A Country Undermines the Judiciary at its Peril (Part 3)

Introduction 

The justice system in any society and its effectiveness reflect the actual confidence the public has, and outlays the extent to which the State and authorities are able to achieve regulative capability among the citizens. Nigeria as a State is trapped in a system where both the common man and the State authorities do not have confidence in the Judiciary. A nation without an independent Judiciary, is not likely to enjoy either the rule of law or true Federalism. The greatest proponent of the Rule of Law, Professor A. V. Dicey, whose views on the doctrine remain the most globally accepted authoritative restatement stated thus: “…in the first place, the absolute supremacy or predominance of regular law, as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness, of prerogative, or even wide discretionary authority on the part of the government. Englishmen are ruled by the law, and by the law alone, a man may with us be punished for nothing else. It means again, equality before the law, or the equal subjection of all classes to the ordinary law of the land administered by the ordinary law courts. The rule of law, in this sense, excludes the idea of any exemption of officials or others from the duty of obedience to the law of the land which governs other citizens, or from the jurisdiction of the ordinary tribunals.” Today, we shall conclude this vexed series, starting with the grave consequences of undermining the Judiciary in Nigeria. 

The Grave Consequences of Undermining the Judiciary in Nigeria 

Some of the consequences of disobedience to court orders are a descent to anarchy and recourse to self-help; lack of confidence in the Judiciary, low level of foreign direct investment, and the absence of rule of law.

The obvious fall-out of the above litany of serial interference – particularly by the Executive – in the affairs of the Judiciary, is that the latter has been made to fail in its constitutional mandate and role of being the last hope of both the common and the not-so-common man and woman. It also stifles its role of acting as a check on government’s arbitrariness, and the peculiarly Nigerian culture of impunity. That is not all.

The implications of subverting the Judiciary, especially in a democracy, are all too ponderous. It is however important, to draw a distinction between the situation under a democracy, and that which operates under an autocracy. Under the latter (especially military rule), everyone resigns himself to the reality of the ‘khaki boys’ calling the shots – both literally and figuratively. Simply put, you oppose them at your own peril. This affected the liberty and fundamental rights of many human rights activists in Nigeria, such as the late Chief Gani Fawehimnmi, Chief Mike Ozekhome, SAN, Olisa Agbakoba, SAN, Femi Falana, SAN, Beko Ransome-Kuti, Femi Aborishade, Tunji Abayomi, Abdu Oroh, Richard, amongst others. Their travails have, however, not deterred legal scholars from proffering opinions on the malaise. Some, like Ekweremadu postulate that “many of Nigeria’s democratic failings in the past, have been the result of the inability to have an impartial and honest Judiciary that commands the respect and confidence of most of the members of its deeply divided population”. He posits that “a good Judiciary will not only check the abuse of power by government, it will also be capable of managing the inter-elite disputes and/or conflicts, which are bound to result from the competition for power and economic resources involved in a multi-ethnic society

Those views echo those of Leonard, who opined that competent and independent judiciaries are, in many ways, central to democracy. In turn, their opinions mirror those of others, such as Mbanefo (1975) and Walraven & Thiriot (2002), who separately posited that a basic requirement for the survival and prosperity of a liberal democratic State, is the presence of strong and independent oversight institutions, one of which is the judiciary.

In the same vein, Diadem asserts that, whenever the Executive attempts to substitute the constitutionally-prescribed internal and semi-autonomous mechanisms of judicial control and discipline with its own instruments of coercion: 

“The tendency is that fear is instilled (in) the Judiciary to do the biddings (sic) of the executive, whose officials are severally fingered in many corruption cases. When considered against the backdrop that the judiciary lacks financial autonomy and the appointer of judicial officers is the executive, judicial independence hangs on slippery ice. The pertinent questions arising from (the) external trial of Judges, are whether Judges wouldn’t dither when high-profile officials (of the executive) are charged or commit offences, or when they are dealing with cases in which the executive arm of government is interested . . . these grave acts (clearly) portend some peril for judicial activism”.

Finally, as the NBA observed in its reaction to the raid on Justice Odili’s home, “events like that do nothing but erode the independence of sacred democratic institutions like the Judiciary, undermining the rule of law in Nigeria, and set the country back in the quest to instil confidence in the citizens of Nigeria, Nigerian businesses and foreign investors, that Nigeria operates a democracy with an independent Judiciary”.

