By Chidi Anselm Odinkalu, Ph.D. (London-LSE), Professor of Practice, Fletcher School of Law & Diplomacy, Medford, Massachusetts; is Chairman, Truth, Justice and Peace Commission, Anambra State; Chair, Board of Trustees, International Refugee Rights Initiative (IRRI); Chair, Board of Directors, Global Rights; International Advisory Board, Physicians for Human Rights (IRRI); He delivered this as Alao Aka-Basorun Lecture of the Nigerian Bar Association, Ikeja on June 15, 2023. The views and opinions contained herein are personal to the author.

Go to Court can also be hubris of judicial capture and corruption. As I have said elsewhere: “Nigeria’s judiciary appears deep in the throes of being reshaped as an estate defined by filial and genital relations to facilitate transactions for political power. This is called judicial capture. As judges now have the casting vote in Nigeria’s elections, ambitious politicians have decided they must own the judges.

Judicial capture occurs through both decisions and omissions by and beyond the judiciary.” The point about judicial capture is that it does not pretend to put the institutions of the judiciary to any transcendental or societal goals. The entire goal of the office of the judge is creating and sustaining an incest of power. This is why leading politicians and judicial figures will insist on making their spouses, mistresses, children or family members’ judges. This is also why state governors will ensure that all judges who serve in their territories are given choice properties and other dispositions which they do not habitually declare.

The underlying narrative of judicial capture, as I have also suggested, is that “in Nigeria judicial skill and temperament naturally resides mostly in the bedrooms of politicians (and their judicial allies).” Quite clearly, this does not stand up to scrutiny, but that has not stopped an incest of senior lawyers, judges, and politicians at the highest levels in Nigeria from promoting it.

To be sure, the erosion of the credibility of Nigeria’s legal profession and judiciary may have plumbed new depths in recent times but the crisis of confidence arising from perceptions of judicial partisanships, especially in the political context of election disputes, has a much longer history. In its 1986 report, the Judicial Commission of Inquiry into the Affairs of the then Federal Electoral Commission (FEDECO) between 1979-1983, which was chaired by former Supreme Court Justice, Bolarinwa Babalakin, noted with reference to election petitions that followed the 1983 general elections that:

As the verdicts began to be pronounced, the general public often expressed shock and dismay. Some commentators in the nation’s newspapers took the view that the verdicts in a number of instances constituted a rape of democracy perpetrated through the law courts. Allegations of corruption in high places were freely made.

Following the 2003 and 2007 elections, Professor Obi Nwabueze, SAN, accused the Supreme Court, no less, of playing a “discreditable part” in manufacturing a jurisprudence of electoral impunity for the country. In particular, he laments the failure by “the Supreme Court to appreciate that the question of who should rule Nigeria is not one to be decided by a perverse and narrow legalism, by the technicalities of the rules of evidence, practice and procedure and by considerations of expediency.”

This jurisprudence of electoral impunity has created a system of mutual benefit between judges and politicians to the exclusion of voters. Under Nigeria’s constitution, According to S.14(2)(a) of Nigeria’s 1999 Constitution, “sovereignty belongs to the people of Nigeria from whom government through this Constitution derives all its powers and authority.” Article 21(3)26 Id27 Federal Republic of Nigeria,

The Universal Declaration of Human Rights affirms that “the will of the people shall be the basis of the authority of government; this shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.” Similarly, Article 13(1) of the African Charter on Human and Peoples’ Rights declares: “Every citizen shall have the right to participate freely in the government of his country, either directly or through freely chosen representatives.”

Yet, in Nigeria, the real deciders of who gets to win or lose an election is no longer the voter but the judge. This judicial expropriation under cover of the law of rule (not rule of law) of a right that only belongs to the voter, ensures that the politicians no longer focus on persuading the voter through campaigns and manifestoes. Instead, they target the judges through focused campaigns of corruption and capture, which are profitable for the judge who in turn use their office to ensure the politicians of their choice get the spoils of office. When the politician gets into office, he has an incentive to ensure that only persons beholden to him get into high judicial office.

Profitable as adjudicating on elections and politics has become for him or her, the average Nigerian judge no longer has any incentive to sit on regular casework. The current reality is not merely that the Nigerian judiciary binges on party political cases, it is also that they assign priority to politicians over ordinary citizens, in so doing, encouraging the idea of a hierarchy of citizenship.30 If you are involved in a political case but not as a benefactor or client of the judge, you stand no chance of getting a fair shake. If your case is not political, you stand no chance of even being heard. Either way, “Go to Court” has become a short hand for telling the court user that they are involved in a futile pursuit. Meanwhile, these political cases have become chronic sites of execrable transactions in buying and selling judicial decisions. In 2020, the Independent Corrupt Practices Commission (ICPC), reported that “lawyers were mostly responsible for offering bribes for favourable judgments mostly in electoral and political matters.” According to the Commission, between 2018 and 2020, “11 out of the 123 judges surveyed, reported “Nigeria’s courts of unequal injustice and curious appointments”, experiencing offers or payment of N3.307 billion and N392.3 million as a bribe”, indicating that buying and selling judicial decisions is a highly profitable enterprise.The full-time preoccupation of our courts with political cases has produced two outcomes. First, cumulatively, it has become a drain on the intangible institutional assets of character, credibility, and impartiality which are the hallmark of the legal profession and the judiciary. Second, it guarantees politics as banditry. As Paul Collier explains:

If politicians can still face a reasonable chance of winning without bothering to deliver good performance, then….the sort of people who seek to become politicians will change.

