IDEAS Radio 4 October 2019

The Role of Judges in IDEAS

Aghogho Oboh: Alright, welcome, welcome, welcome to the Public Square.  It’s four minutes past eight. Unfortunately we don’t have a town crier at the Public Square to announce the arrival of all the dignitaries.  Alright. So, we are still commemorating Nigeria’s 59th Independence Anniversary in the week it is.  And we will be looking at a number of things.

But first the IDEAS segment with Ayo Obe.  Accountability in this sojourn of democratic experience for Nigeria.  She’ll be helping shape the narrative as well as looking at those issues with accountability.  Ayo Obe’s been there for a long while, I have videos of Ayo Obe in the CLO during the struggle with the military out.  I’m not sure she’s seen those videos! But, okay …

Rotimi Sankore: And those videos are in VHS.

Ayo Obe: They can be converted.  When I set up my website to popularise myself. 

AgO:  Alright.  And then on Public Square, we’ll be joined by Georges MacNobleson-Idowu, Political Editor, as well as Deputy Director for SERAP, who will be joining the conversation after the IDEAS segment to have a look at landmark judgments that have happened during the course of Nigeria’s democratic experience, even dating up to ’79, so watch out for that one.

You can follow the programme on Twitter @PublicSquareNG, @RotimiSankore, @ideasradiong, @naijama, @NigeriaInfoFM; any of these handles, tweet and ask questions, drop your comments and we will respond to them.  Otherwise, welcome to IDEAS segment.

AO: Oh, thank you very much Aghogho.  Georges, I will speak to you … I’ll catch up with you later when we go into history, because I can see I’m the repository of history on this programme in the Public Square today!  

And so Rotimi, we want to look at the issue of the role of the Nigerian Judiciary as regards Integrity and Democracy.  And I think it’s important that we try to separate out the difference between what a government wants, and what an independent … an independent judiciary owes in a Democracy.  I say that because I often hear people talking about: We should have our judges elected. And it’s not just here, it’s also in Britain when the Supreme Court ruled on the prorogation of Parliament recently, the … there was this talk about the judges should be elected. 

And at the same time, we have situations where the judges do what does not seem to really be upholding the rights and … the rights of ordinary people.  So I wonder whether we can have a discussion about how does this fit into Democracy? Should judges be elected? Is that where the problem lies? Or are we … do we recognise that we have to have a system which possibly could do with a bit more transparency when it comes to the appointment of judges, but we’ve seen the situation in the United States when it comes to the … the judges.  The judges are supposedly democratically accountable, but is democratic accountability in that sense the handmaiden of justice?

RS: I think in the US there is … there’s a very obvious shortcoming, because a sitting President can appoint judges that are Republican, or pro-Republican and openly so, and … 

AO: So in fact a judge in that system can actually be a party political person, whereas here, our judges … 

RS: Here, you can’t, yes.

AO: … at least ostensibly, they preserve the appearance of impartiality.  I want to just hang on that because … it’s often said in judges, it’s not just the actuality of bias or non-bias or impartiality, it’s also the appearance of bias or lack of bias, so I think that even if a judge is secretly … a card carrying member of the … Hang ’em High & Flog ’em Party, they would still, if you go before them as somebody who might ordinarily be subject to the kind of hanging ’em high, being hung high and flogged  and still get, impartial justice. And in here, particularly here where we have issues of identity which relate not so much to race, but certainly to ethnic identity …

RS: Ethnicity.

AO: … religion, and of course the bigger divider (as far as I’m concerned actually), is class, but we don’t talk about that much in Nigeria.

RS: I think actually that the big question hanging over the judiciary, as you will know much better than myself, started during the military regime, when undemocratic military regimes could appoint senior members, judges, and somehow people expected that every ruling would be …  would uphold democratic rights and principles, and necessarily be on the side of the citizens, especially when the military regime just started to abrogate parts of …

AO: Yeah, I think that’s where we have to actually make the distinction, because  judges, at the end of the day are there to interpret the law, and because of our peculiar situation that arises when we have … military dictators, military coups, the first law is the Constitution Suspension and Modification Decree.  So I don’t think that we can blame the judges for operating under the system of law as it is handed down to them, because they are not the law-making authority … 

RS: Or as imposed on them!

AO: … even though we have a Constitution which will say: You can only pass laws in accordance with this Constitution.  When the Constitution is abrogated by a de jure … by a de facto authority, which is a military coup coming in and kicking out all the elected politicians, then you can now say that you’ve taken over.  But I don’t think that the mere fact that judges are appointed by military dictators is actually in itself, any worse than any other system. In fact, some of our finest jurists – that if we look at them over time – I mean,  I’m thinking of people like Justice Eso, Justice …

RS: Oputa

AO: … Oputa, you know, Justice Obaseki … these are … Justice Nnamani, you know these are people whose body of jurisprudence can stand the test of time anywhere, and it’s not …

RS: Even though they served mainly under the military.

