Considering the depleting number of justices of the Supreme Court, some Nigerians are advocating appointment of practicing senior lawyers direct to the Supreme Court bench, what is your view on this?
Many of us commended that initiative because we have had period in our history when we saw very senior and erudite private practitioners brought to the Supreme Court Bench. Teslim Elias ended up from being the Attorney General to the Dean of Law to becoming Chief Justices of Nigeria at a point. Dr. Augustine Nnamani was an erudite Senior Advocate and was exemplary in the Bench. We have also seen the likes of Niki Tobi, who was the Dean of Law Faculty from the University of Maiduguri. So, the value and contributions of experience, credible, intelligent and distinguished private practitioner’s to the bench is inestimable, and they are very obvious in our history.
So, when the CJN then announced the possibility of adopting such, we saw that senior lawyers like Olisa Agbakoba and few others such as Awa Kalu were reported to have indicated interest and had applied. We know that there was a push back by career judges because of the problem of promotion from the Court of Appeal to the Supreme Court. Judges from the high court have the expectations to go to the Court of Appeal and those at the Appeal Court also have the expectation to go to the Supreme Court. And when judges go through the rank, from the entry court, such as the current CJN, from the Sharia Court to the Supreme Court, they feel a sense of obligation to their brother judges at the lower bench to give them career paths to Supreme Court. So, that is probably what is stopping that innovative initiative from taking place.
In countries such as the US, whose constitutional model we practice and where the President from the Executive Branch of government has direct role to play in appointing judges, you wouldn’t have that kind of problem but here, the NJC takes the responsibility to nominate the appointment into these higher benches of the judiciary and the implication is that you will have some degree of reluctance to allow distinguished, capable, private practitioners or academics entre via their private paths rather than cutting their teeth on the bench. There is this believe that those outsiders don’t belong. I will guess that we are witnessing a push back from the institutional force of the judiciary who are trying to keep the job for their colleagues who have also paid their dues and gone through the hardship of judging at the lower bench.
Supposing their fear is that the private practitioners have not garnered enough experience acquired through the process of the entry court, will you buy into their fear?
This is the debate we used to have when I was a Special Adviser in the Ministry of Foreign Affairs – the difference between Career Diplomat and the Academics. The idea in Nigeria is that these guys who are coming from the academia are not trained foreign policy career officers. The diplomatees are those practices you learn – social norms and social graces. So, obviously, a judge appointed straight from private practice may not be conversant with judicial crafts in that sense like a judge who has come from the magistrate court to the high court and to the Court of Appeal and down to the Supreme Court. That is a possibility but the question is, how about erudition? Does erudition necessarily go with being on the bench? Well, you can argue that; maybe some good judges who grow through the bench will acquire what we call judicial temper. Other things being equal, a judge who has gone through the process will acquire more judicial temper than a judge who is coming as an academic or a private practitioner. That is the social grace of being a judge – the way they compose themselves and the way they smile. But erudition is about knowing the law and applying it to cases.
Understanding the jurisprudence of law is not a monopoly of judges who have been sitting in judicial craft and that is why at the level of the appellate court and the Supreme Court, judicial activities become more intellectual, jurisprudential and policy-oriented. So, judges at the Supreme Court hierarchy are not going to be listening to evidence. Therefore, those judicial crafts and distinguishing traits you see at the lower bench may not be required. It does not mean that a new entrance into the bench will not have to learn the rope somehow in terms of judicial norms but it means that you are also adding a judicial value of somebody who has the intellectual capacity and who probably have a better understanding and brilliance than somebody in the bench. For example, private practitioners who have established himself in certain areas of practice such as public law experts, maritime experts, social and administrative law experts, when they come to the bench, they come with some specializations that might not be available to a career judge. You will then have much law when you have people from private practice to the appellate court.
When you talk about special traits and judicial temper, one can also argue that these senior lawyers come to courts and would have acquired such special traits in the course of defending their clients.
Yes. In a way, you cannot distinguish between the temperament of a senior lawyer, properly trained and who has the right ethics and that of a judge, who is also properly trained. It all depends on where you occupy because lawyers are advocates. So, there are some degrees of aggression, some degree of vehement is expected of a lawyer defending his client but when they become a judge, some degree of non-interference, impartiality and some ‘perceivity’, if you like, become the rule. So, senior lawyers are able to understand the role that they are able to shift quickly from being an advocate and aggressive lawyer to a judge who is patient, evaluating and who is perceptive.
Now, we have 13 justices at the Supreme Court bench as against 21 stipulated by law. Is it that we lack experienced manpower to serve at the apex court bench? What in your view is dragging the process and what are the likely implications?
First, the Nigerian system of appointment of judges from the Court of Appeal to the Supreme Court is even strange. In the US, you don’t have that number of justices. There are about nine justices of the Supreme Court because the work the US Supreme Court does is less than the work that Nigerian Supreme Court does. Nigerian Supreme Court saddled justices with greater responsibilities because of its flawed procedure and its failed jurisprudence. The Supreme Court continues to take cases they should not take and because maybe the original interpretation of our constitutional provision has burdened the court. So, we have a constitution that has spelt out in detail, the workings of the judicial arm, which is wrong compared to American constitution that bestows jurisdiction on the Supreme Court.
