REVIEW OF EVENTS IN THE JUDICIARY IN 2017
By Anthony Opara
It has indeed been a notable year in several respects for the judiciary in Africa. Opening the year sort of, Gambian dictator, Yahya Jammeh sought to use the courts to scuttle the will of the people as expressed in the victory of Adama Barrow as President. His plan was voided as the judges failed to show up to deliver his expected ‘kangaroo verdict.’ In Kenya as another example, the judiciary equally nullified a presidential election that had been seemingly compromised by the electoral commission and ordered its re-conduct. In Liberia, the judiciary in that West African nation stood its ground that the first round of balloting in its October 10 presidential contest had witnessed substantial compliance with the electoral regulations and as such the re-run phase should go on. And in South Africa, that nation’s courts issued several damning judgements against the allegedly corruption-besieged president Jacob Zuma.
In Nigeria and a few other African states however, this expression of improved judicial independence and assertiveness has really not been the case too.
Indeed, the rule of law is one of the hallmarks of democracy in countries said to practice that system of government hence one often hears that the judiciary is the last hope of the common man. In practice however, this is not always the case. No matter the system of government in practice the judiciary exists to moderate the relationship between people in a given political locality but its also generally accepted that whilst the judiciary exists, it is usually manipulated in favour of particularly, military regimes hence at the take over of government by the army the constitution of the land is usually suspended and replaced by military decrees which is a form of law making suitable for military governance. In a democracy on the other hand, laws are supposed to be made by the state and National Assemblies and the judiciary interpretes these laws as written, ostensibly without manipulation. The god of justice is therefore depicted as a blind one that dispenses justice without fear of favour. This is the ideal but sadly not the practice in our reality in several parts of Africa today.
When in 1999 for example, Nigerian returned to democratic rule it was expected that the judiciary would be given free rein to interpret the laws of the land to the benefit of all Nigerians without fear of favour. In a democracy there are supposed to be checks and balances on all the three forms of government, the Executive, the Legislature and the Judiciary but in practice it appears that the executive controls the finances of the land and therefore controls the two other levels or arms of the government. This is not what the constitution intends. The constitution empowers the legislature to control the purse strings such that its only what is appropriated that the executive and judiciary can spend and for the judiciary to be independent of the arms, her revenues are drawn from a consolidated fund such that can guarantee independence. Its either that over the years the legislature misunderstood their role and saw budget making as just a tool to collect monies at source but shun keeping a tab on the expenses of the executive hence we hear of such terms as budget padding in which both the executive and the judiciary adds to the budget for their selfish interest as well as such things as budget under performance such that what is budgeted for is not what is implemented which has over the years become a blight on the national economy.
The focus of this piece is on the judiciary and one would imagine that with the consolidated revenue practice, the judiciary will be independent of the other two arms of government and render justice without fear of favour. What is seen instead is high levels of corruption and injustice as well as the justices not having the capacity to enforce judgments of courts given that the authority to use force rests with the executive hence we see flagrant disobedience of judicial opinions, rulings and orders. One can say with all sense of responsibility that the judiciary has never had it so bad under a democratic dispensation as may be the case presently with the government being run by the All Progressive Congress (APC).
What makes this case more worrisome is that the government came in on a mantra of change in which Nigerians believed that the discipline and integrity of President Mohammadu Buhari would be brought to bear on all arms of government and that there would be a departure from the Jonathan era that was marked by disobedience of orders, judgments and rulings of court except perhaps in the business environment. The judiciary can be said to be the most experienced of the arms of government because whether the country practices military rule or democracy the judiciary is always on hand to moderate relationships between the government and the governed. What has been discovered is that even in the face of all these so called experiences the judiciary lacks the capacity to enforce judgments as the executive controls the instruments of violence in the society which is then deployed by it as it pleases. One can safely say that as it was in the beginning so it is now as it affects obeying court orders. The executive for instance has the fighting of corruption as one of the chief corner stone of the current government but it’s being pursued with a mentality of a military regime where people are arrested and detained without formal charges being preferred against them and even when these illegal detentions are challenged government ignores the orders made by the courts especially when such orders are perceived as anti government and because this happens at the federal level its even worse in the states. One example will suffice. Former National Security Adviser to the former President Dr Goodluck Jonathan Col (rtd) Sambo Dasuki was arrested and detained for allegedly misapplying millions of dollars meant for the fighting of Boko Haram insurgents. He challenged his detention in the courts, arguing that he ought to be given the opportunity to defend himself in court. There have been several rulings in his favour which the government had refused to obey with the President saying in some unguarded moments that the former Security Adviser would not be released. There are numerous other cases bothering on corruption in which the courts have entered judgments in favour of the detainees but which have also been disobeyed. In this respect, there is nothing different between this government and formal military rule but the only difference is that unlike in military regimes, this government is supposed to be operating under a democracy. This, to say the least, is most disconcerting.
