Some cautionary thoughts about reforming Nigeria’s judiciary: The best that can be said of the immediate past Chief Justice of Nigeria, Olukayode Ariwoola, is that he well and truly defanged the judiciary. When he was not in Port Harcourt cavorting with Nyesom Wike and his Group of Five Governors so-called; he was in Abuja dreaming up schemes to jump his next available family member or political satrap into a judicial sinecure. The unanimity of sentiment at his departure went beyond shame-faced relief…
SEVEN YEARS after assuming the position of Nigeria’s military Head of State, in the latter part of 1974, General Yakubu Gowon made a significant phone call to the then Chief Justice of Nigeria (CJN), Taslim Elias. The content of this call, as recounted by Atanda Fatayi-Williams, a Supreme Court Justice at the time and a future CJN, revolved around a pressing concern from the Head of State. General Gowon expressed his dissatisfaction with how the courts were being used across the country to indiscriminately swear affidavits, many of which contained serious allegations of corruption against public officials.
The root of Gowon’s concern stemmed from incidents in his home state, Benue-Plateau, as it was known at the time. One notable event involved the forced resignation of Joseph Tarka, a trusted minister from the state, following damaging corruption allegations made in an affidavit sworn by Godwin Daboh Adzuana. Not long after this, another affidavit surfaced, this time from Aper Aku, who later became the first elected governor of Benue State in 1979. Aku accused Joseph Gomwalk, the then military governor of Benue-Plateau State and a relative of Gowon, of extensive corruption. Rather than directly addressing these corruption allegations, General Gowon sought the assistance of his Chief Justice to suppress these damaging disclosures.
In Chief Justice Taslim Elias, Gowon found a willing ally who was prepared to go beyond the traditional boundaries of the law to fulfill the Head of State’s wishes. Following consultations with his fellow Supreme Court justices, CJN Elias convened a meeting of the Advisory Judicial Committee (AJC), the highest judicial governance body at the time. The AJC, led by Elias, included key judicial figures such as the Attorney-General of the Federation, all the Chief Justices (then called) and Grand Khadis of the states, as well as the President of the Federal Revenue Court.
This high-level judicial assembly unanimously decided that, except in cases of ongoing legal proceedings, the courts would no longer permit aggrieved citizens to swear affidavits. The public reaction to this decision was swift and overwhelmingly negative. It was clear that this move was intended to use the judiciary as a tool to conceal inconvenient truths on behalf of the ruling regime. Adding to the controversy was the fact that the AJC could not point to any legal authority or precedent for their decision. These judges, who represented the highest judicial authority in the country, seemed to believe that their word alone constituted the law. This blatant abuse of judicial power had far-reaching consequences, severely damaging the judiciary’s credibility, a wound from which it arguably never fully recovered.
When a new military regime overthrew General Gowon in July 1975, the narrative they presented harked back to the corruption allegations and the desperate attempts of Gowon’s regime to cover them up with the judiciary’s cooperation. One of the early casualties of this new regime was Chief Justice Elias, who was forced to step down. The regime also took a harsh stance on judicial tenure, forcing the compulsory retirement of senior judges.
The judiciary in Nigeria, both then and now, has been seen as the architect of its own downfall. The decision to prevent the disclosure of inconvenient facts through affidavits was made without any dissent among the AJC members, demonstrating a troubling herd mentality among individuals who claimed to be learned. This regimental and cloistered thinking ultimately led to a significant erosion of public trust in the judiciary.
The legacy of judicial missteps did not end with Chief Justice Elias. The recent departure of Chief Justice Olukayode Ariwoola has similarly been met with widespread criticism. During his tenure, Ariwoola was often seen in the company of controversial political figures, such as Nyesom Wike and his group of five governors. He was also accused of using his position to secure judicial appointments for his relatives and political allies. The general sentiment at his departure was one of relief, albeit tinged with shame.
As Monday Phillips Ekpe delicately notes, the judiciary left behind by Ariwoola was one that consistently undermined its own credibility with unpredictable and often embarrassing judgments. Onikekpo Braithwaite is less diplomatic, criticizing a judiciary plagued by mounting allegations of corruption and a proliferation of conflicting judgments. The Board of Editors of the Punch newspaper lament the pervasive corruption in the judiciary, describing the courts as “houses of rot” and victims of state capture, with public trust in the judiciary at an all-time low of 75%, alongside the Independent National Electoral Commission.
In light of this bleak assessment, numerous senior lawyers have offered a range of recommendations for the new CJN, ranging from the platitudinous to the patronizing. Olisa Agbakoba, a former president of the Nigerian Bar Association (NBA) and a Senior Advocate of Nigeria (SAN), advocates for reforms that are both transformational and radical. Augustine Alegeh (SAN), one of Agbakoba’s successors, emphasizes the need to address delays in the dispensation of justice and the uncertainty of court judgments.
These references to the “uncertainty” or “conflicting” judgments are euphemisms used by lawyers to avoid directly accusing the judiciary of corruption. Unfortunately, this is the state of the courts that the new Chief Justice inherits. A recent ruling by a panel of the Court of Appeal described as “scandalous” a High Court’s decision to shield former Kogi State Governor Yahaya Bello from criminal proceedings, highlighting just one example of the judiciary’s current woes.
As the new Chief Justice takes the helm, three key words of caution are worth considering. First, a CJN seeking a lasting legacy must establish clear priorities. Many of the suggestions for the new Chief Justice focus on institutional or administrative redesign. However, the root problem plaguing Nigeria’s judicial system is the destruction of ethical guardrails and incentives by a coalition of senior judicial figures, lawyers, and politicians. Reversing this requires building a new coalition dedicated to the public good within the judiciary. Without re-establishing accountability and discipline, any efforts at institutional redesign are likely to fail.
Second, reversing the political capture of Nigeria’s judicial system is crucial. This political influence is evident in the daily issuance of implausible decisions and orders in politically sensitive cases, the prioritization of these cases over the regular judicial docket, and the consistent involvement of the same judicial actors in these questionable rulings. If politicians find themselves before courts that are no longer susceptible to their influence, they may be forced to rethink their approach to politics.
Third, a CJN who desires a constructive legacy must be cautious about whom they associate with. Many of the senior lawyers now offering advice were notably silent or complicit when the previous CJN was causing havoc. A Chief Justice who seeks success must avoid close ties with these individuals, as much of what they offer at this time is likely self-serving.
A Chief Justice determined to implement these changes will face significant challenges, and one who seeks to accomplish all of them may struggle to maintain their position. The political pushback could be immense. However, reforming Nigeria’s judicial system is now a task that extends beyond the technical or professional concerns of lawyers and judges. It has become a political issue, and only a Chief Justice willing to enlist the support of the citizenry in this urgent task can hope to make a meaningful impact.
- A lawyer and a teacher, Odinkalu can be reached at chidi.odinkalu@tufts.edu
