-A Call For Urgent Action By The Ben Nwabueze Center For Constitutional Studies And Rule Of Law.
An unprecedented and thoroughly depressing chapter in the contemporary diminution of the judiciary and consequential erosion of the rule of law in Nigeria was written with two contributions on the Senate floor during the valedictory session of the 9th Senate of the Federal Republic of Nigeria. Senator Rochas Okorocha expressed mock awe at how the Senate President Ahmed Lawan found his way back to the Senate without contesting in his party’s primaries for the seat, and hence ineligible for the election at all; with the innuendoes pointing at the inexplicable and widely criticized judicial decision which occasioned that otherwise most improbable feat. If Okorocha’s denigration and disdain of the judicial interventions in Nigeria’s political contests was oblique, Senator Bulkachuwa’s was pointedly brazen and as bad as it could possibly be.
Senator Bulkachuwa, without any prodding confessed to enabling high level judicial corruption by the instrumentality of his spousal relationship; stating to the obvious discomfiture of the Senate President how his wife aided his colleagues and political friends to prevail in their litigations. It is common knowledge that his wife was the immediate past President of the Court of Appeal, the second most powerful office in the Nigerian judicial architecture. The lofty perch of the office, among other great powers, entitles the occupant to appoint judges into and to constitute election petitions tribunals for all the elections in the country. The magnitude of the matter and the potentiality for the destabilization of the electoral process and the entire polity could be grasped in the light of the normalization of litigation as the concluding part of electoral contests in Nigeria.
Oftentimes threats to the rule of law are perceived as primarily springing from executive lawlessness, but sight may be lost of the grave dangers a not-fit-for purpose judiciary usually poses to the rule of law. An integral element of the rule of law is a high degree of clarity and certainty of the law. This twin qualities of clarity and certainty infuse law with predictability which at the elementary level encompasses reasonableness and commonsense available to the lawyer and layman alike; and at a secondary level, and particularly for the lawyer (and the judge), logic, clarity of thought and strong belief in the guidance of precedent. Ultimately, the courts assisted by the parties’ lawyers determine the law in given
cases and what fashions that determination, the decision, are these identified qualities and indices.
When the law lacks certainty and predictability, as inevitably happens when precedents are disregarded and the reasonable person’s sense of justice assaulted by judicial decisions, the judge invariably falls under closer scrutiny; with the suspicion of incompetence or corruption becoming rife. And instead of the rule of law, the rule of the whims and fancies of the powerful cloaked with judicial imprimatur would hold sway; with dire consequences for economic progress and the polity in general, not just the rule of law. It is axiomatic that liberal inflow of international investments and absence of rule of law are mutually exclusive. Similarly, the existence of great gap between the letters of the law on one hand and judicial and administrative decisions on the other breeds dissonance between actions and due consequences, with attendant social disorder characterized by high crime rate, pervasive corruption, ethnic and religious disharmony of which Nigeria is a prime example.
The present storm brewed in the Senate Chambers brings back to the front burner the critical issue of recruitment to the judiciary. There is universal agreement within and outside the country that the quality of adjudication by Nigerian courts has progressively regressed over the past thirty years or more. The quality of the judicial personnel, in terms of character and learning, is all important. Knaves, some of whom are amongst the ranks of Nigerian lawyers, have inevitably found their way to the Bench given the progressively declining filtration process and patronage system which is contemptuous of merit. Outright knavery is not the only problem and there is also that of weak personalities who easily succumb to sundry societal pressures including the family induced, religious, personal, community and such other mundane considerations that are quite contrary to the judicial oath of office.
These character flaws in some cases translate to or result in judicial corruption occasioning the bizarre decisions which hardly any honest practitioner can justify given the unbridgeable gap between those decisions and their facts with the applicable law. But there is also the problem of insufficient knowledge of law on the part of some judges and which yields the same outcome of clearly unjustifiable decisions. Nigerian newspapers had widely reported the revelation by the immediate past President of the Nigerian Bar Association, Olu Akpata, of how one of the candidates for appointment to the Court of Appeal did not
understand one of the most basic legal concepts. The standard justification for the promoters and supporters of such sub-standard appointments is that the appointees would learn on the job. But why would the system be clogged with those of deficient knowledge when there are still willing and sufficiently knowledgeable candidates yet to be appointed.
President Tinubu in his 2023 June 12 Day speech warned the judiciary against making decisions that have potentialities of truncating democracy. He has been rightly criticized in many quarters for what amounts to a subtle intimidation of the judiciary before which is pending the gargantuan task of determination of the validity of his victory in the presidential polls. However, there is so much the Executive at the state and national levels can do in restoring the past glory of the judiciary especially since the latter has been finding it very difficult to help itself by effective sole self- regulation. Beyond improved funding as a priority, the Executive which has a critical role to play in the process should ensure that the laid down rules and criteria for appointment are followed strictly, and thus making for a transparent and merit-driven recruitment in practice.
The office of the Attorney-General and Minister for Justice is of critical importance in the forgoing regard and the President’s choice for that office would signal to all and sundry if he really desires that Nigeria’s judicial system recaptures the confidence of all within and outside the country. It is the position of the Ben Nwabueze Center that the office is not for anyone whose only major qualification is party or personal loyalty to the President as seems to have been the case in recent past, nor should the pool of possible appointees be restricted to any category of lawyers. For example, Prince Bola Ajibola KBE who is generally acknowledged as the most impactful Attorney-General of the Nigerian Federation in the past forty years was not a Senior Advocate at the time of his appointment.
In making the process more transparent, list of the candidates for judicial appointments who survive the last filtration hurdle should be published to the general public for comments on their overall fitness, intellectual and character wise. It is noteworthy that some judges had been formally reprimanded or retired for “poor knowledge of the law” or such deficiency. Such judges did not suddenly develop the deficiency upon appointment to the bench and it would have been observable ever before by those who had close contact with the quality of his work as a lawyer or lower ranking judge; whether as professional colleagues and lay persons alike. Similarly, the integrity or otherwise of the would-be judge must
have been known by some people, just like those of weak character likely to be influenced by spousal pressures, traditional rulers and religious leaders and others in inherently influential positions. If it is deemed necessary for the list of those for elevation to the rank of Senior Advocates of Nigeria to be widely publicized for due notice to the general public, as is presently the case, then it is even more so for the judge whose work profoundly affects the entire society.
Senator Bulkachuwa’s confession is unquestionably a low-water mark for the Nigerian judiciary; a ready, timeless, whip for those convinced of its exemplification of the Charles Dickens Court of Chancery, of which all honest practitioners would counsel that the aggrieved bears whatever grievance he has suffered rather approach it for redress. The current thinking in the global commercial strongholds like New York, London and indeed the entire global West is that Nigerian courts should be avoided like the plague, with anti-suit injunctions in appropriate cases readily granted by courts in those jurisdictions against parties inclined to litigate in Nigeria.
Frustratingly for the concerned regulatory authorities, however, their remedial options are limited. Apart from the remote possibility of the losers in individual cases in which she was alleged to have negatively influenced seeking some civil redress, it is difficult seeing much that the concerned authorities and major stakeholders can do in bringing Senator Bulkachuwa and his wife to book beyond issuing the strongest condemnations. Justice Bulkachuwa has retired and is no longer answerable to the National Judicial Council. However, the incident should serve as a wake-up call, if at all any was needed, for an urgent and sincere reset of the Nigerian judicial system to make it fit for purpose.
CHIJIOKE OKOLI, SAN
Co-ordinator,
Ben Nwabueze Center for Constitutional Studies & Rule of Law.
June 15, 2023.
