By Chief Wole Olanipekun CFR, SAN
Without a doubt, the importance of the judiciary can never be over emphasized, hence, the reason its origin is inseparable with human existence. It is equally instructive to identify that the judiciary, whether in the primitive or the conventional outlook, enjoys the peculiarity of retention across all forms of government. Seeing the esteem and perception with which the judiciary is by default, held by the society, both consciously and unconsciously, it then becomes obligatory of the judiciary to play a reciprocal duty of responsiveness to the same society in terms of discharging its duties and performing its functions honestly, to the best of its ability and faithfully in accordance with the law. While in the course of this discourse, I shall spare no efforts in identifying the societal ills which have had debilitating effects on us as individuals and a collective, this paper shall, however, not end at writing the wrongs, but also proceed to volunteering ideas for righting such identified wrongs.
DEFINITION OF KEY TERMS
Prominent in the subject of conversation “Judicial Responsiveness as a Staple Panacea for Societal Malady” are the terms: ‘Judicial Responsiveness’, ‘Staple’, ‘Panacea’, ‘Societal’, and ‘Malady’. As apparent on the face of it, ‘Judicial Responsiveness’, as a phrase encompasses two words, that is– ‘Judicial’ and ‘Responsiveness’, which in very simple terms, imply the ‘Responsiveness of the Judiciary’. No pun was actually intended in my preceding expression, but it is just what it is. However, taking the definition a bit further, The Black’s Law Dictionary defines ‘Judicial’ as anything relating to, or by the court, while ‘Responsiveness’ which is derived from the root word ‘responsive’; means giving or constituting a response. The Oxford Advanced Learner’s Dictionary holds a similar view as it connects the term ‘Judicial’ with the court, judge, legal judgment, judicial powers, process, or system, and describes ‘Responsiveness’ as being receptive, reacting quickly in a positive way, with interest and enthusiasm. As will eventually be seen in the course of this paper, the latter definition offers a thematic context to our discourse today, as it is structured towards examining how receptive, interested and enthusiastic, the judiciary has been to its primary calling.
‘Staple’ as a word is more often collocated with food, such that at the hearing of the word ‘staple’, what comes to mind are those categories of food that make up the dominant part of a population’s diet. However, in this context, staple simpliciter connotes basic, large, or important part of something. On the other hand, The New International Webster’s Comprehensive Dictionary of the English Language, defines ‘Panacea’ as a remedy with remarkable healing virtues for, or, to cure a disease, or something that will solve all the problems of a particular situation. In the foregoing perspective, that the expression is terminated by the word ‘Malady’ becomes self-explanatory, as it is often used to describe or characterize a very serious or violent problem, or a disease, especially when chronic, or a deep-seated sickness, illness, or any disordered condition. The word ‘Society’, which is the root word for societal, is defined as people in general, living together in communities, a particular community of people who share the same customs, laws, etc., or a group of people who join together for a particular purpose.
When pieced together and shorn of arid theorization, it suffices to say that the topic – Judicial Responsiveness as a staple panacea to societal malady, simply translates to mean the important effect of the judiciary’s proactive and enthusiastic disposition towards reordering the disordered condition of our society and social phenomena, etc. In this context, the malady is a figurative expression of the wanton menace of illegality, misgovernance, corruption, criminality, oppression, impunity, amongst others, that characterize human society. The topic of conversation attempts to assess the extent of the judiciary’s proactiveness to its primary duty to the society, given its fundamental and inalienable positioning. While I appreciate that the subject itself is a very broad one, with tentacles spreading across the lines of jurisprudence, philosophy, sociology, history, et al, let me state a caveat early enough, that it is not my ambition herein, to carry out a comprehensive consideration or analysis of the subject. Accordingly, therefore, I implore my audience and all those who may, in future, come across this piece, to apply it as appropriate, whether as admonition, encouragement, reevaluation, challenge, etc. irrespective of the divide they may fall, whether as members of the Bench, the Bar, government, or the larger society.