So, what has happened is that the Supreme Court has been denied some degree of control over its dockets that policy courts elsewhere have. It is burdened and that is why the failure to have a complete number now looks like a big issue. So, first is the constitutional problem. The Supreme Court is being made to be like a retail court, doing what it should not do because it lacks the decisiveness to throw away cases and of course, shut doors to some persons because the constitution has spelt out in too much details, what it should do. The right of appeal and all those provisions are unnecessary because it makes it easy for everyone to come to the Supreme Court. The Supreme Court spends three months to look at a case only to discover that the case is useless and it shouldn’t have come up. And why does the Supreme Court take such cases? It is because the constitution has granted right to appeal as of right to different kinds of situations.
Second is the fact that these vacancies and gaps grow over time. Why are we not having the maximum number? The Constitution says to the maximum of 21 but it is still constitutional to have less than 21 justices at the Supreme Court bench but the question is; should we fill up the bench? Maybe ‘yes’, so that we can have multiplicity of panels dealing with matters such as all these cases coming from states since we have over “judicialised” our elections to the extent that there is no certainty about who gets elected until the Supreme Court says so. After the election, 36 states of the federation went to the Supreme Court. The implication is that the Supreme Court needs to have multiple panels to decide these matters. If they have a full house, they will probably have more and more panels and the burden will reduce.
Also, the cases of seeming or real conflict of interest, the CJN will have more leeway to constitute a panel. It is possible to have almost half of the existing number tainted with one kind of conflict of interest situation, in which case, you will not have difficulty composing a truly objective panel. I think that is an argument in support of composing the Supreme Court to its maximum strength but then, the real issue is that we need to focus more on structural forms of the Supreme Court. For me, it is more jurisprudential, procedural than the idea of multiplying or regionalising the Supreme Court. I think we need to scale back from stipulating by law or creating too many rights to go to the Supreme Court. The Supreme Court should be given the power to table what matters it takes and it should be based on coherent jurisprudence that focuses on cases and controversies that require Supreme Court determination. Again, the Supreme Court is also suffering from lack of tender capacity unlike in the US where the court is a guarantor or the underwriter of constitutionalism. There, the Supreme Court has access to smartest people working as interns, working as clerks.
Most of the professors in the US or top lawyers in government in the US clerked at one time. Also, as people are graduating from the universities with law degrees in the US system; they are already over familiar with cases. The method of learning is case matters, which means that students are kept through the cases and when these students who are first class students go to judges to be clerked, they take the responsibility of helping the judges. Even though those judges in the US are also first class judges, they are now coupled with first class brains helping them sight policy decisions in the various cases they encounter. Here in Nigeria, the judges themselves are not very smart, not really brilliant; then they are saddled with very unintelligent backroom staff in terms of registrars and so on. There is lack of digital and technical support and brain-power is very low. It means that the Supreme Court will underperform. Even if you back it up with 22 justices, it will not bring about the real reforms. The real reform has to do with revamping the jurisprudence and procedure for the Supreme Court and allowing it to be a court where justices take full control of the proceedings instead of allowing litigants to flood the court with frivolous cases.
What other reforms would you recommend for the judiciary?
I have made it very clear that we cannot continue to deceive ourselves that the judges are what we were told they are. The legal formalism presents a case of judges as people who are perceptional, who have integrity. Today, we now know that judges are like all of us. They are imbedded in our corruption, they are inherent in our society and as such, they are as corrupt as we are; bias, politicized, dependent and compromised as other arms of government. The judiciary today in Nigeria has been politicized, intimidated, frightened and perhaps, summed up by the political machine. What that means is that we should not be thinking in idealistic and naïve sense of a judge who cannot be reached or compromised.
We should see judges as first, people who are part of the society, they are subject to the same influences and crises of value and therefore, we should design accountability framework, engage the judges from the point of view of scrutinizing them, scrutinizing their decisions, their affiliations and their engagements, and holding them accountable the same way we hold political office holders to say what I call the ‘political responsibility theory of the judiciary’ – that the judiciary as a political branch of government must be held accountable as to whether it is performing its duties. The idea that judges have decided and therefore, we should all go to sleep is no longer valid. The judges have to be held to explain, to show that they are making decisions based on the normative framework of their position.
There are certain basic constitutional values of the judiciary. So, each time, we should scrutinize the judiciary the same way we force political office holders to account within the normative framework of their rules. We should develop the capacity and commitment to hold judges accountable. They are no longer the classical measure of the judge presumed to above board, presumed not to be affected by all the conflicts going on – moral conflicts, political conflicts, financial conflicts and economic conflicts going on in Nigeria. Today’s judge in Nigerian is a Nigerian citizen, who is caught up in a middle of all the conflicts and therefore, I posit that the proper approach to judges is respect, reverence and accountability. Demand that they prove and justify the position they occupy.
Holding the above view and looking at the Nigerian situation, who do you think will police the judiciary? Particularly when you consider the fact that it has allegedly become the appendage of the executive. Do you think it is going to be possible to hold these judicial officers accountable?
