Professor Chidi Odinkalu
“Divine right is an old, established principle. It means that kings have the right – ordained by God – to act in any way they wish. Human-made laws are of no consequence beside the awesome power of God, and God’s representative, namely the monarch.”
-Vija Prashad, Washington Bullets, 23 (2020)
Sovereignty is a complex concept in law and political science, but its primary attributes entail three interdependent monopolies. One is a monopoly on legitimate dispute resolution. The second is a monopoly of legitimate taxation, and the third is a monopoly of the instrumentality of legitimate violence.
Students of political science are most familiar with the last of these monopolies, but it is actually the first that guarantees coexistence in society. The polarising 19th-century German philosopher, George Hegel, was quite clear about the place of dispute resolution in the job specification of the ruler: “the administration of the law is to be looked upon as the duty quite as much as the right of the public authority. Whether to delegate the discharge of this office to some power or not is not at the option of any individual.”
Few, if any, of the offices in the state rival the judiciary in the skill of the dark arts. Professors in law faculties feed students with a deadly doctrinal diet of judicial independence. Some even manage to persuade themselves that judges are indeed independent.
In reality, judicial independence is more about appearances than reality. In his Draught of a new plan for the organisation of the judicial establishment in France, issued in 1790, Jeremy Bentham boils down the expectations of a judge to two: “that he be a good one and that he be thought to be so.” To the question of who must think the judge a good one, there has never been a straight answer, and reasonable people mostly differ.
Judges are not instruments of revolution. In reality, the judge has two primary jobs about which few, least of all lawyers, are willing to be honest: to protect themselves by protecting the sovereign. Put simply, the judiciary is an organ Chief Judgeof the status quo. Therefore, strategic defection from the path of dependency on the ruler does not come easily to them.
For this purpose, every country maintains a judicial administration. Of the organs of the public service, few are as hierarchical as the judiciary. Judges may think themselves independent, but every judge is under the authority of an administration which must determine whether the judge measures up. Through this structure, every system determines what quantity and kind of judicial independence it can tolerate or live with in the interest of the ruler(s).
This is why judicial administration is a dark art. Those who run the judicial branch have to perform independence while at all essential times doing dependence. For this purpose, every system needs a “Judge dan Maliki”, that is to say; the judge who best embodies the attributes of a loyal son of the ruler.
Judicial administration under colonial rule found this relatively easy to accomplish because judges under that system held office at the pleasure of the foreign sovereign. They were expendable, and there was no pretence about the absence of independence. To the natives, the language of the system and its traditions were foreign. Its location and routines were equally distant. There were also a few natives knowledgeable enough in the ways of colonial law.
Following independence, judicial administration did not much depart from the path of fidelity to the interests of the ruler. In Uganda, for instance, the president appoints the Chief Justice, who notionally heads the judiciary; but real power lies in the Chief Administrator of the Judiciary, who is the Permanent Secretary and chief accounting officer of the judicial branch. He is also an appointee of the president.
Unlike the Chief Justice, who is bound by the optics of judicial independence, the Chief Administrator has latitude to deploy dirty tricks or dark arts as the situation warrants and usually has a direct line to the president. When President Yoweri Museveni appointed a new Chief Administrator in July 2019, the leading newspaper in the country reported it the following day under the caption “(Pius) Bigirimana takes over judiciary.”
Below the office of the Chief Justice, different countries have other designations for the dispersal of hierarchies for judicial management. In Tanzania, the Jaji (Judge) Kiongozi is the name given to the principal judge, with responsibility for the administrative management of the High Court in Tanzania. The Judge Kiongozi is effectively the second-in-command in the country’s judicial hierarchy and manages deployment, postings, and dockets in the High Court.
In Nigeria, that role falls to the respective Chief Judges of the various High Courts across the country at both state and federal levels. The Chief at this level is both sorcerer and serpent. The most important role of the Chief is docket management and case assignment. For this purpose, the Chief must have a good nose for the predilections of all the judges under him or her, as well as their foibles and failings.
The most important decision made on a case, especially one affecting the essential interests of the sovereign or his party, is which judge is to hear it. With just one stroke of the pen to assigning a case, the outcome is foreclosed. The most important role of the Chief Judge at this level, therefore, is to divine the will or interest of the ruler and to allocate case work to ensure that nothing concerning the ruler suffers in his court.
For this purpose, every Chief encourages the cultivation of judges deeply solicitous and protective of their ruler. As judges have become the ultimate deciders of electoral fates in Nigeria, the Federal High Court – which has primary jurisdiction in such cases – has emerged as the court system where this species of judging has become a career path and a guarantor of judicial career progression.
The most recent list of elevations to the Court of Appeal demonstrates why or how this works. The most prominent names on the list were judges of the Federal High Court whose claim to fame was that they enjoyed a near monopoly of cases involving high political interests of the ruling party or its acolytes. The predictability with which these cases ended up before them suggested that they had been cultivated or identified by the Chief for precisely that talent.
This is why it felt odd recently when it looked as if the Chief Judge of the Federal High Court was in trouble with allegations of code of conduct violations and appearances of high law enforcement interest in the peregrinations of Ghana-Must-Go bags of foreign currency reportedly associated with the movement of his spouse. As magically as they had appeared, those reports vanished with predictable alacrity. Whatever the problem was, assuming there was any, had been quickly settled.
With the resumption of normal judicial service in these circumstances, the search is on for a candidate in the Federal High Court for the role of Judge Dan Maliki. The terms of the order granting bail to the former governor of Kaduna State, Nasir el-Rufai, in his ongoing trial before the Federal High Court, suggest the search may already be over. The judge, Joyce Abdulmalik, granted the ex-governor bail for 100 million Naira. She required his surety to be a senior civil servant with property in the choicest part of Abuja, Nigeria’s capital.
The surety, she continued, must deposit their title instrument with the court together with their international passport. Importantly, the judge did not offer the putative civil servant any protection against reprisal. This is the art of the judicial dan Maliki at its finest – performing independence even when under “superior” orders.
Of course, any civil servant who meets these conditions will be neither free nor civil servant for much longer. The cap fits Abdulmalik. All that remains now is the formalization of the office of Judge Dan Maliki.
A lawyer and a teacher, Odinkalu can be reached at chidi.odinkalu@tufts.edu
