Nigeria’s Confounded Judiciary

 BY SHAKA MOMODU; shaka.momodu@thisdaylive.com

The Nigerian Judiciary has fallen. It has crashed and self-destructed. All hope of bringing it back to life seems lost. There is neither trust nor confidence in our judiciary anymore. Let me adapt Abba’s song, “Money, money, money … it’s a rich man’s world” and the judiciary is in full disco dance to the tune of money which at end of the day is used to blackmail them into line by a government determined to get its way at all cost. Evidential jurisprudence has lost its place and meaning to our judges. Across the states, judges have become errand boys and girls to state governors. They don’t even pretend anymore.

We are in an era of the ruthless betrayal of Nigeria, when even judges sell their country for money; a country where former chief justices and serving Supreme Court judges have become consultants to foreign interests scamming their country. Nigeria is the gift that keeps giving. These are the judges expected to be impartial in the delivery of justice?

Yes, the demons of our democracy have amassed on the Independent National Electoral Commission (INEC) and the judiciary, which has essentially abandoned its core duty of doing justice for the pursuit of mundane pecuniary benefits. Men of courage in our judiciary have since gone into extinction.

Nigerians won’t forget in a hurry the judges of the 1980s. That epochal moment –  encapsulated in their judgments and rulings which somewhat ensured the enforcement/protection of human rights, freedoms and  Nigeria’s evolving democratic values, even under the jackboot of military dictatorship – was documented for future generations by the irrepressible Gani Fawehinmi of blessed memory in his book, The Judiciary: 1980 to 1989, A Legacy for Posterity.

Now let’s start with the grudge I have been nursing against the judiciary for the past few years. On October 25, 2007, the Nigerian Supreme Court did the unthinkable: in a judgment that lacked rationality and common sense, the court rewrote the meaning of party politics and participatory democracy. In the process, rather than bring order to a system that was riddled with confusion and fog, it sowed anarchy in our body politic. Rather than bring clarity, it unleashed chaos and utter confusion in our politics. And rather than uphold truth and dispense justice, it entrenched vice, avarice, perjury, falsehood and criminality.  

In a judgment that was fundamentally flawed and clearly in defiance of the supreme will of the people and against the very principles of natural justice, or any known logical deduction or persuasive reasoning, the apex court unilaterally installed an unelected individual, Mr Rotimi Amaechi who did not participate in the Rivers State governorship election as the duly elected governor of the state. That day has lived in infamy ever after, as the court went on to rule that it was the political party that was elected and not the individual candidate. It turned everything I was taught in school upside down.  Of course many celebrated that absurd judgment as “sound” but I remember vividly that the late Gani Fawehinmi and a very few others faulted it, describing it as fundamentally flawed.

Honestly, I am reluctant to dabble into the legalese of points of law since I am not “learned”. While I will stand on the fringes of arguments based on points of law, I will stand firmly on the hard ground of right and wrong and the dictates of the ultimate ends of justice and hold on firmly to what is good for society to make my point. But do I have to be “learned” to have a clear sense of right and wrong? Or do I have to be a lawyer to visualise the inherent danger in some of the judgments that have emanated from our courts and have left us the “unlearned” stunned and bewildered? I don’t think so.

Many of the judgments and rulings are like those of an apprentice in a carpenter’s workshop, viz., no quotable quote, no beautiful prose, and are even lacking in philosophy, logic and ancient wisdom that mesmerise. In a unanimous decision, the court said Amaechi was wrongly substituted by the Peoples Democratic Party (PDP) and that the indictment on which his disqualification was anchored in was unlawful.

Justice Aloysious Katsina-Alu (presided), while Justice George Oguntade, delivered the lead judgment consented to by all six other justices of the court comprising Dairu Mustdapher, Mahmud Mohammed, Walter Onnoghen, Ibrahim Tanko Muhammad (now the Chief Justice of Nigeria) and Pius Olayiwola Aderemi. Thank God we know their names, so we will tell our children what they did on that day. The court consequently held that Amaechi was PDP’s governorship standard-bearer in the said election. In a haste to do “substantial justice without regards to technicalities”, the court declared him (Amaechi) to have won the election that he did not participate in.

While the Supreme Court did “substantial justice” to Amaechi by installing him as governor upon the mandate won by another person, it did mortal damage to the interpretation of the law and tenets of the presidential system of government that we practice. It did more than substantial injury to the man who campaigned, sold his vision to the electorate and won the election. It stole by judicial fiat the mandate given to Celestine Omehia by the people and gave it to Amaechi. That to me is the worst form of judicial malpractice and crime against the people.

