By Hope O’Rukevbe Eghagha
If the title of my essay sounds scandalous it is because we live in frightening and scandalous times, with barriers blurred, lifted or abolished. Sadly, this disrespect for sound values permeates all segments of society. Taboos are, have become old hat, old school. Codes of social engagement regulating societal behaviour have been jettisoned. The judiciary has been both a beneficiary and victim of this disappearance of settled norms and conventions. That’s the reason we find some judges doing ‘show body’ on social media!
My thesis statement is that any society which politicises its judicial system is on a free-fall into the chasm of perdition and total annihilation. It may take decades. But the consequences of politicizing the judicial system are dire. The full consequence may not be totally felt in our life time, though we are witnessing bits of it. The judiciary should not be a haven for small-minded persons and petty thieves who do not have a global view of their assignments and to whom the notion of the common good does not exist.
The original intention of justice was that it must be devoid of politics and politicking. For, justice was designed, conceived and expected to uphold the ideals of society, based on sound morals and ethics which would be above private or individual interests. Justice was designed for the common good and the ultimate triumph of good over evil, with the judges standing in place of God to adjudicate on matters between persons and between citizens and the state.
The blind lady whose scales remained balanced saw justice from one prism- the law is the law, no matter whose ox is gored. Judges were expected to be above board. The rule of law became synonymous with, became fundamental to building an egalitarian society, which invariably was guaranteed by democratic culture and practice. To ensure the independence of the judiciary, the three arms of government were separated under the la
In the early years, the separation was both in theory and practice. These days, it is merely theoretical. The art of politics and politicking has nibbled deeply into the realms of the judiciary.
Politics and politicking accommodated negotiations and sometimes outright distortions of the true picture. The saying among politicians that ‘with the proper arrangements, the devil can see God’, underlies, shapes and determines their approach to the ideals and practice of justice. White could become black and 2+2 could be 4 or 5 or 6! A crowd or gang of people with this mindset cannot uphold the principles of fairness, equity, and justice. Justice, ‘the principle or ideal of just dealing or right action, righteousness,’ often conflicted with politics, which is ‘the activities associated with the governance of a country or area, especially on how to acquire power’.
It is for the reason of this eternal and perpetual conflict, that a wall was created by the Constitution to guide the people who are entrusted with holding the reins of power in the different realms of governance. But it is important to state that we need men of character to head these institutions else the strong men in the executive arm of government would inevitably twist their way into the power realms of the judiciary. It has come to be that while men of character remained in the judiciary, men with little or no character talked their way into the executive arm of government. Because they were placed in a position to appoint persons into the judicial arm of government, it was only a question of time that the quality and character of men in the judiciary would be compromised.
Nowhere has this conflict of interest been palpably felt more than in the United States of America. In the broadest sense of politics, all jurisdictions have been influenced willy-nilly by political considerations. Personal views now influence how verdicts are given. The law is no longer the law. At least, that is how we neophytes in the matters of the law see it. A judge who is pro-environment would be expected to knock down any legislation that could affect the weather. A judge who is pro-life will always stand for the rights of women to abortion.
The last one hundred years have tested the tenacity of the institutions which are constitutionally mandated to protect the ideals of justice. In the free world, the claim had always been that the rules of engagement have been established, settled, defined and accepted. But we are not sure anymore.
In the Third World countries, the 20th century which gave African countries independence from colonial overlords, also produced military adventurers who showed little patience with the supposed niceties of democracy. They intervened violently, sacked democratically elected governments, suspended the legislature, abridged the power of the judiciary and proclaimed the absolute power of the executive arm of government. That proclamation and tradition have remained etched in the mindset of most African rulers.
In Nigeria, the executive branch feels and acts like a senior partner among the three branches. This is because the executive branch is the treasurer of the nation. We also live in a fluid environment where the social vagaries make beggars of persons who are outside the corridors of power. Writing about this challenge in America, Andrew Breiner observed that ‘traditional ideas of law hold that judges and justices make decisions based on a dispassionate application of the law to the facts at hand, with no regard for the political ramifications of that decision’. He adds that while justices may see themselves as being neutral, we now see them ‘as politicians, as political actors who want to shape the world to match an ideology, and who use law as a tool to achieve that goal’. How does this new definition of justice serve the ends of justice?
To be sure, once justice is politicised, it is no longer justice. It is a travesty. It is the road to placing criminals on the seat of power. Judges must ensure that justice is done, and be seen to be done. If in the end the system collapses, there will be no society for both the politician and judicial officers.