Rule of Law, The Bar and The Bench

culled from GUARDIAN, September 26, 2004

The inference that can be drawn from the history of the Role of the Bar and Bench in Nigeria in uplifting the Rule of Law and Independence of the Judiciary is that it has always been a struggle. Whether the struggle was against colonialist who treated Nigerians as second if not third class citizens in their own country or against military adventurist who believed, albeit ignorantly, that they had a better calling in the art of leadership and governance than civilian, the achievements of the Bar and Bench in Nigeria in uplifting the Rule of Law was not handed to them on a platter of gold. In fact, it can be likened to the struggle for freedom.

In the process of uplifting and upholding the Rule of Law, by the Bench and Bar in Nigeria, judges have quit their office due to disobedience of their orders by the government, some have been denied promotions, and lawyers have been either jailed or detained. The culmination being the strike embarked upon by the Nigerian Bar Association in 1992. So what exactly is the role of the Bar and Bench in the uplifting of the Rule of Law and independence of the Judiciary?

This question creates in the mind an intellectual stimulus of an academic nature. In the mind of a non-legal person, and indeed in the mind of some lawyers, the role of the Bar and Bench is not far fetched, anything farther than lawyers arguing in court, and judges giving judgments is overreaching. An inclusion would be lawyers challenging the exigencies of government policies, actions or inactions in the court of law. The Honorable Mr. Justice Akinola Aguda (as he then was) stated: "A strong, able and fearless Bar, an independent, incorruptible and fearless judiciary, as well as a crop of University law dons alert to their responsibilities are sine qua non to true democratic norms".

Deducible from Justice Aguda's statement is the fact that the Role of the Bar and bench in uplifting the Rule of Law and Independence of the Judiciary is not limited to lawyers arguing in court or judges interpreting the laws. It also includes the elucidation, enlightenment and education of not just men of wigs, but the entire nation, particularly its leadership, about the sanctity and desirous advantage attached to the strict observance and development of the Rule of Law.

Also included in Hon. Justice Aguda's statement is the precondition for the uplifting or the Rule of Law, the role according to him can only be uplifted by men and women of strong convictions, able character, independent, incorruptible and fearless integrity in the dispatch of their duties, whether statutory or morally. Much cannot be said about the role the Bar and Bench played prior to independence in 1960, though there were activities, most of the judges at the superior courts were non-Nigerians, also most of the lawyers at the time involved in the struggle of Nigeria opted more for a political rather than a legal solution.

That is not to state that there were no activities at the Bar reminiscent of a struggle. It can be stated that the early role played by the Bar and Bench was largely conservative in nature, some of the reasons for this nomenclature was that most of them were British trained, also they were not enlightened or bold enough to confront the major issues of their time, most importantly, the British judges where there to do the bidding of the colonialist.

The illegal and unwarranted incursion of the military into government was a necessary catalyst that spurred the Bar and Bench into an awakening of the potential and enormous role they were to play in the uplifting of the Rule of Law and Independence of the Judiciary. The Military institution by its very nature is very undemocratic; it is a system of hierarchy wherein orders are dished out with disregard for democratic norms. It has never been in the pedigree of the military to confine itself to the civility of the Rule of Law; rather the Rule of the Gun is a more adaptable term.

The incursion of the military into government, naturally created an awareness in the members of the Bar and Bench that the Government of the Military is a Government of men not of laws. As it is with their training, they were prone to using their newly acquired powers to create arbitrariness of government instead of curbing it, inflame the dictatorial tendencies instead of dousing it, discourage and ridicule the sanctity of the Rule of Law.

As observed by Professor Nwabueze: "The mere existence of rules is of course not enough to secure the Rule of Law if they are not in fact observed in actual practice; the Rule of Law only becomes a living reality to the extent that these rules curb the arbitrariness of discretion and are in fact observed by the wielders of political power". What postulation the Professor had in mind was effectively rubbished by the military, but paradoxically speaking, their use of power arbitrarily was the catalyst needed to awaken the Bar and Bench to its responsibilities, as those who are entrusted by duty and law to ensure that the Rule of Law is strictly observed by the wielders of power.

This duty has been held to be so sacrosanct that any deviation creates an avenue for anarchy. The 1979 constitution in furtherance of this assertion states in S.17 (2) (e) that "The independence, impartiality and integrity of Court of Law and easy accessibility thereto shall be secured and maintained S.287 (1) (2) (3) of the 1999 Constitution further places a constitutional duty on the government to enforce the decision of the courts. The circumstances and event that culminated in victory for the Bar and Bench can be traced back to the advent of military government in Nigeria, though it eventually led to the enhanced value of men of wigs, it nonetheless took its toll on the Bar and Bench.

