W hen General Abdulsalam Abubakar promised to restore democracy on May 29 1999, not many Nigerians took the promise to heart. Their experiences with phantom political transition programmes under Generals Ibrahim Babangida and Sanni Abacha had taught them to treat transition programmes arranged by the military with skepticism. Yet May 29 1999 did come, and President Obasanjo was sworn in as Nigeria's second elected President, ending her 15 years of military rule with a sigh of relief. But the return of civil rule was almost surreal, and by the time the nation came to terms with the reality of the transition, it was barely prepared for the monumental challenges that democratic governance would entail.

Nigeria's ill preparedness for the return to civil rule was not by accident. It was the unfortunate outcome of several years of military rule and broken transition promises. Prior to the transition, the military had worked to stifle the emergence of democratic institutions that could threaten military rule and provide a platform for agitation for civil rule. Without these institutions in place, President Obasanjo launched out with a rather unsteady gait, conscious of the huge public expectations on his administration, and aware, presumably, that managing a democracy without institutions that cultivate enduring democratic values is an arduous terrain to tread. The imminent challenge before his administration therefore was to rebuild the democratic institutions that military rule had decimated, and one of the stop points, if not the first, expectantly, would be the judiciary, which would soon become engrossed in the pivotal task of helping to guide the nation through very defining moments in its precarious post-military life.

Given its immediate antecedents, the challenge of reconstruction and reform was not going to be an easy one for the judiciary. The judiciary had played a combination of roles under successive military administrations; first, as the guardian of our constitutional values, and second, as accomplice and victim of the series of events leading to social and political turmoil. In the first role, the judiciary strove to uphold the rule of law and protect civil liberties against tyrannical inclinations of the military, asserting its authority through moral courage and sheer brilliance. Judicial decisions in Military Administrator of Lagos State v Ojukwu, and Registered Trustees of the Constitutional Rights Project v The President of the Federal Republic of Nigeria & 2 Ors are examples of cases where the judiciary exhibited exemplary flashes of valour and activism in this dark period of its history. Unfortunately, such activism irritated the military, and, to curtail it, military governments ousted jurisdiction from courts to question their actions. Military rule generally held the judiciary in contempt, while fiscally emasculating and alienating it in the scheme of government.

As accomplice, the judiciary connived with the military in schemes to perpetuate itself in power, and eventually became the victim of its connivance. Judges who thought less of the ethics of their exalted office pandered to the whims of self-serving military juntas, willfully succumbing to overtures to invoke their partisan support in exchange for personal gains. Willy-nilly, they became architects and victims of the ignominious connivance that resulted in the annulment of the 1993 presidential elections. Late General Sanni Abacha, ultimate beneficiary of the annulment berated the judiciary's role in the aborted transition when he said, while inaugurating the Justice Kayode Eso Panel that:

“The political crises which necessitated the re-entry of the military do not absolve the Nigerian Judiciary. In the public eye, the Judiciary was neck deep in the cross-current which sounded the death knell of the emerging Third Republic. The perception was unmistakable that the Judiciary do not arise above the conflicting partisan interest in the polity; far from being an independent adjudicator of partisan conflict, the Judiciary seemed to have embarked on an odyssey of self ridicule which abridged its integrity and cast aspersion on its integrity.”

General Abacha had merely captured pervasive perceptions of the judiciary as corrupt and partisan during military rule.

“The imminent challenge before his administration, therefore, was to rebuild the democratic institutions that military rule had decimated, and one of the stop points, if not the first, expectantly, would be the judiciary, which would soon become engrossed in the pivotal task of helping to guide the nation through very defining moments in its precarious post-military life”

As it turned out, the judiciary's reputation took a far more precipitous plunge after the annulment. Justice, as the generality of Nigerians soon began to perceive it, had become an easy virtue to which any one could make a claim for the right price, and stories about wealthy litigants choosing or influencing the forums where their matters would be heard, and obtaining any court order of their prescription became regular. The integrity of the judicial process had never been more compromised, nor had public faith in the justice system known such free fall.

This was the judiciary the Obasanjo's administration inherited on May 29 1999 - a judiciary in distress. The Justice Kayode Eso Panel described it as a judiciary in patent chaos, riddled with corrupt judges and in need of urgent and radical reforms. The British Governments's DFID Access to Justice Programme in Nigeria remarked, after an assessment that “All elements of the justice sector require far reaching structural reform to improve their efficiency and the service they provide to Nigeria's people.” The DFID concluded, “The justice sector has been systematically starved of resources and the infrastructure to administer justice was close to collapse.” Several years of fiscal neglect during military rule had brought about this dismal state of affairs, which severely constrained the judiciary's ability to administer justice in a timely and efficient manner.

It therefore had become doubtful whether in its distress the judiciary would be able to discharge its constitutional role in post-military Nigeria. As it turned out, the first few months following the transition were politically precarious months for the nation and were just as defining for the judiciary.

Election disputes that followed the April 1999 elections enveloped the nation in a political fog, the burden of which fell on the judiciary to clear. Thus, before dawn on May 29 1999, the pivotal role that the judiciary would play in post-military Nigeria came into sharp focus. However, the judiciary's antecedents cast doubt on its ability to resolve the electoral disputes, a fact that politicians who were embroiled in electoral disputes would not play down. Many concerned observers therefore felt that nothing short of sweeping institutional reforms could revamp the capacity of the judiciary to administer justice and renew public confidence in the institution. But whether there would indeed be any reforms, what dimensions the reforms would take, and how soon they would be implemented would essentially depend on how much political will President Obasanjo could muster to push reforms through the judiciary. Crucially, this would depend on his administration's understanding of the relevance of a strong judiciary in a democracy.