If being honest and competent does not give you an electoral advantage, then the honest and competent will be discouraged. Crooks will replace the honest as candidates. …Evidently, one reason elected office is more attractive to criminals than to the honest is that only the criminals will take advantage of the opportunities for corruption. But there is a further reason: elected office provides immunity from prosecution.

Administering Justice Without Delivering It I draw a distinction between the administration of justice and the delivery of justice. So many instances occur daily across the country in which citizens who go the institutions seeking justice encounter institutions or actors interested more in the administration of justice but not in its delivery. Operators of the system, as lawyers, magistrates, law enforcement personnel, bailiffs, judges among others, deliberately build in dysfunctions into the process as revenue streams in an esoteric transaction, creating appearances of being involved in the serious business of administering justice while clearly not interested in delivering it. In reality, this is more appropriately called “Administration of the Law”. So, it is well possible to administer the law in a way that frustrates justice just as these days many of our courts produce judgment without pretending to deliver justice.

This naturally has brought the system, processes and institutions of the justice sector into disrepute with the result that most citizens and court users are now more interested and invested in seeking extra-judicial than in judicial dispute resolution. This has in turn enabled vigilantism, self-help and jungle justice, enhancing insecurity and violence around the country.

I want to suggest that this gap between justice administration as a transaction and justice delivery as fulfilment of a service compact is at the heart of the hubris of “Go to Court”. It is also about twin failures of civic virtue and professional ethics. Surely, if every actor in the justice system is going through the motions for the sake of profiting the pockets, achieving optimal subsistence or impressing a political god-father, then there is no one actually interested in the real challenge of delivering justice. This is arguably where we are with litigants guaranteed to be stuck in court for decades unless they are politicians involved in judicialising partisan disputes.

As the courts and justice system have become captured by the politicians and their disputes, any synergies in the system now exist to service this narrow tribe of the well off and higher ups.

Speaking about civic virtue, I should point out that a failure of ethics is not an absence of skill or knowledge but of character, formation, and socialisation. Immanuel Kant called this “mother-wit”, a quality of deliberate and sound character which, if lacking, “no school can make good”, and explained how without this “[a] physician, a judge, or a ruler may have at command many excellent pathological, legal or political rules even to the degree that he may become a profound teacher of them, and yet, none the less, may easily stumble in their application. For, although admirable in understanding, he may be wanting in natural power of judgement.”

Essentially, there has to be more to the justice system than merely the private profit motive or transaction of its operators. It was with this in mind that Anthony Kronman chose to describe the outstanding lawyer as: a devoted citizen. He cares about the public good and is prepared to sacrifice his own well-being for it, unlike those who use the law merely to advance their private ends.

…He is distinguished, too, by his special talent for discovering where the public good lies and for fashioning those arrangements needed to secure it. This is the kind of lawyer that Alao Aka Basorun was – the lawyer who embodied ideals bigger than their private pockets. It is no accident that the legal profession was highly regarded in his time and many of the current practitioners of the profession probably chose that vocation because of the footprints of these men. The question we may wish to ask today is: how many of the people watching any of us today would wish to become a lawyer because of who we are or what we do?

CONCLUSION The theme for this Law Week calls for considerable introspection by vocations more used to claiming exceptionalisms, insularity, and navel gazing. A departure from these would be welcome and there could be no better time than now. Our default positions have endangered both our vocations and our country, putting the essential undertaking of justice delivery at risk through an emphasis of administration of the law that ends up frustrating justice rather than delivering it. The consequences of this proclivity have become too obvious for any of us not to notice.

I do not pretend to have any magic answers or recommendations out of this situation or how better to achieve synergy. As I have attempted to suggest here, the pursuit of synergy can only make sense if it addresses the larger and deeper challenge of ensuring effective delivery of justice because it is possible to have synergy in undermining the delivery of justice and that kind of synergy is not desirable.

