By Muiz Banire
IT was Chidi Odinkalu that recently wrote an article titled, ‘Judiciary As A Lost Hope of the Common Man’. The article which trended for a reasonable period in the social media, was misconstrued in some quarters to be an indictment on the judiciary and, by extension, the judicial officers.
I honestly do not see it from that perspective, and urge that we do not appreciate the import from that angle. For the simple reason that I am inviting those who missed the opportunity to read the piece to visit it, and for the stronger reason that it is not my intention to x-ray his thoughts in this conversation but merely interrogate the subject from another perspective, I have chosen not to share the content.
By the Constitution of Nigeria, the grundnorm of all legal instrument in the country, the judiciary ought to be the last hope of the common man as well as, I dare say, the uncommon man.
The import of this is that while the Constitution provides for the institution to settle all conflicts amongst citizens, organs of state and institutions, be it public or private, the vulnerable in our society are calibrated to be the greatest beneficiary of the judicial institution.
This is explainable and justifiable on the ground that they lack the capacity to employ any other means or alternative to interrogate their threatened or violated rights.
In other words, while organs of state can employ the extra judicial myth available to them to abate any threat or remedy wrong done to them; same with the institutions and some privileged citizens, the vulnerable citizens amongst us do not have such capacity.
Hence, the universal belief is that the judiciary, in their circumstances, is the only institution that can come to their aid in the protection of their rights. This is the rationale behind the common saying that ‘judiciary is the last hope of the common man’.
In the context of the Nigerian situation, can we really say that the above is a truism? The answer to this is the kernel of our conversation in this discourse. For us to appreciate the discussion, I believe it is crucial and apt that we understand that for the judiciary to actually serve as the last hope of the common man, the promotion and sustenance of the rule of law is key and central.
Without going into any legalistic or philosophical jargons or theories, permit me to just cursorily describe the rule of law in this context as the adherence to the laws by all citizens, corporate or artificial and organs of state. Simply put, all acts and omissions of all must be regulated in the laws of the state at all times.
The absence of the rule of law signifies the substitution of the rule of man. The import of this is the subjection of the conduct of state affairs and that of the citizens to the dictates of man. What then features in this circumstance is that might is right, the strong devouring the weak, a potent invitation to anarchy and the ultimate conversion of the society into a jungle.
Thus, where the rule of law is displaced, the judiciary is substantially, if not totally, rendered impotent and irrelevant.
This then justifies the assertion of Chidi that the ‘judiciary is a lost hope of the common man’. Of course, in Chidi’s piece, Nigeria is taken as the reference point and my excursion is equally premised on the Nigerian situation as a theater of diagnosis.
Few weeks ago, I was in a conversation with two of my friends in Abuja when suddenly an issue cropped up. It happened that I had just arrived with one of them from the inspection of some properties that he wanted to acquire for the purpose of his dwelling in Abuja while on his periodic visit.
Out of inquisitiveness, I believe, my friend, with whom I just returned from the inspection exercise, asked the other who largely lives in the Transcorp Hilton Hotel, Abuja, why he had not thought it fit to acquire a home in Abuja rather than being a permanent resident in an hotel.
With the enquiry, I had expected my other friend to whom the enquiry was directed to respond by either telling me, as I believe, that it might not be security wise to so do, or that he was still on a search for an appropriate property, or at the barest minimum, still exploring the acquisition of a property. Alas, the startling answer I got from our common friend was, how would you expect me to acquire a property in a country where there is absence of law and order.
He then ventured to explain further by telling us, ‘I buy a house today and sometime in the nearest future, a person in authority wakes up and for no reason, or justifiable reason, or may be simply that he does not like my face, demolishes it and nothing will happen’.
Let me further contextualize that both the questioner and responder are not only men of means in our society but highly influential men in the governance of the country. The questioner would not yield to what he considered to be a ‘cheap response’ and was interrogating the enquiry further, when I cut in in a very candid and honest manner to concur with the response of our common friend. What the answer connotes illustrates our concern in this discourse.
Can the rule of work for such a victim where such a breach occurs? Can the judiciary truly and realistically come to the aid of the oppressed person, particularly where he is vulnerable? Can the judiciary rise up to the challenge of the victim by responding effectively?
These and many more are issues we need to interrogate to reach our conclusion. The affirmation or otherwise of the postulations will unveil to us whether the judiciary is the ‘last’ or the ‘lost’ hope of the common man.
Let me recall that it was Fidelis Odita, QC, SAN who, in his presentation in one of the annual public lecture series of my non-governmental organization, United Action for Change, that opined that access to justice is not a challenge in Nigeria but exit is the bane of our judiciary.
To the uninitiated, what this implies is that you can easily approach and gain access to the Nigerian court for the purpose of obtaining justice, but it is difficult if not impossible to exit that corridor of justice in the long run.
This assertion is certainly not far from the truth except to my mind, even attempting to access justice through the court room is a herculean task. As at date, the vulnerable person that is agitated by a wrong done to him is not ab-initio able to engage a lawyer in the first instance, much less able to pay the astronomical court filing fees at the other levels of state other than the federal.
While most state rules made abundant provisions for the paupers in such circumstances, breathing life into the provisions remains a challenge to most heads of courts. Applications made to access the concession in those respects are mostly declined for no, or frivolous reasons.
Legal aid in whatever form it assumes is also vanishing from our society in reality. Administrators of such schemes still make recourse, at the barest minimum, to the victims for logistics.
By this, the dream of agitating any right by a vulnerable person dies with him. Should such oppressed fellow be able to surmount this hurdle and file the case in court, in most jurisdictions, successfully ventilating his rights takes an average of five years.
Justice delayed is known to us all as justice denied, particularly in Nigeria where the average life span is fast diminishing and the value of assets deteriorates. Challenges of prompt assignment of cases, obtaining dates for the assigned cases, multiple adjournments are too common in our judicial system.
Litigants hardly understand why they must struggle to be in court and the proceeding is not going on. Skipping all other encumbrances or obstacles strewn in the way of the realization of justice for the victim, the trial of the case suffers severe and undue delay due to the antics of defence lawyers in some instances, and the unpreparedness of the court in other instances.
Technical rules of administration are another impediment. Of significance in this regard is what the court system refers to as jurisdiction. This is simply the competence of a court of law to hear a matter submitted to it for adjudication. The challenge to this is largely a loop hole that is now a veritable tool of delay and frustration of cases in our courts. The judiciary is yet to surmount this and rise up to the challenge for no reason in my humble view.
Cases are frustrated through frivolous appeals on this ground, particularly due to lack of understanding of the extant rules of appeal that have provided a window to foreclose the game.
