Go to Court can also be hubris of judicial capture and corruption. As I have said elsewhere: “Nigeria’s judiciary appears deep in the throes of being reshaped as an estate defined by filial and genital relations to facilitate transactions for political power. This is called judicial capture. As judges now have the casting vote in Nigeria’s elections, ambitious politicians have decided they must own the judges.
Judicial capture occurs through both decisions and omissions by and beyond the judiciary.” The point about judicial capture is that it does not pretend to put the institutions of the judiciary to any transcendental or societal goals. The entire goal of the office of the judge is creating and sustaining an incest of power. This is why leading politicians and judicial figures will insist on making their spouses, mistresses, children or family members’ judges. This is also why state governors will ensure that all judges who serve in their territories are given choice properties and other dispositions which they do not habitually declare.
The underlying narrative of judicial capture, as I have also suggested, is that “in Nigeria judicial skill and temperament naturally resides mostly in the bedrooms of politicians (and their judicial allies).” Quite clearly, this does not stand up to scrutiny, but that has not stopped an incest of senior lawyers, judges, and politicians at the highest levels in Nigeria from promoting it.
To be sure, the erosion of the credibility of Nigeria’s legal profession and judiciary may have plumbed new depths in recent times but the crisis of confidence arising from perceptions of judicial partisanships, especially in the political context of election disputes, has a much longer history. In its 1986 report, the Judicial Commission of Inquiry into the Affairs of the then Federal Electoral Commission (FEDECO) between 1979-1983, which was chaired by former Supreme Court Justice, Bolarinwa Babalakin, noted with reference to election pe
titions that followed the 1983 general elections that:
As the verdicts began to be pronounced, the general public often expressed shock and dismay. Some commentators in the nation’s newspapers took the view that the verdicts in a number of instances constituted a rape of democracy perpetrated through the law courts.
Allegations of corruption in high places were freely made.
Following the 2003 and 2007 elections, Professor Obi Nwabueze, SAN, accused the Supreme Court, no less, of playing a “discreditable part” in manufacturing a jurisprudence of electoral impunity for the country. In particular, he laments the failure by “the Supreme Court to appreciate that the question of who should rule Nigeria is not one to be decided by a perverse and narrow legalism, by the technicalities of the rules of evidence, practice and procedure and by considerations of expediency.”
This jurisprudence of electoral impunity has created a system of mutual benefit between judges and politicians to the exclusion of voters. Under Nigeria’s constitution, According to S.14(2)(a) of Nigeria’s 1999 Constitution, “sovereignty belongs to the people of Nigeria from whom government through this Constitution derives all its powers and authority.” Article 21(3)26 Id27 Federal Republic of Nigeria,
The Universal Declaration of Human Rights affirms that “the will of the people shall be the basis of the authority of government; this shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.” Similarly, Article 13(1) of the African Charter on Human and Peoples’ Rights declares: “Every citizen shall have the right to participate freely in the government of his country, either directly or through freely chosen representatives.”
Yet, in Nigeria, the real deciders of who gets to win or lose an election is no longer the voter but the judge. This judicial expropriation under cover of the law of rule (not rule of law) of a right that only belongs to the voter, ensures that the politicians no longer focus on persuading the voter through campaigns and manifestoes. Instead, they target the judges through focused campaigns of corruption and capture, which are profitable for the judge who in turn use their office to ensure the politicians of their choice get the spoils of office. When the politician gets into office, he has an incentive to ensure that only persons beholden to him get into high judicial office.
Profitable as adjudicating on elections and politics has become for him or her, the average Nigerian judge no longer has any incentive to sit on regular casework. The current reality is not merely that the Nigerian judiciary binges on party political cases, it is also that they assign priority to politicians over ordinary citizens, in so doing, encouraging the idea of a hierarchy of citizenship.30 If you are involved in a political case but not as a benefactor or client of the judge, you stand no chance of getting a fair shake. If your case is not political, you stand no chance of even being heard. Either way, “Go to Court” has become a short hand for telling the court user that they are involved in a futile pursuit. Meanwhile, these political cases have become chronic sites of execrable transactions in buying and selling judicial decisions. In 2020, the Independent Corrupt Practices Commission (ICPC), reported that “lawyers were mostly responsible for offering bribes for favourable judgments mostly in electoral and political matters.” According to the Commission, between 2018 and 2020, “11 out of the 123 judges surveyed, reported “Nigeria’s courts of unequal injustice and curious appointments”, experiencing offers or payment of N3.307 billion and N392.3 million as a bribe”, indicating that buying and selling judicial decisions is a highly profitable enterprise.
To be continued on Monday.
