The public perception of Nigeria’s judiciary is currently at its lowest ebb. What crept in like a dark hour illicit behaviour and was discussed in hushed tones of trepidation, has grown deep taproots. It has become so entrenched that those who normally declare “go to court” to aggrieved parties are most likely to get favourable rulings. Consequently, it brought about a plethora of judgments without justice. Samson Uwaifo, a retired justice of Nigeria’s Supreme Court, once opined that “A corrupt judge is more harmful to the society than a man who runs amok with a dagger in his hand in a crowded street. He can be restrained physically of course, but a corrupt judge deliberately destroys the moral foundation of the society and causes incalculable distress to individuals through abusing his office while still regarding himself as honourable minister.”
In fairness, the rot in the system did not start today but the alarm bell has been ringing consistently. The negative impression is not helped by Afro-barometer’s survey which indicates that the judiciary is one of the most distrusted institutions in Africa. The soaring impression is that the Nigerian judiciary is under siege. Hence, the concept, ‘Judicial Capture’ is used to explain a “situation where the judiciary, or a court system, is influenced or controlled by outside forces, often politicians or powerful groups, to serve their interests, undermining its independence and impartiality.”
In the good old days, the country’s judiciary supplied brilliant and morally-sound judicial officers who served at international jurisdictions and helped in the development of legal systems and justice sector in some African countries. Some of them had stints at the International Court of Justice (ICJ) and African Court on Human and Peoples’ Rights. Justice Akinola Aguda and Justice Udo Udoma were the first African indigenous Chief Justices of Botswana and Uganda, respectively. In fact, Justice Udoma’s judgments were reportedly cited in the British law books.
The nation must, therefore, trace where the rain started beating her. Critical to the festering bribery and corruption allegations is the mode of recruitment of judges. Before now, people were begged and persuaded to join the Bench based on their strength of character and track record of excellence at the Bar. Unfortunately, today, appointments into the very sensitive positions of judges and justices are largely politicized, and laden with nepotism and favouritism.
During the justice sector reform summit in January 2022, Nigeria’s former vice president and professor of laws, Yemi Osinbajo, enlightened the country on the rigorous process of hiring judicial officers from the climes we look up to. He notes that: “In the United Kingdom from where we derive most of the structures of our judicature, applicants to judicial office in superior courts go through several screening processes, at some point, it was 17 stages, including written examinations, interviews and role-play exercises. They are subjected to rigorous background investigations covering professional credentials and abilities, public records, judicial pronouncements, and personal financial affairs; evaluation by the Bar Association on integrity, professional competence and judicial temperament. And in the US, Supreme Court appointments involve rigorous public screening by the Senate, which sifts through the entire public, and sometimes private lives of candidates. That is the nature of the rigour that anyone who should hold the power of life and death, and power over other people’s livelihoods, should go through. It shouldn’t be a “take a bow” situation at all. It must be rigorous because the moment the person is appointed into a high office of that sort, they are unleashed as it were on the rest of us.”
Lamenting the insider decay with scathing remarks, Justice Musa Dattijo Muhammad, while delivering his valedictory speech after bowing out from the Supreme Court in October 2023, among other things, called for unbundling of the powers of Chief Justice of Nigeria (CJN) who statutorily chairs the National Judicial Council (NJC), Federal Judicial Service Commission (FJSC), National Judicial Institute (NJI) and Legal Practitioners’ Privileges Committee (LPPC). The CJN supervises these bodies that handle appointment and discipline of judges, just as the LPPC is saddled with the appointment of Senior Advocates of Nigeria (SANs). For him, entrusting these wide powers to one person is akin to absolute power which corrupts absolutely, and gives little or no room for oversight.
In a similar vein, the opinions of respected and sound legal minds are a damning verdict on the judiciary. Olisa Agbakoba, a former president of Nigeria Bar Association bemoaned what the courts had been doing lately, noting that ab initio, one could, based on the facts and law, predict the likely outcome of a suit. He described some decisions of courts in most political cases nowadays as silly. The result is a loss of confidence in the justice administration by the commonsensical public. Chidi Odinkalu, professor and law teacher, took exception to the recent Supreme Court judgment concerning Rivers State where a five-person panel overruled the decision of seven-person panel, which according to him, contravened the principle of judicial precedent. Fidelis Oditah, SAN, and King’s Counsel (KC) in the UK sent a cautionary note to Nigerians. His fear is that “Nigeria’s institutions are on the verge of collapse with the judiciary and law enforcement agencies struggling under the influence of powerful interests.” Paul Nantulya of African Center for Strategic Studies sees the ‘judicial capture’ as a way of consolidating sit-tight syndrome. Thus, “By co-opting apex courts, incumbents bent on regime survival can entrench themselves in power while maintaining what their citizens consider to be sham democracies.”
Indeed, the stench oozing from the Bench worried ex-president Muhammad Buhari. But his gestapo-style of fighting judicial corruption through ‘sting’ operations of Nigeria secret service, DSS, was widely condemned. The consensus from both the Bar and the Bench however, is that the present judiciary cannot deliver the Nigeria of our dream. It needs urgent and holistic reforms. And the ongoing constitutional amendment is a good opportunity to deal with the structural drivers of judicial corruption. Whistle blowing should also be enshrined in our laws.