ACCESS TO JUSTICE AND THE LEGAL PROCESS: MAKING THE LEGAL INSTITUTIONS RESPONSIVE

   By AKIN OYEBODE

Lecture in honour of the Honourable Kayode Eso

Introduction

It is indeed a great honour to be asked to deliver a lecture in honour of the Honourable Kayode Eso, arguably, the most distinguished and erudite jurist ever to have graced the portals of the Supreme Court of Nigeria. The intellect and sagacity that the inimitable judex has brought to bear on proceedings of that court as well as his insightful commentaries on the legal process since bowing out of judicial precincts attest to the fact that great jurists really never retire but continue to impact legal consciousness even unto their graves. The prodigious contributions of this incredibly talented legal thinker to our jurisprudence are such as can only inspire this generation and succeeding ones to strive and attain the very best in the enterprise of the law. Accordingly, it is indeed no surprise that he has joined the pantheon of the very few of our compatriots that are being celebrated in their lifetime by appreciative students who have deemed it fit, proper and worthwhile to have chambers named after them. For this feat, I wish to congratulate the eminent jurist.

Now, coming to the topic of today’s lecture, those who are familiar with my book, Law and Nation-building in Nigeria would recall one of the chapters with a title similar, albeit not identical with that of this lecture. Way back in 1993, my good friend, the late Professor Claude Ake, perhaps the most cerebral political thinker of his time, had invited me to his Centre in Port Harcourt to speak on the question of bringing justice closer to the people. A year earlier, I had delivered what some then considered a provocative lecture at the historic NBA Conference under the title, ”Is the Judiciary Still the Last Hope of the Common Man?”

It can be seen, therefore, that I am very much on familiar territory. Yet, if truth is to be told, there seems to be more cynicism around now than then. Granted that there are flashes of inspiration here and there in relation to the search for justice through the courts, but that should not detract from the fact that in contemporary Nigeria, the courts are very much on trial. Accordingly, the mission of this presentation is to, once again, interrogate the machinery of justice in Nigeria with a view to laying bare its intestices so that we can arrive at a decision on the optimality of the institutions of the legal process in their assigned task of providing justice to the generality of the people. More specifically, it is intended to evaluate the different conceptions of justice within the Nigerian legal framework and examine the ideological make-up of some of our judges before attempting a prognosis on the trajectory of legal thought in our dear country.

The Legal System as the Machinery of Justice in the Society

The legal system, as we all know, is the sum total of the rules and regulations as well as the enforcement mechanism of same in any society. So critical is the legal system that it is virtually impossible to contemplate society without it. The existence of law as well as its application in the regulation of human conduct is what separates the human world from the animal kingdom. As my old teacher, Roberto Unger once put it, ”Law is the glue that holds society together...”¹

Viewed this way, the legal system plays a central role in our lives and we, therefore, need to come to grips with its functioning in order to be at home with how society is run. More important, the quest for justice is almost as old as the dawn of time. Accordingly, an understanding of the workings of the legal system is at the same time an awareness of the human dream for justice and equity as well as its success and failure.

To the extent that the legal system is not an automaton, being an apparatus operated by human beings, to that extent is it important to grasp the impulses that drive the operators. In other words, while it is necessary to understand the rules that power the legal system, it is even more imperative to decipher the attitudinal chemistry and value preferences of lawyers, judges, paralegals and other actors within the legal system. Since the legal system encompasses both the structural and managerial dimensions of law, emphasis on one at the expense of the other is apt to be illusory and ineffectual. Any analysis of the Nigerian legal system, for instance, bereft of its colonial antecedents would not only be ahistorical but also somewhat superficial and incomplete. The British might have departed these shores nearly half a century ago but their imprint remain quite discernible in the thought processes of important role actors within the legal system and the socio-legal institutions they had bequeathed to their misbegotten former colonial possessions.

In unraveling the legal system, a matter should not escape enquiry—the scope of the legal system within the polity. Put differently, the question has to be posed as to the extent to which the legal system has been able to capture the affairs of Nigerians generally. For instance, how many of the transactions and conflicts arising in the country fall for determination by the courts? What indeed is the role of non-judicial dispute settlement forms and procedures in present-day Nigeria? Is the apocryphal increasing resort to self-help by Nigerians an admission of a vote of no confidence in the courts? Are the courts beginning to have an orphan status in the thinking of the generality of Nigerians? If the trend continues, what would that portend for the courts and legal practitioners who consider the courts as their marketplace?