THE JUDICIARY AND SOCIETAL ORDER
The prime place of the judiciary in the assertion of social order is one that cannot be overemphasized. It is indeed indispensable, as it is firmly positioned within a strategic framework in the institutional bulwark of every nation-building effort. Traditionally, it is an institution, which from time immemorial, has been charged with the formal adjudication and dispensation of justice. The judiciary as an institution is one traceable to antiquity and even, divinity, as the Holy writs in several portions describe the almighty God in the manner of a Judge, with various superlative adjectives. The Bible makes references to several Judges appointed by God to act as rulers, leaders and Judges over the people of Israel, thus, combining the duties of the executive, the legislature and the judiciary together; starting from Moses, to Joshua, Judah, Caleb, Samson, Deborah, Gideon, Eli and finally, ending up with Samuel. In fact, it can safely be submitted that our appellate court system took its bearing from the counsel or admonition of Jethro, Moses’ father-in-law to him to the effect that he should appoint aides and rulers amongst the people of Israel to assist him; “and let them Judge the people at all seasons…and it shall be that every great matter they shall bring unto thee, but every small matter they shall judge… so shall it be easier for thyself, and they shall bear the burden with thee.” In other words, the rulers of thousands, rulers of hundreds, rulers of fifties, and rulers of tens, appointed by Moses through the counsel of Jethro, made up the trial courts while Moses was the appellate court and Judge.
In his famous letter to Archbishop Mandell Creighton on April 5, 1887, Lord Acton posited thus:
I cannot accept your canon that we are to judge Pope and Kings unlike other men, with a favourable presumption that did no wrong. If there is any presumption it is the other way against orders of power, increasing as the power increases. Historic responsibility has to make up for the want of legal responsibility. Power tends to corrupt and absolute power corrupts absolutely. Great men are almost always bad men even when they exercise influence and not authority…Still more when you super add the certainty of corruption by authority. There is no worse heresy than that the office satisfies the holder of it.
From the unassailable position of Lord Acton, the place of the judiciary becomes more fundamental and crucial to human existence, whether in the so-called developed or in the so-called developing and under-developed nations of the world; or whether in the days of yore, otherwise labeled the stone age, or the present day of supersonic movement and structures. This also leads us to Montesquieu’s doctrine of separation of powers, a theory propounded by the French political philosopher, Baron De Montesquieu since 1748, to the effect that separation of powers amongst the different organs of government is the best safeguard against tyranny; pleading that each power must be exercised by a separate organ and a system of checks and balances should thus be established for solidarity and harmony of the State. The three arms of government being commonly referred to are the executive, the legislature and the judiciary. No wonder, as inadequate and ‘unconstitutional’ the Constitution of the Federal Republic of Nigeria, 1999 is, it still recognizes and shares powers between these three arms of government.
It can further be suggested that the practice of law and the court system owe a lot of its attributes and nuances to the Roman history. This is evident in the conspicuous presence of Latin maxims, jargons and expressions in legal documents, courtroom practice and general legalese. This discourse is, in fact, testamentary to this truism, as somewhat unconsciously, I have not succeeded in doing without an intermittent employment of the Latin terminologies. As lawyers, we know how difficult it is, eschewing this culture. The judiciary and court system developed in Rome along its political evolutions, starting from the Roman Kingdom, through the Roman Monarchy, to the Roman empire. During the era of the Roman Kingdom, the King of Rome acted as the principal executive magistrate, with absolute powers. He played the multiple roles of the priest, lawmaker, judge and the sole commander of the army at the same time. This is concisely captured in the words of jurist Sextus Pomponius who observed that “at the beginning of our city, the people began their first activities without any fixed law, and without any fixed rights: all things were ruled despotically, by kings“
Upon transition from monarchy to republic, the constitutional balance of power shifted from the executive represented by the King, to the Roman Senate. When the Roman Republic was founded in 509 BC, the powers that had been held by the king were transferred to the Roman consuls, of which two were to be elected each year, while Magistrates of the republic were also elected by the people of Rome, and were each vested with a degree of power called maior potestas, which in English means “major powers”. Upon transition from republic to the Roman empire, the constitutional balance of power shifted from the Roman Senate back to the executive, personified by the Roman Emperor. The traditional magistracies that survived the fall of the republic were the consulship, praetorship, plebeian tribunate, aedileship, quaestorship, and military tribunate, with the primary functions being not only the making of decisions in court as judges, but also acting in administrative, political, military capacities.
Most certainly, history of the judiciary anywhere, cannot be narrated in isolation of the law applied by the court, since it is the wheel that dictates the gravitation of the court. For instance, the English have bequeathed to the world, notably, North America and much of the Commonwealth, the system of English law that has acquired a status and universality to match Roman law. English law has its origins in Anglo-Saxon times, and two of its hallmarks are its preference for customary law (the common law) rather than statute law and its system of application by locally appointed part-time magistrates, by locally chosen juries, and by the itinerant judges who went from one county town (seat) to another on circuit. The Anglo-Saxon system was retained under the Normans but eventually formalized through practices, including the recording of case law from the 13th century to provide uniform precedents. The Magna Carta of 1215 represents, till today, the most versatile, concise and pragmatic body of legal precepts.
