Bar and Bench - public expectation in an
emerging democracy
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" the four corners of scholarship are liberty,
truth, poverty
and fearlessness... remembering that a rejection of any is a disqualification for the rest." ...Mokwugo Okoye
DEDICATION
LECTURE For me, Abuja is always a challenge. A challenge to the factors on the national political firmament; a challenge to factors in coordinate administration; a challenge to pioneering spirits and a challenge to setting standards. But if Abuja is a worthy challenge, such that a stature for the wholesome inspiration of national feeling has to attend every commitment, it is then a challenge to be taken with equanimity and such commitment as the unyielding spirit, which gave birth to the unity, growth, focus and development of this nation state, Nigeria. If, therefore, I am to lend a hand in the push to present the real picture so as to build a better society, even if it has to commence in Abuja, I shall take the gauntlet and I shall give an account of myself. In doing this, therefore, I shall not seek to show learning or scholarship in another man's field but I shall hold on to my right of joining; if not leading, in the quest, as it has arisen: if it is law, if it is justice, is it a matter for the court of public opinion or a matter for the court of justice? My sounding board in this is, therefore, attendant upon the note of warning on the extent of discordance in our land. In fact, I could not have mistaken the semblance of order, which has not turned out completely to inspire our countrymen. Such that they cannot yet accept that the whole evolving society, the social order, the emerging nation and the bestriding 1 state are coterminous to the aspiration of the greater number if as the picture of deprivation is shown, the greater number are still looking at the political environment with askance. With askance, because the question has remained, how much of our plight can be accommodated in the scheme of those that matter and those who cause the ball of public goodies to roll? With askance because the question is consistent with the position of the law in the relationship between those who have, who have to pay a retinue of well heeled lawyers and those who may never really have the attention of lawyers, any lawyer for that matter, drawn in their direction. With askance because if it is strictly and pointedly stated that lawyers who represent must earn their living through individual efforts, even as every part of public values or the erstwhile stabilising factors, are being divested and responsibilities shifting to matters of "can-do," the beleaguered and downtrodden will have to be shunted aside, leaving such a chasm that the poor will never, ever, cross the divide between the "can-do" or "can afford" and the "can't do" or "can't afford." By December 29, 2003, (that is about 19 days, hence) we would have done a whole 54 months or about four and a half years of the country's latest experiment with constitutional democracy and civil rule. This, optimists and cynics alike, have choreographed as "nascent democracy". The concept of a "nascent democracy" presupposes being brought into being or in the early stage of development. But it has altogether never ceased to intrigue, particularly when juxtaposed with the generic derivative of "nascent" as the abnormally active condition of an element of our democracy at the instant it is set free from a combination or complication or entanglement in which it has previously existed. A stereotype view of this presents an argument against the background that since we had military rule all the time, even with sprinkles of forays in democratic governance, we could not rightfully claim to have a nascent democracy which, in straight standard words, means an extricated version (from a known complication), being spruced up for growth and development into the expected frame and structure of the desired practice (whole). Sometimes, we seek to escape these complications or challenge of the words in use and so resort to calling ours an emerging democracy. Playing it straight without the rigours of the challenges of wordsmiths, we see the proclamation of the will of the people as in the affirmative actions which brought about people-chosen governments at various tiers, as the indication of birth, which is expected to be followed by growth and eventual development. Fair enough, it was in order to say it was a new dawn, a new era and a new order. Naturally, there were public expectations, such that the extent of degradation of values, the quantum of rot in the infrastructural system, the erosion of national (including group and individual) confidence, the strange pariah status, the firm grip of poverty, the flight of order and procedure; among others, were factored into the cluster of items upon which public hope was built and upon which public expectation was high. It is against that background that it seems to me that there is something special and unique, something distinctively Nigerian, about the current democratic experiment, as well as the very process that under-girds it. That element, which is distinctively Nigerian has nothing to do with the so-called "Nigerian factor". It is perhaps that feeling of eerie freshness and a deep sigh of relief, which accompanied the democratic advent of May 29, 1999. This, no doubt, marked out the experience as something distinctively "nascent".
