The concept of divine right, historically associated with monarchs, implies that rulers are ordained by God and thus beyond human-made laws. However, in modern governance, sovereignty rests on three interdependent monopolies: legitimate dispute resolution, taxation, and violence. Among these, the first—dispute resolution—is crucial for societal coexistence. The judiciary, as the arbiter of disputes, holds a unique position in the state.
Judicial Independence: Appearance vs. Reality
While law faculties teach judicial independence as a doctrinal pillar, the reality is more nuanced. Jeremy Bentham, in his 1790 draft for judicial organization in France, summarized expectations of a judge: to be good and to be perceived as good. However, who determines this perception remains contentious. Judges, contrary to revolutionary ideals, primarily serve to protect themselves and the sovereign, making the judiciary an organ of the status quo. Strategic defection from dependency on rulers is rare.
Judicial Administration as a Dark Art
Every country maintains a hierarchical judicial administration. Judges, despite claims of independence, operate under an administration that evaluates their performance. This structure determines the tolerable level of judicial independence in favor of rulers. Judicial administration thus becomes a dark art, where independence is performed while dependence is practiced. Every system needs a "Judge dan Maliki"—a judge embodying loyalty to the ruler.
Under colonial rule, this was straightforward, as judges served at the pleasure of the foreign sovereign. Post-independence, judicial administration in many African nations retained fidelity to rulers. In Uganda, for instance, the President appoints the Chief Justice, but real power lies with the Chief Administrator of the Judiciary, a presidential appointee who can employ dark arts. When President Yoweri Museveni appointed Pius Bigirimana as Chief Administrator in July 2019, a leading newspaper reported it as "Bigirimana takes over judiciary."
Nigeria's Federal High Court and the Judge Dan Maliki
In Nigeria, the role of managing the High Court falls to Chief Judges at state and federal levels. They oversee docket management and case assignment, which is critical for cases affecting sovereign interests. The Chief Judge must know judges' predilections and assign cases to ensure favorable outcomes for the ruler. This cultivates judges who are solicitous of the ruler.
The Federal High Court, with primary jurisdiction over electoral cases, has become a breeding ground for such judges. Recent elevations to the Court of Appeal featured Federal High Court judges known for handling high-profile political cases favorable to the ruling party. The predictability of case assignments suggests cultivation by the Chief Judge.
Recently, the Chief Judge of the Federal High Court faced allegations of code of conduct violations and involvement with foreign currency bags linked to his spouse. However, these reports vanished quickly, indicating a swift resolution. With normalcy restored, the search for a new Judge dan Maliki in the Federal High Court appears to have ended.
The bail order for former Kaduna State Governor Nasir El-Rufai, granted by Judge Abdulmalik, exemplifies this role. Bail was set at N100 million, with conditions including a surety who is a senior civil servant with property in a prime Abuja area, deposit of title deeds and passport, and no protection against reprisal. This performance of independence under superior orders is the hallmark of a Judge dan Maliki. Any civil servant meeting these conditions would likely lose their freedom and position.
The cap fits Judge Abdulmalik, and the formalization of the office of Judge dan Maliki awaits.
