The term mea culpa often comes up when a person of high standing or an institution of integrity wants to make up for a public wrong. It derives from a Latin prayer of the Catholic Church, and it means “through my fault.” Culpa means “guilt or fault,” and is the root of the adjective culpable. The last major mea culpa I recall came from America’s newspaper of records, The New York Times, when it apologised for misleading its readers on facts about Saddam Hussein’s Iraq and for not probing the claims of the Bush administration about the despot’s stockpiling of weapons of mass destruction.
Something close to a mea culpa happened a few days ago. The Nigerian Judicial Council (NJC) made a pirouette and decided to suspend the judges now under investigation for corruption. It was a starchy and stuff act of contrition. It was not penitential. Neither was it reverential of the cathedral lordliness of the bench it represents. It merely reversed its position.
The NJC’s press release also spews out a contradiction. It said it has suspended seven judges and, in the same breath, suspended them. What was the chicken and what was the egg? Did the NJC respond to the judges’ decision to step down or the other way around? Was it an afterthought after a frenetic wave of civic coercion? I think so.
The judges were following the bar’s bumpy footpath. The president of the Nigerian Bar Association (NBA) had first condemned the raid of the judges and railed at the DSS action as an assault on the judiciary. The NJC did the same, and we witnessed a turf war on the constitution. The DSS said it acted within its rights in what it mischievously called a sting operation. The NBA chief and the NJC said the independence of the judiciary had been impugned.
When the civil society let out an outcry, including this newspaper’s fulminating editorial, that the judges be suspended, the bar and bench recoiled. Their professional instincts forbade them to upbraid their fellow craftsmen. Sentiment predated reason.
They were caught napping, and their integrity fell short. The NBA came to the rescue of its bosses, although the NBA boss could not be said to be speaking for himself alone when he pulled the trigger on the DSS and defended the bench.
Decency lost anchor in this narrative. On both sides. The NJC was not decent when it did not think deeply before issuing an irate statement condemning the DSS for violating the principle of the separation of powers. For sure, judges are not supposed to shoot from the hip. When they speak, especially on matters of constitutional significance, it should be authoritative, deliberate and irreversible. As Cicero noted, “to stumble twice over a stone is a proverbial disgrace.” First the bar, then the bench.
In spite of its pirouette, the NJC left a bad trail. As I noted in this column two weeks ago, To Judge A Judge, what we want is not judgment, but justice. The judges allowed the heart to rule the head. Judges do not act that way.
That was where indecency lost anchor. They succumbed to sentiment. It was an act of immaturity, of a culpable impulse to defend a tribe. They forgot the overriding principle of the rule of law that makes everyone the same, whether king or judge. They were coy and they failed both the high bench and the constitution. Because of sentiment, they also lost judgment. They convicted rather than adjudicate. They called a devil before they looked.
They turned sentiment into legality. The same sentiment confounded Mike Ozekhome when he responded to last week’s In Touch and my CDHR lecture where I had noted that Jiti Ogunye got it right and he wrong on whether the DSS followed the law in raiding the judges. For all its verbiage, Ozekhome only argued on the side of decency but not on the side of law. He should know better that decency does not win in court. The court is not the Vatican.
Yet, I disagree with the DSS for its nocturnal raids. It was in line with the law but not with the values of a civilised society. We had this debate at The Nation editorial board and the house was divided. I believe, though, that when you decide to raid a judge at night for what you can also do at 8 am, you brought a quality of a gangster to the service of the law. We should be careful because demons can be vanguards of the rule of law. It is not the rule of law alone that ennobles, but also the intent of the lawyers and judges. The law, as Henry David Thoreau once noted, never made anyone a whit more just.
Last week, an incident happened in Britain. The court ruled that the Prime Minister could not trigger the BREXIT clause without going through the parliament. It would amount to undermining parliamentary sovereignty, the very fulcrum of its democracy. Some attacked the judges for undermining popular sovereignty. The judges had no right, they argued, to pooh-pooh the wishes of the people.
In an editorial by The Times of London, titled ‘Judging the judges’, the newspaper argued that it was about the pursuit of the integrity of the law. Even the people who voted to leave Europe operated within the ambit of the law, and their vote had to be executed within the same ambit. My muse and that of The Times editorial probably worked in the same stratosphere, although I wrote first and about financial corruption and institutional abuse. The Times focused on the due process and limits of popular sovereignty. Was it possible, though, that The Times editorialist took a note or two from In Touch? Just kidding.
Whatever the judges did in London, ours should learn a lesson. They were aggressive in their fairness. It recalls what Samuel J. Tilden wrote to the New York Bar Association about a century ago. “The bar, if it is to continue to exist, if it would restore itself to the dignity and honour which it once possessed, must be bold in defence and, if need be, be bold in aggression.” But always to be fair.
The NJC has a responsibility to put itself in a position of fairness. It has done a wrong and it has tried to correct it. In one of his sonnets, Shakespeare noted, “nor double penance, to correct correction.” Has the NJC cleansed itself with the about-face? They thought they had corrected the DSS the first time. Now did their volte-face correct their correction? Going forward, they have to prove that.
They should realise they are the last arbiter, the last hand in the relay of justice. It does not call for moral and sentimental gyrations.