President Obasanjo's early utterances would predict his administration's policy towards reform: in a reaction to a 14-point memorandum presented to him at a civic reception organized in his honour on May 14 1999, shortly before his inauguration as May 29 1999, President Obasanjo said that while judicial independence may have suffered under military administrations, public attention should shift from judicial independence to the conditions of the workplace of judicial officers. The shift, he maintained, was necessary as the 1999 Constitution makes sufficient provisions to guarantee judicial autonomy.

The President's views were apposite. The 1999 Constitution, unlike other Constitutions before it, set up the National Judicial Council (NJC) and gives it oversight powers in the appointment, discipline and removal of judges and further powers to collect, control and disburse all monies, capital and recurrent, for the judiciary. In strengthening judicial autonomy it further provides that the recurrent expenditure of the judiciary, including the salaries and allowances of judicial officers are charged on the Consolidated Revenue Fund. These constitutional provisions are unarguably the strongest institutional protection the judiciary would enjoy under any Constitution in Nigeria, although it would be naïve to imagine that textual provisions alone are enough to insure judicial independence, in the absence of a strong political commitment..

“But whether there would indeed be any reforms, what dimensions the reforms would take, and how soon they would be implemented would essentially depend on how much political will President Obasanjo could muster to push reforms through the judiciary. Crucially, this would depend on his administration's understanding of the relevance of a strong judiciary in a democracy”

Although President Obasanjo's views concerning the constitutional fortification of the judiciary were apt, he did not figure any active role for his administration in bringing about much needed reforms in the judiciary. Implicitly, the President viewed the responsibility for judicial reforms as belonging to the judiciary itself. It is therefore not surprising that two years into the life of his administration, there was no clear-cut programme for reform, not even a roundtable of stakeholders to fashion out a reform policy/programme. In the absence of any programme of reform, it took the administration quite a while to figure what to do with the Justice Kayode Eso Panel's damning report on the judiciary. Neither were there measurable changes in those areas where President Obasanjo's emphasis had lain, i.e. providing a conducive work environment for judicial officers. The process of reform was initiated and boosted by international agencies like the World Bank, the National Center for State Courts, the British Department for State Courts and the United Nations Office for Drug Control and Crime Prevention (UNODC), almost half way into the administration's first term in office. Until then, justice administrators across the country did not even appear to have an evidence-based perception of the challenges judicial reforms would bring.

Though President Obasanjo's approach to judicial reform was lack-luster, the last five years have been commendably busy years for the judiciary. These years have tested the judiciary's resilience and resolve, and, while they have brought glimpses of hope of restoration, they have also exposed of some of its underbelly rot, - legacies of a recent past. To its credit, the judiciary, at defining moments in our democratic renaissance, has risen courageously above the gloomy shadows of its immediate past to reassert its relevance, defining the Constitution with the insight and erudition that articulates our collective aspirations and restores hope in the Nigerian project. From constitutional cases like the A-G F v. A-G Federation to Abia State & 35 Ors (resource control), to A-G Abia v. A-G Federation (Electoral Act 2000 case), INEC v. Musa (registration of new parties case) and A-G Ondo v. A-G Federation (Corrupt Practices and Other Related Offences Act 2000 case) amongst others, the judiciary has held its own, reenacting its authority as the guardian of our Constitution, while also commending itself to our admiration and respect through the sagacity, virility, independence and moral strength of its judgments. Responding to such excellence from the judiciary, The Guardian voted the Supreme Court the Man of the Year in 2003.

As we celebrate these achievements, we can reflect, on a somber note, that the judiciary has accomplished this much in spite of dismal working conditions: in most courts across the country court infrastructure is either decrepit or lacking, five years after the transition. Besides, “Our legal and judicial systems are still frozen in the mould they were bequeathed by our colonial overlords, even though important and far-reaching developments have taken place in the countries from where they were introduced. Court rules of procedure and case flow systems are steeped in a slow-paced, erratic and costly regime, while reforms to expand access to justice and empower courts to use modern day technology to gather, disseminate or verify information, process cases, reduce inefficiency and waste are still not underway, in spite of much talk. Trial procedures and infrastructure are obsolete while the general working environment is unfavourable for judicial work.”1

The poor condition of the nation's judiciary is worrisome. It belies any demonstrable commitment to enhancing the environment of judicial institutions by this administration, or to judicial reforms at all. This is not to say there have not been justice sector reforms initiated by the administration. The point however is that sector reforms have proceeded at an excruciatingly show pace. While some attention has been paid to prison reform, legal aid, and fighting financial crimes, there is no urgency shown in resolving the distress in the judiciary. This, to put it mildly, is an irony, as there cannot be effective justice services delivery without identifying the vital role the judiciary plays in the administration of justice, and dealing with capacity and other dysfunctions in the judicial process. This administration, for instance, may not hope to deal with financial and social crimes effectively when the extant criminal justice system is still bogged down by age-long procedural defects clogging the wheel of justice. Only recently, the Chairman of the Independent Corrupt Practices Commission remarked that the judiciary is frustrating the anti-corruption efforts of the Commission.

Overall, our slow-paced system of administering justice and the sad state of physical and operational facilities in the courts reflect what judicial authorities have claimed to be perennial problems of funding inadequacy confronting the administration of justice. One may not agree more.

Poor funding is capable of not only impeding efficiency, it is also capable of undermining the independence of the judiciary. In relation to the 1999 Constitutional Review, the NJC made the following submission on the judiciary: