In the eighth and final part of his book, ‘What Next In The Law’, in which he focuses on the possible misuses of power by key components of the political, social and legal process, the great English jurist, Lord Denning, examines, among others, the role of judges in the dispensation of justice. According to the luminous legal mind “There remains the most touchy question of all. May not the judges themselves sometimes abuse or misuse their power? It is their duty to administer and apply the law of the land. If they should divert it or depart from it – and do so knowingly – they themselves would be guilty of a misuse of power. So we come up against Juvenal’s question, ‘Sed quis custodiet ipsos custodies?’ (But who is to guard the guards themselves?)…Suppose a future Prime Minister should seek to pack the Bench with judges of his own extreme political colour. Would they be tools in his hands? To that I answer ‘No’. Every judge on his appointment discards all politics and all prejudices. You need have no fear. The judges of England have always in the past – and always will – be vigilant in guarding our freedoms. Someone must be trusted. Let it be the judges”.
Lord Denning’s utter confidence in the moral integrity of the British legal system is without doubt a function of the larger society’s fidelity to the highest standards of ethical rectitude. Judges may, of course, give decisions coloured by their ideological or philosophical orientations to life. This is why in the United States, for instance, the two major political parties strive to ensure that judges with value preferences favourable to their worldview are appointed to the highest courts of the land. But the possibility of judgements being auctioned for sale to the highest bidder irrespective of the facts of the case is a rarity in these advanced countries. Not so countries with severely underdeveloped political (democratic) cultures like post colonial – type Nigerian societies. Here, justice is often a matter of cash and carry. The judiciary is often the last bastion, not of the common man, but the ready refuge of the well heeled felon.
But then, this is not a peculiar feature of the judiciary. The civil servant routinely utilizes his privileged position in the policy process to escape the poverty trap through obscene accumulation of illegal wealth. Only a microscopic minority of those opportune to hold political office – civilian and military – like the iconic President Muhammadu Buhari has refrained from amassing stupefying wealth in spite of his vantage positions at various times at the apex of commanding heights of the national economy. Rare is the journalist who does not mortgage his conscience, skew his reportage or align his opinion to the seductive tunes of moneyed Luciferian pied pipers. Not even the custodians of the sacred spiritual realm are spared. All too often now, heavy loads of foreign currency are necessary conditions for eligibility into the Kingdom of heaven. Ask the alleged clerical beneficiaries of the ‘Dasukigate’ largesse. And for the officers and men of the armed and security agencies, their weapons and coercive authority are passports to the paradise of heavenly affluence.
Of course, it is not that the post-colonial societies particularly of Africa are necessarily and inherently morally inferior to the developed polities. Rather, as Professor Peter Ekeh noted decades ago, the citizens of the former occupy an ethical and institutional wasteland in which ‘migrated’ state structures are seen by elite and mass alike as alien entities to be ravaged, looted and vandalized at will without the slightest pangs of conscience. In other words, the relation of the individual to assorted state structures is amoral rather than moral. Thus, in spite of Buhari’s best anti-corruption exertions, most of those identified and publicly exposed as beneficiaries of the incredible cash disbursements from the office of the erstwhile National Security Adviser in the last dispensation most likely still remain very well beloved sons and daughters of their people. The Buhari administration’s anti-graft offensive certainly needs much more rigorous, creative and scientific thinking than has been exhibited so far. And contrary to some top officers of the administration, adherence to the rule of law is the least obstacle it confronts in its bid to bring corruption to heel. Corruption in all its diverse manifestations is itself a gross desecration of the rule of law. Aiming to fight corruption by dispensing with the rule of law as thoughtlessly espoused in some quarters is tantamount to fighting filth with filth. It is ultimately self sabotaging.
Yes, corruption in the judiciary can have the most dangerous, pernicious and insidious repercussions for society. For, if the salt of the preservers of justice has lost its saltiness, what is left but to spit it out and cast it off? It is in this respect that no one can fault the determination of the Buhari administration to thoroughly cleanse the judiciary as a key platform of its anti-corruption campaign. Yet, the unwarranted Gestapo-like manner the Department of State Service (DSS) went about arresting seven judges across the country in the wee hours of October 8, was certainly long on brawn, brashness, needless bravado and high drama but short on the tact, subtlety and stealth that ought to be the hallmarks of high intelligence.
