National Conference Against Impunity (2)

By Ebun-Olu Adegboruwa SAN

Impunity within the arms and tiers of government

The next culture of impunity is found within the three arms of government (executive, legislative and judiciary) and the three tiers of government (federal, state and local). It can be argued that the emergence of sovereign states and nations arose for the purpose of the common good of the society. According to Thomas Hobbes, in order to check the default state of mankind to which life was nasty, brutish and short; there was a need to enthrone an organ with legitimate authority above and over the rest of society and thus leading to the emergence of the political state. As shown from the preamble of the 1999 Constitution of the Federal Republic of Nigeria, the basis for the existence of the geo-political entity called Nigeria is for the promotion of good government and welfare of all persons in Nigeria on the principles of Freedom, Equality and Justice.

Sadly, from the brazen disregard of court orders and the rule of law by the Executive to the legislative recklessness of budget padding in the Legislature and miscarriage of justice by some corrupt judicial officers, it is not in doubt that impunity has been re-enforced across all boards. It is why funds meant for roads and several capital projects to name a few, are embezzled whilst the State continues to fail in securing lives and property of its citizens. This should not continue.

Impunity amidst the common man
This class of impunity persists in everyday life, in diverse ways amidst the common man. In this context, people are seen as a law unto themselves whereby they believe they can do whatever they want regardless of the dictates of the law. It ranges from the unlawful eviction of tenants by landlords to indiscriminate dumping of refuse on the road sides and violation of traffic rules by motorists and pedestrians. In this context, impunity is seen to have permeated all facets of our national life. Another product of impunity amidst the common man is the entrenchment of mob violence where angry disgruntled members of the society carry out the lynching of suspected criminals such as petty thieves, rapists and armed robbers. This form of impunity persists because perpetrators are seldom brought to book by the Criminal Justice System due to the deliberate subversion of institutions of Justice by the Executive. Hence, as the confidence of the common man in the justice system has been eroded, a number of the citizens begin to resort to self-help, jungle justice and further breakdown of law and order. The notable pronouncement of the Supreme Court in Governor of Lagos State v. Ojukwu (1986) 1 NWLR (Pt. 18) p. 621 as regards enthronement of anarchy in the absence of the rule of law still remains relevant over three decades when the Court held thus:

“If the Government treats Court order with levity and contempt, the confidence of the citizen in the Courts will be seriously eroded and the effect of that will be the beginning of anarchy in replacement of the rule of law. If anyone should be wary of the orders of the Court it is the authorities; for they, more than anyone else, need the application of the rule of law in order to govern properly and effectively.”

In this case, Oputa J.S.C. admirably quoted the famous dictum of Lord Atkin in the locus classicus case of Liversidge v Anderson:

“In this country amidst the clash of arms, the laws are not silent. They may be changed but they speak the same language in war as in peace. It has always been one of the pillars of freedom, one of the principles of liberty for which on recent authority we are now fighting, that judges are no respecter of persons and stand between the subject and any attempted encroachments on his liberty by the Executive, alert to see that any coercive action is justified.”

From the foregoing, one can safely profess that the Rule of Law and Impunity, just as like poles of a magnet repel against each other, would surely fail to operate side by side in a sovereign state. It is thus evident that the enforcement of the rule of law in a State is measured by the level of impunity therein. Put simply, the rage of impunity implies the dearth of the rule of law and the introduction of anarchy and double standard before the law.

Accountability as the major panacea to impunity
It wouldn’t be far-fetched to observe that Nigeria is in dire need of accountability as a panacea to the rot of impunity in her polity. The concept of ‘Do and Get Away With It’ can be considered as the root of impunity and lawless conduct in the Nigerian society. Accountability in this context thus refers to the responsibility for an individual’s action and inaction whereby the government and the governed render account of their stewardship and followership respectively. A socio-political system in which there is no answerability for one’s action and inaction is a dysfunctional one and by implication will be unable to sustain the rule of law, good governance and true practice of democracy.

