Impunity and the Rule of Law

The 1999 Constitution created three arms of government namely the legislature, the executive and the judiciary. These arms are expected to cooperate while acting as checks and balances on one another with a view to entrenching good governance in Nigeria. In recent times, Nigerians seem to have lost hope and confidence in the ability of the legislature and the Executive to govern in a responsible and responsive manner. We are left with only one arm which prides itself as the last hope of the citizen, a bulwark against oppression and the defender of the defenceless. Have our courts lived up to this appellation and description?

By section 6 of the 1999 Constitution, judicial powers shall extend, notwithstanding anything to the contrary in the constitution, to all inherent powers and sanctions of a court of law. It shall also extend, to all matters between persons, or between government or authority and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of any person. The courts have the statute of a blindfolded person, delivering justice without fear or favour. The idea is that that everyone is under the law and no one is above the law. Ideally, economic, social and political status should not be a consideration when an individual goes through the hallowed chambers of justice. Essentially, the constitution anticipates the rule of law, egalitarianism, equality before the law and equal protection of the law.

The World Justice Project defines the system of the rule of law as one in which the following four universal principles are upheld: The government and its officials and agents as well as individuals and private entities are accountable under the law: The laws are clear, publicised, stable, and just; are applied evenly; and protect fundamental rights, including the security of persons and property. The process by which the laws are enacted, administered, and enforced is accessible, fair, and efficient. Further, justice is delivered timely by competent, ethical, and independent representatives and neutrals that are of sufficient number, have adequate resources, and reflect the makeup of the communities they serve. This scenario painted by the rule of law is a negation of a state of impunity. The amended Set of Principles for the Protection and Promotion of Human Rights Through Action to Combat Impunity, submitted to the United Nations Commission on Human Rights on 8 February 2005, defines impunity as: “the impossibility, de jure or de facto, of bringing the perpetrators of violations to account – whether in criminal, civil, administrative or disciplinary proceedings – since they are not subject to any inquiry that might lead to their being accused, arrested, tried and, if found guilty, sentenced to appropriate penalties, and to making reparations to their victims”.

When the day-to-day proceedings of Nigerian courts are pitched against the cardinal principles of the rule of law, it will not be difficult to conclude that the country has veered off the mark. Are government officials and some individuals accountable under the law? The answer is obvious – there are some Nigerians who are above the law. Some ministers in the current dispensation have been severally indicted for felonies and misdemeanours and they still occupy their seats. They have neither been charged to court and there are no plans to do so. The 1999-2007 governors who were set on trial for various counts of stealing public funds are still working the streets as free men. A clear seven years after they left power and lost their immunity from suit and legal process. Indeed, some of them are distinguished senators making laws for Nigerians. None of them is yet in jail and the only one who was convicted was given a slap on the wrist and told to go with his loot and loot no more. And everyone in the court room echoed “as the court pleases”.

Adjournments after adjournments; frivolous appeals after frivolous appeals, all in attempt to delay the hearing of the substantive case of stealing is the order of the day. Trials at the High Court await frivolous appeals at the Court of Appeal and thereafter up to the Supreme Court while the main issue lies in limbo. These accused persons are advised and indeed urged on by their counsel, very senior members of the legal profession who earn fat fees from the resources of the accused persons. At the end of the day, justice is mocked; it becomes a circus and the guilty obviously escape justice. For the oil subsidy scams, the drama has started and the cases have also started the journey of the rigmaroles that will end nowhere. This cannot be an accessible, fair, efficient administration of justice. The objective of the accused in employing this kind of tactics is clear. Some witnesses will likely die or the evidence will be destroyed before the main trial commences. With diminished media attention, public pressure for justice to be done will diminish and opportunities for the accused to use the ill-gotten wealth to corrupt the system will increase. At the end of the day, evil triumphs over justice.

The above scenario cannot depict the delivery of justice in a timely manner by a competent, ethical, and independent representatives and neutrals that are of sufficient number and have adequate resources. The constitutional and statutory provisions that allow this charade have been pointed out by several experts and the National Assembly had several opportunities to amend the law but chose to ignore same. On the other hand, the judiciary claims that it is underfunded and the executive and legislature simply collude and pretend they do not know of the underfunding situation. Unfortunately, the judiciary budget comes as a lump sum statutory transfer which is yet to be publicly disaggregated. This has not provided the enabling environment for fiscal governance activists to join the campaign for more funds to the judiciary. Nigerians need to know the expenditure details and what exactly we are paying for before we join the campaign.

On another note, the manner of appointment of judges that leaves the legal profession and the public in the dark creates room for a judiciary that is not accountable to the people. It creates a judiciary that works at its own pace and is insulated from the views of right-thinking members of the society it is supposed to serve. Yes, judicial officers are not politicians looking for votes but they hold a sacred mandate, a duty to ensure that law contributes to societal development. They owe Nigerians a duty to ensure that there is a difference between the rule by law of the military dictatorships and the avowed rule of law in a democracy. A court that sentences petty criminals to long terms in prison while showing utmost leniency to thieves who stole billions of naira cannot in any way be contributing to any form of justice – criminal, social, economic, etc.

The message is clear. Nigeria cannot afford the continuation of inequality before the law and the unequal protection of the law. We cannot afford a judiciary that dispenses justice according to the economic and social standing of the accused person. We need to be governed under the rule of law championed by an efficient and upright judiciary.

First published in the Punch Newspaper on 24 March, 2014

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