Calling the Judiciary to Account for the Past: Transitional Justice and Judicial Accountability in Nigeria

• Date: 01 April 2008
• Published date: 01 April 2008
• Author: HAKEEM O. YUSUF
• DOI: http://doi.org/10.1111/j.1467-9930.2008.00274.x

LAW & POLICY, Vol. 30, No. 2, April 2008 ISSN 0265–8240

© 2008 The Author

Journal compilation © 2008 Baldy Center for Law and Social Policy

Blackwell Publishing LtdOxford, UKLAPOLaw & Policy0265-82401467-9930© 2008 The Author Journal compilation © 2008 Baldy Center for Law and Social PolicyXXX

Original ArticlesYusuf CALLING JUDICIARY TO ACCOUNT FOR PASTLAW & POLICYMarch 2008

Calling the Judiciary to Account for the Past:

Transitional Justice and Judicial Accountability

in Nigeria

HAKEEM O. YUSUF

Institutional and individual accountability is an important feature of societies in

transition from conflict or authoritarian rule. The imperative of accountability

has both normative and transformational underpinnings in the context of restoration

of the rule of law and democracy. This article argues a case for extending the

purview of truth-telling processes to the judiciary in postauthoritarian contexts.

The driving force behind the inquiry is the proposition that the judiciary as the

third arm of government at all times participates in governance. To contextualize

the argument, I focus on judicial governance and accountability within the

paradigm of Nigeria’s transition to democracy after decades of authoritarian

military rule.

I. INTRODUCTION

Accountability of the judiciary in transitional societies merits critical analysis.

This article argues a case for extending the purview of

truth-telling

processes

to the judiciary in postauthoritarian contexts. The driving force behind the

inquiry is the proposition that the judiciary as the third arm of government

at all times participates in governance. The paucity of critical perspectives

on the role of the judiciary during a society’s troubled period could lead to the

view that it lacks a distinct role in governance. To contextualize the argument,

I focus on judicial governance and accountability within the paradigms of

Nigeria’s transition to democracy after decades of authoritarian rule.

Historically, Nigeria, a former British colony, started out its post-

independence existence as a Westminster-type political arrangement but

This is a revised version of a paper presented at the 2007 Altonaer Stiftung für philosophische

Grundlagenforschung Workshop on “Critical Legal Theory? Postgraduate Projects in the Mak-

ing.” The author is grateful to Scott Veitch, Emilios Christodoulidis, and Valerie Kerruish for

their comments on earlier versions of the paper. I also owe a debt of gratitude to the anonymous

reviewers for their kind and helpful comments.

Address correspondence to Hakeem O. Yusuf, School of Law, University of Glasgow, Stair

Building, The Square, University of Glasgow G12 8QQ, United Kingdom. Telephone: 0141

3306 485; E-mail: h.yusuf.1@research.gla.ac.uk.

Yusuf CALLING JUDICIARY TO ACCOUNT FOR PAST

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subsequently translated into an American-styled federation. The course of

governance in the country (the judicial aspect being of specific interest in

this article) has been and continues to be influenced by its historical

antecedents and current political affinities. Comparative insights from both

the British and American legal and political experiences are thus germane to a

discussion of the country’s judicial institution and are explored in this article.

I set out by considering two critical issues framed as queries to be

addressed in this inquiry, which seeks to generate scholarly interest in an

otherwise neglected perspective in transitional justice theory and state

practice. First, should it not be the case that the judiciary is held to account

for its role in societal experience of gross violations of human rights and

impunity? Secondly, what is the relevance of such inquiry? It is anticipated

that the inquiry will unearth the significance of the role played by the judiciary

in authoritarian societies and the circumstances underlying judicial

preferences. I then proceed to evaluate the role of the judiciary in transitional

contexts in view of its institutional participation in governance. Specific

focus is on the attitude of the judiciary to the truth-seeking process as a

complementary tool in the search for justice after a period of gross human

rights violations.

