Fellow Nigerians, today, I return to a matter affecting a constituency to which I belong and whose integrity remains indispensable to the survival of our democracy: the judiciary.
The subject is not entirely novel. It has existed quietly for some time, discussed in subdued tones within the legal profession but rarely confronted openly. Unfortunately, it appears to be rearing its ugly head with increasing boldness. I refer to the alleged abuse of privilege and continuing influence by a negligible number of retired judicial officers who seek to affect court proceedings or the administration of justice through their relationships with serving colleagues. Let me make an important clarification from the outset.
The overwhelming majority of retired judicial officers are honourable men and women who served the nation with distinction and have continued to preserve the dignity of their former offices.
Many remain invaluable sources of knowledge, wisdom and institutional memory. They contribute to legal scholarship, judicial education, arbitration, mediation, law reform and national development. Their experience should neither be discarded nor treated with suspicion merely because they once occupied judicial office.
My concern is therefore not with retired judges as a class. It is with that negligible minority who may be tempted to convert the goodwill, relationships and privileges accumulated during public service into instruments of private advantage. It is about those who, after leaving the Bench, continue to behave as though they possess an informal right of access to serving judges and an invisible authority over judicial outcomes.
The misconduct of a few must not be permitted to tarnish the reputation of the many, but neither should the eminence of the many be used to conceal the misconduct of the few. Retirement from judicial office does not erase friendships, professional relationships or mutual respect. Judges are human beings. They build relationships with their colleagues, lawyers, registrars and other officers of the justice system.
A retired judge may legitimately maintain cordial relationships with former colleagues. There is nothing inherently wrong with making a social call, attending a family ceremony, offering general intellectual guidance or participating in programmes designed to improve the administration of justice. The danger begins when personal access is deployed to advance the cause of a litigant, lawyer, business associate, relative or political interest.
It becomes more alarming when a retired judicial officer contacts a serving judge concerning a pending matter, recommends a particular outcome, attempts to influence the pace or direction of proceedings, seeks preferential assignment of a case or intervenes in an administrative decision connected with litigation. At that point, fellowship has crossed into interference, and collegiality has become a threat to justice.
By law and established professional understanding, retired judges do not simply return to ordinary courtroom advocacy as though judicial service were an interlude in private practice. The restrictions surrounding their post-retirement professional activities exist for an obvious reason: the authority and relationships acquired on the Bench could create an unfair advantage, whether real or perceived, if deployed in ordinary legal practice.
Although retired judicial officers may, within the limits permitted by law and ethical standards, undertake arbitration, mediation, legal writing, teaching or consultancy, such engagements must never become a camouflage for influencing serving judges.
There is a significant difference between offering a legal opinion to a client and communicating with the judge handling the client’s case. There is a difference between assisting counsel with research and using one’s former position to obtain privileged information from a court. There is also a difference between advising on litigation strategy and assuring a litigant that “the judge is my former colleague” or “I will speak to him.” The first may constitute legitimate professional support; the second undermines the foundations of impartial adjudication.
Some retired judicial officers are said to work behind the scenes in law chambers, assisting with legal submissions, pleadings and opinions. That, depending on its nature and the applicable law, may not necessarily be objectionable. The real danger emerges when their value to the chamber lies not principally in the quality of their intellect but in their perceived capacity to “reach” serving judges.
A retired judge must not become a judicial lobbyist. His or her name should not be marketed as an access card to the Bench.
The Yoruba say, “Tí a bá ránọníse eru, a fi ti omo je”, when a child is sent on a slavish errand, he must execute it like a freeborn. In the same vein, even where a retired judicial officer improperly approaches a serving judge, the serving judge owes the Constitution, the judicial oath and society a duty to resist.
The problem does not lie only with the person who attempts to exert influence; it also lies with the person who permits himself or herself to be influenced. Eni ti a ko ni’ka t’o se ika, oun naa ni ti inu e t’o fee se ni. He who commits evil under an influence of another, had had seeds of evil waiting to flourish in his heart.
A serving judge must appreciate that respect for a former senior colleague does not require obedience to an unethical request. Judicial hierarchy ends where impropriety begins.
Gratitude for past assistance, mentorship or professional support cannot override the oath of office. The judicial oath is not sworn to former chief judges, retired justices, political benefactors, friends or family members. It is sworn to the Constitution and the people.
Indeed, the more distinguished the retired judicial officer, the greater the potential pressure on a serving judge. A young judge who once worked under a retired Chief Judge may find it psychologically difficult to reject a request. A serving appellate Justice may feel obliged to listen to a former presiding Justice who contributed to his career.
Such human pressures are understandable, but they cannot excuse misconduct. The essence of judicial courage is the capacity to do justice even when the pressure comes from a respected, familiar or powerful source. An attempt to influence proceedings does not become acceptable because it is politely expressed.
It need not come in the form of a direct instruction to decide a case in a particular way. Sometimes the intervention is coded: “Please look into the matter”; “The claimant is our person”; “Do not allow technicalities to defeat justice”; “This lawyer is my associate”; or “I know the facts of the matter.” Such remarks may appear harmless to outsiders, but within judicial circles, their meaning can be unmistakable. Influence can also be exercised through the administrative machinery of the courts. Cases may be assigned or reassigned in circumstances that generate suspicion. Hearing dates may be accelerated for favoured litigants while other cases languish.
Orders may be processed with unusual speed, case files may become unusually accessible, and administrative officers may receive informal instructions. Even where the eventual judgment is legally defensible, irregular interventions can destroy public confidence in the process.
Justice is not only about the conclusion reached in a judgment. It is also about the integrity of the road travelled to reach that conclusion. A correct decision produced through a compromised process still damages the institution. The public must be able to believe that cases are assigned transparently, heard fairly and determined solely on the evidence and applicable law.
Once litigants begin to think that the decisive factor is not the merit of their case but the calibre of the retired judge they can enlist, the courtroom ceases to be a temple of justice and becomes a marketplace of influence. The inequality created by such conduct is particularly disturbing. The ordinary litigant does not know a retired Chief Judge or Justice of an appellate court. He cannot place a private call to someone with access to the judicial hierarchy.
He approaches the court with only his facts, his counsel and his belief that the law will protect him. If his opponent can supplement an otherwise weak case with privileged judicial connections, then the constitutional promise of equality before the law becomes a cruel illusion.
Even the perception of such interference is destructive. Judicial legitimacy rests largely on public trust because judges possess neither the purse nor the conventional instruments of political power.
People comply with judgments, including those they dislike, because they believe the decisions emanate from an independent and impartial institution.
Once they conclude that outcomes can be shaped by telephone calls, old friendships or post-retirement networks, obedience gives way to cynicism and cynicism gradually produces lawlessness.
The legal profession is not innocent in this matter. Some lawyers may deliberately recruit retired judicial officers as consultants because of the access they are assumed to possess.
Clients may be told that a retired judge is “working on the matter,” not in the intellectual sense but as an implied assurance of influence. Such representations are unethical and possibly fraudulent.
