Andrew Obaseki, and Augustine Nnamani, among numerous others, held sway at the apex court. They brought so much honour, respect, and dignity to the hallowed chamber of the Supreme Court.
The decisions of those judges were a delight to read, full of scholarly erudition, well reasoned and replete with legal authorities and in most cases, audacious. An example is the celebrated case of Chief Obafemi Awolowo Vs Alhaji Shehu Shagari in 1979. That case will forever remain green in Nigeria’s jurisprudence.
The apex court, in deciding the law relating to election cases, had by a majority of 6-1, affirmed the election of Alhaji Shagari as duly elected president. However, the courageous decision of Justice Eso, in this case, remains legendary. In his dissent opinion, Justice Eso held that at least two-third of 19 states could only be 13 and not 12 two-third.
In Fawehinmi Vs Akilu (1987) 2 NWLR (PT 67) 767, the Supreme Court relaxed the anachronistic doctrine of locus standi so as to permit the private prosecution of criminal offences by concerned individuals on the ground that “we are all our brothers’ keepers”. The late Justice Obaseki delivered the lead judgment.
After the return of democracy in 1999, the apex court also, to some extent retained its forthrightness. Prodded by the late legal icon, Chief Gani Fawehinmi (SAN), the court, in quick succession, churned out landmark decisions that have helped to shape the jurisprudence to date.
For instance, in Abacha Vs Fawehinmi (2001) 51 WRN 29, the Supreme Court held that since the African Charter on Human and Peoples Rights had been domesticated by the National Assembly, our domestic courts have the jurisdiction to construe and apply its provisions whenever there are allegations of human rights infringement. Similarly, the apex court, the following year in Fawehinmi Vs Inspector General of Police (2002) 23 WRN 1, declared that the public officers covered by the immunity clause in Section 308 of the Constitution can be investigated while in office.
Although there have been allegations of corruption against the judiciary lately occasioned by its constitutional role of adjudicating on election disputes and ultimately deciding who gets what, the last four to five years have been a turbulent one for the once hallowed institution. The tell-tale that the judiciary was going to get more than a passing attention in this dispensation occurred when President Muhammadu Buhari, who won the presidential election on the credo of fight against corruption, announced in Addis Ababa, Ethiopia, shortly after winning the 2015 general election, that the judiciary was his headache in his bid to combat graft.
That was the beginning of what eventually turned out to be the most turbulent period in the history of Nigeria’s judiciary. The journey to rid the judiciary of perceived corrupt practices, which the president had pointed out earlier, started with the raid of the homes of some judges and justices in the middle of the night by security agents on October 8, 2016. Harping on the implications of injustice on national development, the president had accused the judiciary of complexities when he identified that arm of government as a clog in his wheel of progress.
Considering that the statement was coming in one of his early trips as Nigerian President, many people had linked his position on nothing but his previous encounter with the judiciary, when he approached the court for redress after losing presidential elections on three occasions and lost in all of the three. All appeared well and calm until the clampdown that generated heated debate in the public domain. For many Nigerians, that was the beginning of the affront against the judiciary, and a calculated attempt to denigrate and desecrate the once-revered arm of government.
Expectantly, all eyes were on the then Chief Justice of Nigeria, Justice Mahmud Mohammed, to defend his colleagues from the intimidation by the executive arm of government. But that seems not to have happened. Those, who saw the development than as an affront on the judiciary rather than a process to sanitize the system, also expected the Nigerian Bar Association (NBA) and other legal bodies to intervene for the affected judges. However, no concrete decision was reached other than that the affected judges should recuse themselves pending the outcome of the investigation on their alleged corrupt practices. It was in the wake of the crises that the then CJN, Justice Mohammed, bowed out of office, having attained the official retirement age.
