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Who will save the
judiciary?
By Mohammed Haruna
Newsdiaryonline
Tue Oct 4,2011
It’s been two weeks today since we last met on
these pages. During this period several major events have taken
place, among them the Senate screening and subsequent swearing
in of Justice Dahiru Musdapher as the Chief Justice of Nigeria
(CJN).
Coming in the wake of the disastrous acrimony
between the former CJN, Justice Aloysius Katsina-Alu, and the
suspended President of the Court of Appeal (PCA), Justice Ayo
Salami, over the 2007 Sokoto State governorship election,
Justice Musdapher’s appointment couldn’t have come at a worse
time for the judiciary.
The acrimony started when the former CJN
stopped the Court of Appeal (CA) sitting in Sokoto from
delivering a judgement that was speculated to have been against
the incumbent governor. However, the acrimony only became public
when the former CJN tried, in effect, to promote Justice Salami
sideways into the Supreme Court, a move which the latter loudly
rejected by heading for the courts in protest.
Then followed accusations and
counter-accusations between the warring judges of selling out,
each to his alleged “political masters”. Predictably both bar
and bench became deeply divided over who was right and who
wasn’t. Thereafter all efforts by horrified well-meaning
observers, especially former senior judges like Mamman Nasir and
Mustapha Akanbi – both incidentally former PCAs – and senior
lawyers to contain the acrimony failed.
The failure was compounded by the decision of
the former CJN to set up a panel of members of the National
Judicial Council (NJC), the disciplinary arm of the Judiciary,
to adjudicate in the matter. The outcome - the suspension of
Justice Salami for perjury against the CJN - was predictable;
the vast majority of the 23 odd members of the NJC are,
constitutionally, the CJN’s appointees.
Again predictably, Salami, who had been
persuaded to withdraw his court case against the former CJN,
headed back to the courts, this time to defend himself against
his suspension based on the NJC claim that he had lied against
the former CJN.
This development, as Justice Mustapha Akanbi,
among others, has repeatedly pointed out in several newspaper
interviews, was unprecedented.
It is against this background of a deeply
divided Judiciary that Justice Musdapher has become the
country’s new CJN. Obviously this makes his job unenviable. Add
to this the fact that he’s been a major actor in the Katsina-Alu/Salami
face-off as a key Salami witness who, however, in the end
rejected Salami’s account of the judicial controversy over the
2007 Sokoto State governorship election, then the new CJN’s job
looks like mission impossible.
Happily there’s hardly anything that is
impossible in this world provided, that is, that there is the
insight and the ability, and, above all, the will, to deal with
it.
Already the new CJN has shown an appreciation
of the enormity of his job. He did this during the Special
Session of the Supreme Court to mark the beginning of 2011/2012
Legal Year by honestly admitting, albeit cautiously, that the
judiciary has never had it so bad.
“As it stands today,” he said on that
occasion, “it seems the society we serve is not entirely
satisfied with our performance. Hard as it may be to accept, we
feel it is less important to focus on whether this assessment is
fair or not. The important thing is for us to transparently come
to terms with the prevailing realities, accept the gap in
expectations, and do our utmost to bridge it.”
He then assured his audience that the
judiciary under him will carry out “the weighty
responsibilities” hanging on its shoulders “with vigour, truth
and dignity.”
More than anyone else the CJN obviously knows
he has next to no time to do his own bit for the Judiciary; he
has less than a year to reach his mandatory retirement age of
70. And even with the best of intentions and the strongest of
wills, one needs years, not months, to clean the Judiciary of
the rot that has eaten deep into it.
Still the CJN can make a difference even with
the little time he has. He obviously has the ability to do so.
Otherwise it is unlikely that he would have risen as far as he
has. What remains is for him to show that he has the will.
He has promised to raise a judicial reform
committee to help redeem the image of the Judiciary by
overhauling the administration of justice in the country.
This, to me, is rather a false start. The
experienced learned judge, I am sure, must have heard the quip
about the most effective strategy for sweeping a problem under
the carpet is to set up a committee to look into it.
Of the many things that have served to dent
the image of the Judiciary none, at least in my view, has been
as bad as the Katsina-Alu/Salami face-off. Justice Musdapher can
do worse than begin his effort at cleaning up after his
predecessor by trying to resolve the fallout from the face-off.
The Nigerian Bar Association and many senior
lawyers have, quite rightly, denounced the role of the NJC in
the suspension of Justice Salami as PCA. Some people have even
called for his recall in the face of the fact that he was
suspended after he had gone to court to challenge his suspension
on the ground that he lied against the former CJN, making his
suspension sub judice.
I very much doubt the wisdom of such calls if
only because re-instating Salami can only further divide an
already badly divided Judiciary. Instead Justice Musdapher can
direct that Salami’s case be given accelerated hearing. A quick
verdict would provide an opportunity to sort out the Sokoto mess
which is at the heart of the current judicial predicament.
Beyond that Justice Musdapher can do a lot by
leading by example. Writing in an insightful collection of
essays in Thisday by members of its editorial board in its
October 1 Independence Anniversary edition, a lawyer, Sonnie
Ekwowusi, in his own essay asked the very pertinent question,
“Who Will Save the Judiciary?” His answer suggested he believed
politicians are the ones. “The Jonathan administration,” he
said, “should therefore take concrete steps to overhaul the
country’s criminal justice and prison system.”
Ekwowusi couldn’t be further from the solution
to the decay in our judicial system. Politicians have been part
of, indeed are the root cause of, the decay. They are therefore
unlikely to be part of the solution, much less the entire
solution, to the problem.
The solution lies almost entirely with the
members of the bench themselves.
Needless to say, all parties in any dispute,
political or otherwise, will invariably try by means, sometimes
fair, sometimes foul, sometimes both, to persuade judges to see
things their way. It is entirely up to the judges to resist
anyone who tries to suborn them to give judgment, not
essentially on the merit of their case, but solely for a
consideration.
Short as his tenure will be as the CJN, indeed
precisely because of its brevity, Justice Musdapher has no
choice but to lead the battle for redeeming the image of our
judiciary as an institution whose members, generally speaking,
are regarded as availlable for sale to the highest bidder, or
worse, to the next bidder.
And if whispers
coming out of the hallowed chambers of courts are to be
believed, he has more than enough fellow judges on the high
bench, notably the next in line to succeed him, Justice Alooma
Mukhtar, to give him covering fire against any ill-willed
compromiser.
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