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Judicial Integrity In The Enthronement Of Good Governance

July 15, 2010

Introduction: In three months time, October 1st 2010, as our country celebrates 50 years of independence, the issues of Good Governance and Judicial Integrity become even more relevant.  It has not been easy for the Nigerian Judiciary since 1966 when the military took over both Executive and Legislative functions and the Judiciary had no alternative but to tag along and make the best of a very difficult situation. 

Introduction: In three months time, October 1st 2010, as our country celebrates 50 years of independence, the issues of Good Governance and Judicial Integrity become even more relevant.  It has not been easy for the Nigerian Judiciary since 1966 when the military took over both Executive and Legislative functions and the Judiciary had no alternative but to tag along and make the best of a very difficult situation. 
The situation became compounded when the Judiciary was saddled with a very difficult position of enforcing two contradictory ideologies of Liberal Democracy and Sharia.  It is under these difficult and contradictory ideologies that we are to discuss the topic not merely by defining what constitute integrity what good governance especially as practising lawyers.  We need to take a critical look at the environment within which we practise our profession. 
 
Judicial Integrity
I must confess that I had difficulty in defining Judicial Integrity because we have two values in our legal system and two sets of courts.  I had no difficulty in identifying common law values which are composed of: “consistency of actions, values, methods, measures, principles, expectations and outcomes.”  In Western ethics, integrity is regarded as the “motivation of one’s action”, so in a situation where a judge knows that he has no jurisdiction or authority but goes on to adjudicate knowing full well that his order has to be obeyed until set aside, constitutes lack of integrity.  If we reframe this it would be that, a judge has integrity when he refuses to adjudicate because he has no jurisdiction and knowing the damage which such a decision will do to his integrity as a judge.  Integrity can be regarded as the quality of having an intuitive sense of honesty and truthfulness in regard to the motivation of one’s action.  A counsel in the circumstance who knows that the court has no jurisdiction yet files paper in court for such illegality is indicative that the counsel lacks integrity.  It is not enough to argue that counsel’s action is motivated by the need to protect his client.
 
The word “integrity” stems from Latin adjective “integer” (whole, complete) – integrity is the inner sense of “wholeness derived from qualities such as honesty and consistency of character”.  People with integrity are predictable.  In other words, those who know you can boldly say, “I don’t think he would do that”, come let us see him, I have no doubt what he would say”, also has to do with our value system.  The 1999 Constitution provides in section 34 for the dignity of the human person, especially 34(1) which provides that “no person shall be subjected to torture or inhuman or degrading treatment” yet a section of the country can inflict punishment of amputation.  Is the death penalty inhuman and degrading?  Both pro and cons can argue this at large.  Here then is the anomaly or conflict which no doubt has bearing on what constitutes Judicial Integrity because integrity is related to value system, one Western the other Arabic yet both operate side by side in Nigeria.
 
Scientific Methodology
Integrity of a value system is also tested scientifically with the use of values, methods and measures of the system to formulate a hypothesis of an expected cause-and-effect relationship as when multiple unbiased testers observe that a given cause consistently leads to an expected effect, and can say that the value system "has integrity".
 
It must however be pointed out that there is no methodology, scientific or otherwise, that counts as absolute truth. One cannot use scientific testing to identify absolute truth because every scientific test assumes base principles, values, methods and measures not verified as part of a laboratory test. Nor does science have the hubris to seek a single absolute truth. Rather, various scientific methods can serve to test the integrity of a value system and to establish its conclusions as consistent with the assumptions used, thereby enabling further extrapolation within that domain.
 
Integrity in Ethics
Integrity in ethics refers to a quality of "wholeness" that must be present in the human body and in the body of law. Such wholeness is defined by sacred axioms such as unity, consistency, purity, unspoiledness and uncorruptedness. One can find this in section 17(1) of our Constitution which states that “The State social order is founded on ideals of Freedom, Equality and Justice”.
 
In law this principle of universal application requires that even those in position be subject to the same law as pertain to their fellow citizens.  In personal ethic, this principle requires that one should not act according to any rule that one would not wish to see universally followed.
 
Jimmy Carter wrote that integrity requires three steps:
“discerning what is right and what is wrong and acting on what you have discerned, even at personal cost and saying openly that you are acting on your understanding of right from wrong”. 
Carter regards integrity as being distinct from honesty.
 
Integrity as Foundation of Law
Integrity is the foundation of any system of law. An adversarial process can have general integrity when both sides demonstrate willingness to share evidence, follow guidelines of debate and accept rulings from an arbitrator as a good-faith effort to arrive at either the truth or a mutually equitable outcome. An honorable presentation of the case measures both sides of the argument with a consistent set of principles. Failure to present principles in accordance with observation or to try them unequally can weaken a case.
 
