This is a Paper delivered by Honourable Justice Abiodun Akinyemi at a one-day Special Webinar for Judges and Judicial Officers in Nigeria, under the auspices of the Christian Lawyers Fellowship of Nigeria which held on Friday, May 31st, 2024
“If we do not maintain justice, justice will not maintain us” – Francis Bacon
Introduction
The intersection between Law and Development, is as old as the evolution of Society. Man emerged from the Hobbesian state of nature into orderly society, when he started to formulate and apply informal rules to govern inter-personal interactions in place of the use of physical might. That, coupled with indigenous ways of conflict resolution, marked the gradual evolution of society from its primitive state to the Modern Nation State. As Society advanced, Law and Conflict Resolution Mechanisms, being its fabric, evolved with it, such that one became unimaginable without the other. Society crystallised into the Modern State, while the conflict resolution mechanisms crystallised into the modern day justice administration institution known as the Legal System or the Judiciary. Hence, today, it is impossible to think of a Modern State or Nation without a judicial apparatus. Just as Law is known to be a dynamic instrument of social change, the Judiciary is by the nature of its role, a catalyst for development. However, this is so, only where the Judiciary and its operators understand and play their role in a way that is in tandem with the society’s aspirations and in accordance with the Constitution and other Laws guiding their operation. Otherwise, it may become an antithesis of progress and indeed an enemy of society, rather than its bastion of hope.
The notion of the Judiciary being a panacea for national development, rests in the belief that by the nature of its historical and constitutional roles, it can effectively stabilise the society, create the right environment for policies and endeavours of governments and individuals to thrive, and by its decisions, point the society forward in the right direction. It is assumed that the Judiciary will effectively play its constitutionally assigned roles of Guardian of the people’s rights; Vigilant Watchman against executive and legislative excesses; Unbiased Arbiter of disputes; and a firm Defender of the Constitution in all seasons. Inherent in the notion is the further supposition that the Judiciary will be independent minded, untainted by politics, unaffected by primordial sentiments, incorruptible and above board in all matters of integrity. A Judiciary that fails to tick any of these boxes, is a threat rather than a panacea for national development. Society is safe only when the Judiciary is trusted, even if the other arms of government are not trusted. But, it is in grave danger when trust and confidence in the Judiciary is lost, even if the other arms of government are trusted. Therefore, to foster national development, the Judiciary must first earn and sustain the trust and confidence of the people. In matters of trust and confidence, especially concerning justice dispensation, perception holds a significant place. It is therefore, not to be ignored. While reality and perception may not always fully coincide, it becomes worrying when the gap continues to widen. What the widening gap signifies is that there is a growing disconnect between judicial action and societal expectation. While judicial decisions are not and should not be based on public emotions and expectations, they ought to reflect and advance collective societal aspirations and national ethos. They should advance public good. Conflicting court decisions in particular, give the Judiciary a bad name, and diminishes its nation building potentials in the minds of reasonable members of the society.
The Judiciary as Society’s Bulwark
In the Modern State, there are three arms of government, namely the Legislative, the Executive and the Judicial, playing complementary roles in the advancement of the society. The critical relevance of the Judiciary is seen in the fact that even in non-democratic States, (including Nigeria under military rule), where democratic institutions including the Legislature are abolished or suspended, the Judiciary is still allowed to exist and function, even if under hostile conditions. This is because even despots and totalitarian regimes realise that they need the Judiciary, howsoever impaired or decapitated, to give a semblance of legitimacy or humanity to their unconstitutional actions. This is not surprising, because even the unjust realises that justice is the bedrock of a just society. Without justice, peace is hampered and without peace, economic, social and political developments are impossible. The development of modern nations is therefore, hinged upon the existence of vibrant and independent judicial systems. An informed, virile, independent, articulate, incorruptible and unbiased judiciary is the society’s bulwark against anti-democratic forces. The ability to bring every man, high or low, under the authority of the Law without fear or favour, in addition to ensuring that justice is equally rather than selectively dispensed, are important factors that enhance a judicial institution’s nation-building credentials and inspire trust and confidence in the populace.
