The face of justice

Leadership and institutions in society hardly grow above the society and the people. There could be few exceptions though, where very bright and hotheaded men pursue power, get it and decide to virtually drag the society and her institutions in frenetic pace to next level. Otherwise, on a general note, institutions keep pace with the level of development of the society. However, what we have learnt from history is this: societies that desire to fast track their development must spare a thought on ways and processes through which they can make their leadership and  institutions run on proactive format and along the progressive bent.

This is imperative if there would be quality progress. Progress doesn›t just drop from the sky, it is the product of well thought out ideas and actions. France returned good governance after ultraconservatism caused it to run several failed republics. At a time, the Britain we see today nearly choked up like we are doing today in our country until the contradictions, provoked by running on old discredited patterns, forced a change into progressive liberalism. It was after then that state institutions began to function well. They still do. America learnt from British omissions and mistakes. So, from Day One, even under the yoke of colonialism, the country knew the importance of deploying brilliant minds to shake-up and then shape up essential state institutions into very functional bureaucracies. Their Judiciary benefitted immensely from the approach. It accounts for the reason its intervention on critical matters were very progressive and futuristic in content.   

If America is honoured today for excellence on issues of rule of law, a policy bent that so much gives that country unique distinction in comity of nations, the credit for this should go minimally to the political class and full accolades to the Judiciary. Read their jurisprudence, you see their obsession with and love for openness; credibility and freedom are not mistakable in their legislations. For their judges in the nascent days of America it was about the people, their sovereignty and freedom. Recently, former President Donald Trump wanted to call members of the National Guard. He was surprised when the Commanders refused his orders except he could prove governors of affected states had placed a request in that regard. 

President Trump took a recourse to court in an attempt to get a quick reprieve but here again met a brickwall. Justices told him pointblank in a verdict that didn’t take days as usually the case here that that was the law and he must keep to process. Imagine for once if this matter happened in our country, if didn’t take time till the utility value is lost, a higher probability would be placed on the side of the President and a language full of legal jargon would have been coined and used to justify the President’s request or policy position. It is very important to state before we proceed further that American judges used the instrumentality of judicial pronouncements to cure bad political behaviour, create new paradigms where none existed and to make crooked paths straight. They still do. Their judgments included draw-ins from philosophy, politics, economics and cultural peculiarities. Take a reading of Senator Ike Ekweremadu’s trial and see the angles covered by the judge who convicted him on charges of organ trafficking. The Judge was angry with the fact that a man who was in forefront of war against human trafficking could himself get involved in similar circumstances.

   We return to the theme of our discourse for the day, which is the face of justice in our country: talking about the judiciary and its strategic placing in midwifing a true modern country. Periodically as would be expected our Judiciary comes under intense scrutiny by way of routine exercise during which some critical segments of our people reassess our institutions, check their performance against expectations. Another time would be when the people believe so strongly that the Judiciary has committed blunders. They often do especially these days when desperate politicians will stop at anything to desecrate the hallowed chambers and cherished procedures. People›s interest in the Judiciary is not because it is an arm of government, it is because judges are God in the visible form. Like God they have power to do and to undo. The other two arms, the Executive and Legislature are not conferred with such powers. 

In the event of the Executive and the Legislature committing grievous mistakes, society would feel the pain quite alright and experience some degree of dislocations but the truth is this: none of the damages wrought by the two other arms of government would be anything near what would befall society if the Judiciary for any reason whatsoever caves in. David Ludington captured the essence of the Judiciary vividly when he said: «The rule of law and independence of the judiciary underpins our democracy and lie at the heart of our way of life – they are the very cornerstone of our freedom. It is foundation for sound governance with a hold on our daily activities and the freedom of the human element. 

   The statement captures adequately why it would seem now and then the Judiciary more than the other arms of government comes under our critical reviews. The Judiciary should be scrutinized; that much many agree. The number is huge indeed, but it should never be subjected to abuse and denigration. Many of us agree to this position too. This approach won›t serve any good purpose. It will rather expose everyone to far greater threats, especially now the economic fortunes of our country isn›t looking good at all. We all know closed economic space throws up more deviant population. So at a time like we are in, we need a solid Judiciary, equipped to live up to her responsibilities. One point ought to be made very clear and in support of the Judiciary, and that point is that our Judiciary has been the most distinquished of the three arms of government since independence.

They have given very imaginative services to the country until very recently, when distortions introduced by the military after stepping into power began taking a toll on the revered institution. The Military enacted decrees that were anti-civil procedures, the selection procedure of judges is one that has thrown down excellence in this strategic arm of government. Forget the superficiality we see, there is still deep political influence in the processes leading to appointment of Judges and Justices. Taking political cases to courts in the number we do hasn›t helped the image of the Judiciary at all; there would have been far less post-election conflicts and petitions if military that stayed longer in power had bequeathed the country with an electoral umpire that was established along professional lines, where officers run careers and could go to jail for electoral malfeasance. Instead, they gave the country a partisan body in guise of an independent electoral entity. It is difficult for our electoral body to be independent when a the President, a product of intense political partisanship is the nominating and appointing authority. This is the burden we have passed on to the Judiciary which has not quite excelled in the task. Duration and nature of actual verdicts on some matters have been serious matters to the citizens. There is also abuse of ex parte motions and courts of equal powers taking a go at same issues, same time. This is election season and recourse to election tribunals over post-election matters has once again placed the Judiciary on the front burner. The heat is obviously on.  

