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Is there still a temple of justice in Nigeria? 04 Sep 2023

As lawyers gathered in Abuja in a week that the people of Nigeria were awaiting with anxiety the judgment of the Presidential Election Petition Tribunal (PEPT), it was time to reflect on the role that the legal profession is playing in Nigeria’s democracy and development. Do we hail the lawyers or do we, like Shakespeare, say “kill the lawyers.” Gauging by the words in the streets, Nigerians are not happy with the law profession – and for good reason.

According to Afrobarometer, the judiciary and the Independent National Electoral Commission (INEC) have the lowest public trust in Nigeria. About 75% of Nigerians do not trust these institutions. Nigeria’s recent judicial history further discourages trust in the justice system. Tales of corruption among judges are rife and persuasive. A judiciary whose Chief Justice was hauled off office for corruption would not inspire trust. A judiciary where homes of serving Supreme Court Justices were raided by secret police is not one to be trusted to deliver justice without regard to rank or pedigree.

But this has not always been the story. In the past, under military dictatorship, we had a trusted judiciary. Judges were frontline protectors of civil liberties. They were courageous as well as creative in evading the obstructions of military dictators and vehement in enforcing their orders. The irony is that the judiciary embraced its judicial power and was effective in enforcing it under military dictatorship than it is doing now under democracy. The judiciary is abdicating its judicial power and normalising violation of basic rights of citizens through a misguided deference to executive power.

Lawyers are trained to be ministers of justice. But what they do with that training depends on what conception of justice is outlined in their study and practice of law in the times they live. Law and its practice are social dialectics. They are determined by social dynamics that include ideas and events. Legal theorists have struggled with the question: what is law? Some make law to be the equivalent of coercion and effective enforcement. So, whoever takes over political power and can coerce obedience to his or her wishes, gives us law. Others say no. law must be aligned to some invariable moral universe. Even if you have the power and you can effectively coerce others to obey you, your wishes and words are not yet law unless they correspond to an invariable rule of ethics or reason.

The latter conception of law dominated the prevailing jurisprudence and practice of law in Nigeria when I became a lawyer in the 1990s. This idea that there is a moral core to law is what makes the practice of law anything close to ‘ministering in the temple of justice’. Law is not justice if it is about who has power to coerce others. Law does not lead to justice if it’s about what works. Law is only related to justice when it is about doing the right thing, treating people as they OUGHT to be treated and giving people what they deserve. Who ought to have what? That is the question that law answers.  So, I can boldly say that the debate between the positivists and the naturalists on the question of the nature of law should be settled in favour of naturalists if we begin with the concept of legal profession as ministering in the temple of justice. If law is all about seeking justice, then the essence of law cannot be coercion or effectiveness. It must be correspondence to some core ethical idea of what is right and wrong.

I am not original in the proposition. Many decades ago, Harvard legal philosopher, Lon Fuller, made an authoritative statement on the question: what is law? He answered that law must have some moral qualities to qualify as law irrespective of its social pedigree or effectiveness. These qualities of lawness are mostly moral in their orientation. The relationship between law and morality is robust. If it’s grossly immoral, then it cannot be law. If it is widely discretional, then it is not law. If it’s evidently irrational, uncertain, or inconsistent, it is not law.

As ministers in the temple of justice, Nigerian judges applied this conception of justice during the period of military dictatorship. We cannot forget how judges in Nigeria, especially justices of the Supreme Court, held forth against the attack on civil liberties by military dictators. In spite of prohibition of jurisdiction, these activist judges asserted jurisdiction to confirm whether their jurisdiction has been properly ousted. By their courage and intellect, they infused the concept of judicial power with real meaning.

It is ironic that judges in Nigeria defended basic right during military rule but now defer to executive lawlessness in a democracy. Under military rule, the case of Ojukwu v. Governor of Lagos State, where the court railed against executive lawlessness, was decided some decade ago. It was the same with Stitch v. AG Federation, where the court nullified executive order of military government detaining a citizen. But today, in a democracy, judges give executive authorities a carte blanche to detain citizens at will under a flimsy assertion of security consideration. The ignominy has reached the point where judges are making the case for the violation of the fundamental rights of citizens. Worse than that, when judges are blackmailed to assert judicial power to protect the rights of citizens, they watch helplessly as executives treat judicial orders with complete disrespect.

Should we still call them ‘ministers in the temple of justice’?

Sam Amadi, PhD, a former Chairman of the Nigerian Electricity Regulatory Commission, is the Director of Abuja School of Social and Political Thoughts.