As Lagos lawyer and former president of the Campaign for the Defence of Human Rights (CDHR), Malachy Ugwummadu, during the Nigeria Bar Association, NBA, Ikeja Branch Law Week themed: “Public Governance In Troubled Times; Safeguarding The Rule Of Law In Nigeria” spoke on the special roles of the Bar and lawyers in nation building, albeit, in troubled times.
While speaking on the topic: ‘The Nigerian Bar as the Voice of the People in Troubled Times, Ugwummadu noted that the restrictive composition of the Bar is both inherent and intrinsic but argues that remaining as such, without necessary adaptations, in a fast changing and an emerging society effectively cast an expiry date on the Bar. Ugwumnadu further argued that the continued relevance of the Bar Association is proportional to its utitarian appeal in the entire value chain of the Nigerian society. In this regard, the paper embarked on a rigorous interrogation of notable restrictive judicial authorities in contra-distinction with the more progressive judgments handed down by “Activist Judges” both within and around the Commonwealth jurisdictions.
He said, “From the foregoing, it is obvious that this is, essentially, an association of professional colleagues largely committed to the welfare and wellbeing of its members and profession much more than it makes any commitment to the larger society in which it operates. Thus, it remains debatable from the aims and objectives that there is a formal commitment towards social goals and ideals of the people and the entire society at large. Unfortunately, that same society which is left on its own, unattended to, by stakeholders is now thoroughly troubled and challenged jeopardising the association from operating optimally. Therefore it is risky, in the finally analysis, to discountenance the wisdom that whoever cuts the tree must continuously watch the direction of the fall.
It has been noted that when the Nigerian Bar was formed in the early 1950s, patterned after the British Barincluding our dress code, and constituting one of the unfortunate vestiges of our colonial heritage, the original objectives of the Nigerian Bar did not envisage an active and constructive involvement in the protection and defence of the interest of the Nigerian People.
As I indicated earlier, all depends on the leadership of the Bar, the fresh consciousness of the progressive elements and of course, the ideological persuasion of the members at every turn and era. Regardless of the above disposition of the early Nigerian Bar, Femi Falana SAN, one of the leading lights of our association and profession made the following profound observations, fourteen (14) years ago in 2010.
“However, Chief Obafemi Awolowo and a handful of lawyers took active part in the nationalist struggle. H.O. Davies was a member of the defence team of lawyers who stood for the Mau Mau fighters in Kenya. Also Aka-Bashorun collaborated with President Kwame Nkrumah of Ghana in the struggle for the decolonisation of the African continent. Regrettably, the Nigerian Bar Association (NBA) stood aloof when its services were highly required in challenging gross human rights violations under the British colonial regime.” As I said elsewhere: “In spite of the special placement of lawyer in the socio-economic matrix the NBA distanced itself from the anti-colonial struggle of the Nigerian People. Even when political independence came under threat in the First Fepublic and some of its leading members became victims of state repression, the NBA failed to speak out in defence of human rights.”
The content of the legal education in post-colonial Africa failed to take cognizance of the law as a reflection of the society. Nkrumah was compelled to task African lawyers to apply and interpret the law to meet the yearnings and aspirations of the African People. According to him, “In my view, legal education in Africa should be founded on a grasp of the systems of law which exist in our continent to-day. It must also be based upon a sound knowledge of progressive economic and social theories. We must avoid the tendency to suppose that the form in which law is administered is more important than the content of the law. Law is conception, which is in some mysterious way universally applicable without regard to the economic and social conditions of the country in which it is being applied. The reverse is true. The law should be the legal expression of the political, economic and social condition of the people and of their aims for progress. It is the height of absurdity to attempt to assess the legal institutions of any country by adopting a formalistic yardstick which completely disregards the material content of the law and measures justice or injustice solely by procedural rules. Unfortunately, such an approach too often marks the attitude of even the most eminent lawyers towards people with whose economic needs and social and political aims they do not see eye to eye ”
ii. The People’s Bar or The Professional Bar Association?