We are gradually getting there. You can see, for the first time in the case of Imo State, how the political actors have taken to the street to castigate the justices of the Supreme Court. The justices are not questioned in the classroom or by analysts but by politicians, who went as far as street protest. This is the first time in the history of Nigeria that the political party and its supporters feel obliged, that it is a national duty to protest on the street against the decision of Supreme Court. What that tells you is that we are coming to the political responsibility theory. These people are no longer operating on the illusion that judges are removed from these crises of value that we are in. It is clear now to political analysts or observers that the notion of the judge as an independent wise guardian of the constitution, wisdom and morality has been deconstructed. The very tragic poor performance of the judiciary in the past four years in particular, has totally taken away the illusion of a Pretorian Guard. It has taken away the illusion of a divinity both of reason and character.
The point there is that Justice Walter Onnoghen’s gangster-like removal was the biggest daylight Mafioso operation against the judiciary. The recklessness, the lawlessness and the criminality of the administrative judge to issue ex-parte order to the former CJN was the day Nigerian judiciary collapsed. The Nigerian judiciary is as a matter of fact, dead. If anybody had told me that an administrative judge, a level 14 officer, who is answerable to the President could issue an ex-parte order, suspending a CJN, I would not believe it. So, from that day going forward, the failure of the Supreme Court justices to say that this is wrong and the ease with which they quickly replaced the fallen hero or valiant, the very tepid response of the NJC all point to the fact that the judiciary has lost that protective shell.
So, henceforth, we now wear our lenses to look at every judgment to see if they have acted wrongly or have acted politically. We have not come to a point where we believe that judges are acting in their judicial function and morality, which is independence and fearlessness. They make mistakes but these are mistakes of reasoning, which we as litigants and citizens will accept as some of the deficiencies of our system but today, we are looking for the mistakes of deliberate falsehood, deliberate mischief counseled by political or financial power. Once the judiciary has come to that level, then, it has lost that protective shell and now, the doctrine of popular accountability comes in. People will now say that since ‘you are another branch of government, we will hold you accountable. The same way we protest against the legislature and the executive, we will protest against you.’ We now enter the mode of political doctrine of the judiciary. The judiciary is the political branch of government and it has to justify or defend what it has done politically.
Are we now saying that by this doctrine of political judiciary, the judiciary is no longer perceived as the last hope of the common man?
That is a difficult question to answer. Is it really the last hope of the common man? Maybe it is the last hope of the common man who keeps his eyes open and is ready to ask questions. The common man goes to sleep in the previous theory of the judicial craft in Nigeria. He is sleeping that the wise, old and unbendable man is watching over him to protect him. These days, the common man will open his eyes and ask, ‘are you still there, are you fighting for me or have they compromised you? So, the judiciary is the last hope of the common man to the extent that the common man himself is to fight for his own survival and not assume that the judiciary is fighting for him.
There is this common notion that with the state of Nigerian judiciary, the younger generations are no longer interested or enthusiastic about studying law in the university. How true is this?
I think there is also loss of interest in law as an instrument of social and political justice. Many people are studying law as long as it will afford them a meal ticket, especially now that election cases have become the oil of legal practice. But primarily, there is a loss of interest, loss of trust and reputation. Of course, the attraction of law has lessened significantly these days. Even the law students themselves are not too proud of themselves anymore and who will be proud with the Imo verdict that has shaken the foundation of confidence in the judiciary and what the law profession is.
On the Security situation, the South West is gradually endorsing Amotekun and other regions are also warming up to launch theirs. In your view, is this the way to go?
I am against regional security. It is a vote of no confidence on the Nigerian state. As people believe, Amotekun is a vote for regionalism no matter how much it is masked. It is a statement of failure of national security. A country should have one strong, efficient, universal and nationalist police force. What that means is that you may have state police, community police but each of those police is a national police. What Amotekun and all these other ones suggest is what I call ethnic police.
I think it is totally a way of saying that the security apparatus of the nation has failed. In the last two, three years, the cry has been heavy that the Nigerian Police Force and the Nigeria security agencies have been ethnicised. Somebody as highly placed as General T.Y Danjuma once said that Nigerian army is in the farmer/headers conflict, in a war of ethnic cleansing. The general perception Nigerians have is that out of omission or commission, Nigerian government has created an impression that Nigerian Police force and Nigerian security agencies are under the control of some ethnic champions. Therefore, the objectivity, the professionalism, the power of state to act autonomously has failed.
The state is now under the captivity of an ethnic class. The Nigerian state is a captive, it is a weak state, even a failed state because it lacks that autonomy to act, not being procured at the instance of any ethnic, religious or economic group. How about the man that bombed the church in Madalla on a Christmas day, Kabiru Sokoto? The story is that he has been released. How about the guy who killed the Apo six? So, country whose police force is incapable of acting dis-interestingly and neutrally creates Amotekun basically. So, Amotekun is justified. It is regrettable though but justifiable because it fills a void. The Nigerian state has been hallowed out of secular, neutral authority objective to act to protect its citizens and police its borders. So, Amotekun is structured after regionalism and it is a failure of the country Nigeria.