A birthday cake for impunity? (1)

 by Chidi Odinkalu

L–R: President, Christian Association of Nigeria, Pastor Ayo Oritsejafor; Vice-President Namadi Sambo; President Goodluck Jonathan; Senate President, David Mark; and a former VP, Dr. Alex Ekwueme at the cutting of the 52nd Independence Anniversary cake, in Abuja ... on Monday, October 1, 2012.
| credits: State House

Nigeria is in the throes of an epidemic of violence and impunity much unlike anything the country has witnessed before. Violence in its multi-faceted forms is by most understandings the biggest single law and order and public health problem in the country today. For the first time in our collective consciousness, such acts of violence now routinely include indiscriminate mass killings of civilians caused by Improvised Explosive Devices.

As disparate as these forms of violence seem to be, one thing unites them: our mechanisms of legal accountability seem inadequate to address them or to apprehend the perpetrators. Clothed with effective impunity, therefore, those who unleash this violence feel able not just to repeat it as often as they wish, but also to recruit many followers into the enterprise of seeming to make violence worthwhile. For many Nigerians, another Independence anniversary could feel very much like cutting a birthday cake for impunity.

Fifty two years after Independence, this crisis of violence is the principal metric of the state of evolution and disrepair of our institutions of legal and judicial accountability. The verdict they encapsulate is an unhappy one. So, what then is the relationship of violence to the evolution of Nigeria’s judicial and legal institutions? Simply put, an epidemic of violence is the opposite of a state of rule of law. It is evidence of failure of institutions of the rule of law and of a widespread lack of trust in them.

At Independence in 1960, Nigeria inherited colonial institutions that had not been tested by a free people. The Police Force bequeathed to the country in 1960, for instance, was an expeditionary institution with a century of the wrong kind of traditions and history. The judiciary, for all the admirable men (they were all men then) that administered it, was institutionally younger than the Police at Independence, but essentially also not much different in its essential philosophies. The governing organs of the legal profession were wholly owned by government. With over 28 of our 52 years of post-colonial government lived under military rule, the institutions of the rule of law were fated to suffer considerable diminution in both their efficacy and authority.

The defining landmarks in the unraveling of the post-colonial legal system have been captured in symbolic moments and snapshots. From 1961 until 1963, there were three such moments in the civilian interregnum that preceded military rule.

First, Shortly after Independence, the Nigerian legal system faced its first major test in the Treason Trial of J.S. Tarka in 1961. Tarka, firebrand leader of an opposition party, the United Middle Belt Congress, was charged with the serious crime of levying war against Her Majesty, the Queen of Nigeria – treason. This was two years before Nigeria would become a Republic in 1963. The trial somehow conveniently coincided with the elections into the dissolved Northern Nigeria House of Assembly, controlled by the then ruling Northern Peoples’ Congress. The effort to crush the UMBC failed in the short term as forces loyal to Tarka prevailed in his beloved Tivland during the elections and he was acquitted in the trial. However, the ruling party had learnt not to be outmanoeuvred on strategy.

Next, in 1962, Chief Obafemi Awolowo, leader of the Opposition in the Federal Parliament would subsequently be tried and convicted of treasonable felony in proceedings in which the then Federal Minister for Internal Affairs, Usman Sarki, denied his counsel of choice, Mr. Gratien QC, entry clearance into Nigeria. This was to precede a takeover of Chief Awolowo’s Western region.

Thus, in 1963, dis-regarding a pending Privy Council appeal (which it subsequently lost) in a dispute over who was the lawful Prime Minister of the Western Region, the government restored Chief Awolowo’s ambitious former deputy, Samuel Akintola, as the Prime Minister of the Western Region. Following the Privy Council decision in this case [Adegbenro vs. Akintola, (1963) A.C. 164], the then Federal Government established the Supreme Court, abolished appeals to the Privy Council and proclaimed Nigeria a Republic. The civilians had laid the foundations of what would define post-colonial institutional politics – that the decisions of courts which prove not to be malleable can be dispensed with at the whim of the rulers of the day.

The military would take this lesson to heart when they took over the reins of power following the coups of 1966. When the then Supreme Court ruled in 1969 in Lakanmi’s case that the events of January 1966 were not revolutionary in a constitutional sense, obliging the then military regime, therefore, to subject itself to the niceties of the written 1963 Constitution, the soldiers simply promulgated the Federal Military Government (Supremacy and Enforcement of Powers) Decree of 1970, eviscerating the decision and lobotomising the courts. Despite episodic stirrings to judicial imagination since then, our judicial institutions have never quite recovered from these grave errors by men who were inevitably limited by their youth.

The tendency of the post-colonial regimes to respect only legal advice that they liked and obey judicial decisions that favoured them would catch up with both its authors and the country. Taslim Elias, who, as Federal Attorney-General, presided over the developments narrated above, would himself become a victim of his own precedents when, as Chief Justice, he was summarily relieved of his position in 1975 with no need for justification.

A major victim of this arbitrariness was Nigeria’s criminal justice and penal system. Bola Ige, the story of whose life is well known as counsel to J.S. Tarka in the treason trials, and later as governor, political detainee, Justice Minister and himself victim of an assassination, notes in his work, People, Politics, and Politicians of Nigeria, 1940-1979, that “Nigerian authorities have become more inhumane, more intolerant and more callous in their treatment not only of those standing trial but also of those detained for months without trial….”

By the outset of the third decade of Nigeria’s independence, the consequences of this history had percolated into judicial decision-making in the first evidence of what would become a gangrene of allegations of judicial corruption. In 1986, the report of the Babalakin Commission of Inquiry into the then Federal Electoral Commission, found, in relation to judicial decision making in the 1983 elections that “allegations of corruption in high places were freely made.”

•Odinkalu chairs the Board of the National Human Rights Commission.
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