By Chidi Odinkalu
The full-time preoccupation of our courts with political cases has produced two outcomes. First, cumulatively, it has become a drain on the intangible institutional assets of character, credibility, and impartiality which are the hallmark of the legal profession and the judiciary. Second, it guarantees politics as banditry. As Paul Collier explains:
If politicians can still face a reasonable chance of winning without bothering to deliver good performance, then….the sort of people who seek to become politicians will change.
If being honest and competent does not give you an electoral advantage, then the honest and competent will be discouraged. Crooks will replace the honest as candidates. …Evidently, one reason elected office is more attractive to criminals than to the honest is that only the criminals will take advantage of the opportunities for corruption. But there is a further reason: elected office provides immunity from prosecution.
Administering Justice Without Delivering It
I draw a distinction between the administration of justice and the delivery of justice. So many instances occur daily across the country in which citizens who go the institutions seeking justice encounter institutions or actors interested more in the administration of justice but not in its delivery. Operators of the system, as lawyers, magistrates, law enforcement personnel, bailiffs, judges among others, deliberately build in dysfunctions into the process as revenue streams in an esoteric transaction, creating appearances of being involved in the serious business of administering justice while clearly not interested in delivering it. In reality, this is more appropriately called “Administration of the Law”. So, it is well possible to administer the law in a way that frustrates justice just as these days many of our courts produce judgment without pretending to deliver justice.
This naturally has brought the system, processes and institutions of the justice sector into disrepute with the result that most citizens and court users are now more interested and invested in seeking extra-judicial than in judicial dispute resolution. This has in turn enabled vigilantism, self-help and jungle justice, enhancing insecurity and violence around the country.
I want to suggest that this gap between justice administration as a transaction and justice delivery as fulfilment of a service compact is at the heart of the hubris of “Go to Court”. It is also about twin failures of civic virtue and professional ethics. Surely, if every actor in the justice system is going through the motions for the sake of profiting the pockets, achieving optimal subsistence or impressing a political god-father, then there is no one actually interested in the real challenge of delivering justice. This is arguably where we are with litigants guaranteed to be stuck in court for decades unless they are politicians involved in judicialising partisan disputes.
As the courts and justice system have become captured by the politicians and their disputes, any synergies in the system now exist to service this narrow tribe of the well off and higher ups.
Speaking about civic virtue, I should point out that a failure of ethics is not an absence of skill or knowledge but of character, formation, and socialisation. Immanuel Kant called this “mother-wit”, a quality of deliberate and sound character which, if lacking, “no school can make good”, and explained how without this “[a] physician, a judge, or a ruler may have at command many excellent pathological, legal or political rules even to the degree that he may become a profound teacher of them, and yet, none the less, may easily stumble in their application. For, although admirable in understanding, he may be wanting in natural power of judgement.”
Essentially, there has to be more to the justice system than merely the private profit motive or transaction of its operators. It was with this in mind that Anthony Kronman chose to describe the outstanding lawyer as: a devoted citizen. He cares about the public good and is prepared to sacrifice his own well-being for it, unlike those who use the law merely to advance their private ends.
…He is distinguished, too, by his special talent for discovering where the public good lies and for fashioning those arrangements needed to secure it. This is the kind of lawyer that Alao Aka Basorun was – the lawyer who embodied ideals bigger than their private pockets. It is no accident that the legal profession was highly regarded in his time and many of the current practitioners of the profession probably chose that vocation because of the footprints of these men. The question we may wish to ask today is: how many of the people watching any of us today would wish to become a lawyer because of who we are or what we do?
In Conclusion
The theme for this Law Week calls for considerable introspection by vocations more used to claiming exceptionalisms, insularity, and navel gazing. A departure from these would be welcome and there could be no better time than now. Our default positions have endangered both our vocations and our country, putting the essential undertaking of justice delivery at risk through an emphasis of administration of the law that ends up frustrating justice rather than delivering it. The consequences of this proclivity have become too obvious for any of us not to notice.
I do not pretend to have any magic answers or recommendations out of this situation or how better to achieve synergy. As I have attempted to suggest here, the pursuit of synergy can only make sense if it addresses the larger and deeper challenge of ensuring effective delivery of justice because it is possible to have synergy in undermining the delivery of justice and that kind of synergy is not desirable.
If we are going to achieve the desirable kind of departure from the perverse incentives that now rule the profession, then we have to all commit to building a different kind of justice delivery system. Training is not enough; effective compliance culture is needed. That needs a different approach to judicial appointments and leadership. In its 2006 report on integrity and capacity in the justice system in Nigeria, the United Nations Office of Drug and Crime (UNODC), concludes among other things that “both the perceptions and experience of the quality of justice delivery can be improved by reducing the importance of political connections and enhancing meritocracy in recruitment, hiring, retention, promotion, retirement and the overall management of staff.”
To be continued tomorrow