By Chijioke Okoli (SAN)
It is obvious that some of the recent judgments of the Nigerian courts, especially the Supreme Court, in high profile political cases have generated understandable controversy. Understandable, because some seemingly settled principles of law have been made by the decisions to appear not so settled and also challenged many people’s sense of justice. It is equally not in doubt that some of the criticisms are beyond the pale, degenerating in some cases to personal vituperative attacks on individual judges. Some of the disagreements, especially by some lay persons, undoubtedly appear to have been disagreeably expressed.
Against this backdrop, the President of the Nigerian Bar Association (NBA) reportedly issued the misguided warning to lawyers criticizing the judgments that they would be subjected to disciplinary proceedings. There then followed the unprecedented move by the Supreme Court of recourse to a press statement joining issues with critics of its judgments. The Ben Nwabueze Center has thus felt the need for its present public intervention on this matter of critical importance to administration of justice, constitutional propriety and overall good sense in the public space. Perhaps all concerned may be better guided in future and avoid recurrence of the unedifying distracting public spectacles.
It is straightaway necessary, it does appear, that the Nigerian public and the legal community in particular need the reminder that criticism of judges has a long recorded history, at least since the biblical times. St. Paul in Acts of the Apostles (chapter 23, vs.3) trenchantly criticized the judges who subjected him to punishment for acting contrary to the law in his view, and unflatteringly lampooned them as “whited sepulchers”. Even judges are known to criticize themselves in their judgments, sometimes quite trenchantly. Lord Denning in frustration at his conservative predecessors and their ilk sitting with him on the case, and who were unwilling to toe his unabashedly liberal line, famously dismissed them as “timorous souls” in Candler v. Crane, Christmas [1951] 1 All ER 426. This was a fanciful way of calling them cowards. There were no hard feelings beyond the riposte from his brother justice on the panel, Asquith L.J., that he would bear the condemnation with all the fortitude he could command. Lord Denning was himself at the receiving end of Lord Simmonds ringing denunciation in Magor and St. Mellons RDC v. Newport Corp. [1952] A.C. 189 for engaging in “naked usurpation of legislation function under the thin guise of interpretation.”
The issue, however, is fundamental and goes beyond the rarefied intellectual climes of appellate court judgments and law journals, contrary to the suggestions of some people. Apart from the critical need for public accountability of all facets and institutions of the state apparatus, including the judiciary, criminalization of criticism of judges is not consistent with the fundamental right to freedom of expression enshrined in the Nigerian Constitution. The contrary suggestion is erroneous on many fronts. This position, from general principles, is so axiomatic as to not require validation by judicial authorities. Nonetheless, it may be useful out of abundance of caution to advert to juridical lodestars from other common law jurisdictions, especially United Kingdom and United States.
Lord Denning who was criticized as an “ass” after one of his judgments without countering with any threat illuminated the matter thus in R. v. Commissioner of Police [1968] 2 QB 150:
“Let me say at once that we will never use this jurisdiction to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us. We do not fear criticism, nor do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself. It is the right of everyman, in parliament or out of it, in the press or over the broadcast, to make fair comment, even outspoken comment, on matters of public interest. All that we ask is that those who criticize us should remember that, from the nature of our duties, we cannot reply to their criticism. We cannot enter into the public controversy. We must rely on our conduct itself to be its own vindication.”
Justice Frankfurter of the U.S. Supreme Court in Bridges v. California, 314 U.S. 252 [1941] had also insightfully observed that “Judges as persons, or courts as institutions, are entitled to no greater immunity from criticism than other persons or institutions. Just because the holders of judicial office are identified with interests of justice they may forget their common human frailties and fallibilities. There have sometimes been martinets upon the bench as there have also been pompous wielders of authority who have used the paraphernalia of power in support of what they called their dignity. Therefore judges must be kept mindful of their limitations and of their ultimate public responsibility by a vigorous stream of criticism expressed with candor however blunt.”
A military historian of the American Civil War made the point, in eulogizing the Confederate Supreme Commander General Robert E. Lee, that the greatest spiritual asset of an army is the belief of the ordinary soldier in the invincibility of the commanding general. For the Court which has neither arms nor soldiers at its behest, there is even a more absolutist need for spiritual strength; a moral authority, founded upon well nigh unshakeable conviction of not only lawyers but the general public that its essence is pursuit of justice. The same way war is too important to be left to generals alone, law and its effects are too important to be left for judges and lawyers only to contemplate and comment upon.
Indeed, administration of justice is a social good and of which the general public are the consumers. How could the consumers conceivably be denied an opinion on the product, especially one which they are forced to purchase in the circumstances? Lest we forget that the people of Imo State, and neighbouring Anambra State, are having to endure the consequences of an apparently deeply loathed politician occupying the position of Governor courtesy of a Supreme Court judgment. Can they justifiably be denied the right to criticism of the otherwise insufferable position they have been boxed into, and as has found expression in their denial of the occupier’s legitimacy with the cynical term “Supreme Court Governor”?
