Brooklyn Journal of International Law Volume 31 | Issue 1 Article 1 2005 Seeking Justice in Transitional Societies: An Analysis of the Problems and Failures of the Judiciary in Nigeria Okechukwu Oko Follow this and additional works at: https://brooklynworks.brooklaw.edu/bjil Recommended Citation Okechukwu Oko, Seeking Justice in Transitional Societies: An Analysis of the Problems and Failures of the Judiciary in Nigeria, 31 Brook. J. Int'l L. (2005). Available at: https://brooklynworks.brooklaw.edu/bjil/vol31/iss1/1 This Article is brought to you for free and open access by the Law Journals at BrooklynWorks. It has been accepted for inclusion in Brooklyn Journal of International Law by an authorized editor of BrooklynWorks. SEEKING JUSTICE IN TRANSITIONAL SOCIETIES: AN ANALYSIS OF THE PROBLEMS AND FAILURES OF THE JUDICIARY IN NIGERIA Okechukwu Oko* ABSTRACT The attainment of justice represents one of the enduring promises of constitutional democracy. Democracy offers opportunities for citizens to reclaim and enjoy the rights and liberties denied them by military dicta- torships that have dominated Africa’s political landscape for the better part of the last century. Despite the establishment of constitutional democracy, however, the path to justice is strewn with social, cultural and institutional problems that make it exceedingly difficult, if not impossible, for citizens to realize the promises of justice contained in their country’s constitution. More problematic for citizens who seek justice is the fact that judges, driven by lust for power and wealth, often align themselves with the rich and the powerful in society to frustrate the search for justice. These faithless judges defer to and are often controlled by government officials, party stalwarts, and influential private citizens who have strong incentives to manipulate the judicial process to suit their preferences. The few upright judges who have the integrity to resist attempts of undue influence by the government and other private citizens are disabled from efficiently dis- pensing justice by prevailing environmental factors, including inadequate facilities, intimidation, and harassment. This Article examines the problems that disable the judiciary from ef- fectively discharging a Nation’s eminently important tasks of fairly and impartially adjudicating disputes, protecting citizens’ rights and con- straining the excesses of both the executive and the legislature. It offers suggestions for addressing the problems and inadequacies of the judici- ary. Ultimately, the Article argues that establishing an efficient judiciary * LL.B. (hons), LL.M., University of Nigeria; LL.M., J.S.D., Yale Law School. Pro- fessor of Law, Southern University Law Center, Baton Rouge, Louisiana. I am grateful to Professor Ray Diamond of Tulane Law School and Professor Evelyn Wilson of Southern University Law Center whose insightful comments and criticisms shaped the form and structure of this paper. I thank Anoosha Boralessa, London-based Solicitor, and D’Lisia Edwards, J.D. 2006, for their superb research assistance. Research for this paper was undertaken by funding generously provided by Southern University Law Center. 10 BROOK. J. INT’L L. [Vol. 31:1 requires the appointment and retention of competent and upright judges who will be challenged and encouraged by the proper balance of educa- tion and disciplinary regimes to remain faithful to the ideals of justice. It will also require the political elites to change their attitude toward the judiciary. Their commitment to the independence of the judiciary must go beyond mere symbolism. The judiciary cannot fairly and efficiently dispense justice if political elites continue the charade of masquerading as champions of liberty and defenders of judicial independence while striving to interfere with, intimidate and manipulate the judiciary. TABLE OF CONTENTS I. INTRODUCTION ........................................................................... 11 II. PROBLEMS OF THE JUDICIARY ................................................... 24 A. Judicial Corruption .............................................................. 24 B. Intimidation of Judges .......................................................... 33 C. Manipulation ........................................................................ 36 D. Institutional Problems.......................................................... 39 1. Delay................................................................................. 39 2. Inadequate Infrastructure .................................................. 42 III. DEALING WITH THE PROBLEMS OF THE JUDICIARY .................. 45 A. Background of the Judges .................................................... 