It has to be
remembered always that democracy has had a chequered history in the
Nigerian polity, having suffered a litany of abortions and false
dawns. Since a national democratic tradition has not always existed
- such that a political culture has to run on globally accepted
standards for competition for, power it follows therefore that the
country's young democracy Ii!! ought to be nurtured with utmost
care. Herein lies my own personal comprehension of the notion of
“nascent”.
Suffice that the
struggle was long and protracted; its culmination was a classical
case of clambering from the dark alley to the light where promises
for , objective determination of the values were strong. But in reality, I can hardly think of any other professional class(es) in the country which has played a more strategic or concrete role to save a hemorrhaging nation than the legal and journalism 'professions. In other words, lawyers and journalists. In the court rooms and newsrooms, in the ranks of civil society and even in the streets, members of these professions stood up to be counted in their large numbers. In the case of Lawyers for whom we are here gathered, I once had occasion, during the last Annual General Conference of the Nigerian Bar Association (NBA) in Enugu, to adulate the sense of sacrifice and social responsibility of lawyers who have had, at all material times, to lend their weight to the propagation and defence of higher democratic principles and values. I mean the very fundaments of civilized governance and the dignity of the human person. In this connection, I did not fail to recognize the fact that such was not always without a cost, sometimes so high a cost. The abiding reality of the country's nascent democratic experiment is that it is still fraught with tremendous challenges, and lawyers - both at the bar and the bench - can ill-afford to, for a fleeting moment, sit on the fence or to remain impervious to the overriding task of democratic consolidation. If then I underscore this point in a historical context, the nascent democracy, as we know it, is in actual terms, the midwife of an old society, pregnant with a new one. The polity is in a transition. Transition commencing at the end of the initial transition from military rule, through the second phase of an all-important transition from an illiberal democracy to liberal democratic and political cultures. Indeed, for some time, we have had to pose the vital question, if any expectations that the transition process of 1999 would usher in the democracy of our Ii fantasies, were realistic? That is against the reality of the fact considered from our own political antecedents, ours necessarily had to be qualified, as culminating in the struggles to bring about the western-style liberal democracy, in place of the rudimentary practice we have had to put up with now. In effect, May 29, 1999 merely represented the marked beginning of the real transition to democracy. I say this because it is established, even to non-students of political history, that the dismantling of an authoritarian social order is not necessarily followed by an egalitarian milieu, but a transitional order, which, if not carefully midwifed, gives birth to social and political upheavals. To, therefore, say that the country is in transition is not to make light of the gains of the past four years of democracy; or to altogether foreclose its inherent, infinite possibilities and opportunities. What the country is passing through is not just another transition, it is a democratic transition, for therein lies the critical difference. Notwithstanding, the limited objectives of a military-supervised transition to civil rule ought to be fairly obvious; specifically the disengagement of the military from power, followed by a gradual (or shall we say guided) introduction of civil constitutional rule, as a prelude to the enthronement of full blown or unfettered democracy. This is the juncture we find ourselves at the present. It was at this juncture that I had to review the role of lawyers in nation building, believing that as each man takes on his beat, beats down his impediments and alters the course of that which would affect the overall progression, we would all have taken to the field to bring about the full realization of our public expectations.
It was in that
regard that I declared in Enugu when the larger body of lawyers was
with us for seven days: "indeed, everything about the personages
and visage of the lawyer depict a builder and a joint partaker in
the enterprise called nation building. Some lawyers are accountants.
We also have lawyers who are bankers. We have lawyers who are
teachers. We have lawyers who are estate agents. We have some
lawyers who are contractors and yet we have those who, as
politicians, are of the executive, the legislature and what have
you. Perhaps, because I fully appreciated the challenges ahead, I had contended, as I still insist, "lawyers can ill-afford to sit on the fence or remain impervious to the overriding task of democratic consolidation. I mean a consolidation, which must be anchored on the rule of law and the supremacy of the constitution. " Indeed, I was not wavered as I perceived the environment principally because as I put it then, "the ranks of the three arms as well as the various tiers of government are brimming to the seams with legal practitioners who must see it as their responsibility to illuminate the dark vestiges of the country’s authoritarian, anti-democratic past " with the shining armour of justice such that hope and public expectation would be upwardly bound. With the benefit of hindsight, it is arguable that the bar and the bench provide the polity with a historical link between the past and the present. Even at the darkest periods of the country's post independence political history, the judiciary managed always to stand out as an oasis. It remained the one arm of government that survived the attendant instability of Nigeria's neo-colonial political economy, manifested in the forms of regime-change, system-change, etc. Following the frequent military seizures of power, it would have been extremely reckless and utterly incomprehensible, to imagine that the military, in overthrowing civilian governments, could re-enact or extend its treatment of the executive and legislative arms to the judiciary, for instance, by having to do away with the courts and the court system. Of course, we have causes to accept that abolishing or disbanding the judicial arm of government, in all fairness, would have been an exercise in abolishing or disbanding civil society, altogether.