As has been noted by many analysts, at least 22 magistrates and judges were severed from the judicial service of Ghana last year. This was after painstaking and clandestine investigation of their activities over a two-year period that yielded incontrovertible audio and visual evidence of corrupt activity. There was no high drama, no overzealous power show on the part of the security agencies. The operation was surgical and professional. In Nigeria, the operational methods of the DSS in this instance may not have violated the letters of the Administration of Criminal Justice Act (ACJA). But it raped its spirit. Yes, many corrupt bad eggs are undoubtedly giving the Nigerian judiciary a severe organizational headache. The culpable ones must be clinically and intelligently detected, given a fair trial and booted out of the judiciary. It makes little sense to try to decapitate the institution’s collective dignity, integrity and self-esteem through the undue rashness of some intelligence chieftains obviously inebriated by the exuberance of their own organizational self-importance.
Unconfirmed but widely reported and yet to be denied reports indicate that the presidency has directed that the prosecution of the affected judges be taken over from the DSS by the Economic and Financial Crimes Commission (EFCC). This is reportedly to ensure that the investigations of the judges suspected of corruption are more professionally handled. A report in The Punch of Sunday, October 30, cited an operative of the EFCC who said, on condition of anonymity, that the traditional pattern of the agency is to secretly investigate corruption long before going after suspects. He lamented that with the distraction caused by the arrest of the judges, the investigation can no longer be conducted in the necessary atmosphere of secrecy that characterizes the operations of the commission.
Beyond the sensational but essentially superficial, even if necessary, hounding of individual tainted judges, there are other factors pertaining to judicial corruption that must be addressed in more effectively prosecuting the anti-graft war. First is the mechanism of recruiting judicial officers to the bench right from the magistracy. Right now, the judiciary does not enjoy the requisite autonomy in this regard. Primordial considerations including ethnicity, religion and crass nepotism tend to trump strict meritocracy. The recruitment process must be strengthened to ensure that the critical factors of knowledge and character are adhered to as much as possible. If the process is tainted right from the entry point, it becomes simply a question of garbage personnel in, garbage judicial decisions out. Secondly, once judicial officers are recruited to the bench, the process of continuous upward mobility through promotions must be strengthened and sanitized so that only the very best intellectually and morally emerge as the elite core at the higher echelons of the bench.
Thirdly, it is impossible to meaning fully fight judicial corruption without taking into account ‘the political ecology of the judicial system’. I refer here to the constraining political environment within which the judiciary functions. It is noteworthy, for instance, that the bulk of the corruption that hobbles the judiciary is associated with election petition cases. This is a function of the tendency of politicians and parties to seek to win elections at all costs and by all means largely because of the perception and utilization of public office as a means of wealth accumulation. Consequently, political parties invariably not only vote huge amounts to influence the electoral umpire, humongous funds are also earmarked to sway electoral tribunals in their favour or to ensure factional control of their party machineries. Hence, virtually all elections result in electoral disputes and the courts are forced to play the unaccustomed role of electoral umpires making them vulnerable to pecuniary inducement.
In his influential study of the politics of the Second Republic, ‘Democracy and Prebendal Politics in Nigeria’, Professor Richard Joseph makes the point succinctly as regards the consequences of converting courts into electoral umpires. In his words, “The courts could not operate in any salutary way when drawn into this process of vote adjusting, of having to decide which of conflicting, and questionable, sets of results were most “improbable”, which impromptu solutions by overwhelmed election officials were most acceptable, which degree of malfeasance was excessive and which excusable. In the context of Nigeria in 1983, every decision of the judiciary could be made to appear, to some extent, to be the wrong one. Truth and fairness had become subordinate to political partisanship”. Things appear to be much worse now particularly with the Independent National Electoral Commission’s (INEC) current affliction with institutional glaucoma, organizational schizophrenia and ethical kwashiorkor since the exit of the incomparable Professor Attahiru Jega.
