In the near four years of President Muhammadu Buhari-led ruling All Progressives Congress government, abuse of court orders has become the order of the day especially on politically exposed persons (PEPs). What does this portend for the nation’s 19-year old democracy?Not just Dasuki, there have been others – the Shiites leader, Ibrahim El Zakzaky, the Peace Corps siege by the police etc. Where lays the Constitution? At first, anyone might say the Constitution is lying prostrate, emasculated, defeated because the executive branch of government is rebuffing the judgment of courts of law or choosing what judgments to comply with and which ones will be overridden.
A Constitution and the legal system have life to the extent that the judiciary infuses life into them. By itself, the Constitution is just a document, but a document full of raw vitality and power. It is in the power of the judiciary to process this raw material into the purposes it is meant to serve for society. In the hands of a strong, independent and socially-conscientious judiciary, the Constitution will not stay muted and sterile when there is tyranny. I do recall here when one of our Chief Justices was asked during his confirmation hearing at the Senate, what he thought about the disobedience of court orders. His Lordship stated, as was reported, that “… the challenge of disobedience to court orders is for the legislature and the executive to handle”. I think, respectfully, that His Lordship’s perspective came a little short.
The problem of disrespect of court orders is not something that other branches should fix. They have no interest in fixing that problem, when they are the ones who often create the problem when they act with impunity. It is the Judiciary that must play the leading role in fixing the problem. I do not think our judiciary has done enough to protect its independence from the executive given the many instances of disobedience of court orders in Nigeria. We think the judiciary needs to step up and do more to protect itself from being trodden under by the other branches of government. Our courts need not follow the path of least resistance, but can charge at efforts to undermine it.
Why do you think security agencies are becoming too powerful in a democracy with three branches of government? I mean, they appear to be above the law, why is this so?
Yes, the security agents are part of the executive branch, because they form part of the “infrastructure” for executing laws and decisions reached by democratic institutions. But in a democracy, it is an oxymoron to say anyone is above the law, not least the security or law enforcement institutions. But we know that security forces will themselves only act within the policy context of a particular government. Where a government is unwilling to respect constitutional limits to its powers and abide by the rule of law, it is the same security and law enforcement agents that will objectify its arrogance.
Unfortunately, we do not have security or law enforcement institutions that are independent and can decide to act independently by themselves. You see how the Attorney-General of the United States asked the U.S. Department of Justice to investigate Russia’s interference with the last U.S. elections and whether President Trump benefitted from any of the alleged interference? This is an Attorney-General appointed by the sitting president. And in Israel, you of course know that the Prime Minister, Benjamin Netanyahu as well as his wife have been indicted for criminal offences by the Police and Justice Ministry respectively – and these are state executive branch institutions.
If our country must make democratic progress, we must reform the way our security and law enforcement agencies operate and give them more operational independence, so that they can be accountable and more beholden, not just to a ruling government, but much more to the Constitution. I like the sort of radical ways some countries have gone about this. Under Ghana’s Constitution for example, where the Supreme Court has given a direction or order and it is disobeyed, the disobedience is characterized as a “high crime”, which, upon conviction, makes the defaulter liable to imprisonment for ten years without the option of fine. Additionally, such a person will be barred from public office for ten years. To deal with our chronic problems of disobedience to judicial orders, our country can borrow a leaf from Ghana.
Lawyers declared three days of protest in Imo state against police brutality on its members and for also assaulting a magistrate. What do you think can be done to curb future recurrence?
What happened in Imo State is quite unfortunate. These were the sorts of things you’d see mostly during military regimes, but I guess the impunity has transcended governments. In a way, the police is also trying to amplify the message the current administration has been sending, that it is able to take matters into its own hands when it so pleases. You remember that the federal government set an example for them when they carried out their “sting” operations on even Supreme Court Justices in October 2016. In a way too, this must send a direct message to our judiciary. Unless it does more to rein in the excesses and haughtiness of security and law enforcement officials, as well as this gnawing culture of invincibility they have, it won’t just be Dasuki or El Zakzaky who will be on the receiving end. The chickens will come home to roost. Happily, the Imo State Bar has taken this up with admirable courage and solidarity.
2019 elections are here with us. What active role would you want the judiciary to play in view of electoral malpractices, vote-buying and rigging which have become the hallmark of our elections?
I think really that it is for INEC and the law enforcement and security agencies to play a leading role on this. That is right up their alley. You might observe that we have not had many prosecutions for offences associated with electoral misconduct. Perhaps we should think more seriously about giving INEC the powers to prosecute offences related to the conduct of elections, or create another body with responsibility over this.
Of course, the judiciary also has an important role to play within the wider context of adjudicating election petitions. It can pay close attention to allegations of vote-buying and other electoral irregularities, ease procedures for establishing them and reach the sorts of decisions that will send the message that no party will be allowed to benefit from its active corruption of the electoral process, notwithstanding that everyone else was in on it.
The Constitution has just been recently amended to provide for financial autonomy for the judiciary. Do you think this will make the judiciary more independent and able to play its role better in society?
I do not necessarily think the current constitution amendment will provide that critical filler, although it seems to have answers to the longings of the judiciary and other stakeholders. So, now that it has been done, it should stand to reason that there are no more excuses. However, I do not believe that the absence of financial independence – much as this is really necessary – has been much of a reason for what many regard and I must include myself respectfully as the under-performance of the judiciary. You see, it has always been state judiciaries that complained about the lack of financial independence because funds appropriated for the judiciary was often never fully released to it, or was released only at the pleasure of the governor of a state.
But at the federal level, this was not so as judiciary funds were released to it regularly. But, when it comes to delivering services to the Nigerian people, defending the rule of law and holding government accountable for the exercise of power, there isn’t much daylight between state and federal governments.
In fact, the federal government flouts more court orders and federal courts are not any more able to resist this than state courts. So, where has the financial autonomy of federal courts made much of a difference? I think it basically boils down to this: when you are discussing judicial independence, there is a difference between structural or institutional independence also called ‘de jure’ independence and decisional independence or ‘de facto’ independence. And these concepts are not co-extensive. An institutionally independent judge, i.e. a judge whose country’s Constitution guarantees independence of the judiciary can lack decisional independence and not have the courage to decide cases as he ought to.
On the contrary, a decisional independent judge can operate relatively well in a society where the judiciary lacks guarantees of independence in the Constitution. It will be possible to tell whether a judiciary is actually independent not only structurally, simply by asking these questions: first, are there frequent instances of disobedience to the orders of the court? And second, how does the judiciary react to instances of disobedience?