By Chidi Anselm Odinkalu
Judicial capture occurs through both decisions and omissions by and beyond the judiciary. In the week following my article on “The Court that killed accountability”, I have witnessed a deluge of hundreds of complaints, testimonies and mails, which clearly indicate that the people take notice but have lost hope in the capacity of Nigeria’s judiciary to salvage itself.
“If there is not a special place in hell for politically corrupt judges, there should at least be a Magnitsky list.” -Geoffrey Robertson, QC, Bad People and How to be Rid of Them: A Plan for Human Rights, p. 228 (2021)
2021 ended on a frantic note in Nigeria. Despite heated developments, politics, troubling trends in the economy and a deepening insecurity outlook, the significant incidents with long term effects took place in the judiciary, where a raft of developments in the last quarter of the year appeared designed to lock in strategic leverage for various entrenched interests in Nigeria’s ruling classes.
Across the country, politicians and judges appear to have reached accommodation on the terms for dividing up the country and allocating it among themselves. In the last quarter, senior judges and politicians were handing out judicial offices to their spouses and children as end-of-year hampers.
One senator had his young daughter sworn in as a judge. A former governor had one of his children sworn in as a High Court judge in Abuja. Back in his home state, another of his children was sworn in as judge by a governor whose wife is also a judge, joining the mother, herself also a judge among the judicial figures who make the appointments. Not to be outdone, a serving governor swore in one of his serving wives as High Court judge. A presiding judge in one court had his wife sworn in as a judge in another. He was one of many judicial figures to benefit from what has become an allocation of judicial preferments among themselves. As their families celebrated, their supporters took to the airwaves and the digital media to normalise these abnormalities, telling us that in Nigeria judicial skills and temperament naturally reside mostly in the bedrooms of politicians.
Nigeria’s judiciary appears deep in the throes of being reshaped as an estate defined by filial and genital relations, to facilitate transactions for political power. This is called judicial capture. As judges now have the casting vote in Nigeria’s elections, ambitious politicians have decided they must own the judges.
Judicial capture occurs through both decisions and omissions by and beyond the judiciary. In the week following my article on “The Court that killed accountability”, I have witnessed a deluge of hundreds of complaints, testimonies and mails, which clearly indicate that the people take notice but have lost hope in the capacity of Nigeria’s judiciary to salvage itself. In the shadows of this despondency, the project of judicial capture has gathered pace. If the quantity of the feedback was surprising, their variety in provenance was astonishing. Among the respondents were judges (serving and retired), Senior Advocates of Nigeria (SANs), law teachers, court administrators and users, ordinary citizens. If these provide any evidence, Nigeria’s judiciary is in a profoundly dispiriting death spiral and the consequences for the country are incalculable.
The Supreme Court is now the judicial Purgatory of the Nigerian legal process. Many of my respondents in the last week from the practicing Bar complained about interminable delays in getting their cases assigned for hearing. In many cases, they testified, they have to pay “facilitation” to get cases assigned a hearing date. Important cases suffer interminable delays, while senior political insiders inexplicably always get to shunt the queue of judicial dysfunction.
Just as the proverbial fish rots from the head, the place where the most serious manifestations of the problem with Nigeria’s judiciary begins is the Supreme Court. It is the most powerful court in the land. It is also presided over by the most powerful judicial figure in the country, the Chief Justice of Nigeria (CJN). The CJN is not one job. It is a totem to judicial capture. S/he heads the judiciary; the Supreme Court; the National Judicial Council (NJC); the Federal Judicial Service Commission (FJSC); the Board of the National Judicial Institute (NJI); and even the Legal Practitioners Privileges Committee (LPPC), apart from being a life member of the National Council of State. Each of these is a statutory role and each is a different job. The accretion of power and influence in the person occupying the office at any point in time is quite simply dangerous but this arrangement seems to serve well both the judges and the politicians, who are best placed to change it. When it did not serve the interests of the politicians well the last time, they contrived extra-constitutional means of terminating the penultimate occupant of the position and enlisted beneficiaries in the judiciary as allies.
The Supreme Court is now the judicial Purgatory of the Nigerian legal process. Many of my respondents in the last week from the practicing Bar complained about interminable delays in getting their cases assigned for hearing. In many cases, they testified, they have to pay “facilitation” to get cases assigned a hearing date. Important cases suffer interminable delays, while senior political insiders inexplicably always get to shunt the queue of judicial dysfunction.