Without the interventionist role of the courts, society will be in chaos, as citizens will take matters into their own hands. Even the most vocal critics of the Judiciary, have never denied the importance of the Judiciary’s role in the advancement of the society. While there will always be room for improvement, it cannot be denied that the role of the Nigerian Judiciary in pre and post-election disputes, has brought some sanity into the electoral process. While some have criticised the Judiciary for getting involved in political and electoral disputes and even accused it of ‘installing’ people into political offices, the question to really ask is: ‘Where else would political disputants go, if they are unable to resolve their disputes, other than the courts?’ And, of course, as everyone knows, the Judiciary does not institute or invite these litigations; it is aggrieved citizens who bring their cases before the courts and tribunals. And, the courts and tribunals are duty-bound to hear them. In the process, the courts have developed a humongous amount of electoral jurisprudence, which has helped in no small measure in advancing our democracy. Nation States mature with age and experience, and judicial precedents and legal jurisprudence play a huge role in nations coming of age.
The Judiciary and National Development
National Development refers to the capacity of a country to attain steady positive growth or advancement in critical areas such as the economy, infrastructure, political and electoral processes, education, health, science and other indices that culminate in better living standards for the citizenry and an improvement in the gross domestic product. National development is not the responsibility of the Executive alone. Constitutionally, it is the joint responsibility of the three arms of government and their agencies, acting complementarily. By Section 4 of the 1999 Constitution of the Federal Republic of Nigeria, the Legislature is vested with the power to make Laws to foster national development. By Section 5, the Executive is vested with power to formulate and execute policies and projects, in line with those Laws. By Section 6, the Judiciary is vested with power to interpret and apply the Laws in a manner that will engender the necessary enabling legal environment, for the peaceful execution of the policies and projects intended to bring progress to the nation. The Judiciary is therefore, not an outsider, a bystander, or an on-looker, but an active participant in the task of nation building. It is not an antagonist of the other arms of government, but a progressive collaborator, even while serving as a check of their excesses and illegalities. Standing in the gap between State and Citizens, and ensuring that the constitutionally entrenched rights of citizens are not violated by the State or other citizens; ensuring that the citizen also performs his constitutional duties and obligations towards the State; firmly and impartially applying the law by visiting law breakers with appropriate consequences; dispensing Justice with competence, fairness, impartiality, transparency, dispatch, and courage; thus, inspiring confidence in the citizenry, are ways by which the Judiciary contributes to national development. Quick disposal of cases, certainty of judicial outcomes in line with established precedent and extant laws, avoidance of unnecessary technicalities and conflicting decisions, zero tolerance for corruption and abuse of judicial process, including forum shopping, are all attributes to be found in a judiciary that is fulfilling its role in national development.
Whether in Commerce, Security, Law and Order, Political Governance or Human Rights, the performance or non-performance of the judicial role can make or mar the wellbeing of a nation. No matter how sound and well-articulated the policies of the governments are, if they get entangled in legal disputes which the courts are not able to properly resolve, the nation’s economy and overall national development can become imperilled. Commercial disputes which linger on for too long in the courts, is a disincentive for investors, who, out of frustration may decide to take their investments elsewhere where the judicial terrain is more certain and business friendly. On the other hand, an efficient, effective, impartial and independent Judiciary, is an incentive for investors, local and foreign, thus, helping the growth of the economy. Similarly, quick and transparent adjudication of political and electoral disputes by the courts lends credibility to the electoral process, thereby conferring legitimacy on elected officials, while also encouraging the most able of citizens to participate in the electoral process, thereby improving the quality of representation and by implication, providing better governance. Confidence in the justice system is therefore, a catalyst for good governance and national development.