In 1984 Hon. Justice Yahaya Abiodun Olatunde Jinadu quit his office upon the disobedience of his judicial order by the Federal Military Government. Also in his book "Faces, Cases and Places" former Chief Justice of the Federation Hon. Justice Fatai Williams stated that a certain Chief Justice was appointed by the Military Government of General Murtala Mohmmed for a purpose which suited their agenda, but which was manifestly very undemocratic. The massive purge of the judiciary followed thereafter.

Cases like these abound, what, with the military arbitrariness and their lacklustre attitude towards the tenets of the Rule of Law. One of the earliest tests for the Bar and indeed the Bench was the decision by the Buhari/Idiagbon Military junta to appoint military men as judges in tribunals set up by them to try corrupt public officers. The Bar in particular stood its ground and opted out of an arrangement where a military man, devoid of the etiquette, dignity, respect, knowledge and integrity for the law, moreso the Rule of Law would sit and adjudicate on matters relating to same. It was considered an aberration, an anomaly which if allowed would or could have culminated in a Military General becoming the Chief Justice of the Federation.

The Bar, under the leadership of Prince Bola Ajibola, refused inspite of any threat to twitch its principals, suffice it to state that the military adventurist had no choice but to withdraw the "judges". The role of the Bar at this point was highly commendable; it is in consonance with the postulation of Hon. Justice Akinola Aguda with regards to the uplifting of the Rule of Law. It is obvious that the courage and doggedness shown and displayed by the Bar effectively extinguished forever the notion in the minds of the military adventurist that they could with the use of arms and other device reminiscent of a pariah state subjugate the sanctity of the Rule of Law. It can only be imagined what other devious machination the military government would have attempted if the Bar had not been fearless and courageous in the discharge of its sacred duty.

From the foregoing, it is evident that the military boys received some form of education and enlightenment about the level of commitment of the Bar to the uplifting of the Rule of Law, though they were not formally taught in the classroom, they were made to understand howbeit in a disgraceful manner, that military or civilian, the law is to be respected by all. It is no respecter of persons. In the case of Government of Lagos State V. Ojukwu, the Supreme Court in explaining the concept of the Rule of Law stated as per Hon. Justice Chukwidife Akune Oputa JSC (as he then was): "I can safely say here in Nigeria even under a military regime, the law is no respecter of persons, principalities, government, or powers and that the courts stand between the citizens and government alert to see that the state or government is bound by law and respect the law."

It is most unfortunate, but even under a democratic regime, Nigeria has witnessed the excessive and arbitrary use of government power, mostly on its perceived or alleged political opponents. Alhaji Rahaman Shugaba was summarily deported from Nigeria, but for the quick intervention of the Bar and Bench in the exercise of their sacred duty to correct the anomaly. Alhaji Shugaba was allowed to return to Nigeria by an order of court. The military regime of General Ibrahim Babangida was thrust upon Nigerians on August 17,1985; never in the history of Nigeria has there been a flagrant disregard, distaste, and disrespect for the Rule of Law and the independence of the judiciary.

This regime pioneered quite a number of symptoms of an ailing nation under the grip of power thirsty individuals. Babangida's government opened the floodgate of manifest display of ill-gotten wealth; assassination, corruption and most importantly disregard for the Rule of Law and everything it stands for. The government at the initial stage cloaked itself purporting to respect the Rule of Law and being favourably disposed to same.

It abrogated the notorious Decree 2, and modified the equally medieval decree 4, unknown to many, all these were just a face-saving mechanism designed by the government of General Babangida to create an atmosphere of acceptability for his government. But this was not to last, as the natural inhibition of the regular Nigeria soldier began to manifest itself. The multi-dimensional problems of the regime started to rear its head when the government could not commit itself to a particular date of exit, this coupled with the fact the security agencies had started to exhibit traces of dictatorial tendencies.

The first rude shock the Bar and Bench, nay the whole nation received came in October of 1986. A reputable journalist, Mr. Dele Giwa was assassinated by a parcel bomb. To state that this was unprecedented in the history of Nigeria is stating the obvious, a floodgate of assassinations were to follow of which the nation has not yet recovered till date. It pioneered the era of notable assassinations, more complicated is the fact that the murderers have still not been apprehended.

Due to its wanton disregard for the Rule of Law, flagrant disobedience to court orders, and numerous other issues, the Human Right Community, comprising lawyers and other professionals of repute, became more vociferous in its condemnation and criticism of government. It was only a question of time before they started getting on the nerves of the government, who now unleashed its trademark of picking up individuals they believed where opposed to their continued stay in government and detain them, then declare them national security risk. The medieval decree 4 was useful at this point.

