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Published On: Fri, Mar 2nd, 2018

Musdapher: exit of a judicial reformer

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Former CJN, Dahiru Musdapher

Former CJN, Dahiru Musdapher

GUEST Columnist By Mohammed Adamu

“As we sit at trial, we also stand on trial”
-Dahiru Musdapher
(July 15, 1942 –Jan 23, 2018 )

In virtually all his speeches as the new helmsman of this deeply-fissured judicial institution, he spoke so poignantly about an edifice about to cave in. He would take the burden of salvaging this structure, bearing the weight of its decay on his frail, elderly shoulders, and for 11 months, even as he reeled and staggered on wobbly legs, he had vowed still that “this house will not fall under our watch”. And although by the time he had fretted his hour upon the judicial stage, the ‘house’ had still not been re-built, yet it had also not fallen. Thanks to the juridical wisdom of one who believed the law both in ‘statute’ and in ‘action’. Because even as they feared that he might be conservative and attempt to preserve an un-progressive status quo, he had turned out to be a radical-revolutionary, prescribing drastic reforms that the conservative judicial order is still un-receptive to.
And soon ‘The Nation’ Newspaper in its ‘Comment and Analysis’ page of 11/20/11 would say, about him: “we have a radical jurist in the mould of the late Chief Gani Fawehinmi at the apex of the country’s judiciary”; and the ‘Leadership’ Editorial of 09/25/11 had said: “Though Musdapher has been an establishment person… he has made some pronouncements… which indicate he can spring some radical surprises”.
Justice Dahiru Musdapher was appointed the 12th Chief Justice of Nigeria, CJN on 28th August 2011, succeeding Justice Katsina-Alu. And although he had barely 11 months to serve, he made the most judicious use of his tenure by instituting what many Nigerians believed was the most holistic and most widely propagated Judicial Reform Program targeting, at once, the institution’s juridical malady, its infrastructural decay and a negative public perception. Musdapher was in fact the first Chief Justice to arraign the Judiciary to the court of public opinion -stirring a judicial hornet’s nest that was both an inquisition on the system and a clarion call for its urgent reform. And it was about this vision that Itse Sagay would say “all these indicate the actions of a man who wants to leave a lasting legacy… If he carries on like this, what he is going to pack into his short term of 11 months is going to be something we have not seen for the 10 years before that.”
And so it was. Justice Musdapher would tell Nigerians sordid truth about the Nigerian legal system that no Chief Justice ever did. It was about the much he could do in the little time that he had. He was the first Chief Justice not to follow the sedate, publicity-shy style of his predecessors because he was not about to keep quiet and sanctify the aura of judicial secrecy that had always shrouded the operations of the judicial system. And so to entrench the reforms, Musdapher had made his tenure a very public one, constituting himself into a crusader, breaking the yoke of judicial esoterism by publicly confessing to serious challenges bothering particularly on the ethical and moral substructures of the Nigerian judiciary, its dilapidated courts, its decrepit administrative machinery, and worst of all its dismal continuing education program, which, he would admit, had occasioned serious decline in the intellectual capacity of judicial officers to effectively deliver justice.
Interfacing with the public was the Chief Justice’s clever way of getting a crucial message across to Nigerians, namely that the legal system was bedeviled no less by archaic laws and moribund procedures, than it was by a decaying infrastructure and by a corrupt bench. And this situation Musdapher said, was not helped by a culprit Nigerian Bar which -although outside the court is famed for moral suasion and a toga of ‘corrective’ disposition- in the court it had always been prosecutorially indecorous, permitting abuse of ethics and rules of professional conduct. Nor was it helped, he said, by a moribund, technically-manipulable body of laws which at best only give unconscionable lawyers a field day in court to advocate in a manner that clogs rather than free the wheel of justice.
The consequence of these Musdapher said naturally manifested in a serious downturn in the public’s perception of the Nigerian Judiciary; so that over the years the Judiciary had lost a great deal of the confidence of the public, and Nigerians no longer believed they could get justice from the courts of their land. Many in fact saw the Judiciary more like a zone of despair than the proverbial ‘last hope of the common man’ that it ought to be. It was blunt confessions like these by Justice Musdapher that prompted the ‘Independent’ Newspaper in its Editorial of 12/16/11 to admit “Not in recent times has any Chief Justice… spoken the minds of Nigerians, and echoed their frustrations and disappointments with such fearless candor and unremitting boldness”.
By openly admitting to the existence of a judicial Augean Stable, Justice Musdapher had first fulfilled the righteousness in the maxim which requires that ‘those who come to equity must come with clean hands. And thus having confessed to the existence of a malignant state of affairs in an institution to which he belonged, he had set for himself the moral basis to mount the chivalry charge of redemption and to assume the role of an avenging angel. And because his ideas on how to reform the Judiciary were revolutionary, Musdapher, in order to get the victim-public own the reform, had picked especially popular and controversial causes that resonated deeply with the people. The Guardian Editorial of 11/25/11, credited him with fighting obnoxious causes such as “plea bargain, which he described as of dubious origin and alien to our Constitution, the indiscriminate granting often of frivolous ex-parte motions to delay judicial process, the flagrant abuse of citizens’ fundamental rights by the granting of ‘holding charges’ to ill-prepared prosecutors, and the granting of injunctions to restrain officers of the law from performing their duties in the course of justice”
But like the 18th Century American jurist Roscoe Pound, Musdapher believed also that although “The law must be stable, it must not stand still”. Because he had publicly also propagated the idea of ‘Special courts’ with judges dedicated strictly to cases on corruption and also the idea of ‘suspended sentence’ as practicable remedy to the problem of prison congestion in Nigeria; When he announced publicly that Nigerian judges had no reason whatsoever to hear criminal matters beyond a period of 6 months, it was the much that a Chief Justice –without the luxury of judicial fiat to issue corrective orders- could do to advance the course of speedy dispensation of justice. And if this revelation –coming from the nation’s number one judicial officer, had done nothing to reverse the malaise, at least it had exposed to the public ‘truth’ of a judicial kind, that the problem of our justice system is not only about complex or defective laws but also about the attitude of judges and lawyers towards complex and defective laws.

