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By Ndukwem Iroakazighi Ogwo
In every democratic society governed by the rule of law, the courts occupy a sacred position as protectors of citizens’ rights and guardians of constitutional order. Equally important, however, is the responsibility of law enforcement agencies to investigate crime, apprehend offenders, and ensure that justice is served. It is at the intersection of these two imperatives that an increasingly controversial legal phenomenon—preemptive litigation—has emerged in Nigeria.
Preemptive litigation refers to the practice whereby individuals or organisations approach the courts to restrain law enforcement agencies from carrying out anticipated arrests, investigations, interrogations, or prosecutions before such actions are taken. Although the Constitution guarantees every citizen the right to seek judicial protection against unlawful acts, the growing use of this legal strategy has raised serious concerns about its implications for the country’s criminal justice system.
The trend is not entirely new. Following Nigeria’s return to democratic rule in 1999, the judiciary rightly became more vigilant in protecting citizens from arbitrary arrests, unlawful detention, and abuse of executive power—excesses that were all too common during years of military rule. The courts consequently became a refuge for individuals whose constitutional rights were threatened.
Over time, however, what began as a constitutional safeguard has increasingly been invoked as a tactical instrument to forestall criminal investigations. Today, it is not uncommon for politically exposed persons, public office holders, and influential individuals facing allegations of corruption or financial misconduct to rush to court seeking injunctions that restrain investigative agencies from performing their statutory duties.
This development presents a difficult dilemma. Every Nigerian deserves protection from unlawful arrest, malicious prosecution, and politically motivated investigations. Yet, no democracy can effectively combat corruption, economic crimes, violent offences, or abuse of public office if investigative agencies are repeatedly prevented from carrying out lawful investigations.
The implications for criminal justice administration are significant.
First, preemptive litigation often delays investigations. Criminal investigations thrive on timely evidence gathering. Witnesses relocate, memories fade, documents disappear, and electronic evidence may be altered or destroyed when investigations are unnecessarily delayed by prolonged court proceedings.
Second, the practice weakens the fight against corruption. Agencies established to investigate financial crimes frequently find themselves defending civil suits instead of pursuing investigations. The diversion of institutional time and resources inevitably affects their operational effectiveness.
Third, the increasing resort to anticipatory court orders contributes to judicial congestion. Nigerian courts already face enormous case backlogs. Entertaining multiple interlocutory applications before criminal proceedings even commence places additional strain on an already overburdened judicial system.
Equally troubling is the public perception that justice operates differently depending on one’s social status. Ordinary Nigerians accused of relatively minor offences are often arrested, investigated, and arraigned within days. By contrast, influential individuals sometimes succeed in obtaining judicial orders that delay investigations for extended periods. Whether or not such perceptions are entirely accurate, they undermine public confidence in the principle that all citizens are equal before the law.
Several high-profile cases have brought this issue into public focus. Former Kano State Governor Abdullahi Ganduje sought judicial intervention at different stages of controversies surrounding allegations against him, arguing that investigative actions should be restrained pending the determination of legal questions before the courts. Similarly, litigation arising from political disputes involving Nyesom Wike, now Minister of the Federal Capital Territory, has demonstrated how pre-enforcement court actions have become increasingly intertwined with political and legal contests. While each case turns on its own facts and legal issues, they illustrate the broader tendency of influential figures to seek judicial intervention before investigative processes have fully run their course.
It must be emphasised that seeking judicial protection is not, in itself, improper. The Constitution guarantees access to the courts, and no citizen should be denied that right. The real concern arises when litigation is used primarily to frustrate lawful investigations rather than to remedy genuine violations of constitutional rights.
Fortunately, Nigeria’s appellate courts have increasingly recognised this distinction. Recent judicial pronouncements have emphasised that courts should be slow to restrain law enforcement agencies from performing statutory duties unless there is compelling evidence of bad faith, abuse of power, or clear constitutional violations. This evolving jurisprudence reflects an appreciation that the judiciary must protect rights without becoming an obstacle to legitimate criminal investigations.
Nevertheless, much work remains to be done. Investigative agencies must conduct their operations professionally, respecting constitutional safeguards and avoiding unnecessary media sensationalism or selective prosecution. Equally, courts should discourage abuse of judicial processes by refusing frivolous applications intended solely to delay investigations. Where abuse is established, substantial costs should be awarded against litigants who seek to manipulate the judicial system.
There is also a case for legislative refinement. While existing laws rightly preserve citizens’ fundamental rights, procedural reforms could reduce opportunities for forum shopping and discourage interlocutory applications that unnecessarily impede criminal investigations.
Ultimately, the challenge is not to choose between protecting civil liberties and fighting crime. A mature democracy requires both. Citizens must be secure from arbitrary state action, while the state must be empowered to investigate credible allegations of criminal conduct without undue interference.
Nigeria’s democracy will be strengthened when constitutional rights are protected without allowing those same rights to become instruments for frustrating accountability. The rule of law demands no less. Justice is best served when the innocent are protected, the guilty are fairly prosecuted, and neither executive power nor judicial process is abused.
The trajectory of preemptive litigation should therefore prompt sober reflection among judges, lawyers, policymakers, and citizens alike. The courts must remain a shield against injustice—but they should never become a sanctuary for impunity. Only by maintaining this delicate balance can Nigeria build a criminal justice system that commands public confidence and reinforces the ideals of constitutional democracy.
• Ogwo, is of Centre for Critical Thinking, Teaching and Learning, Nigerian Defence Academy, Kaduna ([email protected])