It is often said and even believed that the legal profession is generally a very conservative profession. Although it is not impervious to necessary changes, but it is reluctant to embrace rapid reforms at a speed that could disrupt established orders, protocols and procedures. Yet, it plays a crucial role in an emerging, ever-changing and dynamic society. The pertinent question has always been, what then are the costs and benefits of our conservative nature and outlook? We have seen it play out, on many occasions,when the public expressed their resentments against the Judiciary, legal practitioners and even the system in which they operate. They simply believe that the “whole thing”is no longer adding up. Many lawyers would argue that ours is the attainment of justice according to law and not via the whims, wishes and opinion of the public. Yet, jurisprudence teaches us that the justice we all pursue is rooted in the confidence of the public. It evaporates not at the point when we win or lose a case but at that point when the same public loses confidence in the judicial process. It is my understanding that we are precisely at that point!
In urging that our Bar, the Nigerian Bar becomes the people’s Bar relevant to the people and society in which it operates, the very first Nigerian lawyer, Christopher Sapara Williams, who was called to the English Bar in 1889 strongly admonished that “the lawyer lives for the advancement of his society.” This brings me effectively to the kernel and thrust of my paper-Judicial Activism, Requiring Activist lawyers.
Judicial Activism Requiring Activist Lawyers
“This section of my paper focuses on the concept of judicial activism; the necessity thereof, the huge challenges adherents and protagonists of this Jurisprudential hue face within a largely conservative setting; the uncommon courage that must be mustered by faithful of this ideology and the attendant and illuminating progress recorded by the sheer determination and convictions of “the Activist Judges.”
I had, in the foregoing sections of this paper, given my humble thoughts on the provenance and philosophical basis of conservative judges which is easily traceable to adherents of the Austinian Positive Law theory. They see the law simply as it is and never as it should or ought to be. On the other hand, we can quickly take a peep into what judicial activism means by reflecting on some of the profound but random thoughts of Hon. Justice Akinola Aguda in his numerous lectures and presentations. A starting point, albeit controversially made, was the profound doubt, he expressed about the often touted equality before the law in every society. He said: “To the best of my knowledge and experience, there is nothing like equality before the law, at least not the way the law operates today. It is nothing but a myth created by our political rulers and the lawyers to give cold comfort to the “common man” so that they, that is our political rulers and the lawyers, can have a peace of mind. But the earlier we disturb that peace of mind, the better… In this country of ours, we are not equal before the law, unless we want to give a restricted meaning to the word equal.”
Sincerely, I believe that such a remark from no less an authority and legal giant than Hon. Justice Akinola Aguda was and remains sensitive enough to introduce a fresh consciousness and appreciation of what the actual role of the Judex and the Bar should be in such an imbalanced society. Accordingly, he extensively quoted Lord Denning, as to the proper role of a judge.
“My root belief is that the proper role of a judge is to do justice between the parties before him. If there is any rule of law which impairs the doing of justice, then it is the province of the judge to do all he legitimately can do to avoid that rule or even to change it so as to do justice in the instant case before him. He needs not wait for the legislature to intervene because that can never be of any help in the instant case. I would emphasis, however, the word legitimately; the judge is himself subject to the law and must abide by it.”
If the feeling in this audience is that I have travelled too far to England and way back in time, let us hear our own Cicero and oracle of the law, Hon. Justice Chukwudifu Oputa CFR D. LTT while delivering the very first Justice Chike Idigbe Memorial Lecture at the Oduduwa Hall, Obafemi Awolowo University. Discussing the topic,“Judiciary; The Common Man and Judicial Activism”, His Lordship said and I copiously quote him as follows:
“The main function of the judiciary is the administration of justice. Today, however, justice has come to acquire an enlarged meaning and connotation. When we speak of justice we mean not only commutative justice but also distributive justice, we mean human justice; we mean social justice. It is not justice confined to the fortunate few on the apex of various pyramids of power in society but justice which takes within its compass the large masses of the underprivileged segments of our society – the much and long neglected common man. When we speak of justice, we mean justice which will penetrate and destroy all irregularities of ethnicity, of power, of wealth and of position. We mean justice which will bring about equitable distribution of all our vast resources. It is the duty of the judiciary to ensure that this social and distributive justice is available to all citizens. It is the duty of the judiciary to fight against state lawlessness and abuse of power and to fight against the promulgation of harsh oppressive and draconian laws. A timid or/and conservative judiciary cannot do all these, hence the need for judicial activism.”
