The appointment of the acting chief justice presents yet another chance to cleanse and reposition the judiciary, writes Monday Philips Ekpe
Like the 22 eminent jurists before her, Honourable Justice Kudirat Motonmori Olatokunbo Kekere-Ekun was elevated to the position of Chief Justice of Nigeria (CJN) on Friday last week. Her earliest comments after the swearing-in ceremony included her pledge to instil discipline in the nation's third arm of government, sanitise the processes of appointing judicial officers, and generally preside over a better judiciary. Her repeated appeal for the mutual understanding and participation of all the practitioners on the bench and at the bar in order to achieve those goals ended in a much-needed wish: "I believe that by the grace of God, at the end of my tenure, we should be able to have a judiciary that we will all be proud of."
Shouting 'Amen!' to that prayer is certainly not a ritual. The greater motivation revolves around the very uniqueness of judicial institutions. Not being strangers to military adventurism in their country, Nigerians have witnessed several times the subjugation or outright rupturing of the executive and legislative arms of government in the event of coups. Even when the constitution was suspended, judges and magistrates were still mandated to dispense justice as defined and dictated by decrees.
The roles of benchers are accentuated in a democratic dispensation when freedoms are a given, when civil and human rights are intricately woven into the socio-political fabrics of society, and when representative and participatory governance is expected to flourish without limits. After 25 years of unbroken democratic practice, these noble characteristics ought to describe Nigeria. But, sadly and largely, they don't. A chunk of the reasons why it can't be defined in those terms rests with its judicial system and personnel that have failed on many grounds to rise to the occasion. While it would be unjust to heap all the blame for our failures of the judiciary, not holding it to account for rubbishing its own touted image as the "last hope of the common man" would be to deny a rooftop truth long acknowledged even by many members of its senior cadre.
The Nigerian judiciary has had to grapple with stubborn ailments that are yet to show signs of healing soon. Delays in the pursuit of justice, embarrassing and rampant unpredictability of judgments, inadequate modern amenities, credible allegations of corruption, poor funding, ever dwindling public respect, and other corrosive elements have conspired to keep the temples of justice on their knees - from the lowest rung throughout the federation to the apex court.
Unfortunately, the desperation of politicians to grab and cling onto power hasn't helped. This tragedy has graduated from attempting to influence court rulings to actually infiltrating what is supposed to be the hallowed ranks of judges, thereby further undermining whatever is left of the integrity of the judiciary. The inauguration of 22 justices of the Court of Appeal and 15 judges of the Federal Capital Territory (FCT) High Court some months back dramatises this troubling situation. Not only that accusations of nepotistic favours trailed some of the appointments, the occasion itself and the celebrations that followed smelt like political carnivals, something antithetical to the globally recognised conservative profile of the judiciary.
Chidi Anselm Odinkalu, Senior Advocate of Nigeria, SAN, and law professor, put those excesses thus in his article, "Rule by Judges Is not Rule of Law". According to the frontline advocate of the sanitisation of the Nigerian judiciary, "There was good reason for the politicians to make an obligation of their noisy presence at the swearing-in of the new judges. Section 14(2) of Nigeria's constitution loudly proclaims that 'sovereignty belongs to the people of Nigeria' but under the colour of 'rule of law' and judicial independence, the judges have toppled the people and installed themselves as the ones who alone can elect politicians to positions of power and influence in Nigeria. Access to political office now, therefore, is a transaction that begins and rests with political access to judges. Having thus murdered the rule of law, what we now have is a rule by judges under which both political power and judicial office have become bereft of legitimacy. The victim is the public good."
How punchy! The Independent National Electoral Commission (INEC) has one standard response to political office seekers who lose to their opponents: "Go to court!". Oftentimes, this gladdens those declared winners as they readily relish their unfettered, well-oiled access to the adjudicators. Courtesy of the laws that enable them to assume their posts and control the resources of state before the final determination of the cases, these beneficiaries happily exploit the unfair advantages to sabotage the general will. To date, very few rulings have been upturned to favour the petitioners. It's difficult to exonerate the lordships in these circumstances.
Bleak picture, no doubt, but I have a personal principle of looking for light, no matter how little. Luckily, reactions by some respected learned silks to the installation of 66 years old Kekere-Ekun provided just that. Wole Olanipekun, SAN: "We need to be sober and be reflective. Need to consider now as a profession where we were during the times of Adetokunbo Ademola, Teslim Elias, Uwais, and take back the legal profession to its old days of glory. Where did we misstep and how do we correct it?" Meaning, inevitable, remedial journey to the past!
Olisa Agbakoba, SAN: "The potential legacy of the new CJN is transformational and radical reform with the fundamental objective of case management driving how the courts work. It is very important that the reform needed is least infrastructure and appointment of judges. It is about a soft institution, which is about the way the court works. The court presently works on the 1844 model of the English court. The challenge for the new CJN is to turn this around." The last major effort to transform the judiciary was initiated by the late CJN Dahiru Musdapher whose short-lived tenure resulted in the non-implementation of the report of the high-powered committee set up for the purpose. That document should be dusted up, reviewed and applied for efficiency and posterity.
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Joseph Dauda, SAN: "The incoming CJN should push for the creation of constitutional courts at three tiers - trial, appellate and final - for the determination of political and other allied matters, thereby freeing the High Courts, Court of Appeal, and Supreme Courts to deal with regular cases that affect the livelihood of over 90 per cent of the populace that is presently neglected." Clumsiness breeds inertia and institutional mediocrity. Eyes are on Madam CJN to bleed out the bad blood that threatens to choke the judiciary and let in oxygen.
Mike Ozekhome, SAN: "Ensure that judges know that they are being watched and they should be looked over their shoulders by their peers, not by members of the executive.... When this is being done by their peers themselves, then it will mean that it is the same judiciary that is reviewing itself.... There must be a mechanism whereby Courts of Appeal judgments must go one way if certain facts go the same way." Internal censorship is required at this point to stem the decadence that is felt by most citizens. Doing so in a political environment dominated by the executive branch can be tasking but doable.
As the second woman to occupy the seat at the zenith of our judiciary, Kekere-Ekun must be aware of this momentous hour. Of course, wanting her to move every mountain she has met would be most unfair. But expecting her to shake the table and bring remarkable changes to a sector suffering from underachievement and occupational iniquities won't be asking for too much.
Dr Ekpe is a member of THISDAY Editorial Board