As revealed in
history, the military imposed restrictions and severe limitations on
the judiciary in the discharge of its constitutional functions. Vast
positions of the constitution were not only routinely suspended
sometimes, tribunals, including military tribunals, were elevated
over and above superior regular courts. Despite the benign contempt
with which the military in government treated the courts, it is to
the eternal credit of members of both the Bar and the Bench that, to
a large extent, the courts lived up to expectation as the last hope
of the common man, as they confronted the excesses of those in
authority, the arrogance and abuse of power, the rapacity and
corruption of public life. In the first place, if military rule could not do without the judiciary, it is probably a signpost of the place of the judiciary as an irreducible minimum denominator of any modem government. Under a democratic dispensation, this position assumes overriding significance. I crave your (learned) indulgence to suggest here that the law (as exemplified in the basic constitutional framework) is the cornerstone of any democracy. By the same token, it is my humble submission further that the Rule of law is the legal tender of democracy. The key to the deepening of the political process lies in upholding the rule of law and in entrenching its tenets as aspects of an emerging national political culture. For the avoidance of doubt, the concept of the rule of law, as I understand it, is predicated on the writings and seminal thoughts of early philosophers such as Aristotle, Brocton and Dicey. Brocton had postulated that law, human or divine, governs the world. Elsewhere, Aristotle had drawn the conclusion that the "rule of law is preferable to that of an individual". Dicey, on his part, summed up the scope and ramifications of the doctrine of the Rule of law into three. First, "it means the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness or prerogative, or even of wide discretionary authority on the part of the government. Englishmen, as it is said, are ruled by the law, and by the law alone; a man may with us be punished for a breach of the law, but he can be punished for nothing else. (Law of the constitution, 10th edition; page 202). What this goes to indicate is that the ultimate objective is equality before the law, or the equal subjection of all classes to the ordinary law courts. The rule of law, in this sense, excludes the idea of any exemption of officials or others from the duty of obedience to the law which governs other citizens or from the jurisdiction of the ordinary tribunals (Dicey op. cit pp. 202-3). It is on the strength of the above that I argue that I the challenge of the rule of law goes to the roots of the survival of the nascent democracy, as well as the federal system, having due regard to the plural, multi- ethnic character of Nigeria, that is in addition to the political instability of the past. Of course, we need not be reminded that democracy, like law, cannot be an end in itself: Democracy is a means to an end, and one of these cardinal ends pertains to justice, which can only be actualized through the instrumentality of the law. The compelling quest for the rule of law immediately raises the prospects of the independence of the judiciary. Hon. Justice Chukwudifu Oputa (JSC as he then was) has identified the establishment of the court system and an organized legal profession as landmarks in humanity's search for justice. At least, the court system entails that aggrieved citizens or citizens who feel a sense of injury can freely approach the courts, in the firm hope of obtaining redress and justice. The greater implication, which is of particular interest to me, is that the courts are independent, that is to say, that they are not tied to the apron strings of the executive, or as Oputa put it, the "other concentrations of power; courts which are free from legislative pressures, political pressures, big 'business pressures and what is worse, mob pressure. It is the removal of these extrinsic and unnecessary pressures that assures, in no small measure, the independence of the judiciary". "The court system," Oputa insists, "further 'presupposes courts which are not incapable, for any reason like ignorance, corruption, favoritism, prejudice, fear, favour, etc), of delivering a firm decision ". I shall go further to draw attention to the critical place of another doctrine - the doctrine of separation of powers - which, not a few jurists and legal philosophers consider a radical pillar of the independence of the judiciary. The French philosopher and political scientist, Montesquieu, in propounding the theory of separation of powers, drew a sharp contrast between the legislative, executive and judicial powers of the state and insisted that these powers should be exercised by separate and distinct arms or functionaries of the state. Arising from this is the need "to ensure the restraint of governmental power by dividing that power, without carrying that division to an extreme incompatible with effective government ". Under the turbulent circumstances of the past four years of our democratic experiment, it has become clear that the application of the doctrine of separation of powers is fraught with frictions. This is sharply mirrored in the incessant squabbles between the Executive and the Legislative arms, the mutually - reciprocal acts of blackmail and brinkmanship employed by one arm to wrest concessions from the other, and seek political advantages, over another. Often, attempts at. resolving the question of relations among the arms, and indeed the tiers, have always come up with further questions on leadership or the quality of such in a nascent democracy. Perhaps, principally because of the manner of transfer , and the eventual elaboration on the practices in governance, indications are that gaps exist between what the leader has to be and such manner of persons who push themselves up to be taken as leaders. Indeed, I must say, though with due respect, that for sometime, I have personally been bothered about the simple way people view themselves as leaders, what with the itemization of individual traits as depicting social influences which are further elaborated as indicators of leadership qualities. Largely, such socio-economic disruptions or disorientation or changes or even accidents, which throw up some nouveau riche do also bring in the assumption of leadership simply because some people have followed a particular economic trend or wind or favour or regime disposition, to make money and gamer social following. Frankly, I have had reasons to try to appreciate leadership, not necessarily from the standpoint of political preeminence but mainly on the quality of the individual, based on proper grounding in the principles and process of people/resource management. For me, these then can be transformed or worked at, in translating knowledge and experience in operating a process into political craft. In each case, the motley, which squares up only on account of amassing fortune or being disposed to particular season of power to accumulate wealth, has dazed me. To me again, such networth citizens who, on accident of location or happenstance of friendship, get associated with those who have had to work systems, wrote professional and academic examinations and who have had to lead discerning and skeptical, if not cynical peers, cannot just wake up in the morning to i announce themselves as leaders. Of course, we know: that the roadside auto mechanic can fix the car and it gets going but he is not an Engineer. We know that the carpenter can fix the licking roof but he is not a Civil Engineer. These are artisans. They can cut and join the wire and the plank, but they cannot comprehend the vast, complex and process design engine or super structure. They are repairmen. They are surface and never meant to be deep as to command the complex job of the whole. They are teflon. And in real world, they know their limitations. What then baffles me is that in the political world of the aspiring, Nigerian politician, they do not appear to know their limitations. The tragedy of the scenario of artisan or teflon leadership in the body politic is that the process of governance is reduced to physical battle for survival. Consequently, every issue is a matter to be taken to the wrestling arena in the frame of survival of the fittest As objectionable as some of the more vulgar developments might seem on the face of it, I dare say that such altercations - at times benign, at other times belligerent, are practically inevitable in the course of the elaboration of the infinite potentials of the democratic project, nascent democracy, if you like. As far as the independence of the judiciary goes, no one who is remotely connected with the judicial process; least of all members of the Bar and Bench, could fail to see that the demands are being met, perhaps slowly, but surely. In terms of both the letter and spirit of the constitution, the judicial arm of government at all levels is on course to achieving the constitutional goal of independence. The establishment of the National Judicial Council (NJC) and the entrenchment of its institutional role in the constitution have gone a long way in enhancing this independence, by taking away from the executive arm the final say in the appointment of judges at various levels. Also, in furtherance of this larger objective, the National Judicial Institute (NJI) exists as a training, re-training and capacity-building agency with specific reference to the bench. There is a basis, therefore, to want to believe that the institutional framework for achieving the goal of independence of the judiciary is in place, so to speak. What is probably missing, and I say this with due sense of responsibility, is the requisite will on the part of the Bar and Bench to do what is necessary to constantly reassure the members of the public, especially the underprivileged majority, that the courts exist to serve the ends of justice (no matter whose ox is gored), contrary to perceived disposition to special, well-to-do interests. This actually brings me to the next phase of the topic you have challenged me with - public expectation. Elsewhere, I did hint of the flaw brought into our system by the failure to comprehend the real matters in shaping the proper expectation framework attendant upon the political gap crisis besetting the nation. Using the Harry Samuel typology, it was established that the quantum galvanization leading to obsession against the military, the eventual transfer of power, as well as the urgent desire to reflate the system to quickly assuage the yearnings of the downtrodden, created in themselves a volatile culture of system-stampede and