The Judiciary and the Public Trust in the Emerging Dispensation* Post 16 June 2013 By Akin Oyebode Introduction The judiciary which an American commentator once described as “the least dangerous branch” is quite definitely the most important element in any system which operates under the principle of separation of powers and the rule of law. As the branch which ensures checks and balances in the interaction of all the branches of government, the judiciary is well placed to act as sentinel of due process, democracy and good governance. Indeed the rule of law is inconceivable without an independent, impartial and fearless judiciary, dedicated to their well-appointed task of serving as ministers in the temple of justice. In a society such as ours, which is currently experiencing leadership deficit in nearly all sectors of human endeavour as well as tremendous self-doubt among the generality of the people, the judiciary has been battling to rise above the decay afflicting various state organs and institutions. Nevertheless, that is a most daunting task as the judiciary has found it very difficult, if not, in fact, impossible to escape the sense of doom and disillusionment which seems to have enveloped the entire country as many people have since been giving vent to their frustration and bewilderment on account of the diminishing faith and loss of confidence in an otherwise revered institution. It is against this background that we are called upon to re-visit the condition of the judiciary in a rapidly changing environment. It is intended to begin this presentation with an examination of the place and role of the judiciary in the scheme of things generally before assessing where the institution is at the present point in time and, finally, attempt a prognosis of the judiciary within the unfolding scenario. The Role of the Judiciary in the Polity It would indeed amount to preaching to the converted in a gathering such as this to be extolling the overarching role of the judiciary within the legal order. Yet, it is necessary to restate and re-affirm the centrality of the judiciary in any society that espouses fidelity to due process or “subjection of human conduct to the governance of rules”, to borrow the expression of my teacher, Lon Fuller, late Carter Professor of General Jurisprudence at the Harvard Law School. Ever since the publication of Montesquieu’s Spirit of the Laws in the 18th century and Dicey’s Introduction to the Study of the Law of the Constitution in the 19th, it had become conventional wisdom among constitutional lawyers that the twin notions of separation of powers and checks and balances constitute the bulwark against all forms of authoritarianism, arbitrariness and chicanery. More significantly, the judiciary is called upon to act as guardian angels for the optimal functioning of the government of laws as against a government of men by seeing to it that all arms of government act in conformity with the limits of their powers as prescribed by the laws setting them up, that is to say, the Constitution and other laws pertaining thereto. In other words, in a system of separation of powers, the judiciary is located higher than the other arms of government and maintains this position by ensuring compliance with the strictures of checks and balances without which it becomes most difficult, if not, in fact, impossible to contemplate the niceties of the rule of law and desiderata of democracy and good governance. Although members of the judiciary are not always elected in accordance with the tenets of popular democracy but more often than not appointed to office by the executive arm, their competence and legitimacy are never in doubt since judicial officers constitute a veritable repository of the public trust and are widely recognized as such. Admittedly judges, like the rest of us, are human and could be given to socio-ethical values and cultural idiosyncracies and sometimes expose their biases and ideological preferences in their pronouncements, the general attitude of the population tends towards giving them benefit of the doubt, more so, as they are sworn to do justice to all manner of men “without fear, affection or ill-will…” Indeed, the figurine of Themis, the Lady of Justice which adorns our court-houses, blind-folded and wielding a sword in one hand and scales of justice in the other, depicts equality before the law as well as commensuration of crime and punishment, an ideal image in the eyes of the ordinary people, even though some critics allege that it was about time the lady peeped through her blindfold, if not, in fact, totally remove it so that she can then adjust her scales appropriately by according recognition and preference for the poor and lowly-placed vis-à-vis the more affluent and highly heeled litigants! None the less, it must be emphasized that the judiciary has across the ages striven to uphold its image as an objective dispenser of justice to all persons who appear before it. If, by any act or omission, it forfeits this position of respect or, I daresay, reverence before all and sundry, the consequence could really be calamitous for society as a whole. For, the judiciary is indeed the last