Due to systemic, operational, ideological, and political factors, under the Buhari’s administration, the judicial system has failed considerably to function as a constitutional place of refuge against abuse.
The problems of the judicial system in Nigeria predate both the government of President Muhammadu Buhari and even this current republic. However, under President Buhari’s watch, the performance of the judiciary as an institution of government has worsened and become an impediment to citizens’ rights and our democracy.
The government has significantly contributed to the decline in public confidence towards the judiciary by regularly disobeying court orders and by using national security and anti-corruption as excuses. Reportedly, the Buhari administration has ignored more than 40 different court judgements that it considered hostile to its political agenda. Some of the most important among these include the refusal of the State Security Services to comply with four successive orders of various courts, including the ECOWAS Court, that granted bail to former national security adviser, Sambo Dasuki. The same pattern occurred in the case of Sheikh el-Zak Zaky, the head of the Islamic Movement in Nigeria, an Iranian-inspired Shia group. El-Zak Zaky was in police custody between 2015 and July 2021, when he was eventually acquitted by a trial court. If the government that has sworn to uphold the constitution and respect the independence of all arms of government actively ignores judicial decisions, how much respect and restraint, can be expected from private citizens?
THE FAILURES OF NIGERIA’S SUPPOSED DEMOCRATIC BULWARK
Nigeria’s justice system has an alarming corruption problem. A recent report by Nigeria’s main anti-corruption agency, the Independent Corrupt Practices and Other Related Offences Commission (ICPC), accused judicial workers of soliciting and receiving bribes of more than $25 million between 2018 and 2020. Historical incidents of partisanship, corruption and incompetence—combined with worsening negative public perception—have created a situation where the operations of the judicial branch of government in Nigeria threaten public order and stability. Nigerians have been left asking: how well should the public regard a judicial system where judges are routinely arrested for corruption and where the head judge can be suspended and charged in the same court system he once presided over, for corruption? The court system in Nigeria simply does not inspire public confidence.
In a country like Nigeria, with fragile and shallow democratic institutions, judicial failure has dire consequences. The competitive nature of elections in Nigeria (apart from the various religious and ethnic conflicts), drives violence and questions the credibility of the electoral process in the country. Often, the judiciary ends up as the arbiter of the process and has a constitutional mandate to validate elections that produce political officeholders. Given the contentious nature of electoral processes and the many conflicts it throws up, an impartial judicial system is important for democratic sustainability.
Also, in a country where 62 per cent of the population is under 25 years, the court system has an amplified duty to protect young people from the abuses of security agencies and political actors. Beyond that, the court system remains the only formal institution in Nigeria where legal actions against persons accused of crime are carried out. The attitude and decisions of the court system greatly influences other actors in the criminal justice system, such as policing agencies and correctional services.
Due to systemic, operational, ideological, and political factors, under the Buhari’s administration, the judicial system has failed considerably to function as a constitutional place of refuge against abuse. Colonial authorities had designed the Nigerian judicial system to primarily protect British commercial interests. 61 years of political independence, however, have not been sufficient for successive managers of the Nigerian state to undertake an extensive reform of the court system. Generally, Nigerians perceive the judicial system as foreign, highlighting the disconnect between public expectations and the way courts in Nigeria operate.
Nigeria’s political leaders have a history of seeking to influence and undermine the independence of the judiciary—particularly by influencing the appointment of judicial officers. This trend has continued under President Buhari’s watch. In August 2020, Vice-president Osinbajo expressed concerns over how judicial officers are appointed, stating that, Nigeria is headed in the wrong direction because ‘interests whether private, political or group influences how judges are appointed’.
Unsurprisingly, Nigeria is in a position where courts are presided over by legal technicians and compromised ‘law lords’ rather than the brave legal philosophers who are required for democratic consolidation. The result is a court system replete with judges whose hands are tied by graft and their loyalties to their respective socio-political sponsors. A bench whose restrictive admission processes prevent the emergence of Nigeria’s best legal minds.
Beyond Nigeria’s well-known ethical and corruption-related problems, Nigeria’s court system is hobbled by infrastructural deficits, procedural deficiencies and resourcing gaps which make it difficult for the system to dispose of cases expeditiously. On the average, it takes up to 15 years to dispense cases, with the appeal processes taking over 60 per cent of this time. One case particular, Ariori v. Elemo (1983) 1 SC 13, took about 23 years to conclude (ironically the case was an appeal over the trial judge’s delay in delivering judgement). According to former Chief Justice of Nigeria, Justice Belgore, who testified as expert witness in an arbitral case involving the defunct Nigerian National Petroleum Corporation in the UK Court of Appeal—a case could take 20 to 30 years to resolve in a Nigerian court.
EXAMPLES IN FOCUS
The following examples highlight some of the main ways the Buhari administration has undermined the judiciary in Nigeria.
