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.”

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.”