IS IT NOT ABSOLUTELY UNLAWFUL FOR THE NIGERIAN JUDICIARY, THE ENTIRE COURTS AND JUDGES IN NIGERIA WHO ARE A PARTY TO THE CASE TO SIT AS THE ADJUDICATOR AS WELL? A CONTEMPLATION OF A LAW OF LAWS IN THE CASE OF DELE FAROTIMI VS AFE BABALOLA. Written by KEMKA S. IBEJI


It is trite to legal commonsense that no system judges itself. And as the legal dictum states in the Latin phrase "Nemo judex in causa sua" that translates to "no one should be a judge in their own case". It's a fundamental principle of natural justice and constitutionalism that ensures impartiality in legal proceedings. The principle of nemo judex in causa sua originated in Roman law and was crystallized into a phrase by Edward Coke in the 17th century. It is however enshrined and found in legal systems around the world. 

When the judiciary, including courts, judges, or lawyers, is accused as a party to a case, this creates a significant conflict, not only of interest but, populates the national social and political landscape with legalistic mines and destructive sands of natural law fabrics.

Assuming you are a judge and eventually is caught in a crime, irrespective of the enormity, and the case is brought to you to judge yourself, what do you think you will do? What if it is a capital offence? Will you not use your office to save your life?

This is exactly what this case between Dele Farotimi and Aare Afe Babalola represents. Such case as this poses unnumbered challenges to the principle of impartiality, which is foundational to any justice system. To address this situation, the following mechanisms should be typically considered:

1. Recusal and External Judges:

The judges or courts involved in the accusation must recuse themselves. A neutral or external adjudicatory body should be appointed. This may include:

Inviting judges from another jurisdiction or region.

Constituting a special tribunal or panel composed of independent jurists not implicated in the accusation.

2. Use of a Higher or International Court:

In cases where the entire judiciary of a nation is accused, the matter could be escalated to a higher court or an international judicial body (e.g., the International Court of Justice, regional courts, or special commissions).

3. Special Tribunal or Arbitrators:

A special tribunal or arbitration panel can be established with individuals recognized for their independence and integrity. These may include retired judges, eminent legal scholars, or international legal experts.

4. Legislative or Executive Oversight:

In some jurisdictions, legislative bodies may establish an independent inquiry or commission to adjudicate or investigate the matter. This is often seen in constitutional or systemic challenges.

5. Public or Peer Review:

If the accusation involves systemic corruption or misconduct, the matter might require review by oversight bodies, such as judicial councils or ombudsmen, with powers to hold the judiciary accountable.

The primary goal is to ensure that the adjudicator in such cases is entirely neutral, transparent, and beyond reproach to maintain public trust in the justice system.

To this end, do you still believe that it is not unlawful for the Nigerian judiciary, the courts and judges as are in operation and working today to go ahead with the case at stake?

What moral standing do the Nigerian judiciary and courts have to sit at the bench in adjudication of this case that puts them clearly as a party in defense?

It is therefore my considered view that the Nigerian judiciary has run into critical crisis that renders it unworthy to proceed in this case. To save the country therefore, we should treat the judiciary with the glove that puts it in its rightful place as a system at stalemate and therefore requires the invocation of the "doctrine of necessity" which this piece suggests. 

Conclusively therefore, it is again left in the hands of both the people of Nigeria and the expanded government to do the right thing to save Nigeria from the looming disaster which may emerge from an impending legal anarchy.

I am,

KEMKA S. IBEJI

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