Monday, 18 December, 2023
There are very good people in our courts; there are very bad people there too. Unfortunately, a one-eyed man gained prominence in a town and the whole town got called the town of the blind. The courts below can be both bad and incompetent. We will still be safe if the Supreme Court is a court of competence and justice. I wrote here a few weeks ago that we should show deep interest in who become our judges, particularly at the appellate courts. I made that call because the courts have abducted this democracy. They decide who rules and who does not. They have evolved to become Bashorun Gaa of Old Oyo; they enthrone and dethrone as it pleases them. They are rich and overfed too; they belch while the people yawn – exactly like Orwellian pigs. A one-time Chief Judge of Kwara State, Justice T.A. Oyeyipo, once declared that “the administration of justice is at the core of any successful democracy in the world.” He added that “if the legal profession fails, anarchy will be the only beneficiary.” Oyeyipo gave that warning in 2003. Twenty years down the road, you and I know that we are almost at the doorstep of lawlessness.
What could be going on in the mind of President Bola Tinubu on Thursday as he listened to a former NBA president, Mr. Olisa Agbakoba’s allegation that a mafia is in charge of our Supreme Court? Agbakoba is a well-read gentleman with an excellent understanding of his trade and a great command of its language. I watched him closely in a trending video carefully choosing his words as he shredded Nigeria’s apex court. Of all the terms a speaker of the English language could use in that context, the gentleman chose “mafia” to describe those who hold the yam and the knife of the Nigerian judiciary. ‘Mafia’, the Oxford Learner’s Dictionary defines as “a secret organisation of criminals.” The dictionary adds that it also means “a group of people within an organization or a community who use their power to get advantages for themselves.” The Collins dictionary defines mafia as “a criminal organisation that makes money illegally…” Collins goes further to tell its users that they “can use mafia to refer to an organised group of people who you disapprove of because they use unfair or illegal means in order to get what they want.” The Cambridge English Dictionary says mafia is “a large criminal organisation”, and can also mean “a close group of people who are involved in similar activities and who help and protect each other, sometimes to the disadvantage of others.”
None of the dictionary meanings of ‘mafia’ should ever be a description of a court system. But the former president of the Nigerian Bar Association used that word. In calling our judiciary a mafia, he had put the Sicilian Cosa nostra in the same dock with the Nigerian Supreme Court – the terminal station of justice seekers. Agbakoba, however, believed the mafia could be displaced if senior lawyers, including him, had seats right there among the gods of the top court. He said he once tried it but the keepers of the gate of the sacred grove slammed the door against him: “I was the first, accompanied by my brother, Wole Olanipekun, who applied because we thought we were qualified to sit at the Supreme Court. The mafia there threw us out…What the constitution says is that once you are 15 years (at the bar), you are qualified (to be justice of the Supreme Court). But the National Judicial Council and the Supreme Court justices have formed a mafia… With the greatest respect, this is the worst Supreme Court I have seen in my 45 years of practice.”
Someone asked online how complex a mafia could be. The person got a counter question: “Have you ever tried to eat at a restaurant which happened to be a mafia front, but you didn’t know it was a mafia front, and everyone inside just stared at you when you walked in, because nobody actually eats there?” I do not have the name of the author of that quote but its depth speaks to its aptness in dealing with our judiciary. If our Supreme Court is a mafia front, we should stop expressing a shock that it does not give what it advertises. A front is what it is – no more, no less. Some metaphors are contextually universal; mafia is. I would say the same with puns because we keep reading “courting corruption” in journals from coast to coast.
Whatever question we are asking here about our judiciary, other places with a similar problem are asking too. Australian professors of Law, Simon Butt and Tim Lindsey, in their article ‘Judicial mafia: The courts and state illegality in Indonesia’ (2010) describe the judiciary in that country as “a persistent mafia.” They also write about an Indonesian joke which “even judges tell.” They say the joke is about the “word hakim (judge) used as short for hubungi aku kalau ingin menang (meaning: contact me if you want to win).” They hold that the Supreme Court is seen as one of the most corrupt courts in that country. You and I know that there is nothing these professors say in that article about Indonesia’s judiciary that is not being said about what we have here in our country.
Agbakoba did not cover his lips while alleging that the Supreme Court of Nigeria is an enterprise worthy of fearful disdain; that in operation, it merely advertises justice rooted in law and facts but in reality, what it gives is the opposite. The worth of a witch (or a wizard) is in how bold they are in their arts and science. They do not whisper their actions; they are thunderclaps, they yell. Agbakoba climbed the chimneys and chose his audience. It was at a colloquium held in Abuja to mark the 61st birthday of Senate President Godswill Akpabio. President Tinubu was there. He sat patiently, sometimes nodding, many times expressionless. With the president were the other consorts of the Nigerian harem – they included those who make laws for the courts to interpret. There were others there without officially defined roles. If the judges had also been seated, the circle would have been perfect. With the Pope himself reclining in his full glory, I wonder why Akpabio, the flamboyant birthday boy, excluded My Lords from that open conclave of cardinals and saints.
