- Watch a video of Odinkalu speaking about the new book
BOOK SERIAL
By Chidi Anselm Odinkalu
Today
In this first installment on the opening chapter, the author lays the groundwork for his central thesis that judges, whom he calls “the selectorate”, have toppled the people in deciding who rules them – both a travesty of justice and of democracy.
Chidi Anselm Odinkalu is Professor of Practice in International Human Rights Law at the Fletcher School of Law and Diplomacy at the Tufts University in Medford, Massachusetts, USA. He is also Pro-Chancellor and Chair of the Governing Council of the Chukwuemeka Odumegwu-Ojukwu University in Igbariam, Anambra State, Nigeria. Odinkalu received his Ph.D. in law from the London School of Economics and Political Science.
Judging Democracy
The colonial power established a dual legal system…. There was no separation of powers or institutional protection for judicial independence. ‘Traditional’ courts were merged with executive power and formed part of the colonial administration. The formal judiciary was only provided proper security for their tenure on the eve of independence.
In 1930, the Colonial Service appointed Mr Terrell as a judge of the Supreme Court of (colonial) Malaya in the Straits Settlements. Prior to his appointment, Mr Terrell had exchanged correspondence with the Colonial Office, which informed him that he would be liable to retire compulsorily on attainment of the age of sixty-two. In 1942, Japan overran and occupied the Straits Settlements and the Secretary of State for the Colonies informed Mr Terrell that they could find no suitable post for him elsewhere in the Colonial Service. When Mr Terrell declined to retire, the Secretary of State terminated his appointment on 7 July 1942. This happened 17 months before he was due to retire in February 1944 under the original terms of his exchange with the Colonial Office.
Mr Terrell took the case to an arbitrator and lost. He appealed to the High Court, arguing that under section 12 of the Supreme Court of Judicature (Consolidation) Act, 1925, which superseded the Act of Settlement (1701), judges in England held office during good behaviour and could only be removed on an address by both Houses of Parliament, none of which conditions had been fulfilled in this case. Upholding the award of the arbitrator, Lord Chief Justice Rayner Goddard decided that the enactment relied on was “wholly inapplicable to a colonial judge” and that Mr Terrell held office at the pleasure of the Crown. Reminded that Mr Terrell’s contract appended the undertaking by the Colonial Office that he would not be required to retire before the age of 62, the court decided that the undertaking did not constitute an agreement and that even if it did, it was ineffective to constrain the prerogative of the Crown to dismiss him at will or pleasure.
Writing in the immediate aftermath of this judgment, Stanley Alexander de Smith, the influential public law scholar who in later life became the principal draftsman of the independence constitution of Mauritius, conceded that the import of Terrell’s case was that “a superior judge in a colony was removable at the pleasure of Crown.” The natural logic of this admission would be that colonial rule was incompatible with the idea of independent institutions in a colony. Solomon Ukhuegbe points out that courts under colonial rule were largely “also institutions for the consolidation and legitimatisation of colonial rule.” The corollary is that only independent peoples can build independent or democratic institutions founded on the rule of law.
Yet, a mere decade after the above admission, Professor de Smith argued the opposite, claiming that the design of the post-colonial constitutions of former British territories was premised on a recognition of the need to insulate “sensitive areas of public activity from direct political influence” in order to render government accountable.” These sensitive areas included the judiciary, judicial appointments and the police service. Addressing the essential constitutional features of territories that won their independence from the United Kingdom, former Secretary-General of the Commonwealth, Emeka Anyaoku, appears to reinforce this with the claim that notions of democracy and independent institutions of the rule of law “have always been a key attribute of the Commonwealth.” Egbert Udo Udoma, the first African Chief Justice of post-colonial Uganda joined in celebrating “that great current of the British system of administration of justice according to law, a tradition enshrined in and exemplified by the doctrine of the rule of law and the independence of the judiciary.”
