Every Nigerian, irrespective of tribe or creed, who has the love of this country at heart, must be worried by the spate of losses the executive has recorded in the law courts regarding the ongoing war against corruption. The judicial scorecard is as disturbing as it is ominous. Disturbing because the losses occurred in quick succession (all within five days) and ominous because they foreshadow what many fear to be an imminent failure of the much cherished anti graft crusade of President Muhammadu Buhari. When we factor in the fact that the majority of Nigerian electorate voted for President Buhari and his political party, the All Progressives Congress (APC), because they believed that he was the best and most suitable man to confront the hydra-headed malfeasance called corruption, the basis of this trepidation is well understood.
That four high profile cases were lost recently is no longer news. First was the case against former First Lady, Patience Jonathan, a flamboyant woman whose husband was generally believed to have presided over the most corrupt civilian administration in Nigeria’s political history, which was thrown out by a Federal High Court, sitting in Lagos. Then came the case against Justice Adeniyi Ademola and his wife, Olubowale. A High Court of the Federal Capital Territory (FCT) Abuja, after hearing oral and written submissions from the prosecution and the defence, dismissed the 18-count charge levelled against the defendants. Affected by this ruling, which was delivered on 5 April 2017, pursuant to two applications for no-case submissions filed and argued by the defence, was a Senior Advocate of Nigeria (SAN), Mr Joe Agi, who was alleged to have bribed the judge by, inter alia, buying a BMW car worth N8.5 million for his son at a time the learned silk had a case pending before His Lordship. Less than 24 hours before this ruling, another judge of the High Court of the FCT had struck out a six-count charge bordering on alleged N1.97 billion fraud preferred against former Minister of Niger Delta Affairs, Godsday Orubebe. Affected by what some commentators now whimsically refer to as “judicial bonanza” is a Lagos lawyer and human rights ‘activist’, Mike Ozekhome. A Federal High Court sitting in Lagos had vacated an order barring him from accessing his N75 million deposit at a commercial bank. The money, which Ozekhome claimed to be his legal fee, was alleged to be proceeds of a fraudulent act.
Expectedly, different reasons have been adduced by different analysts for these costly losses. For example, former President Olusegun Obasanjo attributed the problem to inefficiency and lack of proper investigation on the part of the prosecuting agencies. His belief is that “if the investigation is sound and you have ‘ogbologbo’ lawyers to handle the case, even if you have Salami gate you know what the answer will be” (The Punch, 14 April 2017, p.48). His recommendation is that the anti graft agencies should recruit sound and competent lawyers and use them for the prosecution of corruption cases instead of firming out these cases to private legal practitioners whose loyalty and honesty cannot, according to him, be trusted. Human rights lawyer and Senior Advocate of Nigeria, Femi Falana, lending his voice to the issue, called for a reorganisation of the anti graft agencies and a review of the anti corruption policy in line with the proposals designed by the Presidential Advisory Committee Against Corruption (PACAC), headed by a legal icon and scholar, Professor Itse Sagay, SAN. There has also been a suggestion that for the ongoing war against graft to be effective and successful, it should not be selective. In this regard, a United States of America based lawyer and social critic, John Anyaeze, has advised the Economic and Financial Crimes Commission (EFCC) to stop fighting corruption based on perceptions and sentiments. “If the anti-corruption agency continues toeing that line, it would continue to lose the war against corruption. What we have seen so far suggests that the EFCC is only going after people the President orders it to go after” (The Punch, 15 April 2017, p.43). A Professor of Criminology at the University of Jos, Enannibi Alemika, offering her own take on the issue, has stressed the need for judicial officers to familiarise themselves with the provisions of the relatively new Administration of Criminal Justice Act (ACJA), 2015. The University don, whose views were contained in an article written by Professor Ayo Olukotun in The Punch Newspaper edition of Friday, 14 April 2017, also drew our attention to one matter which is the primary focus of this write up, “judicial activism.” She urged the judges, above all, “to embrace elements of America style judicial activism.”