Struggling to find a plank to rest this totally bizarre and absurd judgment, Oguntade found solace in Section 221 of the 1999 Constitution which provides:  “No association other than a political party shall canvass for votes for any candidate in any election or contribute to the funds of any party or to the election expenses of any candidate in an election.”

“The above provision effectually removes the possibility of independent candidacy in our elections; and places emphasis and responsibility in elections on political parties. Without a political party, a candidate cannot contest. The primary method of contest for elective offices is therefore between the parties. If as provided in Section 221 above, it is a party that canvasses for votes, it follows that it is a party that wins an election. A good or bad candidate may enhance or diminish the prospect of his party in winning but at the end of the day, it is the party that wins or loses in election…,” Oguntade added.

This interpretation was not only flawed, it was mortally injurious and more than that, it substantially diminished the importance of a candidate in an election. Judges are usually clever at finding justification for their position no matter how bizarre that position may be. They do this by deploying absurd interpretations and irrational logic to walk to a preconceived judgment. In this particular case, they left gaping holes for even the unlearned to see through it straight away.

But let me ask the court some salient questions that have remained unaddressed. Can the party field itself in an election without the candidate? If the candidate was less important, as the Supreme Court declared, why do parties expend precious time and resources to go through primaries to select candidates who can win elections to be their standard-bearers? Since a “good or bad candidate may enhance or diminish the prospect of his party in winning”, how come the court was so sure that it wasn’t the unique qualities of then-candidate of the PDP, Celestine Omehia, that made the party to win?

Why was the Supreme Court so cocksure that the PDP plus Ameachi would have won, that Ameachi’s peculiar qualities wouldn’t have diminished the party’s chances of winning? Now, who takes the oath of office, is it the party or the individual? Who espouses their vision on the campaign field to woo voters, is it not the individual? Can the political party, as an inanimate entity, campaign for votes and espouse its vision? As central as the candidate is in democracy and governance, the judges who sat in the Amaechi case deliberately chose to diminish its relevance to arrive at an absurd pronouncement that sent shock waves across the country. By that jaundiced interpretation, the apex court chose mysteries over clarity and insulted the pursuit of truth and justice.

My position also aligns with that of a former governor of Edo State, Prof. Oserheimen Osunbor.  A few years ago as Chairman of the Nigerian Law Reform Commission (NLRC), he pointed out the inherent danger staring us in the face when judges become electors of candidates. He called for reforms to put an end to judges electing candidates. His words: “Elsewhere, election results are supposed to be a reflection of the will of the voters but often in Nigeria the voters are completely disregarded, their right to vote negated and their will rendered irrelevant. Instead, the will of one presiding judge, sitting with subordinate trusted judges, is substituted for the will of the entire voting population which may run into millions. There is obviously something intrinsically wrong with this practice and it may, if left unchecked, have grave security and other consequences for the judiciary, a state or even the country as a whole in future.”  He faulted the lead judgment read by Justice George Oguntade, in which he held that it was a political party that wins an election and not the candidate. “The correct position is that both the candidate and his political party jointly win or lose an election – one cannot do it without the other”. “Section 177 states: ‘A person shall be qualified for election to the office of governor of a state if: (a) he is a citizen of Nigeria by birth; (b) he has attained the age of thirty-five years; (c) he is a member of a political party and is sponsored by that political party; and (d) he has been educated up to at least school certificate level or its equivalent.’

“Section 179 (2) states: ‘A candidate for an election to the office of governor of a state shall be deemed to have been duly elected where, there being two or more candidates: (a) he has the highest number of votes cast at the election; and (b) he has not less than one quarter of all the votes.’”

“How, in the face of these clear provisions of the constitution (and the Electoral Act), it could be said that it is a political party, not the candidate that wins an election, unless it can be explained as a case of ‘judicial law-making’, remain a mystery which only time will reveal”,  Osunbor wondered.

To show how fundamentally flawed that judgment was, Amaechi in his second term alongside four other governors, rubbished the position of the Supreme Court and defected with the mandate won by his party – the PDP to another party –  the All Progressives Congress(APC) with no consequences. You see, the judiciary’s wandering into political territory created the mess we have on our hands today. But some of those who praised the Supreme Court when it gave that sham judgment, also by some legal sleight of hand to hide the truth, hailed the defection as lawful. It was that judgment that INEC found solace in, in resolving the Kogi conundrum brought about by the sudden death of candidate Abubakar Audu, who was leading  in the “inconclusive” governorship election in Kogi State.

