The Bar in throes of self-abnegation (2)

THE thinking is gaining ground, albeit insidiously, that in arriving at their decisions, judges are influenced by their political affiliation, prejudice or filthy lucre.

Of course, judges are products of their upbringing, their predilections, primordial attachment or social relations. They too are ordinary human beings.

It is idle to expect far-reaching clairvoyance on the part of ordinary men and women (judges not exempted). The pronouncement of a court may appear coloured by the social circumstance or worldview of the presiding judge.

What should not be in doubt, however, is the strict application by him of the clear and un-ambiguously formulated rule of law to the fact in issue or the case before him.

Regrettably, the compass of the possible range of options opens to our judges in any given case is exceedingly narrow or fitfully circumscribed.

A judge sitting in Nigeria is hedged about by a suffocating restrictive view of precedent even as most decisions consist in the simple interpretation and application of statutes.

The rules for construing statutes to be followed are in themselves rigid and limiting. In matters that we truly desire to leave a question to a judge’s discretion, his employment of it is subject to the prying scrutiny by the pyramidal system of appeal to the Court of Appeal or the Supreme Court.

And yet, these idiosyncrasies are much welcome and desirable. They propel in the direction of the desired de-mystification of the process even as they lead to originality and profundity – two essential ingredients for the effective or creative dispensation of justice.

The Bar in Nigeria alarmingly operates as if unaware or insensitive to the misery that stalks the land. Almost every story or report is an account of the human condition regarding suffering, hardship, agony, tribulation, etc.

One is brought face-to-face into daily contact with so much suffering that one prays for some drastic social, industrial or governmental reform.

It is, however, a glowing tribute to the adaptability of our people that they soon get used to a mournful as well as to a cheerful atmosphere. It is proper that we altogether forget about politics and come to realistic realisation that Nigeria is in a state of war.

It is a war against unemployment, disease, malnutrition, etc. on the one hand and unearned income and unmerited privileges on the other.

The result growing out of our progressive economic and business decline is creating greater havoc than those in charge of our affairs can grapple with. We need to resort to extraordinary means in order to bring about a solution.

The Bar must take an active part or, in fact, take the lead in the evolution of this inevitable solution. It must wean itself from its self-imposed censorship or selective conscientious objection whereby some of its leading lights align with the status quo and refuse to stand up for what they were known or what shot them into social or professional limelight or prominence.

For instance, some of the embarrassing infractions of the law or of the political gaffes of the government of the day, have gone without a whimper from the fine crop of legal practitioners or civil society advocates who once courageously bore the banner of a mobilised society.

There is an urgent requirement to rejig the Nigerian Constitution because I doubt whether our situation can be constrained to remain static sufficiently long to allow of a leisurely or cavalier treatment.

Even if such a situation were to be tolerated, we should need to set new and vigorous machinery for bringing about constitutional change based on the popular report of the 2014 National Conference.

The Bar finds itself in an embarrassing paradoxical situation of a presumed federal constitution that is everything but federal; that is patently lacking in many indices of a federal arrangement or of shared or devolved responsibilities in typical federal democracies.

The Constitution of the Federal Republic of Nigeria 1999 (as altered) is a continuing unmitigated embarrassment and an implacable reproach to the objective sub-national or social relations condition of the people of Nigeria in their geo-social and economic circumstances.

The Bar must take steps to mollify the effect on our psyche of this utterly strange document by her adoption of the thrusts of the 2014 National Conference report. After all, she was a veritable part of that body’s decision-making process.

Even as the judiciary is being charged with or pilloried for being vicariously liable for some of the ills of our political system or of its operators and their agents through the perceived delivery of judgments that jolt reasonable people out of their senses or which have no parallel anywhere in the civilised world, the Bar has become disturbingly taciturn.

Many otherwise loud or vociferous practitioners have curiously become mealy-mouthed particularly when discussing the controversial judgments of courts.

They quixotically take refuge in the escapist or convenient sobriquet of “judicial deference.” The elaborate network or bundle of rights available to the citizen under the freedom of expression regime in Section 39 of the Constitution creatively foreshadows the fair and informed criticism of judgments of courts.

Inimitable Oputa, JSC [as he then was] in Adegoke Motors [Nig.] Ltd v. Adesanya [1989] 3 NWLR [pt. 109] 250; [1989] 5 SCNJ 80 has intimated us concerning the human nature, the frailties and understandable fallibility of judges.

The sage, self-deprecatingly but honourably, intoned: “Justices of [our] courts are human beings capable of erring. It will be short-sighted arrogance not to accept this obvious truth.” Judges, we humbly submit, may be criticised, rebuked or excoriated publicly regarding their judgments or pronouncements in court.

We conclude by further submitting that no restraint is necessary or desirable for developing our jurisprudence or corpus of laws into a formidable bulwark of guarantees for good governance practices through reasoned or intellectual engagement of issues emanating from the output of our courts.

This 2015 Bar Conference must not close without resolving to make a clean break with pusillanimity, selective taciturnity, in-adroitness, desultoriness, an incipient loss of character or poise, etc. all of which, thankfully, are not part of the calling or make-up of practitioners at the Bar.

The Conference would thereby have helped to restore traction to the wheels of the Nigerian nation state. • Concluded • Rotimi-John, a lawyer and commentator on public affairs, contributed this piece from Abuja via [email protected]