What is even worse is that the judiciary and its officers have been accused of being corrupt and to be much worse than those its seeking to judge. In the past, there were snippets of allegations that some judicial officers may have been corrupt and a few have been dismissed over these allegations by the National Judicial Council which is headed by the Chief Justice of Nigeria and supervises the administration of justice in the land. While in the past, the council had dealt with judges of the lower courts something rather strange happened in the year under review. Some jurists in the Federal High Courts were accused of massive corruption and in what appeared to be an operation to weed out the bad eggs, an attempt was made by the Economic and Financial Crimes Commission to arrest these judges in Rivers State. They cried out to the state Governor who happened to be a lawyer and pronto he took his aides to the homes of these judges and prevented their arrests by the commission. It was a scandal of monumental proportions. Judges? And corruption? How? The Commission claimed that the judges had taken massive bribes to rig cases mostly of a political nature before them. The judges on their part denied the allegations and it became a ding dong affair. Some lawyers came to the defense of the judges arguing that the attempt to arrest them was a desecration of the rule of law and an exhibition of meddlesomeness by the executive as well as an attempt to also cow the judiciary and get them to render judgments to favour the executive. Some other lawyers especially those in the human rights circles said that some of the judges were indeed corrupt and should be allowed to face the full weight of the law. However the NJC supported the judges, saying that the executive ought to allow the Commission conclude their investigation and disciplinary action on some of these judges before legal action can be initiated on them. In a recent judgment, the Supreme Court equally held that judges cannot be investigated whilst they are on the bench until they are found guilty of any infraction by their regulatory authority. This followed a suit by one of the judges challenging his arrest and the charges pressed against him. Some of the judges faced criminal charges. Justice Ademola, son of an eminent jurist was accused of bribery and charged to court but his accusers could not prove their case against him and the case was subsequently dismissed. Ademola, a judge of the Federal High Court on his own resigned from the court ostensibly to clear his name as well as that of his wife who was accused alongside him, especially given that his wife was an official of the Lagos State Government.
The President had condemned the judiciary for being a cog in the wheel of progress to deal with corruption in the land. He deprecated the long delays in the dispensation of criminal justice especially those bothering on corruption. The standard answer to the President from the judiciary has remained that the judiciary was starved of funds to operate and that there were not enough manpower to deal with the cases that come before the courts and the state was in most cases impatient to thoroughly investigate the cases before rushing to court with the result that smart lawyers usually pick loop holes that enable them puncture the charges and free their clients. Before the current Chief Justice of the Federation, Justice Walter Onnoghen was appointed, it appeared also that the executive was not comfortable with him or with where he came from as he was the first non-northerner to emerge Chief Justice in a long while. Political analysts decried once again the exhibition of tribalism by the President in making appointments. At the end of the day, reason prevailed and he by virtue of being the highest ranked member of the bench was appointed the Chief Justice. Chief Onnoghen has pledged to ensure the strict delivery of an efficient justice administration system as well as assist in weeding out corruption in the body polity. Whether he can achieve this remains to be seen but a majority of lawyers believe he is capable of doing this. An Owerri-based legal practicioner, Ikegwuonu Okoro told the Difference Newspaper that Justice Onnoghen was a fine and straight forward man with a great legal mind who is equipped to bell the cat. For the rest of us it can only be to wait and see.
Justice Walter Onnoghen and President Muhammadu Buhari