Judiciary trapped by the crises of governance
By Dan Agbese
Our democratic system of government was constructed to rest on three fundamental pillars, namely, the executive, the legislature, and the judiciary. They are three separate but equal arms of government, each with clearly defined constitutional responsibilities, the honest discharge of which makes government and governance possible.
Democracy is a government of laws, not of men. At least, that is the ideal. The three arms are not in competition; it is more correct to say that they are in mutual policing, one of the other two and the three in concert. Under the constitution, the legislature makes the laws; the executive enforces them; the judiciary interprets them in accordance with the constitution and the extant laws to prevent breaches and dispense justice. The weakness in one arm of government weakens the other two arms. Good governance, the rule of law and the respect for the rule of law are predicated on the three arms working separately but achieving common results beneficial to the polity and the common people whose ballot papers help to institute governments of their choice at the various levels of government.
The judiciary plays a unique role in this unique set up. Its capacity to interpret the law in accordance with the letter and the intendment of its framers is the source of its strength as a critical institution of democratic government. With its unique powers, the judiciary prevents incipient dictatorship and prevents or minimizes reckless and crash assaults on the law and the rule of law. It prevents the rich from oppressing the poor; and it protects the powerless from the powerful.
When a man is denied justice by reason of the biased enforcement of the law by the executive arm, he can cry to the judiciary because he believes in the capacity of the third arm of government to protect him and ensure that justice is not denied him by reason of his poverty or powerlessness or his place in the social demographics. The judiciary, as a neutral body, is the refuge of the high and the low in the society. It is not the temple where we worship familiar or strange gods; it is the temple which serves justice and chains injustice.
Okoi Ofem Obono-Obla, a senior Nigerian lawyer, put it nicely when he wrote: “The judiciary is construed as the hallmark and pantheon of constitutional democracy and the bulwark of the people against repressive governments and infractions or deprivations of their rights and privileges. It is clear that when matters become knotty and inexplicable, it is the judiciary that is resorted to for the interpretation of laws and for resolution of conflicts.”
Conflicts were born with the institution of democracy as a participatory form of government in which the poor have equal rights with the rich and the powerful to participate in a government instituted through the instrumentality of the sacred ballot paper. Democracy is also a competitive form of government. It admits and accommodates the rights of various and varied interests – personal, group, ethnic, racial, or religious – to compete for domination or comparative advantages in what we may loosely term the marketplace of democracy.
The major platform for this competition is politics, the only recognised route to the institutional powers of politics and government. All the interests converge on this important platform. It is the citadel of political power. Only an insignificant number of men and fewer women born of women must have had the temerity to look political power in the face and spit on it. There is much riding on the back of political power.
Wealth or economic power ride on the back of political power. With this power, roads are built, hospitals are built, and the goodies, known as the dividends of democracy, are dispensed to communities, or denied others with one man’s signature. Those who receive the instrument of power from the people turn government into an instrument for domination and secured privileges. Here, we see the best and the worst among men and women. The true but fierce and cut-throat competition for power is played out here. Those who lose, ask the judiciary to intervene. Losers necessarily head for the temple of justice in search of justice.
The judiciary is tasked with playing a neutral role in this competition. Its role is to ensure that the parties to disputes play by the rule; to ensure that justice is not denied some and unjustly given to another; that the ends of justice are served within the ambits of the laws and the tradition of competitive and participatory democracy. It is a tough but necessary task to serve and save our democracy.
Our judiciary is in the eye of the storm. Those who feel that some degree of mago-mago has denied them victory at the polls have coalesced into a body of seekers of justice in the temple of justice. Every general election in the country invites disputes, resulting in election petitions. Between 2003 and 2023, there were 5,153 petitions before the election tribunals as the court of first instance in the resolution of election petitions.
Nigeria holds the ace here. According to Femi Falana, SAN, “Nigeria has the highest number of election petitions in the world. It should be a matter of concern to all genuine forces of democracy and all stakeholders.”
It is a dangerous trend, inimical to our participatory democracy when the voices of the people in electoral decisions are drowned by the ruckus of judicial decisions. The politicians through the election petitions have systematically handed over to the judiciary the power to institute governments through legal technicalities in judgements often at variance with the expressed will of the people at the polls.
What is at issue is not merely the number of such petitions for, indeed, the decision by the offended to avail themselves of the legal route to justice, may stave off the resort to violence. What is at issue is that the judiciary has been dragged into matters political and, given the avalanche of the petitions at the various levels of the court system, the miscarriage of justice through conflicting judgments has become a major source of worry. It has given rise to the crises in our participatory democracy.
According to Obono-Obla, “In recent times consistency and certainty which are the cornerstones of the legal system hinged on judicial precedent appears to have been fast eroded especially in election petition litigations in the country.” This forces the judiciary to do more than restrict itself to its tradition of interpreting the law.
Senator Abdullahi Adamu, the immediate past national chairman of APC and a major player in our national politics before and since the current democratic dispensation, feels “more than disturbed. I am truly disturbed by the way we are going. People are now saying that you can only win elections through the courts. It should not be the case. Yes, the courts are there to adjudicate if there is miscarriage of justice but where the entire system appears to have been abused, it is a case for concern …”
Politics tends to poison everything. The politicians know this. They have now infected the temple of justice with corruption. That is hardly news today. Some of the election petition judgements reek of the offensive odour of corruption. Justice Hapsat Abdulramam, chief of judge of Adamawa State, admitted recently that corruption has entered the judiciary. She described it as a worrisome situation. Corruption in the judiciary at the various levels of the court system, from the lowest court to the apex court, presents a complicated problem for the reputation of the country, its democracy, the rule of law and the integrity of its judiciary. No laughing matter. If the people believe that the lure of lucre is the defining system in justice delivery, they lose confidence in the capacity of the judiciary to be fair and just and be protective of fairness and justice. It puts democracy on weak legs.
Mr Justice Olukayode Ariwoola, chief justice of Nigeria, must have given some considerable thoughts to this when he recently cautioned that “the law remains the law, no matter whose interest is involved. In all we do, as interpreters of the law, …. we should never be overwhelmed by the actions or loud voices of the mob or crowd and now begin to confuse law with sentiment or something else in deciding our cases.” He chose to wrap the matter in diplomatese.
The judiciary is one institution of democracy to which we turn to seek redress. To move forward requires that we rescue it from the corrupting influence of the corrupt politicians and reposition it as an island of relative integrity in the murky seas of our most famous national commodity, corruption.
Falana finds it “…. extremely disturbing and I have made the point that we cannot continue to involve the judiciary in the election of representatives of our people. We must put an end to it. We thought that with enough reforms of the electoral system that by now we should be taking the court out of the electoral system. I am disturbed as a lawyer that Nigerians are now saying that the elections have moved to the courts. That is not very complimentary.”
Is the judiciary to blame? Said Adamu, “The failure of the politicians is now being blamed on the judiciary. But again, if there is no buyer, there will be no seller.” Got it?