Last Monday, the Appeal Court sitting as presidential election tribunal of first instance came through with a verdict that has raised curiosity when it rejected live coverage of the her proceedings. The verdict sent out shockwaves especially for those who could fathom the consequences of such positioning. It made so many people to begin to ask different questions. Can it be our Judiciary truly understands the challenges facing the country? If they do, do they know they are part of the solution? Are they conversant with the term democracy? Isn›t it clear to them that the crux of democracy in fact what makes democracy the star of governance is that it gives opportunity for mass participation by the people in their affairs, especially how they are governed. Cardinal in governance process is leadership choices, elected or selected. Letʼs begin from the decision. Here is the judges position..the request to have live coverage lacks merit on account that, “no regulatory framework or policy directioon permitted it to grant such an application, allowing cameras in court rooms was a major Judiciary policy which must be supported by law.

Practice direction and procedure approved by the President of Court of Appeal does not include this. We cannot permit a situation that may lead to the dramatization of our proceedings, request was not part of claim by the petitioners rather product of sentiment.” When any keen observer takes the reasons and subjects them to critical review and history of jurisprudence from more civilized climes even at our level of development in their times you have no choice but wonder at what we do here. When the judges described a litigant’s demand as infantile (not their exact but deductible from their position) branding it “product of sentiment”, they have invariably entered the arena.

   It is indicative of a mindset something near saying «these guys are meddlesome in pursuit.» Correct face of justice would have noted the genuiness of the request and pleaded that it be deferred for the near future. This would have made so much that path the judges chose to walk, a very lonely old one already overgrown with weeds. More pathetic would be their position that no law currently provides for live coverage of trials. This position would make some us wonder at the kind of legal training some of appointees to the bench receive. To begin with, the Appeal Court Rules Book of 2021 under Order 21 clearly provides for VIRTUAL HEARING. Articles 1 & 2 say so and it is reproduced «1 the court may conduct its proceedings virtually where it deems fit. 2 virtual hearing shall be by means of any platform approved by the court and a link will be provided to enable the public observe the proceedings.»

   They didn›t see this and more dangerously never felt or rather never knew or thought the course of democratic growth would be better served if they took actions and set judicial landmarks which would deepen the citizens participation in the democratic processes, especially in those ones that relate to leadership recruitment and actual day to day governance. Throwing away the request on account of possible sensationalism and dramatization of proceedings is a great disservice to the growth and proper location of the third arm of government, the Judiciary, to the people and the country. That statement symbolized retardation and a movement back towards the primitive times.

    In this 21st century we all watch more serious trials live on television across the world. In Africa we just saw Kenyans thrashing their post-presidential election petitions on live television and hell never broke loose in that country, neither did the airing amount to travesty of justice. Rather, all the citizens and other interested parties worldwide followed the proceedings and in the end many of us agreed the course of justice was substantially served. The open proceedings averted what would have amounted to high level breakdown of law and order in Kenya.

    By even showing inability to break new positive grounds our Honourable Justices ended up casting a dent on the image of the Judiciary. They depicted judges as victims of regimentation and this is a trend we must resist, because allowing it to grow and fester would have very dire consequences for open process, institutionalization of democratic principles and more importantly our freedom. Slavery was still on and very much legalised, constitutionally so, it was the backbone of American economy yet progressive but very courageous Judges rose up to be counted, when it mattered most even though the matter was weighty and no law in existence to tackle the menace. Through well reasoned out judicial pronouncements they brought laws that assisted men and women of goodwill to destroy the inhuman trade on humans. This is the right way to go. It is important to know most of America›s laws are not entirely from the work of the legislature, most of them came via judicial activism and progressive leaning of courageous judges who knew the future everyone likes talking about is created today. 

  True justice is not only about the letters of the law, it could be about law and then perspectives, about of circumstance and situations, it can be also about philosophy, culture and predictable future. Political leaders have learnt to bastardise processes and subvert institutions just to take advantage. It is a chief reason the country is on the precipice. They do all that and tell victims “go to court.” The thinking has been nothing will come out of it. Our Judges should begin to show that good conduct is rewarding to all. Culture of accountability builds discipline. 

It has also become a pattern to see Judges and Justices  shuffled about in times and manners not salutary. The recent examples in the Supreme Court weren’t palatable. Many times too the outcome of many cases seem to promote brazeness. Recall “Supreme Court Governor.” These may look harmless on the surface but if truth be told they do us incalculable damages. They bring us ruins and pains and try to bend pillars on which the foundation of country is laid. This is why far majority believe change in the Judiciary should happen now before it could become too late. The position of the Presidential Election Tribunal didn’t do us well. It takes us backwards. They should have cast their lot in favour of modernity. Even the merit of the case at hand would have been helped by public participation as we saw in Kenya. Our judges and Justices should know time has come when they should fall in line with modern dictates and development. This is the edge of technology and openness. We become laughing stock when our choices pepetuate our stay in dark age. We cause immeasurable harm to ourselves.