His exit marked the beginning of another round of controversy for the judiciary as the executive remained adamant on the recommendation of Justice Walter Onnoghen as the next CJN. Three months into his nomination, the letter was not transmitted to the National Assembly for screening and confirmation. It also took the intervention of the general public for him to be sworn in as the CJN on March 7, 2017, by the Vice President, Professor Yemi Osinbajo, about four months after the retirement of his predecessor. Upon his confirmation, Justice Onnoghen renewed the clamour for judicial reforms. He was also a strong advocate for the independent judiciary as well as the welfare package for judicial workers. In most of his public speeches, he urged judicial officers to dispense justice without fear of intimidation. Within the period he headed the National Judicial Council (NJC), he saw to the retirement of alleged airing judicial officers.
But when all was enjoying the relative peace, another controversy sprouted, this time, from the office of the CJN. Onnoghen’s predicament started when a petition was filed by the civil rights group at the Code of Conduct Bureau (CCB), alleging that he owned sundry accounts primarily funded through cash deposits made by himself up to 10 August 2016.
The account, it was alleged, was operated in a manner that was inconsistent with the financial transparency and the code of conduct for public officials. With a few days, the matter was filed at the Code of Conduct Tribunal, signaling the commencement of trial. Every attempt to stop the number one judicial officer of the nation from being ridiculed through arraignment proved abortive as the chairman of the tribunal, Danladi Umar, insisted that the CJN must appear for arraignment and prosecution. Recall also that between January 14 when his trial began and January 26, Mr. President hurriedly suspended him and appointed a successor in the person of Tanko Ibrahim as acting Chief Justice of Nigeria.
At the full course of prosecution, Justice Onnoghen was found guilty and consequently, he forfeited the alleged stolen assets to the Federal Government. He also was barred from holding public office for the next 10 years. His conviction gave way to a smooth and accelerated the confirmation of Ibrahim as the substantive CJN. Some Nigerians are, however, excited at the development. To them, it was a step in the right direction towards sanitizing that arm of government from embedded sharp practices, which have denied so many people justice.
Beginning with the issue of reforms in the system within the period under review, an Abuja-based constitutional lawyer, Dr. Kayode Ajulo, stated that ample provisions have been in the rules for various reforms and that all that was required was the application of the rules as they should. To him, all the reforms that the past CJN tried to introduce, including the e-processing and e-filing, have been provided for in the Supreme Court and Federal High Court rules. On the issue of dedicating special court, which was on the verge of implementation, Ajulo believed it was an age-long practice as there are some courts currently that the judge has special knowledge in either criminal or corruption issues.
“There are some judges that specialise in maritime law; others are experts in matrimonial issues. But what I find so funny is designating certain courts to either maritime or corruption courts. The problem has been implementation. Any reform that you are bringing now when you check the rules or the constitution, you find the reforms there”, he stated. On the relationship between the executive and the judiciary, Ajulo debunked insinuations that the earlier body language of Mr. President gave impetus to the anti-graft agencies to clamp down on senior judicial officers.
“I don’t want to see it as clamping down on the judiciary. In as much as Nigeria is counted among the countries with the highest number of incorruptible judges in the world, you cannot dismiss a few cases of bad eggs. I want us to know that among all the institutions of government in Nigeria, the judiciary has been the only arm that was always deceiving itself. You needed to know what the NJC has been doing. But today, woe betides any judge doing any sharp practice. All you need to do is to follow the protocol.” He said the power of the judiciary has been made stronger by President Buhari’s administration.
“Before now, people take to the streets immediately after election, burning houses but today, they know that the court can address their matter and recover any stolen mandate. People now have more confidence in the judiciary. The court has been so strengthened. Even Mr. President confessed the other day presidential election tribunal gave its judgment that his heart was in his mouth. That showed how powerful the judiciary is. The court as it is constituted has the courage to make decisions, even those that are adverse to the executive. All I know is that in the game of power, whittling each other’s power is the order of the day but the judiciary has remained resolute and strong as the last hope of the common man.
A Lagos-based lawyer and activist, Mr. Toluwani Adebiyi, said during the era of activist-judges like Justice Eso and Justice Oputa, there was lots of hope. “Even now, we are glad, with all sincerity that we still have judges that one can beat his chest for, notwithstanding some ignorant misrepresentation about the judiciary,” he said.