Conclusion 

The importance of the Judiciary in any civilised society, cannot be overemphasised. This is all the more so in an emerging, post-colonial, plural, multi-ethnic and multi-religious, but mono-product economy such as Nigeria. This is because the Judiciary is the only guarantee of a fair outcome in any dispute, both local and multi-national, regardless of its content: economic, commercial, political, social, religious and otherwise. In the oft-cited cliché, perception is reality. If disputants (and – in the case of non-Nigerians – potential investors) perceive our judiciary as weak and subject to manipulation by external forces (whatever the motivation of such forces), confidence is eroded. 

In the memorable words of Lord Denning: “Justice must be rooted in confidence”. Paraphrasing the rest of his famous dictum “Confidence is destroyed if reasonable people are turned away or turned off completely because of the thought that Judges as a class (not just specific or individual Judges) are unreliable and unpredictable, because they are systemically weakened or compromised and are at the mercy of another arm of Government which is, invariably, the Executive.

Enforcement Regime

There is a need to overhaul the framework for enforcement of court orders, in order to make the process less cumbersome and less cost intensive. The Judiciary should establish its own Enforcement Unit, to speedily enforce its judgements and orders. An equivalent of the United States “Marshall Service” should be enacted into law by the National Assembly, to facilitate enforcement of court judgements. There is need for oversight of the activities of court officials who enforce judgements, to eschew fraud and corruption. 

Welfare of Judicial Officers

There is a need to review the remuneration of Judges, in order to ensure that judicial officers are sufficiently motivated, diligent and deliver judgements that meet the ends of justice. An overhaul of the process for appointment of Judges is also imperative, to ensure that the judgements that emanate from the Judiciary are unimpeachable and non-conflicting.

Role of Attorneys-General 

The role of Attorneys-General in the enforcement of judgements must be reviewed, to ensure that they do not act as stumbling blocks in the enforcement process. Section 84 of the Sheriffs and Civil Process Act should be amended, to remove the requirement of prior consent of the Attorneys-General before enforcement of judgements.

Role of Legal Practitioners

Legal practitioners who frustrate enforcement of court judgements and orders, should be sanctioned.

Criminal Sanctions

Disobedience or disregard of court orders should attract criminal sanctions, including contempt of court proceedings against the defaulters.

Enforcement of Foreign Judgements

To promote the rule of law and foreign direct investment, arbitral awards should be enforced automatically and without recourse to the courts. The Federal Government should comply with all pending judgements of municipal and sub-regional courts, among others.

Funding for Judgement Debts

The Federal and State Governments should make budgetary provisions, for payment of judgement debts.

Appellate Process

There is need to quicken the appellate process, to ensure that appeals do not act as a clog in the wheel of enforcement of judgements.

The consequences of such perception are far-reaching, as they impinge on the doctrine of separation of powers under the Constitution. By virtue of this doctrine, no arm of the Government is permitted to control or dictate to another. While this notion is not expected to be water-tight (it cannot be), the appearance of that separation, is however, more important than any utopian belief in its reality. Once again, perception is key here.

However, perceptions, in turn, are shaped by reality. Reality, in terms of the socio-political and economic circumstances of any given situation. In this regard, public expectations in a dictatorship differ markedly from those in a democracy such as Nigeria operates. Under the former, the public expects and tolerates the erosion of their liberties. By contrast, such intrusions are an aberration in a democracy. It is even more so, to expect people to condone them. This is where the Judiciary is supposed to – indeed, expected to – make a difference. In the immortal words of Lord Atkins in LIVERSIDGE v ANDERSON.

“In (this country), amidst the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace. It has always been one of the pillars of freedom, one of the principles of liberty for which on recent authority we are now fighting, that the Judges are no respecter of persons, and stand between the subject and any attempted encroachments on his liberty by the Executive, alert to see that any coercive action is justified in law”.

This great endeavour of saving the Judiciary from the excesses of the Executive (some might say, unkindly, in some instances, from itself), is the task of all men and women of good will – not just human rights activists or legal practitioners only. This applies, in particular, to members of the 4th Estate of the Realm, that is, the Media. Section 22 of the 1999 Constitution clearly enjoins the Media to hold the government accountable and responsible to the people. It is not for nothing, that the pen is said to be mightier than the sword – it is not a cliché. Media practitioners must therefore, be in the vanguard of a coalition that is alert and vigilant to thwart any attempt to erode the independence and effectiveness of the Judiciary. In this task, we must be motivated by only one mantra: the Judiciary is our bulwark against arbitrariness, impunity and injustice. We can only allow it to fail, at our collective peril. (The End)

Serious and Trivial

“Sometimes the things we cannot change, end up changing us.” – Anonymous

THOUGHT FOR THE WEEK

“All the rights secured to the citizens under the Constitution are worth nothing, and a mere bubble, except guaranteed to them by an independent and virtuous Judiciary”. (Andrew Jackson)