The bough finally broke on May 19, 1992. On this day, the events that finally culminated in the eventful, colourful and glorious victory for the Rule of Law and Justice in Nigeria under a repressive government was ignited. Dr. Beko Kuti, Chairman of Campaign for Democracy, President of the committee for defence of Human Rights, and a distinguished gentleman, Baba Omojola and Mr. Femi Falana, both vibrant and distinguished gentlemen and professionals, whose advocacy, vociferous attacks and condemnation on the government of Babangida and its flagrant disregard for the Rule of Law was beginning to get on the raw nerves of the government, were all picked up by security operatives acting on the authority of their bosses, albeit at different times.

Dr. Beko Ransome Kuti's ordeal was dehumanising, not only was he picked up and manhandled, his daughters were also rough-handled by the agents of government. Chief Gani Fawehinmi, a foremost human right activist, was first to pick up the gantlet; he filed two civil suits challenging their arrests and detention. Dr. Boderick Ineneji appeared for Baba Omojola. Chief Gani Fawehinmi was subsequently arrested on May 29 in the heat of the struggle to free the previous arrested activists. Tunde Mayegun, the President of the NANS later joined them based on trumped up allegations. It is indeed needless to go into the detailed of the court process, but suffice it to state that 22 court orders were made by various courts, 19 were expressly disobeyed by government, three were overtaken by events.

The Nigerian Bar Association was resolute about its opposition to government's disobedience to the law. Various judges of the High Court had given orders to the effect that the detainees be produced in court, but none of these orders were obeyed by the government. These Judges gave these orders at the risk of being victimised by government. The countenance of the Bar was that of defiance, the Bar was determined against all odds to send out a message to the government. Obey the orders or face our wrath. The die was cast. Monday, June 15 was fixed by the Bar to withdraw its services from courts. All these and more culminated in the sound, fearless, in-depth and courageous ruling delivered by his worship, Magistrate Mwada Balami (as he then was).

Before going into the man's judgment and the effect it had on the uplifting of the Rule of Law in Nigeria, I feel obliged to talk about his admirable character. In the book, "Balami: The Man and His Perspective", it is stated that Mweda Balami qualified for "Wilberforce philosophy that justice being rooted in self confidence will not be destroyed as the right minded thinking people are convinced that the judge was unbiased" in other words, justice must be seen to have been done.

This to me is the most veritable adjective that qualifies a judge or Magistrate. His worship's ruling of June 29, 1992, was not only pioneering, but also no doubt that Right thinking members of the society left thinking that the judge was unbiased. Despite the lures of profit, the apparent danger not only to his job, but his family and livelihood also, His worship went ahead and displayed qualities which could only have been entrenched and inculcated by him from youth. Not only that, he has consciously chosen to continually tread the narrow path of honour, integrity and dignity in every phase of his life. The ruling delivered by Chief Mwade Balami was an instate classic reminiscent of the days of Hon. Justice JIC Taylor. Chief Mweda was able to discern the real issues in delivering the ruling. With his sharp intellect, he re-affirmed his commitment to the Rule of Law with regards to freedom, and the duty placed on him to ensure that the state is subject to the law. Chief Mweda Balami's indepth knowledge and understanding of the law is worth of note.

The ruling reverberated around the world, torrents of commendations flowed, not only for Chief Balami but also for the Bar and Bench for their assiduous struggle in enthroning the rule of law. The effect of the ruling was profound. The Rule of Law must be upheld. The Great English Statesman "Sir Winston Spencer Churchill "once stated that courage was the first of human qualities, from it other human virtues flow". I could not agree more, Mwada Balami is an epitome of courage, fearlessness and dignity. I am certain that were Hon. Justice Akinola Aguda present here today, he would agree with me that Chief Balami is an epitome of an "independent, incorruptible and fearless judge". These impeccable character, which Chief Balami exhibited, according to the book w ere imbibed from his father. Thus what is seen in his life today was cultivated from childhood. This is my opinion is the essential that is lacking in today's Bar and Bench in the uplifting of the Rule of Law.

In legal education as it were even till date, the training churned out to students of law and indeed other professional discipline is basically the knowledge of the discipline they are pursuing, what is largely missing are the essential human qualities of courage, fearlessness, integrity, dignity, honour, honesty, discipline, affection, pursuit of honour and maintenance of all these qualities which have been so depicted by His worship in all spheres of his existence. Today, I want to congratulate Chief Mwada Balami and thank him, for the heritage he is leaving for those coming behind him, also for his undying and unwavering commitment to the upliftment of the Rule of Law in Nigeria.

In an ode I wrote several years ago to the memory of late Hon. Justice JIC Taylor, I stated that if every judge were to be like him, then it would not be necessary for constitutional safeguards for justice. It gladdens my heart that many years after I can still say the same for Chief Mwada Balami.

Dr. Onagoruwa is a former Minister of Justice and Attorney-General of the Federation.