AO: They were either appointed or they were promoted or appointed into the highest court in the land under the military, on … whereas, since we have returned to civilian rule, we perhaps find that there’s possibly a bit more … kowtowing to the perceived wishes of the …

RS: Is it a question of personal integrity then?

AO: Absolutely.

RS: And commitment to Rule of Law?

AO: I think it’s absolutely a question of Integrity and a determination that: “Once I’m here, my obligation is to uphold the law and to apply it.”  Now, I think it’s also important for us to recognise that most cases that come before judges, they don’t have a political content, they don’t have … they don’t even have a human rights content, except that if I … if any citizen who goes before a court, whether it’s in their civil rights or their … in a criminal case, their rights are being adjudicated upon.  But the wider political context may not be there. Nonetheless any citizen who goes before a court does not want to feel that the judge is looking at the person who is before them. Because you may feel that the only person that you are, you are taking to court is Mr. X, but as they say, “What is behind six may be more than just seven”, so it could be that behind Mr. X, is Politician Y, Military Person X, and all the rest of it.  So you want your judge to just deal with the case and the facts in front of them. And if that means that you as a citizen have taken government to court, the judge should be able to hold the government accountable notwithstanding. It shouldn’t be a matter of … because during the Second Republic – I mean, I wasn’t planning to go into much of the history – but during the Second Republic, it became a thing for people to say that anything on the exclusive legislative list must be taken to a federal court, so that if you were suing the Federal Government, you had to go to a federal court, and the implication was that judges who are appointed by the Federal Government are more likely to give judgments in favour of the Federal Government.  And similarly …

RS: Especially if it’s a case in which it’s a citizen versus the state.

AO: In favour of the … it could be States versus the Federal Government too.  And equally, you had a situation, you have a situation where, if you are … say you have a case in Lagos State, and you want to sue the Lagos State Government to court, you don’t want to feel that you can only go to a federal court to sue the Lagos State Government because a judge appointed by the Lagos State Governor is bound to want to give in favour of.  However, I think it’s also important for us to recognise that we are supposed to have an independent body that deals with the appointment, and that in fact, even Legal Practitioners are there on the body that makes appointments. The Governor is supposed appoint on the basis of recommendation, just as the President is, and …

RS: This is the difference between the State and the Federal.

AO: Yes but even then, even when … on, no, the federal also, the President also appoints on the basis of recommendations.  But the point is that if you’re appointed into the state judiciary, unless your ambition is that: Well, State Judiciary is where I rest, (and it could be, because if you’re appointed at a ripe old age, then you may not think of going further) …

RS: Going federal.

AO: … but otherwise, every promotion after the High Court is going to a federal … either the Court of Appeal or the Supreme Court.

RS: In that case, is it then dependent on how you are seen? 

AO: No, well the point is …

RS: … Or perceived by the Federal Government?

AO: No, the point is that … I don’t know because I’m not in on the councils, but I would say that in any crop of judges that are appointed to the appellate courts, you always must have –  and you will always see – some who are intellectually sound, and … because that 

RS: And able to navigate the politics?

AO: … that lustre, the lustre that the Esos and the Oputas brought to the Supreme Court, we want to continue to see it in our judiciary now, so you will always have …   if I mention my classmates, it’s because … you’ll say that the famous Class of ’78 is still ruling the roost, but if I think about … I mean, well, one of my classmates, had a First at Ife, did very well in Law School, and was appointed to the judiciary after doing Youth Service in Sokoto State actually … and these are people who … they have the mental capacity, and I think that if we want to see Accountability, if we want to see our judges being able to enforce the Accountability part of IDEAS and Democracy, then this is what we want.  I can not … it’s always difficult for those of us … I won’t say “those of us”, let me not pretend to wear a halo, but it’s always difficult to sort of say somebody is corrupt, somebody took money, somebody is bowing to political pressure, because often the judges are trying their best to find a way of upholding people’s rights.

RS: The kind of scenario we saw when the immediate past Chief Justice was moved aside in controversial circumstances, how does that impact on the confidence of judges or their ability to be able to stand up?

AO: It should … it does not … it doesn’t take away their ability to do what they need to do, because – let’s be frank – I’m not sure that it’s because the former Chief Justice was giving judgments against the government that they went after him.  I believe that it was probably more about what they feared he might do. 

Georges MacNobleson-Idowu: … might do.