These indeed are critical questions demanding immediate answers if indeed we want to formulate a rescue package for the Nigerian legal system. Aside from their byzantine procedures which, mercifully, are now yielding to innovative ‘fast-track’, ‘front-loading’ processes, especially in Lagos State, the legal system is in dire need to re-discover and re-invent itself by doing away with cobwebs embedded in the Criminal and Penal Codes, Criminal Procedure Act, Evidence Act and kindred antiquated forms and processes which constitute clogs along the path of a modern, cost-effective legal order. If Nigeria truly subscribes to the tenets of the rule of law, it must immediately embark on a total overhaul of its inherited legal system and put in place a legal system that can meet the yearnings of the people for a speedy and functional system aimed at dispensation of justice within the polity. 

Justice in the Nigerian Environment

In Nigeria, as in most societies, there is no unanimity of views on justice. The litigant that wins his case is apt to salute justice while his losing opponent is most likely to bemoan the lack of justice in the land. Despite the ubiquitous figurine of Themis adorning our court houses, it is arguable if the impartiality depicted in her blindfold and the scales of justice she wields reflects everyday happenings in the courts. In fact, there are some who would have her cast away the blindfold, or, at the very least, peep through it so that she can perceive the inequality in the property and status of litigants in many cases so that she can tilt the scales and compensate for the factual inequality of parties! For the assumptions of formal equality are a far cry from substantive justice. After all, did Aristotle not preach that justice meant treating equals equally and unequals unequally?

There is no gainsaying the fact that Nigeria of our time can only make a fetish of equality before the law in the face of millions not knowing where their next meals would come from or where to lay their miserable heads at night, talk less of being conscious of their rights or possessing the wherewithal to ventilate their grievances through the judicial process. Cicero’s notion of justice of everyman getting his due would inevitable pose the question of what is really the due of every Nigerian?

What is here being suggested is that we might need to depart from adherence to the shibboleth of formal justice in favour of a social justice which focuses on equal access to the necessities of everyday existence. Without access to food, clothing, housing, healthcare, education, etc., it goes without saying that pious declarations on justice and the rule of law amount to little more than hot air.¹ In a society like ours, where, as a wiseacre recently observed, the rich keep getting richer while the poor keep going to jail, it is futile to speak of a common world-view on justice.

In Nigeria today, it is nearly a death sentence to be impecunious. Those with fat wallets can rest assured of having their rights protected and getting immediate and effective succor whenever and wherever same have been violated. Only the highly-heeled and famous can brief heavy-duty lawyers while the poor and underprivileged are compelled to leave their grievances to the Almighty. As we all know, God would not leave His throne to come and redress the injustice done to poor Nigerians in their day-to-day existence. Therefore, except and unless and only to the extent that the people are ready to take their destiny in their own hands, they would continue to suffer privations from the hands of their better endowed compatriots.

Accessibility to the Courts and the Task of Attaining Justice

The courts, like the Golden Gate restaurant, are open to all, except that one requires the means to access them. Aside from the high cost of prosecuting claims by way of briefing counsel, the cost in man hours lost to frequent adjournment of cases is prohibitive even to litigants with deep pockets. Granted that we have the Legal Aid Bureau, NGO’s as well as lawyers who engage in pro bono practice, the truth of the matter is that the cards are well stacked against the poor.² Not only are they most likely to confront highly experienced and expensive senior lawyers, lawyers of poor litigants are generally deprived of the wherewithal to sustain the demands of their briefs.

More often than not, when matters need to be pursued to appellate courts, poor litigants just cannot afford the cost and simply give up except a lifeline is thrown at them by some benefactor. On the other hand, their affluent opponents would spare nothing to fight their battles to the bitter end. What this means, in reality, is that justice in Nigeria carries a stiff price tag which only the well-to-do can meet. However, as Chief Awolowo was wont to say, God so loved the poor and the downtrodden that he made sure that they were more in number than the rich! If that is so, then it goes without saying that Nigeria should invest a lot more stock in availing justice to the masses instead of allowing the current situation of alienation and disillusionment being endured by the vast majority of the people.