What is judicial activism? The Black’s Law Dictionary (9th edition) defines it as a “philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions, usually with the suggestion that adherents of this philosophy tend to find constitutional violations and are willing to ignore precedent.” An adherent of judicial activism, often called a “judicial activist”, is willing to override strict rules and precedents where doing so will better meet the ends of justice. It is a radical departure from the orthodox approach under which judicial officers are more or less tied down by the rules of court and of law, and by precedents set by coordinate or superior courts.
The doctrine of judicial activism actually originated from England, even though it is, as hinted by Professor Alemika, now more prevalent in the United States of America. One key element of this philosophy is judicial law making. Under the traditional approach, most English judges regularly denied that they played any role in making laws. The role of judges, in the words of a British scholar, Francis Bacon, in an article published in 1973, “was supposed to be only to interpret law, and not to make law, or give law.” But in an article titled, “The Judge as Law Maker” and published in the Journal of the Society of Public Teachers of Law, an English judge, Lord Reid, was quoted as commenting thus: “we do not believe in fairy tales anymore.” A Professor of Jurisprudence, J.M Elegido, has in fact drawn our attention to how the adoption of the doctrine of judicial activism has led to the rapid development of the common law of England. In his book, JURISPRUDENCE, Elegido cited, as an example, the enormous development that has taken place in the law of negligence, noting that “it is the judges themselves that have changed the law through decisions like Donoghue v Steveson, Hedley Bryne and Co. Ltd v Hellers & Partners Ltd. and Anns v Merton London Borough.”
Indeed, one judge who shot himself into the limelight through uncommon adherence to judicial activism, and was later described as the most celebrated English judge of the 20th century, was the Master of the Rolls himself, the legendary Tom Denning, more popularly known and called, Lord Denning. In a tribute to this great jurist published in The Guardian of London on Saturday 6 March 1999, barely 24 hours after he passed on, just six weeks to his 100th birthday, Clare Dyer, the newspaper’s legal correspondent, wrote thus: “An early judicial activist, Lord Denning foreshadowed the move towards moulding the law to suit changing times and circumstances, in a period when most judges adhered to precedent.”
Lord Denning was described in the same article as “the most celebrated English judge of the 20th century who left behind an unprecedented mark on the development of English law.” The correspondent wrote further; “a judge for 38 years, he was known as ‘the people’s judge’ for his willingness to override precedent to do what he saw as justice and for his simple-worded judgments.” The correspondent further recalled that Lord Denning, as Master of the Rolls, exerted an enormous influence on the development of English law from 1960s to 1980s, adding; “his judgments were often overruled by the House of Lords, but in many cases prompted a later change in the law by Parliament.”
In our own case in Nigeria, not a few analysts will agree that we have a great deal of problem with the Parliament (the National Assembly). Also, there is no doubt that the executive arm of government has not been able to design a workable policy for an effective prosecution of the ongoing anti graft war, as the judicial scorecard mentioned earlier would reveal. But the question is, why should we also have problem with the judiciary, an institution that is legally and constitutionally designed to be the last hope of the masses? It is on record that the judicial revolution pioneered by the great Lord Denning in Britain has now crystallised into a robust system that could bring a former governor of Delta State, Mr. James Ibori, to justice, several times after the arms of our law could not catch up with him. The recent losses suffered by the anti graft war in the law courts, coupled with the Ibori case, which has since been shrugged off by the operators of our legal system, do, in the opinion of this writer, pose a great deal of challenge to our judicial officers. The need to embrace the elements of judicial activism to save the anti graft war from imminent defeat – and our judicial system from public ridicule – cannot now be overstressed. It is not enough for the Chief Justice of Nigeria, Justice Walter Onnoghen, to dismiss the allegation of judicial gang up, as he did during a recent chat with newsmen at the Presidential Villa, Abuja, as prejudicial. Our judges must borrow a leaf from the radical approach to adjudication initiated and developed by the likes of Lord Denning in England so that they too can be said to have left a remarkable mark on the development of the Nigerian jurisprudence.