Those new to listening to lawyers argue among themselves would think that Nigerian lawyers are thoroughly confused, that is, since the ineptly executed arrests of the seven judges. But those familiar with such arguments know they are not. The bread of lawyers has always been buttered on both sides. And when they think it is not, they resort to self-help, especially so, since the society grants them the uncommon privilege of doing so. Thus, either way they win.
When the Nigerian Bar Association (NBA) rent its garment over the arrests, and declared a state of emergency and called up its reservists, and began warlike mobilizations, vowing swift and exemplary retribution, and as many Nigerians took to their heels toward the hills, I tried to telephone Chief Gani Fawehinmi. But I soon realized that the “Senior Advocate of the Masses” is now in heaven.
Apparently knowing that heaven is too far, God himself intervened in his mysterious ways and the NBA eventually pulled back its forces, sheathed its sword, and walked back its rhetoric. Vice-President Yemi Osibajo was probably His emissary who apparently convinced the NBA hawks that the arrest of judges is not tantamount to an attack on the judiciary as the National Judicial Council (NJC) and others have continued to assume.
It’s been painful listening to the back and forth of the judges’ arrest. It is obvious that the Department of State Services bungled the arrest in Port Harcourt by sheer incompetence. But Port Harcourt also revealed why it is a constitutional malpractice to grant immunity to governors and their deputies, even if you could concede same to president and vice-president. But there is something fundamentally unjust about immunity for public office holders which contradicts all the pious guarantees of equality before the law and other fundamental rights and liberties related to the rule of law.
In nations where the rule of law is enforced without discrimination, the first person the DSS ought to have arraigned on Monday morning after the arrests should have been Rivers State Governor Nyesom Wike for obstruction of justice and conspiracy to aid and abet a suspect. But the good governor has absolute immunity, the most hypocritical constitutional provision in the 1999 Constitution and the biggest fraud ever perpetrated on the Nigerian people.
The US Constitution which we copied has no such provision. The example of the state of Illinois, that is, President Barack Obama’s home state, often provokes a chuckle because four of the last seven governors of the state of Illinois are in jail today. The last governor, Rod Blagojevich, went in for 14 years in 2011, having been found guilty of several corruption charges, including an attempt to sell Obama’s senate seat. He is today in federal prisons in Colorado.
Immunity for a state governor defeats common sense because it is a position of great power with scarcely any checks and balances. State legislatures are just too weak to serve as a check. It is fairly obvious that the constitution writers were men and women who aspired to be governors and who wished to protect themselves in office and after.
The uproar over the arrests of the judges was an earful. Someone described it in Shakespearean terms as full of sound and fury but signifying hypocrisy. The greatest outrage was that their Lordships had been woken up from their royal slumber at about midnight. It was ignored that their Lordships were by then under suspicion. And a judge had been briefed and assured that there was a probable cause and, satisfied by the deposition or petition, had issued an arrest and a search warrant.
So much revulsion was expressed that the arrests were done by the DSS. But much of this anger appeared to be mostly manufactured. The DSS being the Nigerian state’s police, everything it does tends to be tainted with politics, quite apart from the issue of competence which has dogged the department for long.
Does a corrupt judge pose a risk to the security of the Nigerian state? Doesn’t he? Revered retired Supreme Court Justice Samson Uwaifo answered in the affirmative. A corrupt judge, he said, is much more dangerous that a deranged man who plunges into a crowded street with a dagger. A corrupt judge, Justice Uwaifo continued, “is no longer a judge. He is a thief, and therefore should be treated as such according to the law and sent to jail.”
Why do we remember Chief Gani Fawehinmi when issues like this arise? Because throughout his career, he tried to make a firm connection between the law and justice.This was why he once likened Chief F.R.A. Williams, his periodic if not constant antagonist, a legal mechanic. “And he is a very good mechanic. The trouble is he doesn’t care to what use the vehicle is put.” To a great many lawyers, the law is just a game, a means to a meal ticket.
It was slightly depressing listening to so many lawyers, reviling the DSS not for the substance of the arrests but for the process. And in each case they were unable to explain how the process became illegal or what made the process unconstitutional. A concerted effort by top government brass,Vice President Osibajo, Attorney-General and Minister of Justice, AbubakarMalami (SAN), Minister of Information and Culture, Lai Mohammed, Chairman, Presidential Advisory Committee Against Corruption, Prof. Itse Sagay, (SAN), seem to have managed to win the argument that the war on corruption in the judiciary is not the same thing as a war against the judiciary.
Malami has made several good calls since he assumed office except his deafening silence on the massacre of hundreds of unarmed Shi’ites by the Army, the clearly unconstitutional incarceration of their leader Ibraheem Zakzaky and his failure to remind the Kaduna State Governor Mallam el-Rufai that it is unconstitutional to ban the Islamic Movement of Nigeria, an illegality which seems to have been copied by the Plateau State Government.
But when all is said and done, the National Judicial Council (NJC) must accept much of the blame for the rot in the judicial system. The council appears too slow and since the arrest of the judges, has been reacting like a trade union, creating the impression that members of the bench are above the law and cannot be held accountable no matter what they do. It was heart-rending reading the statement of the NJC on the three judges it recommended to be retired and dismissed three weeks ago. It was a disgraceful slap on the wrist, showing an organization without principles.
The NJC is showing itself to be to the judiciary what the ethics committee is to the legislature, just a vehicle to fend off public criticism and cover up incompetence and corruption. The so-called judicial policy announced a few days ago was such a disappointment; some of its tenets that “allegations of misconduct against judicial officers or employees of the judiciary shall not be leaked or published in the media” sound outright unconstitutional even to the layman. It is obvious that the NJC was not established to handle criminal conduct of judges. It should not act as if it is determined to cover it up.