pressure upon governance. Put simply, government did not just have to do with fulfilling the promises of politicians but also to quickly respond to the prior-transfer yearnings of the people who had suddenly rediscovered their rights of expression and participation in policy-making mechanisms. While this remains the case, the evolving trend of stampede in the demand of the people ordinarily negates the reality of the resources and even the possibilities of execution of such projects of ultimate need. And in the case of your profession, the prolonged usurpation of the fine points of legal grandstanding, against the backdrop of authoritarian military order also provided its own crisis of gap which now defines public expectation of the men of the Bar and Bench. The simple question is: Is it as usual or are we really into an unfettered justice system? As you know, I have had causes to get drawn into the study of the trends of poverty and such manifestations, which in my findings now put question marks on the extent of cohesion of the larger society. Attendant upon the fact that poverty, defined in the Western world as the inability to level up on some defined standards of living, actually depicts total exclusion, in our local cases, it violates our sense of worth and saps the energy to assert, to participate, to urge and to say. Our society is not anything near the elaborately cosmopolitan and technologically advanced West where the basic democratic drive may equal the clamour to dress as one pleases. It is far from the advanced economies where the utter lack of the basics of life would obscure the necessity to urge a right and pursue an accommodation within the frame of a free society. In ours, the issues are still the basics: akpu, eba and tuwo. In many cases, these are sought to be settled before shelter and clothing because, as we say in our downtown parlance, man must wack first before him go look for house to put head. Of course, the fact of wack (immediate food), which we cannot shunt aside, does not remove the necessity of shelter and clothing. But above all, the fact of the absence of any of these is the ultimate erosion of the dignity of the man. It is on this ground that I want to consider an angle of access to justice, which rests on the confidence of the man to even seek justice, if he has settled the most immediate - food, to gamer strength to have confidence in the due process of the law and eventual justice. To me, the process of confidence-building, in the justice system, ought to start from the point of democratization of access to justice in all its ramifications, taking into cognizance the democratic rights and fundamental freedoms already preserved under the constitution, the large corpus of international treaties and declarations on human rights and humanitarian law. Access to justice is not, and cannot be synonymous with access to the courts, though, nevertheless an important criterion. But the acid test of democratization of access to justice lies firmly and squarely in the province of reform of rigid and cumbersome court rules and procedures, which overstretch the poor and not-so-well-to-do. As many litigants can readily attest to, these court rules and procedures constitute, by far the greatest obstacle to the administration of justice through the court system. This is immediately evident in frivolous and contradictory orders and rulings issuing from the courts, but more importantly, in the long delays, winding adjournments, suffered by both civil and criminal cases before our courts (almost without exception). Such long delays go a long distance in subverting or undermining the course of justice and in reinforcing the age-long dictum that "Justice delayed is justice denied ". In fact, when your larger body visited Enugu, I had the cause to wonder, "can there really be a full sanctity of the Bench? And, is it possible to say that as the executive shakes or quakes, as the legislature shakes and quakes and as the ship of the state plies the rough waters, that the judiciary remains completely in good stead, never knowing any storm and never riding the rough tides which spell disaster?” Because my questions are yet unanswered, I have to further repeat myself: has this anything to do with "give them injunction today when they need it to their applause; deny them injunction when they did no need it to their applause and give them the injunction when they did not need it to their chagrin; deny them when they need it to their utter consternation and disappointment?” Again, I have yet to conform to the argument of some that "the judiciary is part of the polity and indeed the body politic.” I am aware that this may have compelled the scenario and question: Shall we drag our kind to the court of justice or the public opinion? A question arising from the fact that today, it is hail him! Hail him! While tomorrow, it is crucify him! Crucify him! I must be frank with you in this stead, I have not deviated from my disposition that the question may mean a lot more: Is it still the weight of justice or is it the weight of public opinion? Is it still subject to whatever citations, law, reports, legal authorities or has it now become subject to newspaper editorials, informed columns and opinion articles and freelance judgments of writers? And how much of these will go down well with the poor and downtrodden? How do they fit in?