Disciplines and fields with an interest in integrity include philosophy of action, philosophy of medicine, mathematics, the mind, cognition, consciousness, materials science, structural engineering, and politics. Popular psychology identifies personal integrity, professional integrity, artistic integrity, and intellectual integrity.
 
From the above it is very clear that the Judiciary must ensure integrity in the system and individual judge especially now when a section of the Bench is being accused of corruption in which in most if not all cases, some lawyers or judicial staff are alleged to be the go-between.   The judges or justices involving themselves in the nefarious conduct must not for a moment think that it remains a secret.  It is spreading as bad joke.
 
Judiciary
We have discussed above what constitutes integrity generally but would now refer briefly specially on the Judiciary.  In the book the “English Judge”, the author Henry Cecil who was one time a County Court Judge in England in one of his Hamlyn lectures avers that the integrity of judges in England has been long established.  He said
“The reputation for integrity on the English Bench has been established so firmly and for so long that even the denigrators of English judges do not suggest that they do not still bear and justly bear that reputation.”
 
In Nigeria, I know as a fact that before the advent of military rule in 1966, the legal profession was striving to attain that standard but in the era of military rule a judge with integrity J.I.C. Taylor was by-passed for higher appointment because he was inflexible when integrity was involved.  The military wanted judges that would “co-operate” and some would say that some judges did not have any other choice. 
 
Military regimes made some judges partners in the governance of the country at national and state levels, and this partnership affected integrity.  Perhaps it is necessary to be specific.  The military not being politicians wanted acceptability and they co-opted all the executive departments of government and a section, I repeat a section, of the judiciary that worked very closely with the military government. The judiciary and the legal profession benefited immensely from this co-operation, in terms of infrastructures, human resources development and today we have many court judges etc as a result of this co-operation.  On the other hand, the development eroded the integrity of the Judiciary as a class and the legal profession.
 
I had cause to complain to some members of the AJC that a very brilliant judge was being by-passed and when eventually the judge was promoted, I was asked to impress on him that he needed to “co-operate”.  Of course the judge in question never co-operated and in his retirement, God’s blessing in terms of wealth and health and peace of mind was showered on him and for all to see.
 
One has made these observations in the light of the fact that Judicial Integrity must be restored so that the Judiciary will be able to contribute to the Enthronement of Good Governance.
 
 
Good Governance
The term "governance" and “good governance” are being increasingly used in development literature of the International Monetary Fund (IMF), United Nations (UN), World Bank etc and this is because bad governance is being increasingly regarded as one of the root causes of most evils especially poverty and diseases in third world countries.  I believe that there are statistical truths backing this assertion.  Let’s take the case of our dear Country, Nigeria, blessed with material and human resources.  In a paper delivered on Thursday 01 July, 2010 in London, Professor Chukwuma Soludo said:
“Nigeria is at a crossroad. It is currently mired in a vicious circle of underdevelopment occasioned dominantly by the oil curse and the destructive institutions and rentier politics that have emasculated any chances of a prosperous future.
Errors do become cumulative and often become a way of life. The unitary-federalism, with the drainpipes in terms of arbitrarily ‘created’ 36 unviable states and 774 local governments, together with the wasteful bureaucracies around them have orchestrated a brand of politics that is distribution-consumption oriented.
In basic economic terms, Nigeria could not cope once oil prices burst: per capita income plunged from $2270 in 1980 to about $400 in the 1990s, with poverty incidence more than doubling from about 30% in 1980 to about 70% in the 1990s. In the entire 1990s, the economy grew at an average of 2.8%, which was just the rate of growth of the population, leaving per capita income growth to zero in the entire decade. Since 1999, God has again given Nigeria a second chance and oil prices have been on the increase since then. Again, we are back to exactly the same consumption pattern of the 1970s and the second republic. In spite of the oil boom for the last 12 years, per capita income is still just $1252. Imagine what would happen when the prices burst again!”
 
 
In the above circumstance, the Judiciary must be better informed, because of the three arms of government; the Judiciary has the largest concentration of learned men in Nigeria and should be in a position to influence issues by their learning and training.  To be able to do this, the Judiciary must be impressed upon not to practise exclusion but inclusion.  Now the Judiciary no longer allows legal practice outside the Bench, into the Court of Appeal and the Supreme Court, let alone the Chief Justice of Nigeria.
“It seems to me that Nigerians have to make up their mind whether they want only career men and women in all facets of public institutions.  In several parts of the world it is thought an honourable sacrifice when people from the private sector agree to give their time to the state.”         [Peter Enahoro -Then Spoke the Thunder pg 555]
 
Late Justice Nnamani was the Attorney General of the Federation, a Senior Advocate when he was made a Supreme Court Justice.  Late Professor Teslim Elias was the Attorney General of the Federation when he was made the Chief Justice of Nigeria.  Now the situation is different as the Judiciary especially the Court of Appeal and Supreme Court have become a closed shop for only judges from the lower courts that are reserved primarily for career promotions and with this has come some of the ills of a Regimental organization. This is unfortunate because it is bound to permit of mediocrity when this could have been avoided.
 