Coming nearer home, governance in the Oyo empire is prided as one of the earliest demonstration of civilization in Africa. It was based on the ultimate principle of ‘check and balance‘ which implies that each of the administrative levels had the vires to check, challenge or nullify actions of other levels irrespective of their administrative hierarchy. Under this government, judicial powers were reserved for the Ogboni society, who was also involved in policy making, as well as the maintenance and preservation of the cultural values of the people.
As earlier mentioned, the Constitution of the Federal Republic of Nigeria,1999 vests judicial powers of the Federation in the courts, being courts established for the Federation; while the judicial powers of a State are vested in the courts, being courts established, subject as provided by the constitution, for a State. These judicial powers extend, notwithstanding anything to the contrary in the Constitution, to all inherent powers and sanctions of a court of law, which expression has been variously described as lubricants to aid the courts in the discharge of their duties; and that which is not expressly spelt out by the Constitution, or in any statute or rule but which can, of necessity, be invoked by any court of record to supplement its express jurisdiction or powers conferred on our courts of record by the constitution, any law or rule of court. My interest is particularly caught by the judicial definition of inherent jurisdiction or power, as it contextualizes the preferential position in which the judiciary is situated. The vantage positioning and essence of the judiciary in the preservation of societal order are further underscored by the delineation of its functions, which extends, to all matters between persons, or between government, or authority, and to any persons in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person.
The point I am laboring to make is concisely articulated by Chief Justice Roberts of the United States, in one of his confirmation hearings, where he figuratively described the critical role of the judiciary by drawing a simile between the judge and the umpire. According to him, “Judges are like Umpires”. As we all know, an umpire is a sport official who watches a game or match closely to enforce the rules and arbitrate on matters arising from the play. The intuitive appeal of this equation is that the recognition of the judicial system exists primarily to provide a peaceful means of resolving disputes. Meanwhile, the judiciary owes obligation, not just to the parties before it, but also to the present and future components of the society. Specifically, the relevance of the judicial institution to the society is best appreciated in terms of precedents being set on daily basis by the decisions of the court and the effect of each decision on the state of affairs. It is the cumulative effect of these that I refer to as “Judicial Responsiveness.”
Let me make it clear that the pivotal role of the judiciary goes beyond mere adjudication, arbitration, or mere settlement of disputes. Lord Justice Thomas, Lord Chief Justice of England and Wales in a speech delivered at the Lord Williams of Mostyn Memorial Lecture (2015) expressed my viewpoint when he said:
“There is an emerging view that (the) judicial system is simply nothing more than the provider of an adjudication service either between the citizens and the State or between citizens. The view gains currency as it’s perceived that individuals, businesses, and local and central government come to the courts to use them as an adjudication service, just as they would go to a mediator, adjudicator or ombudsman or another private provider of such services…. The idea is fallacious…. A democratic state secures justice, in the widest sense for its citizens through an independent judiciary and justice system. It is in the same category as Parliament and the Executive. It forms part of the institutional framework (of a nation-state).”
Deducible from the foregoing, the judiciary, more than any other institution of a state, is charged with promoting the perpetual existence of the state, but in its peculiar way, through unbiased dispensation of justice. Simply put, the judiciary is the custodian of the Justice delivery system, and it guards against societal disorder, as well as a situation of a rudderless and Hobbesian state.
THE LAW AS AN INSTRUMENT OF SOCIAL ENGINEERING
Upon a mention of the subject of the law in relation to its instrumentality to social engineering, the theories of the great jurisprudents of the ilk of Caspar Rudolf von Ihering, Eugen Ehrlich, Jeremy Bentham, Roscoe Pound, etc. come to mind. As instructive as their propositions and theories are, which said theories will nonetheless be considered herein, may I point out that the simplest narration of societal engineering through the instrumentality of the law, is a practical reflection of the potency of the law through the lens of how an average man buys and sells in the market place and how the highly placed aristocrat engages with the lowly placed commoner. For a society to boast of having and applying laws, it must be reflected through the attitude of the principalities to identified precepts and adopted regulations. The point I am making is that the law, which as will be considered later on in this work, is largely made up of what the court says it is. Accordingly, that court must be virile and stoic enough to dictate the affairs of all and sundry irrespective of position and status. Just as it is no law, when a person or a segment of persons are considered to be positioned above it, the judiciary cannot be considered serious when it is reputed for pandering to parochial or conjectural whims. Where the law or the mechanism for its implementation is like a cobweb, which snares on the spider but gives way to the eagle, then it is only but an instrument of social subjugation as opposed to social engineering. I say this, bearing in mind what is currently obtainable in our society, where overtime, observers are becoming skeptical about the tilting factors for the imaginary scale of justice.
