Toyin Falola
A Panel Discussion on Dele Farotimi: Politics, Law, and Society.
PART 3
This is the second report on the interview with Dele Farotimi on February 16, 2025. For the transcript, see:
https://www.youtube.com/live/PpqyltxqcdQ?si=f2HtVvT-zCxaP7Bq
Having the renowned lawyer and activist Dele Farotimi on the Toyin Falola Interviews series was a pleasure. As expressed in the interview, some of his opinions and sides of the stories were intriguing. This piece, one of several, is a recap and critique of some of his expressions, narrations, and perspectives, particularly regarding his recent trial.
The nation was engulfed in widespread speculation and discourse following Farotimi’s arrest and subsequent trial on criminal charges. This development precipitated a proliferation of diverse opinions, with some voices commending the actions taken against him while others vehemently condemned them. The ensuing public debate was primarily catalysed by Farotimi’s thought-provoking publication, Nigeria and Its Criminal Justice System, a critical examination of the country’s legal framework. In this work, he meticulously analyses Nigeria’s criminal justice system, shedding light on its structural deficiencies and highlighting pressing issues that have continued to undermine the integrity of the nation’s legal jurisprudence.
The critical question that emerges from this legal drama is whether Farotimi’s trial symbolized, in a broader sense, a metaphorical trial of the Nigerian judiciary itself. His incisive critique, as articulated in his book, presents a stark indictment of the criminal justice system. It unequivocally asserts that “The Nigerian justice system has no justice to dispense and has evolved to become a putrefaction that has taken over the land.” Such a bold assertion inevitably unsettled the judiciary, prompting a reaction that, in many ways, seemed to validate the very criticisms Farotimi had put forth against it.
While the judiciary, as an institution, could not formally place Farotimi on trial for his views, the legal challenge emerged through Chief Afe Babalola—a figure directly mentioned in the book—who possessed the requisite locus standi to initiate proceedings. Thus, the stage was set for a legal confrontation within the system Farotimi had accused of perpetuating the injustices it was meant to rectify. This unfolding spectacle, rife with legal and ideological implications, captivated observers and turned the courtroom into an arena where the foundational principles of justice and accountability were placed under scrutiny.
Eventually, the libel suit against Farotimi was withdrawn after the intervention of traditional leaders and high-ranking officials. However, the broader trial of the judiciary—one conducted in the court of public opinion—remains ongoing. While I do not entirely endorse Farotimi’s exact phrasing, a more tempered and nuanced articulation of his critique might have been more strategic. Nevertheless, what remains undeniable is that he illuminated the deep-seated issues of corruption and systemic failures within Nigeria’s criminal justice framework both in his book and when he explained his perspective during the Toyin Falola Network interview.
Society has assumed the prosecutor’s role, holding the judiciary accountable for its perceived shortcomings. However, dismissing the judiciary as a mere instrument of systemic injustice would be an oversimplification—and indeed an injustice. Despite its flaws, the judiciary has, at various times, upheld the rule of law and delivered landmark judgments reinforcing its critical role in governance.
A compelling illustration of this is the Supreme Court’s decision in Inakoju v. Adeleke, where the Oyo State House of Assembly sought to impeach the governor while invoking a constitutional provision barring judicial review of such proceedings. Unlike earlier instances of judicial capitulations, exemplified in the Musa Balarabe case, the court in Inakoju adopted a more assertive stance. Rather than accepting the ouster clause at face value, the Supreme Court engaged in a thorough interpretative analysis, affirming that judicial oversight could only be excluded if the impeachment process strictly adhered to the constitutional framework. This judicial decision imparted a distinct interpretative nuance to the constitutional provisions governing the impeachment of executive officials.
A similar demonstration of judicial ingenuity was evident when former President Olusegun Obasanjo attempted to declare the seat of his Vice President Atiku Abubakar vacant following the latter’s defection to the Action Congress in pursuit of its presidential nomination. In this instance, the judiciary displayed remarkable institutional independence by adhering strictly to the explicit wording of the law despite the significant political ramifications. Notably, the court’s ruling directly opposed the highest executive authority in the nation—the very individual responsible for appointing the head of the judiciary that ultimately adjudicated against him.
During the Toyin Falola Interview, Farotimi said, “If anybody was unhappy with what I have written, they should feel free to take me to court. I am happy to go through the same legal system I labelled institutionally corrupt. This is not a trial of Dele Farotimi; let nobody make that mistake. It is a trial of the legal system that we have built as a collective.” His remarks suggest that the real subject of scrutiny is not his actions but the judiciary itself, with allegations of systemic corruption forming the crux of the legal proceedings.
