Ex Gov. of Delta, Mr. James Ibori
Judicial corruption is a cliché, but that is, for sure, what has elicited deep concern over many years. This concern was certainly not shared by Chief Olusegun Obasanjo who, at the opening ceremony of all Nigeria Judges Conference in 2003, sanctified the nation’s judiciary like this: “The Judiciary in Nigeria is not corrupt or inefficient. (It) is as good as the best anywhere in the world … where some of our judges have served meritoriously and without blemish.” With the conviction at the Southwark Crown Court in London last week of Mr. James Ibori, a former governor of Delta State, after pleading guilty to 10 counts of money-laundering, one wonders if the experience of the general public has ever related to that sanctification.
It is hard to imagine that Ibori was convicted based on the same or similar facts placed before Justice Marcel Awokulehin of the Federal High Court, Asaba, in December 2009, who acquitted him of 170 counts. It is more than a shame that it took the reputation for integrity, impartiality, and technical competence of the UK court to nip in the head Ibori’s grandiose exercise in escapism. As it currently stands, Ibori entered into a plea bargain to lesser charges. In so doing, he seems to have shone the torch on the practical advantages of a plea bargain.
Of course, many Nigerians find the practice of a plea bargain or encouraging early co-operation and acceptance of responsibility by the defendants problematic on the implicit suggestion that it is a failure of principle. That was the case on Monday, at a two-day capacity building workshop for judiciary correspondents in Abuja, where the Chief Justice of Nigeria, CJN, Justice Dahiru Musdapher, condemned the practice as “a triumph of administrative and organisational interests over justice.” To me, it is somewhat fastidious to suggest that plea bargain is obstructive to justice because many charge reductions are made in the interests of justice. And, by criticising the Economic and Financial Crimes Commission’s plea negotiation framework for corruption cases as legally deficient and ethically dubious, the CJN seems to have overlooked the fact that the contours of criminal liability are not all too simple.
Why must the courts be saddled with protracted legal battles, forcing the EFCC to spend a large amount of human and material resources in preparing for, and then prosecuting, corruption cases, the outcome of which is rarely 100 per cent certain? One would have thought that, if the recovery of misappropriated public assets was so pressing, the CJN and other influential jurists would be adding their voices to the significant efficiencies to be achieved through negotiated settlements when properly conducted. Anyway, with Ibori’s deal settled, what matters now, however, is not what happened last week in London but what will happen in the weeks, months and years to come in Nigeria.
To focus on judicial corruption, it has sometimes been said that judges’ moral behaviour is crucial in spurning undesirable pressures, whether from government, politicians or private parties. And there is, of course, truth in that statement. For instance, the independence of the judiciary in Britain was, for a long time, based on behavioural rather than structural considerations. This behavioural independence, to a large extent, served as the bulwark against judicial corruption and misconduct in the British justice system. This suggests, therefore, that upbringing and morality, more than anything else, can shape judges’ decisions, thereby making them to act within the normative framework of the rule of law, both without succumbing to undue external influence as well as without becoming the slaves of institutional self-interest that may undermine their judicial function.
But even so, one ought to insert a few caveats in talking up the potential benefits of behavioural independence. Law is a product of interactions among various institutions, including judiciary, executive and legislature, as well other external groups such as politicians, private individuals and even journalists covering courts’ proceedings. And so, factors that are associated with judicial corruption and misconduct are complex and cannot be attributed to behavioural considerations alone. Rather, it seems the environment in which the judges live plays a major role in terms of influencing their performance. This is no small consideration. Many studies of judicial decisions around the world have shown that judges often behave strategically taking into account the preferences and priorities of the powerful political actors in reaching their decisions.
So, given that judges’ decisions are often tied to the consideration of the preferences of others, and of the institutional context in which they act, there is, therefore, a cause for rueful reflection of the political environment in which judges operate in Nigeria to be sure of the sources of corruption and the level of judicial participation. However, since a thoughtful assessment of religious texts can, nonetheless, throw light on this, I shall now resort to theological rather than legal parlance, in both the Bible and the Qur’an.
In the Bible, Jesus is reported to have stated in Matthew 7: 16-18 that: “By their fruits you will recognise them. Never do people gather grapes from thorns or figs from thistles. Do they? Likewise every good tree bears fine fruit, but every rotten tree produces worthless fruit; a good tree cannot bear worthless fruit, neither can a rotten tree produce fine fruit.”
In an apparent reference to the same parable, Qur’an 14:24-26 similarly reads: “Do you not see how God sets forth the parable of a good word? It is like a good tree, whose root is firm and whose branches are high … And the parable of an evil word is an evil tree, which is uprooted from above the earth and has no stability.”
Simply put, the above parable seems to indicate that in order to have a healthy political order in Nigeria, we may have to get rid of discredited people, and replace them with untainted ones instead. In other words, if there is a serious concern about level of judicial corruption (or the bitterness of the fruit), but somehow we do not want to install a healthy political system (i.e. replace the tree with a better one), suffice that it is not the tree (or Judiciary) which is at fault nor the fruit (or judges) it bears. So, the key to judicial integrity is a healthy political environment. For just like a good tree bears fine fruit, a healthy political arrangement produces excellent judges, and vice versa.
But monopoly of power is much an anathema to any healthy political environment as well. Yet, judicial integrity is closely linked to a healthy political environment. Besides, courts are more likely to be less corrupt where there is a functioning democracy with rival parties alternating in office since politicians in power will be aware that another party may soon be in office. There is, therefore, too great a risk that political parties in Nigeria do not regularly alternate power. In that respect, to enhance judicial integrity, we need a functional democracy where rival parties can alternate in office.
Of course, judges themselves have a role to play in achieving this objective. As Sir Frederick Pollock, in “Judicial Caution and Valour” (1929), has noted: “Law is reason … the duty of the Court is to keep the rules of law in harmony with the enlightened common sense of the nation” (pp. 294-295). The common sense of the country is, it seems, to take offensive against corruption and electoral malpractices. So, judges must pull the plug on electoral frauds and corrupt practices at all times, to plant a healthy political order, and in consequence, enhance their own integrity as well.
•Dr. Ajetunmobi, Lecturer in International Law University of Port Smouth, United Kingdom, wrote in via abdulsalam.ajetunmobi@port.ac.uk
