There is consensus within and outside legal circles in Nigeria that the judiciary had been palpably corrupt. It had become a notorious fact that in the period of authoritarian military rule in the country, justice was available for sale to the highest bidder. The situation in the courts had become so bad that ‘Trials often turn into charades where powerful litigants, aided by unethical lawyers and faithless judges, manipulate the judicial process to achieve pre-ordained outcomes.’46 Reflecting on the disturbing level of corruption in the Nigerian judiciary, Justice Oputa who was later to head Oputa Panel, had lamented rhetorically, almost two decades earlier
What is it that in present day Nigerian society tarnishes, desecrates and disfigures the solemn, sacred and beautiful image of justice and the judiciary? The answer is not far to seek. It is the cancer of bribery and corruption…one is faced with the stark and naked reality that some judicial officers are corrupt.47
The judiciary itself is aware of this continuing unwholesome state of affairs. Two leading judicial officers recently warned of dire consequences awaiting judges who engage in corruption in the discharge of their duties.48 The perception that corruption exists in the judiciary has not changed though a recent assessment suggests it has been reduced.49
46 A A Olowofoyeku “The Beleaguered Fortress: Reflections of the Independence of Nigeria’s
Judiciary” 33 (1) (1989) Journal of African Law 55, 67-68 and O Oko “Seeking Justice in Transitional Societies: An Analysis of the Problems and Failures of the Judiciary in Nigeria” (2006) 9 Brooklyn Journal of International Law, 9, 14-17. I have drawn extensively from this latter research which comprehensively focuses on the state of the Nigerian judiciary in the pre and post transition to civil rule in Nigeria. Like the author, I also take benefit of my several years of practice experience at the public and private bar in Nigeria.
47
C Oputa The Law and the Twin Pillars of Justice (Government Printer Owerri 1981) at 9.
48 “Abdullahi’s Timely Warning” Daily Independent Online (Lagos Wednesday 16 May 2007).
49 O Osinbajo “Lessons Learned about Fighting Judicial Corruption” in Global Corruption Report
Apart from corruption, by several accounts, the judiciary had become severely compromised in the important task of upholding human rights.50 The nature of military rule in the country led to severe haemorrhaging of human rights of citizens. It is relevant to recall Justice Olajide Olatawura’s comments referred to earlier, on how the law became weak as result of military ouster clauses.51 The observation justifies the case for some form of accountability by the judiciary, at the very least, to highlight whether there was dereliction on the part of the institution entrusted with the duty of enforcing those rights.
The need for public judicial accounting for the past in the context of Nigeria’s transition is also heightened by the fact that the military scarcely showed interest in the enterprise of law reform, notwithstanding the plethora of decrees it passed in the course of its hold on power. Although a law reform commission was established for the country, this was in form rather than substance. Not only was it poorly funded, proposals for reforms in existing legislation were largely ignored. As a result, the country was saddled with considerable obsolete and anachronistic laws even in vital areas like criminal law, evidence and commercial law. Thus for example, a 1987 survey discovered that pre-1900 ‘received’ English statutes numbering 195 were still applicable in Nigeria.52 Laws governing matrimonial causes, probate, litigation practice and procedure hardly fared better. In not a few instances, the laws remained (with cosmetic amendments in few cases) in the form they were inherited from the colonial period. These were laws designed for the imposition of colonial authority53 and well suited to the command-structure governance of military rulers. The judiciary in the period of authoritarian rule and beyond has been party to the enforcement of laws many of which are in clear violation of human rights and the spirit of successive constitutions of the country in the post-independence period. The situation, yet to be satisfactorily remedied, was lamented in recent times by no less a legal personage than a recently retired Chief Justice of Nigeria.54
One reason for the persisting judicial attitude to authoritarian legislation is the adoption of the English common law jurisprudence of legislative supremacy in the interpretive function of the courts, even in legal systems (like Nigeria) with
50 Olowofoyeku note 46 supra at 59. See also UN General Assembly A/51/538 (22 October 1996).
51 See Section 2, Chapter One supra. 52 Oko note 1 supra at 623, note 250. 53
Prempeh note 21 supra at 1264.
54 V Efeizomor “Nigeria’s Laws are too Archaic, Cumbersome, Says Belgore” The Daily
Independent (Lagos Nigeria 12 July 2006). The Honourable Justice Salihu Modibbo Alfa Belgore retired in March 2007.
express constitutional-supremacy provisions. This is itself rooted in the training of Nigerian lawyers and judges in the Anglo-common law tradition which conceives a limited role for the interpretive role. It is a heritage that sometimes constitutes a burden for an activist and transformative judicial agenda desirable for transitioning societies.55 The clear preference of the jurisprudence of that legal tradition for the plain-fact interpretation of statutes has assisted, if not the imposition, but certainly the sustenance of a ‘rule by law state’ as against the ideal of a ‘rule of law state.’56
Successive military administrations foisted untold hardship and suffering on the mass of the people.57 What role did or could have the judiciary played in that suffering? This ought to have constituted an important thematic focus of the truth- seeking process in Nigeria in view of its broad terms of reference. Part of its remit was to ‘identify the person or persons, authorities, institutions or organizations which may be held accountable’ for gross violations of human rights and determine the motives for the violations or abuses.
The empirical record of the Nigerian judiciary in the period of authoritarian rule commends the imperative of accountability for the performance of the judicial function. The finding of the Oputa Panel that the courts, faced with decrees ousting their jurisdiction in many cases, had become ‘toothless bull dogs’ in the years of military rule,58 strengthens the case for accountability of the judiciary. It ought to have led to an enquiry on why the judiciary took to the path of compromise when their judicial oaths of office require fidelity to law as stated by the Constitution rather than military legislation. It is significant for instance that the judicial oaths of office were contained in the Constitution at all times. All the constitutions, as stated above, contained supremacy clauses. No judge was sworn on military legislation. The compromised status of the Nigerian judiciary is further exacerbated by a legacy of questionable appointments characterised by nepotism and prebendalism.59 The compromised and corrupt judicial function generated a lacklustre attitude within the public for recourse to due process of law in the resolution of disputes.