Said ‘The Independent’ Newspaper in its Editorial of 12/16/11: “At a time when the much touted fight against corruption is tottering and enveloped in doubt and uncertainties, the statements of the Chief Justice certainly hit the bull’s eye and struck a resonating cord in the collective conscience of the people”.
But Musdapher’s was not all about lamentation and no salvation. His reform program had in fact recommended changes that were no less holistic and many of which, in fact, were radical and revolutionary. He had proposed among other things: (1) review of the requirements for appointment of judges so that in addition to pure ‘merit’, ‘morals’ should also count, whereby nominees for judicial appointment are subjected to public scrutiny by way of publishing their names for public comments; (2) extension of the current mode of judicial appointments beyond only judicial officers to include those outside the Judiciary with ‘distinction in legal practice’ (namely private lawyers) and those with ‘academic excellence’ (intellectuals) -the objective being to provide wider diversity of experience and add quality to judicial deliberations in court and (3) appointment of ‘lay persons with integrity, experience and courage’ to serve on the National Judicial Council, NJC.
He also proposed: (a) creation of a separate specialized institution in place of the National Judicial Council, NJC to handle discipline and removal of judicial officers and thus to allow the NJC concentrate on the duty of formulating broad policies for, and judicial appointments in, the Judiciary; (b) review and streamlining of the structure of courts with a view to making the judgments of courts clear, fair and just and consistent with the doctrine and rules of judicial precedents –to avoid conflicting judgments especially from the various divisions of the Court of Appeal and (c) expansion of the jurisdiction of the Supreme Court to include ‘Advisory Jurisdiction’ on application by the President or Governors -so that rather than by normal appeals, the Apex Court can handle a good number of matters by ‘advice’ instead
And since many of these recommendations required legislative amendments –not merely administrative action- it’s been about seven years now since Justice Musdapher submitted a Constitutional Amendment Proposal to the NASS to consider. But suffice it to say that virtually nothing has been done since then -proving again that the problems of the Judiciary, transcend the mere existence of defective laws, or the advocatorial manipulations of unconscionable lawyers or yet the judicial indiscretion of corrupt judges. Most of the problems of the Judiciary result from the ineptitude of a legislative arm not willing to propose legal reforms and not responsive even to the proposals by others, for reform.
And as we still mourn the death of this great judicial reformer, Dahiru Musdapher, it is auspicious to end this modest tribute with the ‘National Mirror Editorial of 09/29/11 in which the Paper wrote “Let it be on record that Justice Musdapher’s tenure restored Nigerians’ faith in their Judiciary”.
May his soul continue to rest in peace. And may Allah grant him Aljannat Fiddaus.
Mohammed Adamu was Media Adviser to the late Chief Justice.

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