- Sacrificing the Rule of Law for Expediency
President Buhari’s staunch belief in the primacy of security over the rule of law and respect for human rights has defined the attitude of the current government towards citizens. According to the president, ‘Rule of Law must be subject to the supremacy of the nation’s security and national interest’. The government has also made no secret of its disdain for ‘irritating’ court judgements. In 2015, the government arrested and detained former national security adviser, Sambo Dasuki, for allegedly diverting $2.1 billion and illegally possessing firearms. Dasuki was granted bail on at least six different occasions by different courts and the government declined to comply with any of these court orders. Dasuki was eventually released in 2019.
- Allegations of Corruption at the Top
In 2019, Buhari suspended the Honourable Justice Walter Nkanu Samuel Onnoghen from the position of Chief Justice of Nigeria. This move followed Onnoghen’sarraignment on six charges of alleged false declaration of assets. While Onnoghen’s suspension was contentious and roundly condemned by stakeholders across Nigeria, that the head of Nigeria’s judiciary was docked for corruption-related matters promotes low trust in Nigeria’s judicial system.
The Nigerian judiciary has repeatedly been accused of partisanship and corruption, so much so that even former Nigerian military head of State, late Gen. Sani Abacha accused the judiciary of being polarized along ethnic, tribal and political lines. In response to these accusations, the government set up the Justice Kayode Eso panel in 1994 on the theme of corruption in the judicial system. The panel recommended that 47 errant judges be dismissed as part of far-reaching judicial reforms. However, only six of them were removed after a review in 2002, due to the considerable political influence many of the judges wielded.
The late human rights activist, Chief Gani Fawehinmi, also once accused the Supreme Court of receiving Mercedes Benz cars as gifts from the government of General Babangida. The integrity of the Supreme Court was again challenged in 2005 by Ephraim Duru, counsel to Globe Motors. Duru accused the former chief justice of Nigeria, Mohammed Uwais, of corruption in open court. In 2011, the president of the court of appeal, Justice Isa Ayo Salami, publicly made allegations of undue interference against then-chief justice of Nigeria, Justice Aloysius Katsina-Alu, in light of a gubernatorial election tribunal that allegedly favoured the candidate of the then-ruling People’s Democratic Party.
However, the removal of a sitting chief justice, Justice Onnoghen in 2019 introduced a new dimension to the issue of judicial corruption in Nigeria and questioned the integrity of all judgements delivered across Nigerian courts. The optics of the man who is largely responsible for the organization of courts in Nigeria being indicted for corruption is not good for public confidence in the rule of law.
HOW JUDICIAL FAILURE THREATENS STABILITY
By failing to assure citizens of the potency of the law and the efficiency of the judicial process, the Nigerian judicial system, has helped to fuel the rising culture of mob justice in Nigeria. The setting alight of two persons accused of armed robbery and the lynching of another person accused of kidnapping in Ibadanin 2020; the lynching of a policeman in Lagos over the killing of a pregnant woman in 2019; the killing of six bandits in Kaduna in 2020; the killing of a suspected armed robber in Akwa Ibom in 2020; are only a few collages on the wide canvass of mob justice in Nigeria.
While mob justice is not unique to Nigeria, its prevalence in Nigeria is one of the manifestations of public discontent with the failures of the judicial system. In Nigeria, there is a social disconnect between the expectations of citizens from the formal justice systems and the lethargic and inconsistent justice regime that the courts currently deliver. Citizens do not trust the judicial process to fairly arbitrate and legitimately put away people accused of violating social codes.
Nothing underscores the failure of courts in Nigeria to protect the rights of citizens more than the hollow ritual of state chief judges paying random visits to prison complexes to release inmates. In one of such visits, a former chief judge of Lagos State, Justice Ayotunde Philips, stated that ‘some of you have just been languishing here, without appearing in court or being charged with any offence’. And yet for the hapless inmates, the road that led to prisons went through courts superintended by the same chief judge.
A LEGACY OF PAIN
The failure of the courts to effectively administer a functioning criminal justice system has had grave implications on public order and the rule of law in Nigeria. Consider the 2020#EndSARS protests across Nigeria, for example, where young people demanded national police reform. By not deliberately and systemically using its enormous constitutional powers to protect citizens from abuse, the court system bears some responsibility for the episodes of violence that seized Nigeria during the protests.
Nigeria has around 132 million people who are under the age of 24 and Nigerian youth are the demography with the most interactions with the criminal justice system. Courts can safeguard the rights of young people by proactively using the judicial system to shield citizens from the abuse of policing actors. This is one of the most assured ways of preventing citizen discontent, which can potentially degenerate into crisis. When citizens see courts as capable of protecting their rights, they will make recourse to the courts, rather than the streets.
Despite these opportunities, the court system in Nigeria has shown indifference and aloofness. Courts have been content at playing with inherited colonial manuals, which have long been abandoned by progressive systems around the world. The inability of Nigerian courts to lessen the grievance of the youth, its most populous demography, threatens social order by making peaceful and civilized resolution of conflict impossible.
No doubt, the judiciary itself is a victim of a vile political culture that abhors institutional independence. However, the court is sometimes complicit in its abuse; by its anachronism, corruption, partisanship, and its inability to hold itself to the same standards of accountability to which it routinely holds citizens accused of wrong⎈
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