Judges as Nation Builders
A deep understanding of the Judiciary’s constitutional role will reveal that the judiciary is much more than a mere dispute resolution mechanism, where people just walk in to settle their disputes and walk out. That narrow perception, even by the operators of the judicial system themselves, is myopic and misconceived. It accounts to some extent, for the widening disconnect between decisions of courts and public perception. The Constitution is the Nation Building or Development Manual of a nation. It is from and upon it that all development plans and policies of government derive their legitimacy. The judiciary as a vital constitutional institution is therefore a Nation Building Institution. By implication therefore, a Judicial Officer is a Nation Builder by calling and must perform his functions with that consciousness. His responsibility is more than that of a Commercial Arbitrator, Conciliator or Mediator. Unlike them, he derives his authority from the constitution and has the duty of ensuring that the Letters and Spirit of the Constitution are reflected and upheld in the discharge of his judicial function. In dispensing justice therefore, even in the most innocuous of cases, he must be conscious of his wider constitutional mandate, without going outside the facts and evidence before him. The consciousness or otherwise of a judge of this constitutional burden can make a whole difference in how he discharges his judicial functions. It will reflect in his interpretation of statutes, contractual documents and public-interest instruments, while not jettisoning the established Canons of Interpretation. It will certainly reflect in his general thinking and overall appraisal of cases, while still abiding by the Doctrine of Judicial Precedent. The mind of a nation-building Judge is unaffected by religious or ethnic sentiments because he sits not as a defender of religion or tribe but as a Propounder of the Constitution. He abhors nepotism, bribery and corruption, because he is sworn to uphold the more noble ideals of fairness and impartiality. He forgoes illicit personal pecuniary benefits in preference for the loftier ideals of good conscience, good name and enduring integrity. National Good over personal gain is his creed, and he stands or falls by it.
The Supreme Court’s decision in the currency change imbroglio, leading to the 2023 general elections in Nigeria, is a good example of how the Judiciary as an institution, can play a positive role in national development. By its decision, the Apex Court called the Government to firm order, and at the same time, calmed the highly frayed nerves of angry and frustrated citizens. An impending socio-economic upheaval was thus averted by a stroke of prudent judicial pronouncement. That was not the first time that the Apex Court would be taking such a vital and much welcomed step. It has done so on several other occasions leveraging on its jurisdiction and powers as, not just a Court of Law, but also a court of Public Policy. In Okonkwo v Okagbue (1994) 9 NWLR (Pt 368) P. 301, the Supreme Court defined “public policy as the ideals which for the time being prevail in any community as to the conditions necessary to ensure its welfare, so that anything is treated as against public policy if it is generally injurious to the public interest. Public policy holds that no subject can lawfully do that which has a tendency to be injurious to the public, or against public good, which may be termed, as it sometimes has been, the policy of the law, or policy in relation to the administration of the law.” As the final and highest Court of the Land, the Supreme Court is a major Policy Driver and a Beacon of Light for national development. The Lower Courts in the judicial hierarchy ought to follow the Apex Court’s example within the acceptable scopes of their jurisdictions and power.
Conclusion
Only a well-positioned, virile and independent Judiciary can contribute meaningfully to national development. A Judiciary that depends on the benevolence of another arm of government for sustenance cannot optimally contribute to national development, because he who pays the piper will always want to dictate the tune. It is therefore important for the relevant authorities to ensure that the Judiciary enjoys full independence, including financial autonomy. Provision of necessary working tools and improvement in the welfare of judicial personnel at all levels, are vital factors that can positively impact national development. Above all, the men and women who adorn the Bench must be persons not only of sound learning, but also of integrity and good conscience. They must have the fear of God and be prepared to uphold their Oath of office at all times. In making their decisions judges must be unaffected by the political winds around them. They must not allow the cloud of battle obscure their vision and finally, they must never shy away from telling the people what they do not like to hear, where necessary. Judges must consciously determine to stem the unwholesome tide of conflicting decisions and forum shopping by litigants, while also elevating substance over technicality.
Hon. Justice Abiodun Akinyemi, Abeokuta, Ogun State
THISDAY
