I want to begin today’s discourse with a story that is instructive on its own. In 2007, the Abia State governorship tussle was between the Progressive People’s Alliance (PPA) and its parent body, the Peoples Democratic Party (PDP). The PDP had won at the tribunal level and the final judgment was to be determined by the Appeal Court. It was at the time gubernatorial contestations ended at the Court of Appeal. Before the outing I met Col. Anthony Obi (Rtd), former Abia State military governor, who had just graduated with a Law degree from one of our universities. I told him the Abia case was at the Appeal Court and that it was going to be decided in the next few days. His reply was simple, “The law is an ass.” Since I wasn’t a lawyer, I tried to find out what he meant and the answer was baffling: “The case can go either way and there will always be reasons to justify whatever position.”
I had so many questions to ask but I couldn’t because he was my boss. Political protocol frowns at the subordinate putting his superior on the spot. So I left him. But my dilemma has not been helped by my lawyer friends; there is no unanimity in what they tell me, most of them seem to share the same view with the former governor. Where did they pick the thinking from, school or practice? Whatever is the source it is my own contention that it is a wrong view. Law, and in particular justice, should be predictable. What I have just said is not new in this country. Shortly after independence and up to the 80s, when you see a case and see the presiding judge even as a layman you can predict the outcome.
In those days, those called to the Bench were not just lawyers, they were the best of lawyers you could find in the Bar; they were professionals known for the depth of knowledge of the law and exceeding passion for advocacy. On the Bench before one was promoted, his erudition and acclaim would have gone far before him and most of them who made it higher in the Bench were men and women you could describe as philosopher judges. They were adjudicators who went beyond the law to give justice. They looked at the law technicalities but did not relegate circumstances, natural behavior, political, economic and social factors. They were ideological and very concerned about social justice.
I chose the topic for today, ‘judicial activism’ deliberately. The state of our judiciary was excellent at a time and in fact on a number of times the judiciary rose not only to save men and women but to stand between this country, conflict and possible disintegration. Severally, the political class has been very reckless and if not for the intervention of the judiciary, perhaps the story would have been different from what it is. Today things are going bad with this strategic institution and we all agree it is important we intervene very quickly and redirect affairs. It is quite certain that delay would be costly. Once you take away the judiciary the way to anarchy is wide open. I could as well have chosen to entitle this work ‘Judiciary and national development’; in that case I would have been talking about the importance and centrality of the judiciary to progressive development. This is an old story; everyone knows that, what many don’t know is in what particular ways the judiciary can be very useful to the making of the kind of country we want.
Apart from quick dispensation of justice, one of the most outstanding contributions should be found in judicial activism. In contentious matters, yet very important, judges must run on the highest level of integrity. This is what judicial activism espouses; they must be ideological not necessarily in terms of capitalism or socialism, but about using law to push the frontiers of politics, economic and social development. At the lower levels of justice dispensation like the Customary, Magistrate and High Court, weighing on the side of legal prescription and of course social justice should be it. But for matters in election tribunals, Appeal Court and the Supreme Court, all circumstances mentioned much earlier must be components of a verdict. A lawyer told me judges at these levels can create and I agree that it took the judiciary in America playing on the platform of judicial activism to positively change the political class and knock sense into them. Many of the finer aspects of America’s political culture were not done by the political class; rather they were engineered via judicial pronouncements.
In America, at a time the Black slave by law was nobody. By law he was a property of the White owner. By legislation he hadn’t the right to vote. By law he couldn’t be seen where a White was found, the Black children attended segregated schools by law. It took the United States Supreme Court to reverse all these. The court had to look at the political, economic and even social justice of such laws and declared them not only obnoxious but a crime against humanity. Imagine for once if they had said this is law and our hands are tied; it is possible that racism would have still been at the highest level in that country even today. Even lawyers have told me the law is dynamic. If so why does it seem to be stagnant or even retrogressive in our case?
The judiciary we know has taken some hits recently; those assaults came in a dimension not fair to them and not fair to democratic principles. Storming the homes of judges in the dead hour of the night and carting them away as common criminals is abominable. The manner the former Chief Justice of Nigeria, Justice Walter Onoghen was removed was bizarre. That the justice system couldn’t come to his aid was more stunning. We see the consequences; the Atiku vs Buhari presidential matter was not well handled. Our sense of worth would have been enhanced if on the Day of Judgment the justices on the panel had come out ready, taken time to uphold or demolish the points raised by the petitioner, just using ten minutes to dismiss the matter made everybody tendentious.
If Supreme Court on the Ihedioha matter was ideological and took in a bit of judicial activism perhaps it would have used its power to create very well and the outcome would not have been what people now describe as Supreme Fiction or Supreme Arithmetic. Election is about the people and not the court, the administrator is the electoral body. In Imo votes were missing and the administrator couldn’t account for the missing votes; simple matter, the verdict should have been INEC go back and do a thorough job. This would have served the course of social justice perfectly but since the Supreme Court refused to be ideological and to lift high the banner of social justice, it erroneously assumed another body’s role and that resulted in unpleasant consequences. We now have Supreme Court Fiction and Supreme Court Arithmetic. We have seen the consequences of not holding tight to social justice; it is not interesting at all.