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Judiciary in democracy: Social engineering or a quagmire?

By Ebun-Olu Adegboruwa
29 August 2023   |   3:55 am
One of the most defining and unmistakable characteristics of a functioning democracy is an independent judiciary, which is universally recognised.

Scale of Justice. Photo/Sealchambers

One of the most defining and unmistakable characteristics of a functioning democracy is an independent judiciary, which is universally recognised. Many in fact, see it as an essential bulwark against abuse of power, authoritarianism and arbitrariness. How it functions as well as how the various stakeholders in a democratic experiment appropriate its interventions and role in the polity are critical indicators of the health or otherwise of democracy.

There seems to be nowhere in the world presently where this reality is more apt as it is in Nigeria, one of the world’s largest democracies with a population of over 213.4 million people (according to the World Bank). The Constitution specifically states that elective officers must only emerge through democratic processes. This is where democracy is elementarily defined as the “government of the people by the people and for the people”, in the belief that all elective political office holders at all levels must be elected by their constituents. The latest legal ping pong in Nigeria’s electoral jurisprudence is the Osun State gubernatorial election case wherein the Governor was declared by Supreme Court as the winner of the 12th of July, 2022 election.

It was another balm of comfort for the people of the State which the Judiciary has greased upon them, having regard to their past experiences. Consequently, had the judiciary not played its role as the watchdog of society, Nigeria’s democracy would not have experienced the radical transformation and development recently seen.

In Osun State for instance, right from the regime of Ogbeni Rauf Aregbesola, the judiciary has helped to stabilise the political landscape and thus tempered the otherwise volatile environment. And this is where democracy asserts its positive influence on human development, by deploying its potent institutions to resolve issues that may have caused situations to boil over.

Recently, at pivotal junctures that tested our democratic journey to the breaking point, the Nigerian court rose up with moral courage and rendered sage and utterly brilliant verdicts. Reference is made here to the decisions of our courts.

On 6th February, this year, the Apex Court in APC V. SHERIFF & ORS 2023, a case that involved the then Senate President, was faced with the question whether an originating summons can be deployed to commence an action involving allegation of fraud and irreconcilable conflicts amongst others. The majority decision delivered by Honourable Justice Centus Nweze (of blessed memory), set aside both the decisions of the Court of Appeal and the trial court which earlier affirmed Machina as the candidate.

Justice Nweze declared that the lower courts lacked the necessary jurisdiction to hear the suits because it was commenced by originating summons. The Court further clarified that the dispute in the case was one that could not be resolved without oral evidence, especially in proving allegations of fraud. Although this decision tested the capacity of the court on choosing between justice and technicality, the point to take from it for our limited purpose in this discourse, is that the judiciary intervened to strengthen our democratic practice.

In another case, Mr. Peter Obi was sworn in as the Governor of Anambra State on 17th March 2006 after he had successfully challenged the swearing in of Dr. Chris Ngige as the Governor of Anambra State of Nigeria. When INEC sought to conduct elections in 2007, he asserted that he had not served his four-year term and the Supreme Court decided in his favour. Also in Action Congress & Atiku Abubakar v INEC, the 2nd Appellant, who was the incumbent Vice-President of Nigeria was disqualified by the Respondent (INEC) from contesting the election on the presidential run due to the official gazette that was said to have indicted him. Atiku successfully challenged the power of the INEC to disqualify him and the Supreme Court upheld this. See also the decisions in Dapianlong v Dariye, A.G. Lagos State v A.G. Federation, Adeleke & ORS v Oyo State House of Assembly, to mention but a few.

Likewise, we have had series of cases by the Election Petition Tribunals nullifying various elections and the process is still ongoing.  The aforementioned cases serve as examples of the crucial roles that the judiciary has played in preserving the rule of law, protecting our justice system and fortifying our democracy, which is why even under the most primitive military regimes, the nation has never lost the judiciary. The role of the judiciary as a tool for social and democratic engineering must be understood by those who hold the office of judges and magistrates.

Even if we recognize that the judiciary is changing its image, a few rotten apples serve as a constant reminder that the fight to restore integrity in the Bench has not yet been fully won.

The judiciary plays a pivotal and central role in the administration of justice and fight against corruption because:

All disputes are brought before the court for resolution in accordance with the requirements of the Constitution, in section 6 (6) (b). What this means is that all grievances, inquiries and even cases of corruption are invariably brought before the court.

By virtue of Section 6 of the 1999 Constitution, only the Courts and Tribunals established by law are vested with powers to adjudicate between the state and the individual and to determine the culpability or otherwise of an accused person in any criminal case.

No body or institution can condemn a man on the basis of any investigation or findings without recourse to the Court or Tribunal established by law, as to do otherwise will be a negation of the cherished principle of the rule of law, which is the foundation of our democracy.

Any finding, decision, determination or pronouncement of the court on the fate of an individual or subject in respect of any particular issue is final, unless in circumstances where the right of appeal exists. The individual concerned may in subsequent proceedings plead autrefois acquit or convict.
Challenges facing the Nigerian judiciary and the  way forward.

There is no denying the numerous issues that the Nigerian courts face, which range from institutional to personnel issues, subpar facilities to insufficient funding and procedural to constitutional issues. One major problem of the democratic government in Nigeria today is the inability of the judiciary, “from top to bottom” to accommodate the foremost principle of Free and Fair Judgment in their chambers.

It is a general belief that some of our judges are not delivering justice according to law but that their decisions are the product of material/financial considerations. This may well be just a common perception, but the real problem is that perception underlies the very essence of justice administration. A recent survey by the Economic and Financial Crimes Commission and the National Bureau for Statistics with the support of United Nations Office on Drugs and Crimes found thus:
“Nigerian Courts of law receive the biggest bribes from citizens among all institutions in which corruption is rampant.” The report stated further that: “though bribery in the judiciary was less frequent than in many agencies, it required the biggest transactions.”

The eminent late jurist, The Honourable Justice Eso (as he then was) lamented on happenings at the Election Petition Tribunals when he stated that judges handling electoral matters become billionaires overnight.

There is no denying the fact that corruption is Nigeria’s biggest and most embarrassing problem, and that corruption in the legal system serves as a foundation for corruption in other areas of society. As a consequence of this malady, the affluent and dishonest criminal might escape the repercussions of his actions in what is supposed to be a fair criminal justice system.

In this way, corruption is believed to be less expensive, since there is little chance that engaging in corrupt behaviour will lead to incarceration and the associated public disgrace. In what was perceived as crackdown on the judiciary by the last administration, operatives of the‎ law agencies once invaded residences of some judges in Abuja, Port Harcourt and Gombe in a bid to arrest them for alleged corrupt practices.

As condemnable as that act was, many still regard it as a just recompense for the abuse of judicial powers by those entrusted with the job of determining the fate of society. The gains from corruption (if it can be so called) are so immense and tempting that it takes personal integrity for a judicial officer not to engage in corrupt acts. Metaphorically, a corrupt judge has been described as 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’. It is a shameful contradiction that we must all work together to extricate from our judicial system to the extent that only those who truly act honourably are worthy of being engaged and retained as members of the hallowed Bench. It is an unfortunate stain that has been brought upon us by just a few but we cannot do anything but learn to live with it if we do nothing to flush them out in order to retain our nobility.

Adegboruwa is a Senior advocate of Nigeria (SAN).