NIGERIAN JUDICIARY AND THE CHALLENGE OF SOCIAL ENGINEERING
Never before has the third Estate of the
Realm, the judiciary in Nigeria, faced with the kind of challenges such
as the ones that have confronted it in the past seven years of the
present democratic government of Chief Olusegun Obasanjo. The judiciary,
no doubt, must be commended with the renewed sense of courage and
candour it is again exhibiting in discharging its noble responsibilities
of interpretation of the law and resolution of conflicts.
Recent events in the country have thrown more light on the above.
Without mincing word, the Court of Appeal decision in what is now known
as “The Ladoja’s case” is an undoubtedly a celebrated one. And to cap it
up, the decision of the Supreme Court upholding the earlier decision of
the Court of Appeal on the same was really an icing on the cake of the
new wave of judicial activism in the country. The decision of the Ibadan
division of the Court of Appeal, and later that of the Supreme Court
upholding, the nullification of the impeachment procedure adopted by the
Oyo State House of Assembly members, was a bold step in the right
direction by the judiciary in the discharge of its noblest
responsibility, I dare say,: social engineering through the
instrumentally of the law.
Hitherto, the judiciary had recoiled and shied away from inquiring into
any dispute arising from matters, especially as it pertained to
impeachment process, citing section 188(10) of the constitution as
foreclosing any recourse to Court of law in the event of any such
dispute arising there from. Thus in Balarabe Musa v. Auta Hamza (1982) 3
NCLR (Vol.3) page 229 the then Governor of Kaduna State got caught in
the web of political intrigues and as a result impeachment proceeding
was instituted against him by the House of Assembly. In his bid to stop
what was clearly a stage-managed investigation committee appointed to
investigate him of the various allegations of wrongdoings against the
state, the governor approached the State High Court seeking the Order of
Court to stay the proceedings of the Investigation Committee appointed
by the Speaker of the House. The High Court declined jurisdiction,
citing as excuse section 170(10) of the 1979 Constitution which is in
pari materia with the Section 188(10) cited above.
On appeal, the learned Justice of the Court of Appeal, rather than
stamping its feet courageously as it counterparts in Ibadan Division has
demonstrated to curtail the excesses and political vendetta of the time
and ultimately show the way, decided to act the Pontius Pilate by
washing off their hands and thereby making the judiciary, until
recently, a helpless bystander rather than an active participant in the
scheme of things in the country.
As if the above was not enough, as recent as the year 2002 the judiciary
timidly missed what would have been another golden opportunity to lead
and engineer the society in the right path of governance when, in
Abaribe v. The Speaker, Abia State House of Assembly & Or. (2002) 14
NWLR (pt. 788) page 466, the Court of Appeal was again called upon to
intervene whether or not the refusal of the Abia State House of Assembly
to give the time as required by the Constitution to enable the Deputy
Governor respond to the allegations upon which the House had commenced
impeachment proceedings against him, was not a violation of his
fundamental Human right. Again, even while the Court of Appeal
acknowledged and in deed articulated its power to “ensure that strict
adherence to the spirit of the constitution for the endurance of a
democratic regime”, yet it could not bring itself to muster enough will
to take the bull by the horn. Thus, one was left bewildered, when in an
unusual volte face, it asserted that “The Court should not however
attempt to assume for itself power it is never given by the Constitution
to brazenly enter into the miasma of the political cauldron and have
itself bloodied and thereby losing respect in its quest to play the
legendary Don Quixote de la mandie”. And with those words, the Court of
Appeal again washed off its hands!
It is against the above background that the boldness and courage of the
Honourable justice James Ogebe and the rest of his learned brothers at
the Ibadan division for the Court of Appeal, and subsequently the
decision of the apex Court upholding the decision of the former, must be
roundly applauded. The decision has opened a whole lot of vista for
subsequent judicial control of the maddening intrigues that characterize
power politics in Nigeria.
It is imperative to point out that if we all are agreed that law is an
instrument of social change, then that social change can only be
achieved by systematic engineering of the building blocks of the social
values of the society, using the law as an instrument of social control.
Thus, according to ROSCOE POUND, an early 20th Century legal
philosopher, law as a form of social control, to be adequately employed
in enabling just claims and desires to be satisfied, must be developed
in relation to existing social needs. In his sociological school of
jurisprudence, ROSCOE Pounds is of the view that the making,
interpretation and application of law should take into account the
prevailing social facts.
One cannot agree more with the view of Roscoe pound as expressed above,
and to add too, that to ensure the continued relevance and public
confidence in the judiciary, our judges must go beyond abstract
application of legal rules and principles but of necessity, must concern
themselves more with the adaptations of these rules and principles
towards solving the problems and facts of social life. There is no
greater and perfect cloning of divine work here on earth than the work
of administration of law and justice which our judges are saddled with.
Being so, our judges, with the greatest respect must not see their
duties as ministerial as to preoccupy themselves with application of
abstract propositions of law. It is only with this attitude of mind that
judges nay, the judiciary can achieve the goal of social engineering
using the instrumentality of the law.
CHRIS EDACHE AGBITI, ESQ. IS A PORT-HARCOURT BASED ATTORNEY IN THE FIRM OF THE AMAZING GRACE PARTNERS, No 320, (IZZI CORPORATE SUIT), ABA ROAD, PORT-HARCOURT