AO:  But, to the extent that a judge … you have the power, it’s your choice to use it or not.  Now, if you’re a human being you may say: Do I really want to offend, get into this problem and so on and so forth?  Because even when it comes to basic things, like, somebody is accused of an offence which carries the capital penalty, or an offence that is … I would not say popular, I should say unpopular … say you’re accused of … because the quickest way to ‘vanish’ your opponent is get them accused of armed robbery.  Because, not that the judges cannot give bail in the case of armed robbery, but when they give bail and then somebody now … turns up, the people say: “Ah well, it’s the judges! It’s the judges, they are allowing these criminals”. It’s the police who have not produced the case that can go to court and get these people tried, but the judge instead of being able to say: “Well, you’ve had two years to make your case against this person, I think it’s time we got them released on bail.”

RS: On that point of armed robbery, we’ve seen very unlikely cases where people like Fela were charged for armed robbery.

AO: Yes, because the judge will always find it difficult to give bail in an armed robbery case, because then it’s the judiciary that will be blamed if there is armed robbery and so on.  And I mention that because … a couple of weeks ago we were talking about the way that treason and treasonable felony have now become fashionable ways to vanish your … your opponents if you happen to be in government.

RS: Well, thankfully today, Sowore was … it’s just been breaking … 

AO: Yes, he’s …

RS: … he’s been granted bail for the second time, 

AO: No, I think the first time …

RS: … is that some consistency with the judiciary?

AO: I think the first time, what had happened was that an order had been sought by the Department of State Security that they should hold him for 90 days, and the court said: “You can hold him for 45 days.”  So, he was … the 45 days expired, they said: The 45 days is gone, can we have our man back? And they were dodging service. Then they quickly … woke up and said: “Ah! Better get this man charged to court.” And he was charged, and as is normal, an application for bail was made.  But you see, if you look at some of the conditions that are imposed in these cases and you feel that … well, I mean I suppose that the thinking is that if you actually have a landed property in Abuja then you already have the N100 million, because otherwise the kind of money that gets talked about, is outside the realm of most of us.

RS: And this is why you were talking about class earlier …

AO: Yes.

RS: … that while people talk about religion and ethnicity, people often don’t talk about class, because when those kind of conditions are imposed on ordinary people, the idea that you will find N100 million or landed property in Abuja is close to non-existent.

AO: Yeah, well, I would say that these are the sorts of things that, they put these high  conditions on … when even though one may be an ‘ordinary man’ (which I’m not sure that all of … that a Sowore would concede to being an ordinary man) but even though one may be an ordinary man, one is being given higher conditions.  The prisons in Nigeria are actually full of people who cannot find the N10,000 that they need to pay their bail and get themselves released.  So, but … there again, you can see judges trying to walk the line between not offending government so much … even allowing government that is saying: We uphold the rule of law.  To say: “Look, I’ve made it very easy for you to uphold the rule of law.” But in the end, I think that we are finding that our judges are making rulings or giving – in the cases of these bail and so on – they are saying: “Look, at the end of the day, there are things that … if you don’t want to …  if you want to get these people convicted, then bring your case and make it, it’s not … But don’t leave it on my head to say keep the person locked up inevitably and … interminably without … without your ever bothering to take them to court.” But I think … because we tend to focus on these cases like Sowore’s and so on – the other day too, we were talking about the journalist who in … Mr. Jalingo …

RS: Agba Jalingo

AO: I don’t know what, because I saw that he was taken to court, accused with this treasonable felony or whatever it is… 

RS: Which, as you said is sadly the …

AO: Is fashion.  But the point is that, that …  the judiciary that is faced with that would want to, should be able to say: “But this charge, I think I’m going to let this man out on bail”.  Because they know that the real objective is to (a) frighten anybody else who wants to write about the money that may or may not be going north of south in some …

RS: In some states.

AO: In some states, and so they would say: “The elements of this, do they add up to a crime?  Do they add up to the crime with which the person is charged?” Because if the judges are not able to do that, then the people who want to hold those who are spending money …  

RS: Accountable.

AO: …if they want to hold them accountable, then if the judges are unable to say: “This person is entitled to be released on bail pending trial”, then the tendency is for them to be seen as not on the side of holding people accountable, but on the side of muzzling those who want to hold people accountable.

So I do think that yes, the judiciary has an important role to play in the IDEAS spectrum, but we … if what they do is say: “I’ve done my part in accordance with the law”, because even under military dictatorship, judges were able to give judgments that the military dictators did not like, and they said: “Those are the laws!”  And that’s why you have this phenomenon of Emergency legislation and so on. In a Democracy you can’t just have emergency decrees. You have to abide by the laws. So actually we should expect more support from the judiciary when it comes to this issue of Accountability than not.

RS: Thank you so much Ayo.  

AO: You’re welcome.

RS: Very enlightening.

AgO: Alright.  Public Square will continue.  We’ll go for a quick break …  

RS: A short break, and come back.

AgO: A short break and come back.  Let’s hear some more, so keep listening.