48 B. Sanctions............................................................................... 54 C. Continuing Judicial Education............................................. 64 D. Independence of the Judiciary ............................................. 70 E. Funding................................................................................. 76 IV. CONCLUSION............................................................................ 80 2005] SEEKING JUSTICE IN TRANSITIONAL SOCIETIES 11 I. INTRODUCTION he mood of Nigerian society at the end of military dictatorship was Tunderstandably ecstatic.1 Nigerians based their optimism on the premise that democracy offers opportunities, liberties and freedoms uni- maginable in a dictatorship.2 Citizens hoped that democracy would read- 1. Nigeria returned to constitutional democracy after fifteen years of military inter- regnum in 1999. See generally Rotimi T. Suberu & Larry Diamond, Institutional Design, Ethnic Conflict Management, and Democracy in Nigeria, in THE ARCHITECTURE OF DEMOCRACY 400 (Andrew Reynolds ed., 2002) (discussing Nigerian political history since 1960). Nigeria has been ruled by brutal, repressive and often visionless military despots for all but fourteen years of its forty-four years as an independent nation. Id. 2. The enjoyment of these rights and privileges distinguishes a democracy from dictatorial and tyrannical regimes. See Robert A. Dahl, Democracy and Human Rights Under Different Conditions of Development, in HUMAN RIGHTS IN PERSPECTIVE: A GLOBAL ASSESSMENT 235, 235 (Asbjørn Eide & Bernt Hagtvet eds., 1992). Justice Olajide Ola-tawura, retired Supreme Court Justice and former Administrator of the Na- tional Judicial Institute, described the state of the law and the attitude of the government to civil rights under the military: During the Military regime the law became weak as a result of ouster clauses and suspensions of our Constitution and existing laws which gave us liberty and freedom. The Constitutional duty to protect the liberty and freedom of the citizens by the state was regularly breached by those entrusted with that sacred duty . The rights of citizens were not only ignored but trampled on. J. Olajide Olatawura, Administrator, National Judicial Institute, Welcome Address at 1999 All Nigeria Judges’ Conference (Nov. 1, 1999), in NAT’L JUD. INST., 1999 ALL NIGERIA JUDGES’ CONFERENCE xxv (2000). General Olusegun Obasanjo, Nigeria’s cur- rent President, in a welcome address to the Seminar on Corruption, Democracy and Hu- man Rights in East and Central Africa, organized by the Africa Leadership Forum in Entebbe, Uganda, eloquently captured African peoples’ desire for democratic govern- ment: The clamour today for democracy and good governance in Africa stems from two broad reasons. First, the denial of fundamental human rights, the presence of arbitrariness and the absence of basic freedoms for the individual have in the main remained familiar traits of a majority of governments in Africa. The strain of these styles of governance has prompted a demand and a clamour for new approaches to the resolution of various national questions. In consequence, Af- ricans are clamouring for greater responsiveness on the part of their political leadership, respect for human rights, accountability and a two way flow of in- formation between the people and their leadership. They are also clamouring for an adequate legal system and for the laws and the independence of the Judi- ciary and a free press, which together can serve as a bulwark against the op- pression of government, and especially a corrupt or unpopular government. 12 BROOK. J. INT’L L. [Vol. 31:1 ily translate into respect for rights and liberties3 and that they would be able to seek justice unburdened by the restraints and limitations imposed by military dictators.4 The right to a fair trial is perhaps the most fundamental tenet of consti- tutional democracy5 and has been recognized as a universal human right.6 It is central to a Nation’s search for social equilibrium and justice be- cause all of the rights guaranteed by a constitution mean nothing if citi- zens do not have the right to a fair trial.7 Without securing the right to a fair trial, citizens might resort to extra legal means to secure their inter- ests and protect their rights.8 Moreover, economic growth and social de- velopment will be impeded if foreign and local investors lack confidence Gen. Olusegun Obasanjo, Chairman, Africa Leadership Forum, Welcome Address at the Seminar: Corruption, Democracy and Human Rights in East and Central Africa (Dec. 12, 1994), quoted in Justice Amina Augie, Human Rights and Good Governance in Africa: A Critical Nexus Expanding Human Rights (Oct. 11–15, 2004), http://www.uneca.org/adf/ documents/speeches_and_presentations/amina.htm.