If we are going to achieve the desirable kind of departure from the perverse incentives that now rule the profession, then we have to all commit to building a different kind of justice delivery system. Training is not enough; effective compliance culture is needed. That needs a different approach to judicial appointments and leadership. In its 2006 report on integrity and capacity in the justice system in Nigeria, the United Nations Office of Drug and Crime (UNODC), concludes among other things that “both the perceptions and experience of the quality of justice delivery can be improved by reducing the importance of political connections and enhancing meritocracy in recruitment, hiring, retention, promotion, retirement and the overall management of staff.” Achieving this will require adaptations in the institutional roles involved presently in judicial appointments. It is essential to recall that judicial appointments are the only one in which all three branches of government are actively involved. Ordinarily, the judiciary originates the nominations, parliament confirms and the executive appoints. In Nigeria currently, the role of the judiciary has become largely surrendered by the judiciary to the political branches in return for patronage.

There is no chance of eliminating patronage as a feature of judicial appointments and decision making in Nigeria if the system continues to be beholden as it currently is to the person and office of the Chief Justice of Nigeria (CJN). The CJN has increasingly become the alter-ego of the judiciary. The occupant of the office is arguably the most powerful person in the country.

She heads the National Judicial Council, the Federal Judicial Service Commission, the board of the National Judicial Institute, the Legal Practitioners Privileges Committee, and the Supreme Court. This is too much power to conflate in one person and reform of Nigeria’s judicial system must begin with unbundling the office of the CJN and also making the NJC more accountable to more than just the CJN (who happens also to be its chair). The NJC must become something more than a statutory shrine to the patronage networks and caprice of incumbent CJNs. This requires a de-concentration of the powers and roles of the NJC. There is good reason why the NJC read back-to-front translates into the CJN: S/he chairs the Council and appoints 19 of its 23 members. In a hierarchical system like the judiciary, this guarantees that the Chief Justice owns the NJC. The mechanisms of the Council broke down in 2011 when its two most powerful members, the then CJN and the President of the Court of Appeal, (PCA), went public with allegations against one another of procuring political interference in judgments. The same thing happened again in 2019 with allegations against another incumbent CJN. On both occasions, the opportunity was missed to reform the NJC. That cannot much continue.

The roles of appointment, promotion, discipline, training and appellate control of lower courts cannot justifiably all be located in one person and office. The realignment of these roles will require constitutional amendment, and will take time. It will also be resisted by incumbent CJNs, who may even be able to lubricate politicians against undertaking it. It should be evident, however, that, quite apart from the clear conflicts and contradictions between the multiple roles of the CJN, no one person has the bandwidth to combine these roles effectively. The vast margin for natural slippage is what encourages the impunity gap that now threatens the very foundations of Nigeria’s judiciary.

In addition to un-bundling the offices and roles of the CJN and the NJC in the process of judicial recruitment, it is also essential to introduce the oxygen of competitive transparency into the process of judicial appointments. The process of appointing judges would benefit from competitive recruitment together with clarity as to the applicable criteria for recruitment and selection. The current tendency opacity encourages incest and insider-dealing which results in mostly unsuitable persons being preferred merely because of their propinquities rather than their skills, capacities, and integrity.

The consequence of the above is that standards of judicial integrity have bottomed out. This is evident from the trends in judicial indiscipline. Over two decades. From 2000 to 2020, the NJC received 919 complaints of judicial malefaction, out of which it disciplined the judges in 129 cases. 14.04% is a high strike rate, made much more significant by the fact that many of unsuccessful cases were declined on technical not substantive grounds. Of these 129, the NJC recommended compulsory retirement in 50 cases and dismissal in 19, suggesting that most of these were serious cases of corruption.

These abysmal levels of judicial accountability can only be worsened by the decision of the Court of Appeal in Nganjiwa v. FRN, effectively putting judges beyond reach of criminal law except with leave of the NJC or after the NJC has returned a verdict finding them guilty of judicial misconduct. This perverse decision has led to equally perverse trends of returning to the Bench judicial offers who have brought the judiciary into manifest disrepute.

Considerable investment in reform of the Supreme Court will be essential to de-congest its docket, limit the scope of cases that can work their way to the court and ensure that it ceases to become an institution that frustrates exit from the legal process. This may require constitutional amendment but, pending that, the Supreme Court should be able, if it so desired, to control its case docket through doctrinal adaptation. Its failure to do this is not a legal issue but a confession of failure of judicial will and imagination. A viable judicial system cannot for much longer tolerate such failure.

In the end, though, the biggest incentive for change may lie not in the courts and legislature, but in public opinion and an end to the tolerance of a regime of crooks and bandits holding sway over the norms, mores, and ethics of a country. This will require carefully calibrated schemes of both social reprobation for unsuitable people in judicial office as well as social recognition of upright ones. The example of the Ikeja Bar in honouring the right kind of people such as Alao Aka Basorun and Chief Gani Fawehinmi, can and should be socialized beyond the Ikeja Bar, not merely for the dead but also for the living. If we can get critical mass behind such an idea, then we can evince a future in which those who would dare you to “go to court” may pause at the likelihood that they may find fewer judges available to do their bidding.