The article identifies a tension in the interface between the truth-seeking

process and efforts to call the judiciary to account. The tension originates

from the view that such accountability seriously undermines the integrity

of the judiciary as a key institution of the state (particularly in transitional

societies) while the path of nonaccountability challenges the viability of the

truth-telling mechanism in achieving transitional justice. I argue that the

adoption of an approach that accords proper appreciation of the transi-

tional context and fundamental principles of international law (specifically

human rights and humanitarian law) significantly eases the tension. I further

contend that inherent in the approach is the potential for institutional

transformation and relegitimization of the vital judicial function that had

become delegitimized by years of acquiescence to authoritarianism.

II. STATE POWERS AND THE JUDICIARY

According to one prominent way of thinking, government as delegated

powers are vested by a collective (the

people

) in the modern state. Thus,

government is the custodian of the common interest. The

people

however

retains “popular sovereignty” and demand accountability from rulers

(March and Olsen 1995: 151). State powers in legal and political conceptions

are divided between the three institutions: the executive, the legislature, and

the judiciary (Vile 1967).

Any institution or group that has the capacity to influence how others

experience the “vulnerabilities” of existence both as individuals and groups

wields a form of power in society (Poggi 2001: 203). This ability to change

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Journal compilation © 2008 Baldy Center for Law and Social Policy

an existing state of affairs is the cardinal feature of power. It entails the

capacity to have others act or refrain from acting in a particular manner. In

the power game, there are different groups in active contest for dominance,

each utilizing specific inherent advantages to achieve supremacy. However,

the different power bases in the struggle to undermine the influence of others

become constrained in that quest by certain self-limiting factors (ibid.: 204).

The self-limiting factor of the judiciary, namely that it does not initiate

the process for the exercise of its power notwithstanding, contemporary

social experience indicates it is endowed with the resources with which it

can and does influence society. Two recent examples lend credence to this

view. One is the historic decision of the U.S. Supreme Court in

Bush v Gore

(2000), which proved decisive in the election to the coveted position of U.S.

president in rather controversial circumstances. The other is the same

Court’s decision in

Hamdan v Rumsfeld, Secretary of State for Defense

(2006) in which the Court decried the Bush administration’s detention of

“terror suspects” in Guantanamo Bay and declared the plan to prosecute

them before military commissions under the Presidential Military Orders

2001 illegal. Many commentators have hailed

Hamdan

as a victory for the

rule of law (American Bar Association 2006; Washington Post 2006).

The foregoing examples reveal that judicial decisions in specific cases

affect not only the parties before a court. In practice, judicial determinations

impact on others in the wider society who, in most instances, will never

subject themselves to the direct jurisdiction of a court. They affect civil

rights, individual freedoms, and property rights (at the microlevel) and thus

influence or, in some cases, dictate outright, the course of political, social,

cultural, and economic development (at the macrolevel). In that way, the

judiciary perforce shares in the burdens of governance.

Thus the nature of the judicial role constitutes it into a major machinery

of the state. In that vantage position, Griffith notes, the judiciary takes part

in political decision making (1997: 292–93). Thus, the subversion of the

judicial institution by incidence of social dislocations of authoritarianism

justifies public scrutiny in postauthoritarian contexts not so much as an

indictment on the institution but, more importantly, to draw out relevant

lessons for desired transformation.

For the most part however, transitional justice research has focused on

the role of the executive and the legislature in societies that have witnessed

gross violations of human rights and impunity with scarce attention paid to

the judicial function. Yet, so critical is the role of the judiciary in the exercise

of powers in the modern state that “a government is not a government

without courts” (Hart and Wechsler 1976: 16).

In recent times, the powers of the judiciary have become incrementally

visible, owing particularly to the “rights revolution of the twentieth century.”

The situation has led to concerns about “the emergence of government by

judiciary” (Loughlin 2003: 212–13). The growth of judicial powers in relation

to the other arms of government has become more noticeable in the