Shall we kill the lawyers and the judges? (1)

The air is thick with suspi­cion. The reason is that, by a combination of factors, it has been drummed into the conscious­ness of the public that the totality of the legal profession is enmeshed in corruption.

As is very well known, the legal profession is bifurcat­ed into the bench and the bar. The bench loosely refers to those judi­cial officers, be it of the magisterial bench, the High Courts or at appel­late level who dispense justice in ac­cordance with the law. On the oth­er hand, the bar accommodates all lawyers who are not on the bench.

The reference to suspicion refers to, suspicion which has arisen from the recent verdicts delivered by the courts in respect of hotly disputed political cases which indicates that corruption has permeated the judi­cial branch. The theory is that the judicial branch would have been cherubic and innocent had the lawyers, who are of the bar, lived up to their proper role as guard­ians of the conscience of civil soci­ety. In other words, the lawyers act as conduit pipes sucking up corrupt inducements to otherwise upright judges in order to do the corrupt bidding of the lawyers and their clients.

The President is unhappy with the judges and the Econom­ic and Financial Crimes Commis­sion is unhappy with the lawyers. For this combined reason, an inno­cent bystander, not the proverbial stakeholder, asked me whether we should kill all the lawyers – at least, all the Senior Advocates – or worse still, should we kill all the judges?
It has never been in doubt that the legal profession is about the old­est profession in the world. It is also not in doubt that the profession is reverred and venerated.

It is also reviled, despised, denigrated and sneered at by many. Afterall, in the epic, The Godfather, a close-up on the affairs of the dreaded mafia, it is suggested that Tom Hagen, the Godfather’s ‘consiglieri’ (counsel­lor) studied Law because he once heard the Godfather say to some­one that “A lawyer with a briefcase can steal more than a hundred men with guns.” “All lawyers are liars”, and so many such fables are heard all the time.

Is it then possible to do away with lawyers, whether junior or senior? In addition, we can also pose the pertinent question: Can we also do without the judges? It will be best to give an indication about what the judges do. Accord­ing to the late Hon. Justice Chuk­wudifu Oputa, formerly of the Su­preme Court, “The human instincts for justice find ready expression in the administration of law in our courts.

It was not so all along. The establishment of the court system and the emergence of an organized legal profession are two significant landmarks in humanity’s search for justice. Before courts were es­tablished, every man was law unto himself; he went armed. Then the mighty suppressed and expropriat­ed the weak with impunity. It was then the age of quest and conquest; of kill or be killed reminiscent of Hobbes’ Leviathan when man was wolf to his fellow man.

But with the establishment of courts, men laid aside their arms and carried their causes to those courts in the fervent hope of obtaining justice. Courts became tribunals for the punish­ment of offences against peace and tranquility of the state and the set­tlement of disputes and controver­sies between individuals inter se as well as the citizen of the state.

This can happen only in a democrat­ic society as the citizen could not possibly have rights against a totali­tarian state where his identity is ab­sorbed by and dissolved in and into the emancipated state”. Oputa fur­ther explains that: “the court sys­tem also implies that when in doubt or/and anxiety, the citizen will free­ly approach the courts in the firm hope of obtaining justice and re­dress.

This further implies courts which are not tied to the apron strings of the executive or oth­er concentration of power, courts which are free from legislative pres­sures, political pressures, big busi­ness pressures and what is worse, mob pressure. It is the removal of those extrinsic and unnecessary pressures that assures, in no small measure, ‘The independence of the judiciary.’ The court system further presupposes courts which are not incapable for any other reason (like ignorance, corruption, favouritism, prejudice, fear, favour, etc) of deliv­ering a just decision…”

Guided by the avowed human instinct for justice and the inevita­ble disequilibrium in society that must be redressed when disputes arise, can it be forgotten that even in the Holy Bible, it was Moses him­self that appointed the first Judg­es from amongst the people. He did not leave them unleashed but counseled them not to “… wrest judgment”. It was also command­ed that “…thou shall not respect persons, neither take gift: For a gift doth blind the eyes of the wise; and pervert the words of the righ­teous”.