Continuing His Lordship said:”To this end our judges should be motivated by a dynamic progressive and forward looking philosophy of law. There has to be an enlightened approach to the social and developmental engineering of law. What our judiciary urgently needs is a new humanism and well founded and growing concern for the civil rights and liberties of our people. Law should never be an end in itself but merely a means to an end – a means and instrument for safeguarding our people from arbitrariness and from oppressive and repressive actions by government and its functionaries or by powerful conglomerates. Our Judges should mouldand interprete our laws to produce justice. They should realize that the majestic generalities of our Constitution and the laws have content and a significance which vary from age to age. This is all that Judicial Activism is all about.
“Despotism cannot thrive without first emasculating the judiciary. An enduring democracy needs an honest, mature, impartial and, above all, fearless judiciary with a vibrant touch of judicial activism”.
Please grant me the indulgence to go no further in explaining what I believe Lord Denning meant when he called on judges to do all that they can legitimately do in order to avoid rules that will impair justice instead of waiting for the legislature to intervene. He firmly believed that they can thoroughly search through the law and allow justice to prevail over the law and not law over justice. In MalachyUgwummadu & Anor vs. University of Nigeria & 2 Ors. The Learned Trial Judge, Hon. Justice A.O Ajakiaye then of the Federal High Court, Enugu Divisionclearly rose to the occasion in defence of our fundamental rights to fair hearing as well as our rights against discrimination. Sections 36 and 42 of the 1999 Constitution respectively.
The present speaker and my comrade colleague, Princewill Akpapan, who is also a learned friend had our degree certificates seized (confiscated) by the authorities of the University of Nigeria (UNN) in 1999. They also refused to recommend us to the Nigeria Law School for the compulsory one year degree programme on account of our consistent and rigorous campaigns against anti-student and draconian policies of the University authority. In one of the numerous interlocutory applications raised by Learned Counsel for the institution, Dr. Ejike Umeh (SAN) to discredit our matter and have it struck out, the Court was invited to determine whether the Fundamental Rights (Enforcement Procedure) Rules 1979 was an existing law? Relying on the sound legal arguments of my team of lawyers led by Mr. Femi Falana (SAN) but more particularly driven by His Lordship’s conviction and sense of justice as a judicial activist, His Lordship ruled thus at pages 189-190:
“Fundamental rights have to continue to be enforced until the Chief Justice of Nigeria makes such rules of procedure. In my view, since no such rule has been made and since it is not the desire of the Law that a vacuum be created in the circumstance, one has to either search the constitution thoroughly to see if there is a saving provision or resort to the inherent power of the court. Fortunately, one finds such saving provision in section 315 of the 1999 Constitution which states as follows:
“1) Subject to the provision of this Constitution, an existing law shall have effect with such modifications as may be necessary to bring it into conformity with the provisions of this constitution and shall be deemed to be:
(a) An Act of the National Assembly to the extent that it is a law with respect to any matter on which the National Assembly is empowered to make Laws… “An “existing Law” is defined in sub-section4(b) ”Existing law means any Law and includes any rule or law or any enactment or instrument whatsoever which is in force immediately before the date when this section comes into force. In my humble view, the Fundamental Rights (Enforcement Procedure) Rules is one such “enactment” within the meaning and intendment of the said section 315 of the 1999 Constitution. It has the force of law and it is one of the existing laws saved. That is the authority for its applicability alongside the Fundamental Rights provisions rolled out in the 1999 Constitution.” (Pp. 189-190) para. 35-20.
Such is the measure of creativity which the law Lord himself, Lord Denning, enjoined every Judge to display at any time when the law comes in conflict with justice, this is important because, there are circumstances in which the facts of a case before a judge might never have been in the contemplation of the law giver. In such circumstance therefore, the Judge is encouraged to fall back on what he considers appropriate to serve the end of justice through some technique of legal reasoning as some are more adapt than others.
Whether it appeals to us or not, our judges must continually work at this position and strive to strike a reasonable balance between the law qua law and the safer end of justice which is what will promote peace, equity and prosperity in any society. It is only at that point that the confidence of the people can be restored and sustained.
The former Chief Justice of the United States, Warren Burger is reported to have said:
“A sense of confidence in the courts is essential to maintain the fabric of ordered liberty for a free people and three things could destroy that confidence and do incalculable damage to society: that people come to believe that inefficiency and delay will drain even a just judgment of its value; that people who have long been exploited in the smaller transactions of daily life come to believe that courts cannot vindicate their legal rights from fraud and over-reachings; that people come to believe the law – in the large sense – cannot fulfill its primary function to protect them and their families in their homes, at their work, and on the public streets.”