Last week, in his Independence anniversary speech, President Muhammadu Buhari threw a jab at the Nigerian judiciary. The president said: “In fighting corruption, however, the government would adhere strictly by the rule of law. Not for the first time I am appealing to the judiciary to join the fight against corruption”. These words not only imply that the judiciary supports corruption, it also suggests that the judiciary has been acting outside due process. This is worrisome. Not just because the president’s words demean judicial institutions, but because they also damage the legitimacy of the judiciary. This type of statement is the usual preface to executive interference in judicial matters.
It is no secret that the president blames the judiciary for the inefficiency of his anti-corruption crusade. He has touted the establishment of tribunals or special courts (likely under executive supervision) to try corruption cases. In fact, the Presidential Advisory Committee Against Corruption has gone as far as organising a seminar to “guide” judges on sentencing. These may seem proper to a lay person but, frankly, the president’s thinking on these matters is pedestrian at best, malicious at worst. It betrays ignorance of jurisprudence and judicial best practices.
It is easy to say: “the judiciary is my headache” without offering overwhelming data to support the assertion. I am inclined to consider this attitude as more evidence of the president’s blame mentality. He sees the judiciary as idle and antagonistic because he probably sees all Nigerians as idle and antagonistic. And so, everyone—but the president and his select few—comes under scrutiny. Change begins without him.
But, unlike others who Buhari has blamed, the judiciary has to take the beating in silence. Judges do not write opinion articles or freely give media statements. No matter how wronged they feel, judges cannot publicly indict the executive or complain about the legislature. They cannot even socialise into the hearts of the Nigerian masses. Their primary means of connecting with the majority of us is through judicial decisions, often obfuscated by legalese. Yet, if judges could talk freely, they would easily put blame on the president too.
For example, Buhari’s job description includes maintaining top-notch policing, investigative, and prosecuting systems. As with all his predecessors, he has not delivered on that. It is difficult to see how he wants to secure quick convictions using the same weak systems. A public prosecutor with poor research and prosecuting facilities is handed even poorer evidence. Of course, they lose in court to well-packaged defence lawyers. We can barely solve and convict on murder cases without a confession. Why are we then surprised that we cannot easily convict financial crimes?
From my experience as a lawyer and as a judicial assistant, I know that most judges are hardworking individuals who just want to get their job done. They are not idling, waiting for a corruption case from the EFCC. High court judges have a quarterly minimum of cases to be concluded or risk disciplinary action. If a corruption prosecutor is not quite ready, the judge adjourns the case and calls the next one. Judges want to expedite cases, and they will not always sacrifice the time meant for ten cases to hear just one.
And so the judiciary is not a crazy, corrupt institution maniacally blocking the president. Judges would convict an accused if the prosecutor makes a legally acceptable case. The law does not work with sentiment as much as with systemic procedures. Either side to a case can—theoretically—take advantage of these procedures. Yes, this due process may seem inconvenient, but the criminal law’s insistence on clarity is the main factor that prevents innocent people from being framed and sentenced easily.
This argument does not mean all judges are saintly: there have been several horrible judges who were simply political stooges. It does not mean that the judiciary is fine: like almost every institution in Nigeria, the judiciary needs reform. What this argument means is that the judiciary is not the cause of our inefficient fight against corruption. The current lapses in the justice delivery system are symptoms of our dysfunctional political system, not the cause of it.
Yes, our judiciary needs reforms to bring the courts closer to the ordinary Nigerian. We need reforms to decentralise the role of money, class and education in the delivery of justice. We need reforms to make the work of judges easier. We also need reforms that ensure that a police officer can investigate and arrest a corrupt judge—or senator or minister—without political involvement. We need system upgrades, and the responsibility for this is on the executive and the legislature.
But now, let us examine the conduct of the president in all these. He has: overlooked mystifying “clearances”, settlements and selective prosecution by the EFCC and others; acquiesced in the disregard of court orders; made a big deal out of temporary issues like bail applications when he should concentrate on actual convictions. He has been sentimental when he should be detached, and—like the padded budget scandal—detached when he should be involved. He has focused only on the theft of public funds and ignored nepotism and social inequality. In short, his actions come across as vindictive, partisan and hypocritical. The potential damage is illustrated by the involvement of the ECOWAS court in the Dasuki fiasco. Today, Nigeria will either be shamed into complying with an international court order or risk compromising its international integrity. Neither option is an ideal. We are here because the executive actively interfered with the judicial process.
This state of affairs is hardly encouraging to honest ordinary Nigerians. It is also hardly discouraging to dishonest politicians. The president cannot fight corruption through underhand methods and then blame the judiciary for not being his accomplice. If judges are refusing to engage with the president’s politics, then the spirit of the judiciary is commendable. I hope that the president would be humble enough to ask judges for their views, rather than continue to scold them. Unfortunately, in the fight against corruption, President Buhari keeps proving to be his own greatest obstacle.