stop before chaos and catastrophe hence the aphorism that it is the last hope for the common man. So important is the public trust placed on the shoulders of judicial officers that strenuous effort is made by society to uphold security of their tenure as well as attractive conditions of service for them in order to ensure effective discharge of their awesome responsibilities and protection from any untoward influence either from litigants or the powers-that-be. However, whenever any judge is found to have run foul of the code of ethics of his office, there are usually well-laid down guidelines and procedures for separating such a judge from his office, lest one rotten apple spoils the rest. Either through impeachment and, or investigation by his peers, trial and fine or imprisonment, a judge found guilty, one way or another, of infamous conduct would be ruefully reminded of Thomas Fuller’s admonition: Be you ever so high, yet the law is above you! It needs be stated that the public must be well aware that the judiciary operates at its behest and should, therefore, be constantly kept on its toes. An unduly obliging people could quite easily be taken advantage of and become helpless in the face of judicial tyranny and oppression. Accordingly, there is a felt need for conscientization of the people in terms of awareness of their rights and duty to play the role of whistle-blower whenever occasion demands it in order to maintain sanctity of the judicial process as well as the lofty position occupied by judicial officers who are indeed keepers of society’s conscience. The penchant for petition-writing among the people is to be deprecated. Yet, it must be ensured that the baby is not thrown away with the bath-water by upholding the right of the people to wash everything they encounter with a much needed dose of cynical acid. After all, the people are, in the final analysis, the protectors and guarantors of the independence of the judiciary. The Judiciary and the Public Trust in the Emerging Dispensation It must be admitted that there has been tremendous disquiet in many quarters in the recent past regarding the role and conduct of some members of the Nigerian judiciary. When it is not accusation of frivolity with the granting of injunctions, it is laziness, outright ignorance or imperial behaviour on the bench as well as influence-peddling and compromise of judicial independence through unnecessary communication and fraternization with counsel involved in matters before them. However, what has proven most distasteful in the recent past is allegations of bribery and corruption and other outrageous and unacceptable conduct, especially in relation to electoral petitions and other political cases over which they are presiding. The embarrassment which such infamous conduct by some judges had wrought on the prestige and reputation of the Nigerian judiciary in recent times is such as to make many wonder aloud if gold rusts what could be expected of iron? As the custodians of societal values of probity, fairness and objectivity, the judiciary is cast as a beacon of hope and integrity in the eyes of ordinary Nigerians so much so that whenever any case of malfeasance or impropriety occurs in our national life, a judicial commission of inquiry was usually the first recommendation made to investigate such as well as impose requisite penalty accordingly. In today’s Nigeria, however, people are no longer altogether sure if the judiciary can still be considered an exemplar of proper conduct within the polity. The mode of appointment as well as qualifications of many of our judges have also since become suspect with consequential loss of status and regard in the eyes of right-thinking members of society generally. A situation where the most celebrated of our lawyers would not, for one moment, consider taking up judicial appointment constitutes a clear evidence of the loss of esteem of an otherwise prestigious and highly revered vocation. Not even the allure of presiding over the affairs of fellow humans, including the power of playing God by sentencing accused persons to long terms of imprisonment, not to talk of the death penalty no longer attracts successful legal practitioners to judicial office. Today, the best and brightest shun judicial appointment without batting an eye-lid so much so that most of the appointees to high judicial office are now mediocre and run-of-the-mill jobbers. But for the self-imposed task by the current Chief Justice Aloma Mukhtar of cleansing the judicial Augean stables, it would have been hard to imagine what should have become of the institution. The number of judges who have since been found unworthy of their high calling and, therefore, shown the way out would seem to have cast a pall on the judiciary and, paradoxically, helped serve notice on those remaining on the Bench that a Daniel had indeed come to judgment. The current crusade to cleanse the judiciary of deadwoods and compromised elements is, therefore, most salutary and sure to revamp the tottering image of the institution. Admittedly it seems necessary to review the qualifications for judicial appointments, the composition and jurisdiction of the