The late Lord Denning, eas­ily the most famous judge in the common wealth in his heydays, had said that “it is no use having just laws if they are administered unfairly by bad Judges or corrupt Lawyers. A country can put up with laws that are harsh or unjust so long as they are administered by just Judges who can mitigate their harshness or alleviate their unfair­ness” (see The Road to Justice, 1955, p.7). That a Judge must be above board requires no emphasis. Hon­ourable Justice Umaru Eri, retired Chief Judge of Kogi State, in an in­cisive paper titled “Abuse of Judi­cial Power: An Excursion Into the realm of Corruption”, offered a pen­etrating insight into the qualities a sound Judge must possess.

It is his view that judicial power should be exercised by those who have the ingrained traits for administering justice with integrity, honour cour­age and patriotism. The judiciary as a sacred institution needs peo­ple who are fair-minded and always seek where the justice of a matter lies. It is a grave responsibility en­trusted to judges to determine right and wrong, to deprive people of life or set them free from going to the gallows.

A duty, such as this, that af­fects life and liberty of people can­not be entrusted to careless hands, wavering minds and depraved hearts. If a man should judge an­other man and make order that will deprive the other of his liberty or life, the one depriving the oth­er should be above board in every sense. A Judge should be a tower of morality and good sense, exuding in his life the quality of righteous­ness and justice that will make him shine in the midst of ever-growing perverse society. When we talk of judging, there is a sanctity attached to it. That sanctity is upon the insti­tution as well as upon the persons manning the dyke”.

Modern commentaries and treatises on government refer elo­quently to three branches (or arms) of government, namely, the Execu­tive, Legislature and the Judiciary. In the Presidential system of gov­ernment which both the 1979 and 1999 constitutions have favoured, it is clear and conclusive that the most awesome powers have been thrust on the judiciary. A careful perusal of section 4(8) of the con­stitution 1999, (hereafter referred to as “the Constitution”), shows that “…the exercise of legislative pow­ers by the National Assembly or by a House of Assembly shall be sub­ject to the jurisdiction of courts of law and of judicial tribunals estab­lished by law”.

By virtue of section 6 of the con­stitution, the judicial powers of the federation and of a state are vest­ed in the courts established by that section. Such judicial powers “shall extend, notwithstanding anything to the contrary in this constitution to all inherent powers and sanc­tions of a court of law”. In addi­tion, such powers, shall also “extend to all matters between persons, or between government or authority and to any person in Nigeria, and to all actions and proceedings re­lating thereto, for the determina­tion of any question as to the civic rights and obligations of that per­son”. Furthermore, section 239(1) of the Constitution confers orig­inal jurisdiction on the Court of Appeal to hear and determine any questions as to whether –

a) Any person has been val­idly elected to the office of the Pres­ident or Vice-President under the Constitution; or
b) The term of office of the President or Vice-President has ceased or
c) The office of President or Vice-President has become vacant.

It must be noted that all other elective offices under the Consti­tution may be validated through a court or other tribunal of com­petent jurisdiction. Thus, of the three arms of government, it is only the judiciary that can exam­ine the acts of the other arms and declare whether they are or are not in conformity with the constitu­tion. This indeed, is an awesome power.

In connection, it has point­edly been argued that: “the peace, the prosperity and the very exis­tence of the union, are invested in the hands of the judges. Without their active cooperation, the Con­stitution would be a dead letter. The executive appeals to them for assis­tance against the encroachment of the legislative powers; the legisla­tive demand their protection from the designs of the executive, they defend the union from the disobe­dience of the states, the states from the exaggerated claims of the union, the public interests against the in­terests of private citizen…”

Perhaps, it is fitting to provide concrete examples of the awesome­ness of the power exercised by the judiciary even in far away and es­tablished democracies. It has been said that “…the American polity’s reliance on judges to decide major issues of public policy has, if any­thing, increased illustrative of this observation is the nervous way in which public officials, leaders of in­terest groups, and private citizens awaited the Supreme Court’s rul­ing in Regents of the University of California V. Bakke during the spring of 1978.

They waited for au­thoritative word on the legitimacy of hundreds of private and public programmes for affirmative action. The Delphic opinion of Justice Lew­is F. Powell which, even though he spoke only for himself, controlled the court’s decision, ensured con­tinued judicial supervision of ef­forts to eradicate the effects of racial discrimination from American life. One could turn to other problems, such as abortion or capital punish­ment, for additional examples, but the basic point is clear: Judges will still shape public policy and do so in ways that are substantively sig­nificant….” It will soon be shown that the courts in Nigeria, at least within the confines of the elector­al process, enjoy more far reaching and awesome powers.