Agbakoba was so sure of what he was saying about the apex court and its sister kabiyesi institution, the National Judicial Council (NJC). Literally, ‘kabiyesi’ means the unquestionable. It is the Yoruba way of acknowledging that their king is above the law. Agbakoba questioned the recruitment process in the judiciary -particularly the appointment of the justices who serve on the Supreme Court bench. He suggested that some persons had abducted the court and – I add – doing with it and its processes what the bandits of Zamfara do with their victims.
How do we survive our own “persistent judicial mafia”? Agbakoba’s key solution to the problem of the judiciary is that senior lawyers be appointed directly to the Supreme Court. But how do we get such persons who have not tasted blood among the big lawyers? And, the learned gentleman did not tell us what benefit the presence of senior lawyers on that bench would bring to Nigeria and Nigerians. Are judges of lower courts not being chosen from among lawyers? Are those courts of better value than the Supreme Court? In any case, can we honestly say that whatever is bad with the apex court today has no contribution from privileged persons in Nigeria’s inner and outer bar? Is it true that senior lawyers serve as bagmen to wealthy judges and justices?
Our courts have become playthings in the hands of disaster. And the ‘mafia’ men there are no longer hiding their bad behaviours. They think they are kabiyesi – we must never question their ways. But thank God, Agbakoba has been bold from the womb. He has helped us to say what our mouths dare not say. The ex-NBA president described today’s Supreme Court as the worst in his 45 years of legal practice. Well, some other Nigerians would likely say that today is simply a child of yesterday. There was a Supreme Court that made someone who never contested a governorship election governor. It did it and asked anyone who did not like what it did to send their appeal to God in heaven. There was the immediate past Supreme Court which was accused by all justices who make up the present Supreme Court of diverting public funds and of being a one-man fiefdom.
The courts tell us that facts which are judicially noticed need no further proof. And so, the Supreme Court cannot deny Agbakoba’s allegation of the existence of a mafia in its chambers. The court’s own evidence convicts it. On 27 October, 2023, Justice Musa Dattijo Muhammed retired from the Supreme Court as its number two justice. He delivered a valedictory speech in which he literally described the Nigerian judiciary as a dictatorship with a kabiyesi at the top.
He said the CJN “neither confers with fellow justices nor seeks their counsel or input on any matter related to these bodies. He has both the final and the only say.” Ironically, just a year earlier, the current CJN himself had led Dattijo and 12 others to attack the then number one justice of the Supreme Court, Tanko Muhammad. They accused him of running a one-man show.
Agbakoba wanted a law that would “govern the appointment process of senior judges.” Looking straight at Akpabio, he asked the National Assembly to “pass a law so that I don’t depend on the Chief Justice of Nigeria if I want to be a judge.” He wanted a law passed “stating the criteria to become a judge.” I heard Agbakoba and felt him. He spoke well. You remember that a few weeks ago, the CJN presided over a meeting of the Federal Judicial Service Commission. At the end of that meeting, the body recommended over 20 appeal court justices for elevation to the Supreme Court. The recommendations were sent by the CJN to the NJC headed by the CJN himself. What mafia can be more powerful than that? But it didn’t start from him and, from all indications, it won’t end with him. The CJN has since led the NJC he headed to do the ratification of what he recommended, warts and all, while the whole nation bowed in a servile chorus of “As Your Lordship pleases.”
Now, who should really be a judge at the Supreme Court of any country? Lawrence B. Solum of Georgetown University Law Center, United States, in a 1988 piece entitled ‘The Virtues and Vices of a Judge’, spoke on what he called “the distinctive intellectual and moral virtues required for excellence in judging.” Solum averred that “to be a good appellate judge, one must possess at least three virtues: a faculty for theoretical understanding of the law, a concern for the integrity of the law, and a practical ability to choose wisely in particular circumstances.” Any court system that habours judges that care more for privilege over “the integrity of the law” cannot serve the cause of justice. It is the same with judges, who, according to Lord Denning, are “concerned with law” as against being “concerned with justice.”
Whatever we decide to do with our judiciary, it will still be necessary to ask what specific personal characteristics would make a person a justice of justice? Stuart S. Nagel was an American professor emeritus of Political Science at the University of Illinois at Urbana-Champaign, United States. He published an article he entitled ‘Characteristics of Supreme Court Greatness’ in the October 1970 edition of the American Bar Association Journal. What specific personal characteristics did he say would make a judge great? “These characteristics”, Nagel says, include “a brilliant intellect, an ability to write well, a deep knowledge of law and society, a willingness to work hard, a strong personality, an ability to get along with one’s colleagues and a high level of success in one’s prior activities.”
Now, because we cannot do without the courts, how do we get it right with the right personnel? How do we identify and nurture the very best from our law schools? How do we carefully remove silt from our body of judges or do we just open the shutters for all the water to flow away?