To me, if
tangible progress is to be made in this direction, we shall be led
by conventional wisdom in pointing in the direction of the Bar and
Bench., would say that the bulk of the initiative ought to from the
Bar and Bench, if as we are building a we]l organized civil society,
we accept the validity of horizontal participation in the national
justice system. I take seriously the view expressed by Robert Seidman to the effect that "poverty exists because social institutions - that is, repetitive patterns of behaviour - create and recreate it. According to Akinola Aguda, ,however, what becomes of the greatest and paramount importance is the level of legal and social justice, that is available to those who are, in reality, poor. Aguda put the issue in perspective, thus: "To say that there is equality before the law is nothing but a myth created by our political rulers and the lawyers to give cold comfort to the poor, so that they - that is the political rulers and the lawyers - can have a peace of mind, We are simply not equal before the law unless we give a restricted meaning to the word 'equal', All persons do not have the same opportunity in practical terms to ventilate grievances within the temple justice. Without equality of access to our courts for the ventilation of grievances, real and imaginary, before the courts, the so-called equality before the law is nothing but a myth ". At this juncture, there is this need to buttress this point with the view of a one-time Chief Justice of. India in a landmark dissenting judgment in the case of Minerva Mills Ltd V. Union of India. I want to quote him in detail: "The large majority of people who are living in almost sub-human existence, in conditions of abject poverty and for whom life is one long broken story of want and destitution, notions of individual freedom and liberty, though representing some of the cherished values of free society, would sound as empty words bandied about only in the drawing rooms of the rich and well-to-do and the only solution for making these rights meaningful to them was to remake the material conditions and usher in a new social order where socio-economic justice will inform all institutions of public life so that the preconditions of fundamental liberties for all, may be secured”. Considered from the prime thrust of the leading topic under review, the question to pose is on the direct link between public expectations and the reality of our environment. Transiting from dictatorial political culture, riding rough, through a wobbly, inconsistent pre-democratic civil rule, we are shepherding our interests as we seek to erect a social order upon which this society will grow. As we do this, believing that all would be well for the birth of an equitable order, is it possible to marry the conflicting points attending to the greed of a few against the need of the majority? And is it possible to reach a cohesion due our needy state if at the end of every process of the court -the Bar and Bench - the poor thunders out of the courtroom, yelling: no be here this matter go end o! If we go home happy with ourselves that the poor man had bolted, making empty threats or projecting worthless bravado, when indeed he was supposed to hide his face of defeat in shame, aren't we altering the course and culture of the justice system, thereby negating the requirements for the growth of civil society and abundant confidence in the national system? Of course, it may not be the headache of any of the accomplished men of the wig that the poor man proclaims that no be for this court this matter go end. It may even amuse him or her to the limit that the ignorant poor thinks that justice could be obtained elsewhere. Of course, speaking straight about the ordered society, the topnotch legal luminary is right. Justice is obtainable, only, in the court of law or in the intervening junctures of civil society. But is such the case here? If there is an absence of the developed civil society, such that the environment presents a situation of no hope or one of every man to himself, which induces a frustrated ignorant poor man to rake and threaten that no be for this court this matter go end, isn't it scary that a culture or an aberrational trend had revealed a definite attitude of taking law into one's hand or what is called resorting to self-help? It is not certain to me that these will be resolved here. It is not even certain to me that the fuller dimensions of the trend would have been established in this short interaction. But I believe that you may have set the tone in your drive at opening up the society in your Bar Week, what with the challenge of full discourses on strong legal and political issues.
I join you to
pray for a road map, and I urge that if you possess the boldness of
which Oputa had craved above, you would have started out on a valid
point in the advancement of the justice system of which the public
yearning would have been met in half and for which we shall say, as
in Enugu State, To God Be The Glory.
REFERENCES
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