AN ALL-ROUNDER JUDGE By Hon. Umaymah Yahaya Abdullahi
Socrates aptly described the essential qualities of a good Judge thus:
“To hear courteously, to answer wisely, to consider soberly and decide impartially”
These words remain true today as they were when he spoke then more than 2400 years ago.[1]
The Revised Code of Conduct for Judicial Officers of the Federal Republic of Nigeria is a concisely detailed document adopted to serve as minimum standard of conduct to be observed by every Judicial Officer as defined in the Code. Most Judges adhere strictly to the Code, especially with regards to restrictions in personal or private conduct which can be quite prohibitive and restrictive to suggest that only the most conservative of people can fully comply with them. A person naturally predisposed to an active social life will definitely find a career in the Judicial bench very restrictive and cumbersome.
As much as a Judge is required to be circumspect in conduct of his professional and private life, it is not expected that he lives like a hermit and be closed off from all human relationships and the society in which he finds himself.
This article seeks to advocate for judges to aim for the middle ground in such conduct so as not to obscure and veil themselves from the society whose affairs they are obligated to decide over in times of conflict, while at the same time not exposing themselves unnecessarily to excess visibility and scrutiny by the public.
As human beings continue to become a more advanced species socially and scientifically, the patterns of their daily existence are shaped by such advancements and what becomes acceptable changes from time to time, indeed from week to week in popular culture!
A good Judge must be widely read beyond the statute books to be able to exercise the discretion he is often called upon to do in ways that help society.
It is established that black letter laws are rarely subject to arguments. They are laws or legal theories that are generally well known and free from doubts or dispute. However, a few laws or theories survive this strict approach to understanding the law. More often Judges are called to look at the law in light of policy and contextual considerations[2]
This brings us to the principle of stare decisis in adjudication. Judge made laws are legal doctrines established by judicial precedents rather than by statute. In other words, a judge interprets a law in such a way to create a new law, also known as case law by which all courts lower than the creating court are bound by or stare decisis which means to stand by that which is decided.[3]
Despite this principle which serves as guides for Judges in carrying out their duties, there is room for judicial discretion in every case before a court and it is in the exercise of this discretion that this article seeks to expound.
The window that allows for judicial discretion allows for an elephant into the room called judicial activism.
In ordinary parlance, judicial activism is the judicial philosophy that the courts can and should go beyond the words of the constitution or a statute to consider the broader societal implications of its decisions.[4]
Now the question raised here is how can a judge consider “broader societal implications” in exercise of her duties to interpret laws or exercise the jurisdiction of the court if the Judge as a human being is shielded away from society?
Customary Court Judges, for example, have a peculiarly difficult task because they are expected to validate an amorphous was of life. A person can cultivate his own custom as I cite with this example:
‘Mr Ikoro, who is 70 years old, jogs around his house 5 times every day'
This custom isn’t applicable to everyone, not Mr Ikoro's wife or children and where there is a case and Mr Ikoro's health is in issue, evidence of this personal custom is relevant and admissible.
Now can the court apply the same custom/tradition to every 70-year-old man? Certainly not!
In the same way, culture is an evolving way of life and subject to change by the people who practice it.
A judge in such society and community is called upon to be more circumspect and diligent than others, some cultures as they have been practiced for generations are illegal, or even inhumane by modern standards. The validity test that the courts have subjected native laws and customs can be understood differently by judges due to difference in personal culture, faith or exposure. Moreover litigants coming to customary courts are rarely able to afford legal representation not to talk or presenting expert witnesses to help prove their cases.
It is a valid custom that in most cultures in Nigeria, children “belong” to their father and we have had instances where Fathers have come to court seeking custody of infants and children of tender years. The Court is however duty bound to always make orders in the best interest of the children in every case[5]. However, where a Judge herself isn’t well read or exposed to modern standards and trends she can exercise her discretion in ways that might be harmful to the child and society at large.
I have often given an analogy in court explaining to litigants that in the area if child care, there are books and resources available and experts who have studied pediatrics and child psychology up to the levels of being professors! Scientists have relied upon decades of research to come to conclusions on what determines the best interest of children based on medical and psychological evidence.
In relationships and marriages, there are certified psychologists in these areas who are able to counsel and even diagnose and recommend courses of action for couples to adopt in order to save their families form disintegration. These are people who are trained to make recommendations based on professional assessment and Physical interaction with parties concerned.
A judge who restricts himself to reading and researching only law books puts himself at risk of being oblivious to gauge the societal implications of his judgements especially in areas he has little or no personal knowledge or experience.
Obviously, this article does not seek to send judges reading medical books or tomes on psychology, however in keeping up with popular articles, journals, poetry, books, music and movies a judge can make informed decisions in exercise of his discretion.
We have read the rich judgements of respected Justices of Superior Courts rich in Shakespearean anecdotes, quotes from poems and classical novels which enrich and enliven their judgements, we even suppress a chuckle or two where humor is employed to buttress their points and distinguish their dissensions where necessary.
In conclusion, this article will end with a quote and recommendation
“Reading (widely) makes a judge capable of projecting himself into the lives of others, lived that have nothing in common with his own, even lives in completely different eras or cultures. And this empathy, this ability to envision the practical consequences on one’s contemporaries of a law or a legal decision, seems to me a crucial quality in a judge”[6]
[1] Stern’s,D.P, Judicial Temperament, The Hallmark of a Good Judge, Chicago Daily Law Bulletin, www.chicagolawbulletin.com April 2015
[3] Judge Made Laws: Law and Legal Definition, https://definitions.uslegal.com /j/judge-made-laws/
[4] Judicial Activism, https://en.m.wikipedia.org/wiki/judicial_activism
[5] Section 18 of the Federal Capital Territory Customary Court Act 2007
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