The Ideological Leitmotif of Judges

I am on record as saying that a streak that runs through the make-up of the majority of our judges betrays a commitment to applying the law as it is rather than the law as it ought to be.³ This predilection for strict construction as against the liberal interpretation approach gave rise to a kabiyesi mentality among some judges, especially during the sad and inglorious era of military dictatorship when what was called for was a robust defence of civil liberties.

Mercifully, the situation has since altered considerably as majority of our judges are now wedded to their judicial oath and feel impelled to strike blows for the rights of citizens. This has been particularly so under the current dispensation when the Supreme Court, especially has been most vocal and determined in upholding the tenets of democracy and the rule of law. From opening up the political space by compelling INEC to register many more parties to extricating Abubakar Atiku from the numerous mines laid on his route to run for office and upholding the (s)election of sundry persons that could not have smelt high political office, the courts have re-kindled the confidence of the generality of Nigerians and imbued in them a sense of fidelity to the rule of law and democratic governance.

While the main task of the courts is to determine disputes brought before them by litigants, they should be seen as the last bus stop before society takes a descent into chaos. To the extent that the people have confidence in the courts, to that extent would it be difficult, if not, in fact, impossible for the people to succumb to the wiles of demagogues. The on-going resistance by the people of Iran to the attempt by Mahmoud Ahmedinajad to steal their votes would peter out if there are good prospects for a judicial resolution of the crisis. We need only compare the situation in Nigeria with that of Kenya or Zimbabwe after disputed electoral processes in those countries to understand the critical role that popular confidence in the judicial process can play in conflict resolution. Where and when judges are perceived by the population as being relatively free from political manipulation, the chances of channeling conflicts away from the streets onto the serenity of the court room would be so much enhanced.

In view of the foregoing, our judges would have to be weaned of susceptibility to manipulation by the Executive and insist on their prerogative to decide cases based on their perception of law and justice. The ideological make-up of judges should be tempered by a sense of right and recognition of the necessity to propel society along the trajectory of progress and development. In recognition of the material poverty and underdevelopment of our society, our judges should strive to nudge the society forward and apprehend their role as catalysts of social change. While certainty and predictability remain some of the hallmarks of the rule of law, blind adherence to precedent could be dysfunctional and counter-productive in a society yearning for change. Nigeria is in dire need of bold and courageous judges who are ready, willing and able to dare, engage and improve “the enterprise of subjecting human conduct to the governance of rules.”⁴

Whither Nigeria’s Sense of Injustice?

In the opinion of Edmond Cahn, society would advance only to the extent that a high level of awareness of injustice exists among the people.⁵ In other words, where and when the people are bereft of the sense of injustice, it is difficult to conceive of justice. If the people fail to evince outrage at arbitrariness, misrule and impunity, such a society would be hard put to make progress.

When this notion is applied to Nigeria, it becomes highly problematic on account of the lack of consensus regarding fundamental issues of governance and the direction the country is heading towards as well as the generally docile and lethargic nature of our people, even in the face of corruption and bad governance. The tendency of our people is to seek divine intervention as the panacea to practically all our problems, be they epileptic power supply, craters on the roads, an ineffectual and corrupt police, poor medical facilities and a collapsing educational system. Yet, if the truth is to be told, it is illusory to keep seeking a deus ex machina in the resolution of our national problems instead of seizing the bull by the horns. Regarding the crucial issue of justice, the people have to be conscientized in order to ensure their empowerment and enable them insist on fidelity to due process of law and the attainment of justice. Accordingly, the way forward is for the country to be sensitized to the necessity for social justice in order to make life meaningful for the preponderant majority of our people.

