By Babil Brown
This is Part 2 of my article under this heading. In Part 1 thereof, I highlighted the problems of emasculation of judges by law enforcement and security agencies, resulting in massive erosion of independence of the judiciary. I also identified certain ways through which this occurs. In this part, I shall analyze the ramifications of this problem for Nigeria and ways to contain and possibly eliminate the menace.
Very early after independence, the Nigerian courts faced challenges as the political class sought to drag the courts into political disputes as in the Obafemi Awolowo’s treason trials. Also, the 1971 case of Lakanmi v. Attorney General of the Federation was a remarkable instance of a collision between the Gowon’s military government and the judiciary. But in none of thee early cases did we have the present-day pervasive interference by law enforcement agencies in judicial proceedings. These days, the law enforcement agencies act on their initiatives without necessarily specific directives from the President or the Ministers.
The absence of political will on the part of the executive arm of government to obey court orders is a factor that has encouraged the law enforcement agencies to disobey court orders. These agencies are either under the presidency or some supervising ministries. With political will, the presidency can commit itself to ensuring that every order of the court is obeyed. This requires an attitudinal change that sets a clear example to the nation. If the President, for instance, can allow the courts to have a final say on any controversy involving government interest, that becomes the standard by which everyone else must operate. That also emboldens the courts to operate without fear of consequences of a judgment that is unfavorable to government interest. But as long as the President and to government officials cherry-pick which order to obey and which to ignore, all agencies of government will tend to follow that example of selective obedience of court order.
Another way to protect the courts and preserve their integrity against encroachment is through the watchful activism of the organized Bar. In Pakistan, when the government attempted an unconstitutional removal of the Chief Justice, all lawyers in Pakistan took to the streets until the government was forced to rescind the move. In the past in Nigeria, the Nigerian Bar Association was a vigorous organization that checkmated excesses of government especially when it involved direct interference with the independence of the judiciary. Unfortunately, in recent times, the Nigerian Bar Association has become too partisan, too politicized and too enfeebled to perform the function of protecting the integrity of the courts. On the contrary, lawyers have been used by law enforcement agencies to undermine the court.
In all cases where these agencies either disobeyed court orders or engaged in media attacks against judges, there are lawyers representing the agencies. There has been no report of any lawyer who withdrew from representing such agencies on the basis that the agency disobeyed court order. And there is no instance of the Bar Association sanctioning a lawyer for participating in agency disobedience of court order. There would have been an exception in a recent effort to seek sanctions against Mr. Abubakar Malami, the Attorney General of the Federation, for disobedience to court orders. But this isolated attempt has been marked by failure, confirming the opposite.
Yet another way to preserve the integrity of the court is through a vigorous enforcement of discipline among the judges. In many of the cases, it has been shown that the judges most vulnerable for agency interference in their work are those judges that are corrupt or who have engaged in questionable activities that leave them susceptible to blackmail. By anecdotal evidence, the method used most frequently to intimidate a judge is for the law enforcement agencies to monitor their bank accounts for inflows or to monitor irregularities in their assets declarations forms. Irregularities or questionable financial activities of a judge make him a sitting duck for manipulation and blackmail. Also by anecdotal evidence, it is believed that the law enforcement agencies in Nigeria obtained the asset declarations forms of several judges with marked breaches and irregularities. And with the case of the former Chief Justice fresh in mind, those judges are tremendously compromised and vulnerable to blackmail.
With a more effective disciplinary body for judges, the compromised judges are detected early and disciplined, rather than leaving them in the bench for years during which they are blackmailed and exploited by the law enforcement agencies. Also, as the public sees that bad judges are dealt with, it enhances integrity perception on the part of judges. It is harder to persecute judges where most people see them as honorable people. However, where judges are increasingly perceived as crooks and the main problem of the country, it becomes easy for the law enforcement agencies to stick a nasty allegation against a judge either in the press or through a formal charge.
Judges should also do more to help themselves. The current composition of the leadership of the bench, especially at federal level, is promising. We have a Chief Justice who is a person of integrity and willing to be above board, having observed the controversy surrounding the removal of his predecessor. The same with the current President of the Court of Appeal and the Chief Justice of the Federal High Court. Judges under these leaders should be able to resist pressures from the law enforcement agencies. And the leaders of the bench should resist every attempt of these agencies from choosing the judges they prefer to handle their cases. By tightly controlling the case assignment process, the heads of the respective courts can resist the manipulative inclinations of the law enforcement agencies toward the courts.
Finally, the press has a distinct and powerful role to play in this. By resisting the brown envelopes that lead to smear or tendentious reportage of judicial proceedings, the press will help avoid the unwholesome media attacks on judges and court proceedings. The press should monitor its members and promote ethics and professionalism among their members with special sensitivity for accuracy and fullness of reporting judicial proceedings. In face, a more accurate reporting of judicial proceedings also help to ensure transparency of judicial proceedings.