Judges On Election Tribunals Must Be Conscious That History’ll Judge Them – Shittu

The general elections are days away. Is the judiciary ready for the expected post-elections litigation? The coming elections are very important to Nigeria, Africa and the international community; the whole world is watching. So, my first take is to say that INEC and all those who are in charge of the electoral process must deliver on peaceful, free, fair and credible polls. The assumption is that the will of the people should prevail and so, it is in this context that one wants to examine the role of the judiciary in the resolution of whatever disputes that may arise from the elections. The first note of caution I wish to respectfully sound to the judiciary is that the intervention of the judiciary to resolve disputes arising from elections anywhere in the world is an exception rather than the rule. Whenever the judiciary intervenes in the electoral process, it is a painful experience and so our judiciary must take congnisance of the fact that they cannot be substitute to the electorate. This implies that the judiciary must decide based on evidence supporting the predominance or the popular will of the people. The judiciary must ensure that in the resolution of whatever disputes that may arise from the elections, such resolution should be reached in a manner that will not promote anarchy. This implies that the highest standard of judicial integrity is required, having regard to the provisions of the constitution, the Electoral Act; as well as the constitution of the various political parties and the guidelines for the conduct of elections. There should not be any element of compromise. People often talk about technical justice at the tribunal as opposed to substantial justice. How much of a concern is this? This is part of the point that I was making; that the will of the majority of our people who exercise their franchise ought not to be sacrificed on the alter of technical adjudication. As much as possible, our judges should be fair, having in mind that sovereignty in the democratic process belongs to the people. If the resolution of electoral disputes reflects the popular will, then the image of the judiciary, as an adjudicator, will be enhanced. If it does not reflect the popular will, then confidence in the justice delivery system is endangered. So, when judges adjudicate over the election cases they should put themselves in the position of the electorate and ensure substantial justice rather than reliance on technicalities. This way public confidence will be restored in the judiciary and the electoral process; anarchy will be forestalled and people will come out of every adjudication satisfied that the element of justice has been promoted. Have we gone past the era when, as it is said, judges turn billionaires after election tribunals? Well, there is a growing concern in the judiciary that the phenomenon of supermarket justice should be eliminated and when accusations bordering on corruption are made with respect to the judiciary, I think we have to be very careful, so that we do not paint the entire judiciary with a general brush of corruption. I know that even though there are a few bad eggs in the judiciary, just like every other sector of the society, we still have judges who are people of integrity, character, capacity and competence; and judges who are committed to the attainment of justice; judges who are jurists. There is a distinction between being a judge and being a jurist. Those judges and lawyers who are committed to the attainment of justice in the resolution of cases are jurists but those lawyers who are just interested in winning their cases, not minding whether justice is attained in the process, are not jurists. That is why some of us will counsel that it is better to be a jurist, whether you are functioning as a lawyer or a judge, because your preoccupation will be the attainment of justice. It is when adjudication leads to the attainment of justice that the society is strengthened and people’s expectations are satisfied. But when the justice delivery system does not deliver justice, people get discouraged; public confidence is shaken, the multiplier effect is that the image of the judiciary is endangered. So, our judges, in the reolution of election disputes, should be concerned about the element of justice. When justice is served, then people will be happy that what was denied them at the polls is given to them by the court. So, I expect our judges to be above board in the resolution of electoral disputes; I expect them to embrace integrity, character and the fear of God. That way, we will be promoting the fundamentals of democracy. Our judges must be conscious of the fact that whatever judgements they eventually hand down will impact on the quality of governance and the democratic process. If they are guided by all these in addition to their judicial oath, everything will be well. Again, I want to encourage judges who are going to be involved in the adjudication of electoral disputes to reminisce on the golden era of the judiciary when we had the likes of Honourable Justices Oputa, Esho, Idigbe, Obaseki, Nnamani, Aguda, Mohammed Bello and Uwais. These were frontline judges who left a mark in the sands of time. Judges who are to preside over these electoral disputes must be conscious of their place in history. On Monday, the appeal court panel sitting on the Zamfara APC case withdrew from the case after counsel for one of the parties alleged that they had taken a bribe of $3m. What does this kind of development portend for the judiciary? It shakes public confidence but I hope that the counsel making such a grievious allegation has sufficient materials to prove it, because reputation is involved. And since that very serious allegtion is now in the public space, the anti-graft agencies must now take the bull by the horns to investigate thoroughly the veracity of the allegation and allow the law to take its course. When a counsel makes such an allegation he can only be exculpated if the