Oliver Wendel Holmes Jnr. is my most revered jurisprudential personage. This sentiment may be founded on a filial judicial heritage or on my experiential understanding – yet a vestige of my filial heritage – that law is not law until it has been interpreted by the courts: a summarized reflection of the Realist School of Jurisprudence.
This school of thought propounds that there is no law, indeed, until it has been tested and subjected to the regurgitation of judicial processes and consequently molded into case law. It holds the position that while the legislature may make laws – as constitutionally they are empowered to do so – the onus of breathing life into these laws lie with the interpretative powers of the judiciary.
Indeed, the arduous task of defining what the law is – constitutional, criminal, civil, industrial and what have you – has been bestowed on the courts.
Oliver Wendel Holmes Jnr. thus expressed: “The prophecies of what the courts will do, in fact, and nothing more pretentious is what I mean by the law.” In other non-argotic words: the exegesis of the courts to matters brought before it is what, in fact, entails the law.
The core objective of law, through the judicial, legislative and executive corollary processes is justice. Justice is what is sought for when the common and even ‘un-common’ man come to drink of the waters from its fountains. It draws from the equitable maxim: that where there is a wrong, there must be a remedy.
And logically: where there is corruption, there must be a corresponding elixir. Insofar as Nigeria remains a country founded on the pillars of the rule of law – not self-help, jungle justice or the rule of man – the recourse to salvaging the morass disfiguration of our moral entity from corruption is housed in the courts.
The fight against corruption lays a heavy burden on the judiciary. And the courts are the linchpin of hope in this fight.
Undeniably, Nigerians watch on TV, and read on blogs and newspapers, the almost daily arrests and prosecution of persons who have been alleged to have milked dry our resources and committed heinous corrupt acts; but the question is, how far will these go?
One of the reasons President Buhari was elected into office was for his promise to fight corruption hinged on the goodwill of his personal characters of integrity, asceticism, and uprightness. And having been elected as Head of the Executive, and Commander in Chief of the Armed Forces, he has chosen to lead from the front by imbuing as the philosophy of the Executive: That we will fight corruption till its extinction.
The Police Force, the EFCC, the ICPC and other prosecuting bodies have gotten the message clear and blunt. They have palpably known that the fight against corruption is not mere rhetoric or campaign chants. But a credo that they all must live by, and fulfill its mandate.
Notwithstanding, the bellwether of this fight cannot do it alone. Neither can he win it by a lone-wolf fight. The system of government evident in the mechanized checks and balances and separation of powers of the three branches of government must, arm in arm fight this fight as one.
There must be a consensus of philosophy of the three arms of government to fight corruption. Whereas the legislature, saddled with the onus of law-making, strives to play its part – even though I feel we have laws in abundance, both moribund and flourishing – more is in the hands of its two brothers for the day to day fight against corruption.
The 2015 enacted Administration of Criminal Justice Act easily sets the ball rolling for a more efficient criminal justice system; faster dispensation of justice and stronger protection of rights of actors in the criminal justice system. Pooled to the common target of achieving better access and dispensation of justice.
But the judiciary whose mandate to apply these laws to cases before them must not fulfill same as a mere exercise of semantics – in the words of Professor Ben Nwabueze – but must be guided by the responsibility it has to society.
Lord Mansfield, a judge, a politician and one of the most erudite and powerful jurists in Britain of the 18th century noted that our courts are the“custos morum” – the guardians of our morals – and must protect society against offences “contra bonos mores” – that is offences that are harmful to society’s moral fabric.
The fulfillment of this responsibility will not come without a deliberate consciousness of an interpretative attitude and mindset towards the prosecution and punishment of moral wrongs such as corrupt practices.
This mindset must be formed on a pattern – like the convention the courts have shown in their inadvertent disinclination towards granting bail to armed robbery suspects – that sends a limpid message to Nigerians that there will be no Caesars’ wife anymore, and a definite sense of equity and remedy for wrong. Take for example, a practice direction that seeks to set a harsher sentencing policy on matters relating to corruption and criminal breach of trust.
The courts are the servants of the Legislature, the Executive, and most importantly, the Nigerian people. And this service must be geared towards restoring a trust in government, sanity of governance, reliability of the system, access to justice, and a resonance of the consequences of our actions.
One may ask; would the desire for this sort of team-work between the three arms of government not be a call for a perversion of the principles of separation of powers as enshrined in the constitution? Absolutely not. The anticipation of the separation of powers is such that each organ of government is independent of the coercion and influence of the other; this however does not preclude the fact that they must cooperate to achieve the common goal of fulfilling the purpose for the constitution. And that is to create a just (equitable and fair) society.
It is not in any way the anticipation of the Constitution that each organ of government would exist in water-tight compartments.
President Buhari’s fight against corruption – a determined, dogged, and fearless one – will be mere bark and prick if the judiciary does not give chase and bite to it.
Justice being the end objective of these processes rests in the oars of the judiciary. Its mindset and consequent decisions will reflect this. And importantly, the mindset revolution of the Nigerian people – in mores, attitudes and values – will be sparked by its decisions on corruption cases.
These decisions will set in the minds of Nigerians a sense of justice that will be the threshold for the moral revolution President Buhari’s change brings. This sense of justice can only be made tangible when Nigerians see that anyone who commits wrong is punished accordingly – and even in chastening manner – irrespective of class, background, political affiliation or whatever status; not only must justice be done, but it must be manifestly and undoubtedly be seen to be done.
These are not the times of putsch. I reckon, if it were, the justice system will be set in flash motions by crude decrees that fail the indispensable and democratic test of our legislative and adversarial judicial processes.
Nonetheless, our entrenched system of separation of powers, as an alternative to the junta, in this moment in Nigeria’s epoch – that requires a re-evaluation and re-work of our moral compass – will require a consensus viewpoint of the three arms of government in the fight against corruption.
This consensus is the collective mandate to revive our national values of integrity, honesty, accountability and transparency.
Through the end product of justice that will be pronounced by the courts, all the branches of government will be heard to speak in unison: we will fight corruption with all the powers that the constitution has bestowed on us.
Johannes Tobi Wojuola, lawyer and writer, writes from Abuja
What do you think?