Truth be told, these consumers and their advisers have had cause for serious worry with the trend in the recent past. For many areas of law and procedure the Nigerian legal practitioner is routinely confronted with conflicting decisions of the superior courts, including the apex court. This makes the lawyers’ job almost impossible bearing in mind that in many significant ways the law, according to the legal philosopher Wendell Holmes, is nothing more pretentions than “the prophecies of what the courts will do in fact”. It is clear that there would be nothing short of crisis of the rule law if the Court becomes afflicted with recurring schizophrenia.
This state of affairs should worry more all concerned stakeholders especially the NBA whose motto is promotion of the rule of law. Aside the befuddling conflicting decisions of the apex court, there is its undue attachment to technicalities which is clearly at variance with the magisterial intellectual gravitas of such courts in other jurisdictions. It would for example be difficult for an intelligent lay person to understand the sense in the Supreme Court making a fetish of whether a court process was signed in the name of a person or a law firm, and nullifying otherwise meritorious cases notwithstanding that issues of life and death may be involved.
Adverting to the APC v. Machina case, one of the surprises is that some informed persons are apparently surprised that the populace was bestirred into raising pointed questions. It was most curious for the Court to focus on the sterile technical issue of the form of action and avoided the substance which involved issues fundamental to not only to the understanding of the extant Electoral Act 2022 but also the architecture and nature of Nigerian democracy. The Court, it must be borne in mind, has whilst standing on technicality seemingly circumscribed the choice of voters in the Yobe North senatorial district regarding their representative. And this was notwithstanding that the Court had many times in the past cited with approval the almost century old Lord Atkin’s celebrated criticism of placing undue importance on forms of action in United Australia v. Barclays Bank [1941] A.C. 1, 29:
“When these ghosts of the past stand in the path of justice clanking their mediaeval chains the proper course of the Judge is to pass through them undeterred.”
It is noteworthy that this latter day elevation of obeisance to technicality into an article of faith by the Nigerian Supreme Court has sadly occasioned the loss of attention which its pronouncements used to enjoy in the international academic legal community, particularly the Commonwealth. It would have been more tolerable if the problem of the unflattering overall image of administration of justice in Nigeria stopped with the overseas academic community, but it does not. Foreign nationals and entities with disputes otherwise determinable before Nigerian courts avoid them like the plague, and recourse to anti-suit injunctions in foreign jurisdictions (to forestall their adversaries commencing proceedings in Nigeria) has become a standard operating procedure for lawyers to such entities. The humiliating picture painted of Nigerian courts abroad is that of Charles Dickens’ fictional ‘Court of Chancery’. Beyond national pride, the negative effect on foreign direct investment and the Nigerian economy in general is catastrophic.
In the final analysis, the court speaks for and defends itself through its judgments, the strength or lack thereof of which-intellectual and moral- is almost invariably self-evident. As Lord Denning said, let the judge’s work speak for him. And the judge, imbued, as he should be, with great learning, character and wisdom whilst noting criticisms should be so self-assured as to waive aside misguided and ill-informed criticisms, appropriating for himself the position of Shakespeare’s Brutus:
“There is no terror, Cassius, in your threats, For I am armed so strong in honesty That they pass by me as the idle wind, Which I respect not.”-Julius Caeser, Act 4, sc. 3.
In an article, ‘Criticism is not contempt’, by Karan Thapar published in Hindustan Times of March 11, 2008 reference is made to the following pertinent views of an Indian judge, Justice Katju, in a lecture:
“If a person calls me a fool, whether inside a court or outside it, I for one would not take action as it does not prevent me from functioning, and I would simply ignore the comment, or else say that everyone is entitled to his opinion. Afterall words break no bones….Either the criticism was correct, in which case I deserved it, or it was false in which case I would ignore it….Sometimes an honest and learned judge is unjustifiably criticized. But for one such person criticizing an upright judge, one hundred people will immediately rush to his defence….why then should judges get upset or be afraid of criticism, particularly when we live in a democracy?”
As for those inclined to criticize the judges, whilst it is their right to do so, such should be done as fairly and constructively as possible. Moreover, malicious criticisms of judges are not immune from the strictures of the law of defamation. Again, even if Justice Katju would do nothing to anyone calling him a fool, nobody- lawyer or lay person- should say that to or about a judge, or indeed make recourse to other forms of vulgar abuse in criticizing a judge. Vulgar abuse would detract from the inherently serious business of rigorous interrogation of judicial conduct and pronouncements in a democracy. All other considerations apart, simple decency requires that restraint must be applied in attacking a person who, by the nature of his job as Lord Denning reminded us, is not allowed to respond to criticism.