allegation is found to be true; otherwise, there are consequences for the lawyer who makes a grievious allegation. So, when you make an allegation it must be subjected to proof because reputation is at stake. Where you sound a false alarm, you must be ready to cope with the consequences. At the time if the allegation is true, I encourage that the law should take its course. So, you are saying that the allegation should not just end with the judges recusing themselves? Yes, the issue should be taken up by the National Judicial Council and the Nigerian Bar Association. As a lawyer, you are answerable to the disciplinary committee of the NBA in the discharge of your duties and as a judge, you are answerable to the NJC. So, I think people must be encouraged to take advantage of these disciplinary mechanisms. You cannot make any wild allegation, you cannot injure someone’s reputation without consequences. Where there is proof, authorities in charge of disciplinary measures must wade in. And apart from this,  the law of the land also prescribed prosecution and imprisonment if found guilty. Recently, the Governor of Rivers State, Nyesom Wike, who is also a lawyer, said election petitions are a reflection of a faulty electoral process… He is right. And INEC has said that their ultimate aim is to get to a point where after elections people will no longer see the need to go to electional tribunals. Will lawyers be happy about this? Once INEC is able to deliver on free, fair, credible and peaceful polls, of course, lawyers and judges will be out of business. A lawyer lives in the conscience of the people and for history. A good lawyer ought to be satisfied that there is sanity in the society; a good lawyer is not necessarily concerned about his pocket; a good lawyer is happy when there is order, when there is safety; when there is justice in the polity. But there are two categories of lawyers. There are lawyers who are equipped with the theory of change and  there are those equipped with the theory of forestalling change. Those who belong to the former category are happy when law is deployed for social engineering to satisfy justice, equality and fairness. If there is free, fair and credible polls, there will be minimal resort to litigation after elections. A good lawyer ought to be happy about that because lawyers, primarily, are supposed to be ministers in the temple of justice and should be concerned about order and good governance in the society. Should lawyers handling election petitions be concerned about the source of the money they are being paid as legal fees, especially by incumbent elected public officers? Deploying state funds to prosecute personal cases is an abuse of position; it is corruption. And I think a lawyer who is rendering services must not only be concerned about his fees, he must also be concerned about the colour of his fees and he could put in place safeguards. For instance, when payments are made for your services, you have to be interested in the origin of the money. If you are rendering personal services to a governor, and he indicates paying you from the government dedicated account, you are entitled to resist because you know that will be an illegal payment. What it calls for is integrity and professional responsibility. Beyond loyalty to your client, you owe far more loyalty to the society and to the temple of justice. As a lawyer, the duty you owe to the society and the temple of justice is far greater than the duty you owe to your client. I think we should not confuse the limits of these duties. If you elevate the duty you have to your client over and above the duty you owe to the administration of justice, then you will run into moral and ethical problems and then you will be betraying your calling as a lawyer. This, sadly, is what is pervasive in some quarters of our profession and all of us must rise as concerned stakeholders against falling ethical and moral standards, falling integrity and lack of professionalism, declining professional standards and the general rot in the society. There are lawyers and there are lawyers. Today when the name of an element like the late Chief Gani Fawehinmi is mentioned, you can see the kind of public acclaim; this is largely because of what he stood for. So, you have a duty, as a lawyer, to ask yourself what kind of lawyer you want to be. Do you want to live for the society or you want to be remembered for having served your private pocket? History is watching and all of us must be very careful. The judiciary, in the last four years, has suffered unprecedented assault. In an unprecedented manner, SANs have been arraigned and judges have been put in the dock. Will you say this trouble is self-inflicted? On a personal level, I feel very sad that this is happening to the judiciary. I don’t like it at all when a Senior Advocate of Nigeria or a judge is being arraigned. But I think there must a caveat; no matter how big anybody is, the law is bigger and we must ask ourselves whether the trial of individuals amounts to the trial of the judiciary as an institution. There is a distinction and people must draw that distinction. When individuals are being tried for infractions, then everyone should answer his or her father’s name. I am not inclined to agree with those who contend that it is the judiciary that is one trial because of some individuals who are alleged to have wronged the law. But having said that, we should be very careful not to desecrate the sacred institution called the judiciary. In an attempt to kill some rats you don’t burn down the entire building. And that is why beyond the trial of the Chief Justice of Nigeria before the Code of Conduct Tribunal, I am also very worried about what impression it would create locally and internationally for a sitting Chief Justice of Nigeria to be in the dock. I think that is worrisome and I thought that if anything can be done to forestall such a possibility, it should be done by both sides to save the image of the judiciary which is sacred, eternal and would outlive all of us. Culled from Punch]]>