National Judicial Council as well as other critical aspects of the judicial process; nevertheless, the yeoman duty undertaken by the Chief Justice has portended both prophylactic and therapeutic benefits for the judiciary and deserves total support by all that wish our courts and, indeed, Nigeria well. If the country had been blessed with such farsighted, forceful, fearless and formidable leadership such as her’s, perhaps the judiciary would not have been mired in the quicksand that it currently is. Now, it should be recognized that the issue of the role of the judiciary as a public trust in the emerging dispensation is strongly tied to the role of law in social change generally. Law exercises both a conserving and instrumentalist role. Thus, while the law must be fixed or constant in order to ensure certainty and predictability of people’s expectations, it also fulfills its role as an instrument of social change or social engineering. Accordingly, whether one speaks of a transformation agenda or fulfillment of one’s hopes or expectations, the law is the framework for achieving every end, whether personal, private, public or social. Where and when goals have been set, law becomes the instrumentality of attaining them by providing the framework that enables the fulfillment thereof. Since the judiciary is the chief custodian of fidelity to due process and the rule of law, it stands to reason that it has to play a pivotal role in the task of social transformation. Where and when the judiciary perceives its place as a change agent, the task of realizing societal goals is made so much easier. However, this has a lot to do with the consciousness or legal ideology of the judges themselves. For, where judges have imbibed the Austinian or positivist notions of law, they are, more likely than not, to envisage their role as merely that of declaring what the law is, no more, no less. On the other hand, those of them who had inculcated theories of sociological jurisprudence are apt to properly conceive their roles as catalysts in the change process and act pursuant thereto. The fact needs to be grasped by all and sundry that Nigeria is a country still caught in the vortex of mass poverty, ignorance, hunger, disease and general underdevelopment. The prospects of the country transiting from its present quagmire of lack of capacity, self-doubt and corrupt practices are not very bright, except until and unless drastic action is taken. Some would, in fact, insist that our score card in terms of transformation is largely in deficit as we seem to have merely been intensifying underdevelopment of the country instead of taking positive action in the direction of economic change and social development. The country’s imminent failure to attain the Millennium Development Goals (MDG’s) as prescribed by the United Nations as well as its abandonment of the much vaunted Vision-20-2020 goals confirms the fear in many quarters that in respect of most indices of development, we seem to be taking more steps in the backward direction than forward. As Claude Ake observed some years ago, the tragic flaw of Nigeria’s development process lies in its “disarticulate” economy, that is to say, an economy that produces what it does not consume and consumes what it does not produce. Accordingly, Nigeria can only make progress if it is able to bridge the existing gap between production and consumption. If the emerging dispensation is such that would give vent to effecting the nexus between production and consumption, then the entire country would have been placed on a higher pedestal and all organs of state, not least, the judiciary would perforce have to take position and adjust accordingly in order to attain the socio-economic and political development for which the nation has been yearning for so long. Conclusion Undoubtedly, Nigeria is a most important actor on the global stage and needs to do all it can in order to actualize its proverbial potential. It is stating the obvious that the country is abundantly blessed in terms of both human and natural resources. What has hitherto been lacking, as is universally acknowledged, is a dearth of leadership in practically all aspects of the country’s political economy. To the extent that law represents the framework for actualizing national goals and objectives, the judiciary should play a pivotal role in the development process. There is no doubt that if the present infelicities symptomatic of the judicial process can be whittled down considerably, the prospects of the courts discharging the obligations thrust on them by society would indeed be tremendous. For this to happen, however, there must be commitment by all to support the on-going effort to reform and re-furbish the country’s judiciary such as to re-position it as an effective arm of government, able to function optimally in its role as the protector of due process, rule of law and good governance. ________________________________________ Professor Oyebode is Professor of Law and Chair, Office of International Relations, Partnerships and Prospects, University of Lagos.
Posted on: Wed, 19 Jun 2013 16:49:44 +0000
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