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Justice: Loss of public confidence Another look at the role of lawyers and judges

“Which do we prefer between Justice as administered by adherence to law and rules of court and “frontier justice” in which guilt is pronounced according to public opinion”.

 

LAST week, owing to recent events in the country, I decided to revisit my discussion of the loss of confidence by the public in the administration of justice in Nigeria and how lawyers and Judges have been unfairly singled out as the cause of the delay. I stated how a Lawyer’s performance of his duty is circumscribed by the facts supplied to him by his client. The position is not too dissimilar from that encountered by doctors in which diagnosis is majorly determined not only by the symptoms presented by the patient but also on the facts supplied him. Judges who sit over cases are also in this class.

 

MISCONCEPTION OF THE ROLE OFJUDGES

A Judge by his calling is expected to be an impartial arbiter between the parties. As Nigeria operates an adversarial system of adjudication in which the Judge plays no role other than to determine the dispute based on the evidence, he cannot in any manner act in aide of any of the parties. Where a Judge does this, he is said to have descended into the arena of conflict. This point is important for it shows that a Judge cannot give Judgement for a party in a civil case where he has failed to establish his case by the preponderance of evidence or convict an accused in a criminal case where the prosecution has failed to establish his guilt beyond reasonable doubt. Yet experience shows that most accusations levelled against judges arise out of a misconception of their roles by the public.

This is most rampant in election petition matters in which most Petitioners whose Petitions are dismissed as lacking in merit accuse judges of having been induced to give judgement against them. What many often fail to disclose is that a party to the suit had failed to marshall evidence sufficient to enable the Tribunal decide in his favour. With regards to criminal cases, what currently obtains is the process in which persons are firstly accused and convicted in the court of public opinion before they are ever charged before courts set up by law. In some extreme cases, law enforcement agencies even “leak” contents of statements made by suspects to the press who daily regale their readers with the “confessions” allegedly made by the said suspects. The problem with all these is that a judge cannot convict an accused person based only upon what has been reported in the media. To secure a conviction, the prosecution must meticulously tender evidence, oral and documentary, to establish all elements of the crime alleged to have been committed. However in most cases the prosecution fails to do this after engaging in so much pretrial publicity involving public arrest of a suspect, sometimes preceded by a very public siege on his residence, followed by an open seal off of properties alleged to be owned by him and eventually open dissemination of the contents of his extra judicial statement made to investigators. All these create in the minds of the public a feeling that the guilt of the suspect or accused person and his eventual conviction is an  inescapable conclusion. Therefore when the Judge eventually discharges and acquits the accused person, as he is legally bound to do where the evidence led is insufficient to convict him, public perception would be that lawyers and judges had somehow failed in their duty and had conspired to let off someone deemed to be guilty. This is most unfortunate.

 

DUTY TO ENSURE THAT DUE PROCESS IS FOLLOWED

Where a known armed robber is accused of petty theft, a crime which many would easily adjudge him guilty of given his antecedents, the law still demands that he be given a fair trial in which the burden will be on the prosecution to establish his guilt and not on him to establish his innocence. Therefore what many perceive as the unnecessary legalism of lawyers is often non other than  insistence that the law of the land be followed to the letter. The reason for this is simple. If a situation is permitted in which laws and standards which protect all are disregarded over the preconceived guilt of even one accused person we risk a situation in which those very laws and standards will be eroded over time and will not be applied at all. In such a situation, injustice rather than justice will be the order of the day. It is for this very reason that the victorious allied nations after the end of World War Two ensured that all persons accused of major war crimes at the nuremberg trial had adequate legal representation despite the scale of the crimes they had allegedly committed.

Unfortunately it is situations such as these that make Judges the unfair target of those who see them as the cause of the problems. Such people would rather have a situation in which everyone accused of a crime and against whom there is an alleged avalanche of “overwhelming” evidence is convicted without recourse to the law. This is an invitation to anarchy through what is called “frontier justice”. In 1991 one Jose Anunciaco engaged in a public fight with a co-worker in the course of which the latter died. However when the evidence preferred in court, including testimony of eye-witnesses was insufficient to establish his guilt for murder, he was acquitted. However he was eventually dragged from his bed by a mob and clubbed to death! The mob was not concerned whether his acquittal had been as a result of any finding that he had not caused the death of the deceased or even possibly that he had acted in self defence. Which do we prefer between Justice as administered by adherence to law and rules of court and “frontier justice” in which guilt is pronounced according to public opinion?

 

To be continued…

AARE AFE BABALOLA SAN, CON, LL.D, D.Litt, FNSE