According to Ihering, the law does not exist for the individual as an end in himself, but serves his interest with the good of the society in view. He is equally of the view that the social activities of people need to be encouraged through principles which include reward and coercion. In Ehrlich’s view, the existence of social order pre-dates formal legal provisions and moreover, certain facts, such as usages, domination, possession and declaration of will underlie all laws. Therefore, for him, judicial decisions, which are only evidentiary, are part of the veritable tools for identifying the living law. In effect, therefore, Ehrlich is understood to be suggesting that the judiciary plays a pivotal role in giving substance and life to laws, which themselves, are a crystallization of the people’s way of life.
For Roscoe Pound, sociological jurisprudence should ensure that the making, interpretation and application of laws, take account of social facts. In order to achieve this end, Pound argues that there ought to be a factual study of the social effects of legal administration; social investigations as preliminaries to legislation; a constant study of the means for making laws more effective, which involves the study of the judicial method, in both psychological and philosophical perspectives and a sociological study of legal history; allowance for the possibility of a just and reasonable solution of individual cases; as well as an effective ministry of justice and the achievement of the purpose of the various laws.
BENCHMARKING THE PERFORMANCE OF LAW
The efficacy of Law is inextricably tied to other development index through which developed, developing, or under-developed countries of the world are judged and delineated. Laconically speaking, when Nigerians theorize about various vices plaguing the country and militating against its development, such as corruption, insecurity, unemployment, electoral fraud, child trafficking, slavery, loss of confidence in the judicial system, terrorism, unresolved murders, banditry, killings, armed robbery, failed banks, failure of leadership, oil bunkering, subsidy scams, pension scams, and such other societal vices, they are simply saying that the law is failing or has outrightly failed. By and large, the complaints then center on law appearing hapless in performing its fundamental and strategic roles in the manner activated by the courts.
I plead for pardon if it appears that due to no fault of mine, I have treated you to a cocktail of abstract philosophizing on what the law is and what it is not; the purpose of this foray will be appreciated when we consider the primary role of the courts in breathing life to dead letter law. This is beautifully expressed by the American realist, Mr. Justice Oliver Wendel Holmes, who is strongly of the view that there is no law except the courts say it is. In his actual words:
But if we take the view of our friend, the bad man, we shall find that he does not care two straws for the action of deduction, but that which he does want to know what Massachusetts or English courts are likely to do in fact. I am of his mind. The prophecies of what the courts will do in fact and nothing more pretentious are what I mean by the law.
Although the position of the learned jurist is one which has been subjected to serious criticism, I am minded to reservedly align myself with this time-tested position, given the effect that judicial decisions portend in our polity. Many who know me and my kind of practice will attest to the fact that I do not joke with judicial authorities and precedents as they aptly apply to my case. If Chinua Achebe says “proverbs are like palm oil with which words are eaten”, I will say that for me, Judicial precedents and authorities are like greases, with which the wheel of advocacy is lubricated. This, in no way, denies the existence of statutes, but like John Chipman Gray rightly puts it, while the decisions of the courts are in fact the law, everything else, including statute, are only sources of law until they are interpreted by a court. Gray’s definition of law may be helpful in expressing my thoughts to this august assembly:
“The law of the state or of any organized body of men is composed of the rules which the courts, that is, the judicial organs of that body lay down for the determination of legal rights and duties.”
Noting the foregoing jurisprudential position and bearing in mind determining essence of the law in the affairs of man, it can hardly be faulted that the judiciary is indeed a very critical organ in societal cohesion and social order; and this is evident in innumerable instances of judicial intervention, in defining the social order. As the succeeding subhead of this work will consider selected cases of such consequential judicial intervention, one must of a necessity, appreciate the fact that in each case where the court has failed in this priceless responsibility, the society (and in this case, the Nigerian society), has been plunged into a serious steep which collectively coalesce into the unfortunate social malady being experienced in various ways. Deep thinkers would appreciate the fact that the independence, stability and quality of a country’s judiciary, is often a veritable indicis for the attraction of foreign direct investments. Similarly, though I will address the effect of consequences in fuller details later in this work, I must quickly add that the proactive dispensation of consequences for every action, plays a fundamental deterring role in the society.
Chief Olanipekun is Chairman, Body of Benchers
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