I do not care too much for obituaries in Nigeria. It is usually an opportunity for the self-seeking and the banal to proclaim themselves. But some deaths call for more than rites of passage and when the person is Muslim, for obviously not too busy elite to scramble into their private jets and be at a burial hundreds of miles away within five hours of the demise of the notable. Such is the passing of the iconic jurist and man of conscience, the retired Justice of the Supreme Court, Kayode Eso.
The death reminds you of how it used to be. Justice Chukwudifu Oputa is now of a diminishing fold of extraordinary personages that marked the early days of our judiciary. As Justice Eso joins colleagues like the outstanding Justice Chike Idegbe in that great court up in the sky, the question waiting to be answered is what can current judges learn from the life and times of this outstanding jurist?
I am more moved in my reflection on the life and times of this great jurist by the fact that Nigeria has never more needed an activist judiciary to strengthen its institutions as now. In the last few months, I have been talking to lawyers about how the judiciary can be better exposed to theories of economic development to enable them see a critical role for how they conduct things to ensure the rule of law and property rights in a way that will make their grandchildren and great grandchildren remember them kindly for setting the grounds for the prosperity they enjoy. As I do, so I remember my interactions with Justice Eso in discussions of alternative dispute resolution methods and how I was fascinated by the ease of a conservative Judge having progressive ideas and being an activist in adjudication. The paradox in my perception has coloured the prism through which I have viewed him through the years.
When I think of American economists giving credit for the US economy’s ability to institutionalise creative destruction and material advance to Justice Charles Brandeis in the United States, I wonder how we can raise such consciousness in our judiciary and I think of Justice Eso. I am somewhat relieved that just this last weekend, Fareed Zakaria came to Lagos and said the same thing I have been saying for 20 years about institutions. As one former minister present at the Airtel ‘Night of Influence’ said to me after ‘Zakaria’s speech: may be a noted foreigner saying what you have said better for years may help them understand’.
My hope is that reflection on the life of this upright Judge in an age of corruption will help those in judicial position to realise the call of duty make the God – surrogates in more than one way.
Not only does it help them shape justice upon which peace depends today but it helps them set the boundaries of economic conduct tomorrow that can make the difference between wealth and poverty of nations, and therefrom, the rise and fall of civilisations. This is an enormous responsibility and they need grace to bear it well. It is too attractive to rationalise getting ‘rich’ from bribes given by politicians to claim positions of power after bungled elections there is a price to pay, unfortunately. Our children will bear the brunt of it.
This should flow to how they see activist-lawyers like the late Gani Fawehinmis and Femi Falanas because it is through their litigations that the boundaries of institutions that direct progress are framed.
I am challenged and find it frustrating that the idea of the law as conservative has been a shield preventing the judiciary from activism to advance the Common Good. When we hide behind the doctrine of Locus Standi to prevent people of conscience from challenging injustice, I fear a disservice to history. There are so many areas like the Law of Eminent Domain and the Land Use Act that can profit today from an activist bench with a big heart for the economic progress of the people.
Justice Kayode Eso appears to me to be the kind of jurist who with enough exposure to the factors that have shaped man’s material progress will take an activist path.
I trust that his work on this side of life will have earned him immortality. I hope also that it will have edifying value for today’s generation of lawyers and judges.
- Prof. Utomi is founder of the Centre for Values in Leadership