According to him, the executive arm of government is the major problem of the institution. His words: “We are all witnesses to their selective obedience of the court’s order and the unrepentant executive colonialism of the judiciary, thus making judiciary not to be truly independent.
“With determination, the judiciary can free its-self, though it ought to be spearheaded by the Nigeria Bar Association (NBA), that body has not lost its voice, unlike the era of Alao-aka Bashorun. At a point, IBB would not just take decisions without carrying along the NBA President, Bashorun, to avoid a corrosive reaction/opposition, but that sustainable era had gone and the highly cherished body has more or less become so voiceless to the point of losing respect and recognition from the executive.”
He advised that until the radicals/activists found their ways to the bench or take over the leadership of the NBA, the voicelessness of the NBA and the executive colonialism of the judiciary might continue.
On his own submission, a law teacher, Prof. Taiwo Osipitan (SAN) said the nation’s judiciary has to a large extent, lived up to the expectations of litigants. He, however, pointed out that there is the need to focus on promptness in the resolution of cases by the judiciary.
On his part, Lagos-based lawyer, Mr. Stephen Azubuike believes that the Nigerian judiciary has known its highs and lows in the last 59 years. “At its highest moments, we have seen Nigerian jurists sitting on the Bench of some other African countries like The Gambia. History has been fair to us in that we have had amazing jurists, many of blessed memory who truly ranked as worthy living oracles of the law.
“At its lowest ebb, we have seen the negative effects of political interference in the affairs of the third arm of government. Highly politically motivated appointments have left us with persons who should never have sat on the throne of the hallowed temple of justice. Huge power play and reckless misconduct made us witness disgraceful moments in the history of the Nigerian judiciary,” he said.
Azubuike expressed the hope that the Nigerian judiciary will regain its pride in place when meritorious appointments, true independence, and less political interference are enthroned.
Expressing her view on the issue, Lagos lawyer, Ms. Lotanna Dim said having an independent judiciary is to protect the court from any pressure from the legislative or executive branches and to enable them to carry out their functions justly and fairly. The issue with the judiciary, she said, is that the principle of checks and balances, which allows the interference of the other organs of government participate in the appointment of judges and heads of court has made the judiciary subject to the whims of the executives and legislators.
“The financial dependence of the judiciary on the executive arm further blurs the powers of the judiciary. So in my conclusion, the Nigerian Judiciary is not an independent body and has never been. This is more obvious from recent events, where we have seen the executive deliberately target the judiciary in the most blatant and unlawful manner,” she declared.
Abuja-based lawyer, Mr. Daniel Makolo, believed that what had befallen the judiciary in the last five years was an articulated attempt to cage the judiciary for which the president has succeeded.
“When he started, many of us shouted to the rooftops that it was an attempt to pocket the judiciary in order to use them against the masses. He has succeeded and now, the judiciary is at his whims and caprices. They are no longer dispensing justice according to the law but according to the body language of the executive,” he said.
Makolo noted that Mr. President had his agenda before he came in and he knew exactly what he wanted to achieve and he knew for sure that an effective judiciary would not allow him to do such. He also knew that an effective legislature would not allow him to do it and that was the reason he had a running battle with Senator Bukola Saraki in the last Senate.
“He was taken unawares because he did not know Saraki could be so daring. So, he had a nightmare all through but for the judiciary, there are different breeds from all of us. They believed that the executive would always protect them, not knowing that it has its own agenda. He ran a government for six months as a sole administrator. There is no provision in the constitution for that. The constitution stipulates that he appoints ministers and the government should hold regular meetings with the ministers who should be indigenes of the various states and you consult with them to run the affairs of the nation.
As far as I am concerned, he has caged the judiciary and has succeeded in intimidating them. If you say anything, they will come up with some lies against you and say that you have committed an offence but if you dance to their tune, your sins would be forgiven. That is their style and Nigerians are always afraid when they are harassed,” he stated.
Makolo said the judiciary as it is now constituted is moving gradually back to the stone age where might is power, and where everybody is for himself and God for all.
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