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Judicial reform, please?

In “Courts of Politics” last week, I made the case that because our judges increasingly hear and rule on political cases, the courts are becoming…

In “Courts of Politics” last week, I made the case that because our judges increasingly hear and rule on political cases, the courts are becoming exposed to politics and political influence. This, I said, is unhealthy for the courts, for our democracy, and for our social order since, among other unfortunate outcomes, it creates negative perceptions of the courts and judges and lowers public trust and confidence in the judicial system.

The article received quite a few responses from the audience. One reader texted to thank me for writing an “instructive article.” Another said that he agreed that “everything you said is the truth and nothing but the truth,” but added nonetheless that I am “biassed against APC,” that is, the ruling party, which I find interesting because I get accused of bias against the opposition PDP all the time. A third said pointedly that the law doesn’t “care about public perceptions,” to which I will reply that I think it should because not all public perceptions are politically motivated and not all are without sound justifications.

Other readers said other things, and I thank them all. But just as “Courts of Politics” was rolling off the press last Monday, little did I know that the Chief Justice of Nigeria (CJN), Justice Olukayode Ariwoola, was putting finishing touches to a speech he would later deliver the same day at an event marking the beginning of the legal year. CJN Ariwoola called on judges to remain firm and not feel themselves mobbed by the crowd when doing their jobs. Essentially, the CJN replied to critics of the judiciary, and he also, in my view, put out data that confirms the basis for some of the criticisms of the court system.

In response to recent criticisms of the judiciary, the CJN said, quite aptly in my view, that “the law remains the law, no matter whose interest is involved. In all we do, as interpreters of the law, we should endeavour to sever the strings of emotion from logic and assumption from fact. We should never be overwhelmed by the actions or loud voices of the mob or crowd and now begin to confuse law with sentiment or something else in deciding our cases,” the CJN said. “Nevertheless,” he added, “unnecessary and unwarranted utterances are bound to embarrass not only others but the judge himself; thus, what should be asked, should be asked, and what should not be asked, should be avoided.”

True, the court cannot and must not submit to the rank emotions of the public in doing its duty to the law and to society. Nor are judges expected to decide cases according to public sentiments. If the law goes against the opinions and expectations of the public in a case, the law must win; likewise, if the law goes in sync with those expectations and opinions, the law must triumph over all extra-legal or extra-judicial considerations.

No one but the most unhinged in society expects less. It is also true that the sort of unfounded attacks on judges and the judiciary in recent years by self-interested parties cannot and must not be tolerated.

Yet, the CJN must also know that public trust and what he describes as the “emotions” of the public are not the same thing. The court can do without the latter, but not the former. The CJN knows too that some of the criticisms he flays are not based on mere “unnecessary and unwarranted utterances” by individual judges, nor are they mere emotions of the “mob” or “crowd.” There are genuine criticisms of the courts out there, and many are based on the cumulative actions of judges as perceived by reasonable and fair-minded members of the public. After all, judges and the judiciary cannot exist in isolation from society and the public they serve.

In the Kano governorship case, for instance, people did not protest when the tribunal in the state upturned the election of the current governor. People did not protest even when the Appeal Court upheld the judgement of the tribunal in its verbal ruling. It was only when the certified true copy of the judgement was seen to have contained what, in the eyes of most reasonable people, would amount to irreconcilable contradictions that public protests erupted.

In most parts of the world, that mistake would have been punished instantly, by, say, the immediate resignation of the Chief Registrar of the court, who bears overall responsibility over such matters, in order to deflate the sort of damage a situation like that can do to public trust in the judiciary. The judicial system needs public trust in its judgements as much as it needs the law because once public trust and confidence in the judiciary break down, the law ceases to be law.

Most importantly, CJN Ariwoola’s speech shows that our judicial system is on a dangerous path of increasing exposure to politics and political influence. According to him, the Supreme Court received a total of 1,271 cases in the 10-month period between September 12, 2022, and July 11, 2023. Of these, the CJN said, 388 were political appeals, 215 were criminal appeals, and 464 were civil appeals, in addition to a further 155 civil and political motions. The CJN added that of the total 251 judgements the Supreme Court delivered during the same period, 125, or about 50 per cent, were on political appeals.

Two important issues arise from this data. First, the figures confirm that politics, rather than business or crime, has become the dominant subject of litigation in our courts, thereby exposing the judicial system to political influence, one way or another.

The mere fact that half of all judgements by the Supreme Court in a legal year are on political cases should worry all of us. Why should so many political cases turn up in court? What are the long-term implications of flooding our court system with political cases? And if half of all judgements delivered by the courts are on politics, are judges giving undue attention to political cases?

Second, the CJN’s data shows the need for serious reform of the judiciary. One place to begin that reform is to strengthen the judicial systems at the state level, for example, by introducing State supreme courts. All political cases arising from state-wide elections, including governorship, national, and state assembly elections, should terminate at the State Supreme Court. All criminal and other civil cases within a state should also be terminated there. Only matters that have explicit constitutional or national implications should then go to the Supreme Court.

This will reduce not only the workload on the Appeal Court and the Supreme Court in their current forms but also on the state high courts. Also, and perhaps most importantly, the constitution should be amended to allow any legal challenges to a presidential election to go straight to the Supreme Court in Abuja. The amendment should also include provisions that all legal challenges to an election must end within 90 days from the election date, and certainly before the inauguration of the winner.

There are other important measures for reforming our judicial system, but these two can be a good starting point. They will go a long way in reducing the exposure of judges to politics and political influence.

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