Within a democratic framework, the judiciary bears the critical responsibility of upholding the rule of law—a fundamental mechanism designed to ensure that electoral power, once converted into political authority, is not wielded arbitrarily. However, the central criticism against the judiciary is that it has failed in this duty, leading to a governance structure where the sanctity of law is frequently undermined. This perceived dereliction of judicial responsibility has, in turn, fostered an environment of legal uncertainty, edging the nation toward a state of near lawlessness and anarchy.
Farotimi did not hold back his ideas and notions of how circumventing the judiciary has been, particularly concerning the crisis surrounding the rule of law. He remarked thus:
The point I’m making is that what we have right now that we are talking about in the judicial system is not an accident but a function of design. It must allow some people to exist above the law and minister the impunity required to govern Nigeria since it is not subject to the law.
This depiction paints a striking portrait of a nation where the judiciary appears complicit in undermining the rule of law. The reality is that any discourse on the judiciary’s prominence and efficiency is inextricably linked to the rule of law, serving as its fundamental litmus test. In essence, evaluating judicial integrity and effectiveness is impossible without critically assessing its commitment to upholding this principle.
The rule of law must be examined in direct correlation with the judiciary, as it is through this mechanism that the foundations of justice, equity, and societal order are preserved. Suppose the very body entrusted with safeguarding a legal framework designed for a just and functional society we collectively dream of cannot be held accountable for fulfilling its mandate. In that case, the distance between our present reality and that ideal remains wide. Despite the judiciary’s accolades and laudable achievements, it remains evident that, in many ways, it has systematically created a feudal system where the aspirations of the lords are propagated and pronounced through the instrumentality of the law. They force their will down the throats of the vassals, who are ignorant of this arrangement between the law and the lords, making them turn to the judiciary for fairness.
In one of the strongest opinions on law definition, Oliver Wendell Holmes postulated that “the law is the prophecy of what the courts would do and nothing more pretentious.” However, in the context of the Nigerian judiciary, the vassals put their hope in a pretentious court that often serves the interests of the lords rather than upholding the proper letter of the law. This is quite a variation from the law as defined by Holmes. Farotimi spoke precisely about this dynamic in the Toyin Falola Interviews. He claimed the upper class has consistently used the law to oppress anybody they want, boldly asserting that the Nigerian judiciary was intentionally designed to function that way.
Furthermore, in the interview, Farotimi comically exclaimed and corrected the panellist who suggested he was calling to suspend the rule of law. He emphasised the importance of the rule of law, anchoring on the fact that it remains pretty appalling that a democracy of 26 years still struggles to grasp this fundamental concept.
A tangential issue related to the duties of the judiciary is the office of “Human Rights Activism,” which has been created for some individuals. Farotimi believes that these offices are “suggestive of fraud.” In reality, if the judiciary is genuinely tied to the ground, then there will be less meddling in its affairs by human rights activists, who should exist primarily in dictatorial societies where the rule of law has been suspended, and an individual has been elevated above the law.
Fundamentally, the recent clamour for the recognition of LGBTQ rights in Nigeria cannot hold water because the country has not shown solidarity with the recognition of fundamental human rights, which the whole world has held to as inalienable. Is it then a “foreign concept” to be protected? This is not an argument advocating for the protection of gay rights but rather a broader critique of the judiciary’s frailty in upholding human rights despite the existence of legal frameworks designed to safeguard them. Laws such as the Fundamental Rights (Enforcement Procedure) Rules were enacted to provide a swift mechanism for protecting human rights while also eliminating restrictive barriers such as locus standi. However, the persistent judicial inertia and systemic inefficiencies continue to undermine these legal provisions, raising pressing concerns about the judiciary’s ability to function as the ultimate defender of individual liberties.
“For there is hope of a tree, if it be cut down, that it will sprout again, and that the tender branch thereof will not cease” (Job 14: 7). This Biblical reassurance is profound and instructive. We have witnessed moments of intelligence and ingenuity in the judiciary’s efforts to uphold the law and protect against arbitrariness. These instances prove that there is hope for the Nigerian judiciary. The hope of the common man is alive; however, systemic issues must be addressed. We need to restore the rule of law to the court’s dockets and eliminate the feudal and classist systems that have been inadvertently created. The law should serve as a prophecy of what the judiciary can do and not what it purports to do, and it should be nothing pretentious.