The Supreme Court decision on the Osun State governorship election between Ademola Adeleke of  the PDP and Adegboyega Oyetola of the APC where the court relied solely on technicalities to dismiss the appeal filed by the PDP was another case  that permanently tarnished the image of the court. The court ruled that the absence, during a previous sitting of Justice Peter Obiorah, who read the election tribunal’s majority judgment declaring Adeleke of the PDP winner, nullified the tribunal’s judgment. How could that be? But even if he was absent, he read all the proceedings and testimonies. So for an action that was not of PDP’s making, the court used technicalities, which it discountenanced in the Ameachi case, to deny the party justice? Wonders never cease!

What about the just delivered verdict of the Presidential Election Petition Tribunal between President Muhammadu Buhari and former Vice President Atiku Abubakar? There was no doubt that the judgment of the tribunal left so much to be desired. To start with, concerning the issue of the president’s secondary school qualifications, the judges ruled that the PDP and Atiku failed to prove that Buhari was not qualified academically to contest the election, even when evidence abounded for them to rule to the contrary. This is a constitutional requirement, which has many grounds.

Buhari had claimed to have obtained the secondary school certificate, not just the equivalent, and not only that, he was educated up to the secondary school certificate level. Although the onus is on the petitioner to provide proof of his claim, but in this case, the responsibility shifted to the respondent the moment the PDP and Atiku showed that Buhari did not have the qualifications as required in form CF001, because he failed to attach all evidence of his educational qualifications as stipulated in the Electoral Act.

It was therefore Buhari’s responsibility to prove why he failed to attach any evidence of his academic qualifications to his Form CF001, and not that of the court. But, perhaps, in an attempt to justify his failure to attach evidence of his educational qualifications, as stipulated by law, in Form CF001, Buhari, at the Abuja High Court in 2014, deposed to a separate affidavit, in addition to the verifying affidavit in Form CF001, claiming that his certificates, as listed in Form CF001, were in the possession of the Secretary of the Army Board.

The PDP and Atiku were able to prove to the court that the army denied the claims in Buhari’s affidavit, putting the burden again on him to produce his certificate from the army, but he failed to do so. Buhari himself never testified in court. Rather, his own witnesses, under examination, even testified against him. It was however shocking that the court itself came to Buhari’s defence by attempting to rationalise his claims about his academic qualifications. In so doing, the judges ended up inferring that Buhari actually submitted his certificates to the army in 1961 even against the denial by the army and the revelation by his course mate, who testified before the court, that none of them handed any such document to the army.

It was shocking that the judges excused Buhari in this regard and even declared him to be “eminently qualified”. The tribunal therefore credited to him qualifications he did not claim in his Form CF001. Now is the court saying attaching academic qualifications to Form CF001, as required by law, is no longer necessary? Is the court telling Nigerians that they can make any academic claims to get employment without backing it up with actual certificates? Why didn’t Buhari attach/produce his attestation certificate that he claimed WAEC issued to him in the build-up to the 2019 election? It was apparent that something was very amiss. Yet, the court failed the country by turning a blind eye to the glaring discrepancies.

But should we be surprised that the Nigerian judiciary continues to decline in eminence, as it plunges full speed ahead into the pits of hell? Mr. Femi Falana, a Senior Advocate of Nigeria (SAN), who was supportive of Buhari’s bid for the presidency in 2015, in an interview on Arise News Channel last week, held that the judiciary’s role in adjudicating or determining the outcome of elections in this country should be kept to the barest minimum because judges are not suited to determine the winners of elections. That, according to Falana, is the exclusive preserve of the electorate. For him, there are no provisions in the courtroom to determine the winners of elections.

However, the electorate can only have a final say when we summon the will to wholly reform our electoral system. Falana recalled that from the administration of the late Umaru Yar’Adua to the current administration, three panels have been set up to review the country’s electoral system. Each of these panels – the Justice Mohammed Uwais Panel, the Sheikh Ahmed Lemu Committee and the Ken Nnamani Panel – came up with profound recommendations that can improve and strengthen the electoral system, but all three reports have been confined to the dustbins of history.

As it stands, we would not get any form of reprieve from the shameful and embarrassing pronouncements that emanate from the judiciary. At least, not until someone, somewhere does the needful by turning around Nigeria’s electoral process.