Rule of Law – A Colonial Myth
Colonial self-adulation of this kind was formulated in Roberts Wray’s proclamation that “[B]ritish administration in overseas countries has conferred no greater benefit than English law and justice.” It is difficult to understand where this idea could have come from because colonial rule was the very opposite of this proposition and incompatible with any habits of law, justice or sustainable institutions. Contrary to received lore, colony did not respect human rights, was not democratic and did not pretend to be an advertisement of the rule of law or judicial independence. Indeed, in the case of Nigeria, as recently as seven years before independence, the proposal for the creation of a Supreme Court for the country was anchored on the understanding that far from being tenured, Justices of the court “shall hold office during the pleasure of the Crown.”
This leads to an important insight. Denied the benefit of relevant experience or practice, it was impossible for colonised peoples to suddenly attain independence with habits, processes or institutions adapted for upholding notions that were alien to their consciousness. It was, therefore, entirely predictable that most of the post-colonial constitutions prescribing ideas approximating to or supportive of freedom or independent institutions were quickly ransacked in the aftermath of independence because the habits to nurture those institutions simply did not exist. Journalist, Patrick Gathara concludes rightly that, in the post-colonial period, “judicial independence has been a myth.”
However, in the Harare Declaration adopted in 1991, the Heads of State and Government of the Commonwealth committed themselves and their countries to a belief in “the liberty of the individual under the law, in equal rights for all citizens regardless of gender, race, colour, creed or political belief, and in the individual’s inalienable right to participate by means of free and democratic political processes in framing the society in which they live.” This commitment was based on their recognition that “the special strength of the Commonwealth lies in the combination of the diversity of its members with their shared inheritance in language, culture and the rule of law.” However, the same document called attention to the need to strengthen “the capacity of the Commonwealth to respond to requests from members for assistance in entrenching the practices of democracy, accountable administration and the rule of law,” which points to a contradiction between the reality of the Commonwealth and the claims made on its behalf. Far from being inherent in postcolonial arrangements, this contradiction is an acknowledgement that colonial rule did not prepare its subjects or victims for an aftermath founded on popular will or independent institutions in support thereof.
Therefore, any association between colonial legacy on the one hand and norms of the rule of law, independent institutions and legitimate governance on the other is at best accidental or mythical. Instead, it seems more agreeable to think of the rule of law and democracy in the transitional context of most countries that emerged from British colonial rule, especially in Africa, in terms of phases as follows:
•The first phase was the immediate post-colonial era. That did not last long because of the antecedents just recalled above.
•The second phase or the period of constitutional instability following the collapse of the post-colonial constitutions. This period produced a considerable body of jurisprudence on military law, military rule, coups d’etat, one-party rule and life presidencies, especially following the Unilateral Declaration of Independence (UDI) in Southern Rhodesia in 1965″; In places like Kenya, the courts declared the Bill of Rights under the constitution both “inoperative and unenforceable”; in Nigeria, the military criminalized going to court, making it a felony.”
•The onset of the third phase approximates the collapse of the Berlin Wall, the Independence of Namibia around 1989 to 1990, and the rise in political pluralism that followed thereafter. Courts and legality took centre stage when many countries of the Commonwealth returned to elective government in the decade of the 1990s. For instance, in many parts of Africa, a significant body of opinion took a sanguine view of this, suggesting that it embodied “hope for those concerned about the success of new African democracies.” In its aftermath, Edwin Abuya, for instance, could assert that the independent judiciary is “an essential ingredient in free and fair elections.”
Much of the progress during that period has suffered recent reversal with the rise of populist authoritarianism and the politics of the “indispensable man” since the end of the first decade of the present millennium. These reversals have been enabled by a dismantling of institutions of the rule of law as essential guardrails for their protection, such as the judiciary, which has suffered capture in many countries. This book focuses on this last phase. Using Nigeria as a case study, this book sets out to explore and illustrate how electoral politics affects or alters what judges do, how they do it, and how the public perceives the role of courts and judges.
TOMORROW…
The author will examine the concept of rule of law, the judiciary and their relationships to elective government, beginning with Albert Venn Dicey’s Victorian notions of the concept.
Watch the video below.