In the final analysis, the perception of Nigeria by the rest of the world would not depend on a spurious or quixotic ‘re-branding’ but the extent to which the necessities of life are made available to the masses of the people and their ability to ventilate their grievances within the judicial process. The consequences of failure by Nigeria to meet the yearnings and aspirations of its teeming masses are just too grievous to contemplate

Robot  # 1 | 18.06.2009 08:25

ACCESSTOJUSTICE AND THE LEGAL PROCESS: MAKING THE LEGAL INSTITUTIONS RESPONSIVE* ByAKIN OYEBODE** Introduction It is indeed a great honour to be asked to deliver a lecture in honour of the Honourable Kayode Eso, arguably, the most distinguished and erudite jurist ever to have graced the portals of the Supreme Court of Nigeria. The intellect and sagacity that the inimitable judex has brought to bear on proceedings of thatcourt as well as his insightful commentaries on the legal process since bowing out of judicial precincts attest to the fact that great jurists really never retire but continue to impact legal consciousness even unto their graves. The prodigious contributions of this incredibly talented legal thinker to our jurisprudence are such as can only inspire th...Read the full article.

Kenn  # 2 | 19.06.2009 08:05

. People, There is no better person they could have chosen to deliver this lecture in honour of the incomparable Justice Kayode Eso than Prof Akin Oyebode. A legal titan of the academic kind, Oyebode was my lecturer at the University of Lagos. His intellectual sagacity, professional honesty and potent erudition stand him out amongst his peers. His deep knowledge of jurisprudence and its role in conceiving and delivering social justice makes him the ideal person to dissect the Nigerian justice administration system as it is today with a view to exposing to us our dire needs in this area. And he has done so adequately in this piece. However, Prof Oyebode seems to have confidence in the Supreme Court as it is constituted today. He says the Court has been “most vocal and determined in upholding the tenets of democracy and the rule of law”. While I share that view in part, that is only to the extent that the Court has been vocal considering the cases listed by Prof Oyebode. Personally, I respectfully doubt their determination to uphold the tenets of democracy in the light of the judicial abracadabra that resulted in legalizing Umaru Yar’Adua’s evidently fraudulent election. I don’t think by doing that the Court sent the right message to usurpers of people’s mandate or election riggers. Rather, they knocked the wind out of those fighting to uphold the tenets of democracy. This is no surprise though, as our history has consistently revealed that at the most crucial times, especially in fumigating the space that obfuscate political succession at the highest level, the Supreme Court has always buckled, even where they usually do a good job elsewhere. No doubt, it all depends on whether judges see themselves as mere careerists or agents of positive social change. While the argument may continue to rage in legal and political circles about whether they should be strict constructionists or activists, the unvarnished truth remains that the highest court and what they do hold the key to social and political change in Nigeria. Of course, matters are not helped by the lip-service independence of the judiciary. A situation where the Supreme Court has to depend on the good graces of the executive to fund its work and remunerate the Justices can mostly produce men and women whose basic survival instincts take precedence over societal health. Frankly, I’m not so sure that our topmost judges today are yet convinced that judicial activism at the highest level can set the tone for genuine national development. Crucially, Prof Oyebode has pinpointed the colonial underpinnings of the judicial machinery and has underscored the need for equal access without regard to means, status or station. While a viable and working justice administration system would need more than ideologically sound judges, they remain the arrowheads of legitimate reform in the area. The good thing is they really do not have to depend on the political goodwill of anyone to do this. They can do it themselves; that is what their judicial oath is about and that is what the service lives of men like Kayode Esho, Chukwudifu Oputa, Adolphus Karibi-Whyte, Chukwuweike Idigbe, Anthony Aniagolu and Olajide Olatawura have proven, even as they served at the height of military rule. At the policy level, we definitely have failed in the basic appreciation that no man should be turned back at the doorstep of the court because of lack of means. Thus, access to justice can be better guaranteed only with a total review of our Legal Aid system for a start. The Legal Aid Council, despite over 30 years of existence, only exists in name as it is extremely underfunded, even as its remit is still ill-defined. Despite their goodwill, it is obvious that the non-governmental agencies do not have the resources needed to make any kind of appreciable headway. The incidences of overcrowding in prisons, people awaiting trial eternally, unjust and primeval prison administration culture and their extended effects in the form of more crimes, social exclusion and injustice in society at large will be curtailed drastically if legal aid is provided for indigent litigants as a matter of policy (based, of course, on a properly administered means and merit test regime), rather than to have them left at the mercy of ordinary lawyers and NGOs with goodwill. Those involved at the top end of decision-making in the Nigerian legal field need to understand that they need to give this the necessary priority and the necessary funding. CHEERRS!