I was a founding member of the Benin Branch of the Nigerian Bar Association and Secretary for over 10 years.  At that time, we jealously guarded the profession, the Bench and Bar.  At national level, we influenced events for the common good.  The military later set out to intimidate all professionals and lawyers were in the forefront of the pro-democracy struggle in Nigeria.  Alao Aka Bashorun, Gani Fawehinmi, Olisa Agbakoba, Femi Falana to mention a few, and pro-democracy activists were protected by the court just as Wole Soyinka, and others were charged.  It is against these backgrounds that one wonders how judges can be party to corruption in election cases and some of them becoming millionaires. This practice began when the military invested heavily on human and material resources to conduct sham elections.  First it was transition without end then June 1992 elections that was free and fair but had to be annulled.  Thereafter followed bogus elections where people voted but their votes did not count and were asked to go to court.  The court on its part had to interpret legal principles in some cases to entrench unelected presidents, governors, members of the National and State Assemblies and Councillors rather than asking that the election be repeated and conducted properly.  This they could not do for fear of their personal safety and in other for personal profit as a result of corruption.  It was a no win situation for the nation.
 
The Way Forward
Judicial Integrity in the Enthronement of Good Governance can only come about with the re-structuring of the country followed by free, fair and credible elections and the legal profession has a greater part to play than any other profession.  Justice Oguntade was reported to have said:
“that the 36-state structure should be collapsed and some states merged”.  His argument is that “most of the states in Nigeria are not viable ... all that these states do is receive the constitutional monthly allocation and pay personnel which are often bloated … They maintain the usual state organs – public service, judiciary, the legislative and executive arms.  After these expenses have been met, there is hardly anything left to provide infrastructure in the states.”  He reasoned and submitted that merging some states “will drastically reduce the money being wasted on state organs which do not in the long run yield any benefit to the people.”                 [Tell, July 12, 2010 pages 43-44]
 
We must therefore as part of the civil society be politically ahead of the political establishment in Abuja, call on whoever intends to contest the 2011 Presidential election to include in his or her manifesto the “life and death” issue of restructuring.  Then we all go out as volunteers to canvass vote for such a candidate to power.  Immediately such candidate wins his first executive bill should be a Bill to Establish a Constituent Assembly for the purpose of a new constitution.  The Constituent Assembly could also have an additional function of “Truth and Reconciliation”, because if we do not confront our past, some suffered wounds may never be healed.  The duration of the Constituent Assembly should be two years, while the normal Parliament activities continue at national, state and local government.  The draft constitution will be placed before the people of Nigeria in a Referendum.
 
Lawyers and Judges in the circumstance must not be agents of government that is determined to entrench the status quo and business as usual; we must all be vessels for change.  We are fortunate in this state that our Comrade Governor Adams Oshiomhole is working very hard for change and must we therefore put this proposal before him and encourage him to be on our side in our demand for re-structuring.   Before I conclude, I reproduce another of Professor Soludo’s views which, to a large measure, I subscribe to, and is in line with the ideal of restructuring except the prescription of two-party system which I consider to be exclusive rather than inclusive.
“A new incentive framework, driven by a new institutional-legal reconstruction of the political map of Nigeria is the only way forward. We propose the consolidation of the 36 states into six regions (with Abuja, Port Harcourt and Lagos as special territories); a new fiscal federalism with derivation principle accounting for at least 33 percent; distribution of Federation Account as ‘conditional’ rather than unconditional grants; regional police force to complement the federal police; scrapping of current local governments and allowing the regions create the provinces/local governments that they can fund; orchestration of a two party system to ensure serious electoral competition; re-invention of ideologies and manifestoes in the politics, etc. For the new politics to take root, everyone must be involved! In particular, elite indifference is not an option. The change will not come through the normal course of present day politics: it must be engineered! Let the debate continue!”
 
Conclusion
Good governance has eight major characteristics which demands that it be participatory, consensus oriented, accountable, transparent, responsive, effective and efficient, equitable and inclusive and must all follow the rule of law. Good governance makes the work of the Judiciary easier.  Good governance is an ideal difficult to achieve in its totality.  Very few countries and societies have come close to achieving absolute good governance.  However to ensure sustainable human development action must be taken to work towards this ideal with the aim of making it a reality.  Lawyers must lead in the struggle to achieve good governance in Nigeria.
 
 A Keynote address at the first session of the Law Week of the NBA Edo State branch at the Oba Akenzua II Cultural Centre, Benin City delivered by Solomon Asemota SAN
Benin City
July 12, 2010
 


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