I therefore believe that rooting out the culture of impunity in Nigeria will require the re-enforcement of the institutions of justice to wit: the judicial arm of Government. Where the Nigerian authorities and its subjects understand that their actions and/or inactions are seriously manned by the gates of the Judiciary, all persons, knowing they will be accountable for their actions will act right. Consequently, predictability in the administration of our Justice System is essential to the fight against impunity. Once there is a level of certainty in the Judicial System on the conduct of the government and the governed, all State actors will act in self-preservation from the corrective fangs of the Judiciary. Some of the key performance index/ benchmark in measuring the aforesaid certainty of the justice system in Nigeria are as follows:

Certainty of Judicial Independence and Impartiality
The importance of a competent, independent and impartial judiciary in preserving and upholding the rule of law cannot be over emphasized. There is no doubt that public confidence in the independence of the Courts, in the integrity of judges that man such Courts, and the impartiality and efficiency of the administration of justice as a whole, play a great role in sustaining an efficient judicial system of a Nation. In the case of MBADIWE V. INEC (2010) ALL FWLR (pt. 547) 745 Honourable Justice Saulawa JCA, on the importance of judicial impartiality had this to say:

“I think it was Mr. Justice Frankfurter, of the US Supreme Court who once aptly stated in his notorious philosophical and erudite characteristics that – “The Court’s authority possessed of neither the purse nor the sword but ultimately rests on sustained public confidence in its moral sanction.”

Certainty of the speedy adjudication (and punishment of impunity)
While there is a high level of awareness of the deserving punishment for the commission of crimes and offences, there has to be a corresponding awareness of a predictable cycle for the speedy adjudication and dispensation of justice. Where we can put in place the day to day hearing and efficient adjudication of civil and criminal cases by which the society knows the determination of parties’ rights and liabilities of parties shall not exceed a particular time frame as found in electoral matters to which there cannot be an extension of time to delay the final determination of matters, the culture of resorting to self-help and jungle justice will be reduced to the barest minimum. Upon such a premise, there will be a higher likelihood of civility by the common man in tabling their commercial/contractual dispute before the courts of justice rather than involving the police and other security agencies in a purely contractual matter.

iii. Certainty of the enforcement of judicial orders
It is beyond debate that the draconian practice of the Executive of picking and choosing which order or directive of the courts it would comply with has been the focal point undermining the rule of law and socio-political stability of the nation. As all governments of the day are bound by the final decision of the Supreme Court on all electoral matters, so also should every authority, entity and government agency slavishly comply with subsisting orders and directives of any court of law. Once there is certainty as to the enforcement of judicial orders or heavy punishment for disobedience of the same, the impulsive nature to disregard orders of court will be highly resisted by the general public and government agencies. Agencies such as the Economic and Financial Crimes Commission (EFCC) and the Department of State Security (DSS) will therefore not be spared by the decisive arms of justice where they are found wanting in compliance with orders of the court.

Section 287 of the Constitution makes it mandatory for all persons and authorities to obey and enforce all orders and judgments of the Courts. Indeed, one of the greatest acts of impunity is when anyone tramples upon the positive directives of the courts. Eso J.S.C. captured this more in the case of Governor of Lagos State v Ojukwu (supra) when he stated as follows:

“I think it is a very serious matter for anyone to flout a positive order of a court and proceed to taunt the Court further by seeking a remedy in a higher court while still in contempt of the lower court. It is more serious when the act of flouting the order of the court, the contempt of the court, is by the Executive. Under the Constitution of the Federal Republic of Nigeria, 1979, the Executive, the Legislative (while it lasts) and the Judiciary are equal partners in the running of a successful government. The powers granted by the Constitution to these organs by s. 4 (Legislative powers), s.5 (Executive powers) and s.6 (Judicial powers) are classified under an omnibus umbrella known under Part II of the Constitution as “Powers of the Federal Republic of Nigeria”. The organs wield those powers and one must never exist in sabotage of the other or else there is chaos. Indeed there will be no federal government. I think, for one organ, and more especially the Executive, which holds physical powers, to put up itself in sabotage or deliberate contempt of the other is to stage an executive subversion of the Constitution it is to uphold. Executive lawlessness is tantamount to a deliberate violation of the Constitution.”

Conclusion
From my humble reflection on the stand against impunity in Nigeria, I strongly believe that the advancement of strong judicial institutions and mechanism for the preservation of the rule of law will lead to a corresponding gain in the war against impunity in all facets of our polity. I end by saying:

“Whereas the Hope of Impunity is the Greatest Inducement to Do Wrong; The Certainty of Immediate Sanctions is the Panacea to Sustainable Rule of Law and Justice System.”