ENOUGH IS NOT ENOUGH YET

Persisting executive lawlessness suggests a need for joint control of coercive machinery of state, argues Bolaji Adebiyi

“We are deeply saddened and taken aback by this uncivilised and shameful show of primitive force on an innocent judicial officer that has so far spent several years of her productive life serving the country she calls her own.”

Those were the angry words of the Supreme Court of Nigeria in a statement by Festus Akande, its director of information, reacting to last Friday’s midnight raid by security agents on the Abuja home of Mary Odili, a justice of the apex court. The exercise was reportedly carried out by agents from the police force and the Economic and Financial Crimes Commission in aid of a search warrant issued by a magistrate.

Interestingly, all the security agencies, reportedly involved, and the office of the Attorney-General of the Federation have denied fore-knowledge of what the apex court referred to as a dastardly act. Expectedly there has been a deluge of condemnation of the incident. The Nigerian Bar Association, the Body of Benchers and the Body of Senior Advocates of Nigeria have risen as one to upbraid the federal government for the action the Supreme Court suggests is an intimidation of one arm of government by the other.

As usual, all sorts of investigations have been announced with Alkali Usman, the inspector-general of police, saying on Tuesday that all the perpetrators of the incident have been arrested. Hopefully, it would not be long before the outcomes of the enquiries would be made public.

The incident occurred exactly five years after similar raids on the residences of two justices of the court, Sylvester Ngwuta and John Okoro; two judges of the Federal High Court, Adeniyi Adetokunbo-Ademola and Nnamdi Dimgba; and two judges of state High Courts, Kabiru Auta (kano) and A.I. Umezulike (Enugu), by the agents of the Department of State Security. On that occasion the response to the umbrage of the public against the midnight operations spread over two states and the Federal Capital Territory, was that the secret service was on sting operations to arrest evidence of corruption by the judicial officers. The fears of the unimpressed public were confirmed later when years of prosecution of the affected jurists yielded no conviction in the courts of law. No wonder, therefore, the apex court referred to that incident in its Tuesday statement as questionable.

“This incident brought back, rather painfully, the ugly memory of the October 2016 midnight invasion of the homes of our respected justices with no satisfactory explanations as to the true motive behind such brazen assault on our collective sensibility,” it said, adding: “We wish to make it abundantly clear that the Nigerian Judiciary is the third arm of the government of the Federal Republic of Nigeria and should be respected and treated as such.”

Embedded in the anger of the apex court is the disdain with which the executive arm of government has treated the judicial arm, particularly since the Muhammadu Buhari administration mounted the saddle in 2015. Notorious for its disrespect for due process and obedience to court orders, it opened hostility to the judiciary with that October 2016 raids. Very few people were left without the conviction that the invasion of the justices’ quarters was intended to intimidate the judiciary. References were made to the series of judicial setbacks the secret agency and indeed its anti-corruption partners had suffered in courts of the jurists around the period. It was even said then that the actual target of the raid was the next-in-line to the Chief Justice of Nigeria, Justice Walter Onnoghen, who was waiting to succeed the retiring Chief Justice Mahmud Mohammed.

Any doubt about this dubious intention was cleared barely a month later when Mohammed eventually retired in November and President Muhammadu Buhari decided to sidestep the National Judicial Council, refusing to send Onnoghen’s name to the Senate for confirmation as recommended by the NJC. It took the absence of Buhari and the acting presidency of Yemi Osinbajo, a silk professor of Law and vice president of Nigeria before Onnoghen’s name appeared in the Senate three months later.

If Buhari was unhappy about Onnoghen’s clearance behind his back, he could not show it until two years later when the chief jurist of the nation was hurled before an administrative panel, the Code of Conduct Tribunal, charged with false declaration of assets. Although leading legal luminaries, including the NBA raised issues about the constitutionality of the procedure applied, the president removed the chief justice from office through a questionable exparte order of the CCT and replaced him with Ibrahim Mohammed.

Opposition politicians and social critics read into that perfunctory and obvious presidential disdain for clear provisions of the 1999 Constitution as altered with regards to discipline of judicial officers, a burning desire of the Buhari administration to bring the judicial arm under its control.

Meanwhile, it is not only the judicial arm that is being twisted by the executive under Buhari’s watch. In the early hours of 8 August, 2018, barely two years after the invasion of judges’ quarters, the nation woke up to the news of the siege laid to the National Assembly by operatives of the DSS. Although no clear reasons were given for this desecration of the legislative arm of government, there had been no love lost between the leadership of federal legislature then under an astute politician, Bukola Saraki, then president of the Senate and the executive. Unfortunately for Lawal Daura, the DSS boss, Buhari was not in town when he carried out his audacious heist. Faced with massive public outrage, Osinbajo, who was in charge of affairs, had little or no other option than to shove Lawal aside. But the damage had been done. The symbol of democracy had been defiled to the anger of the public which had become concerned about the growing lawlessness of the executive arm of government.

The Supreme Court on Tuesday made a direct reference to this rising bully by the executive arm when it said: “We have had a full dosage of this fusillade of unwarranted and unprovoked attacks on our judicial officers and even facilities across the country and we say it loudly now that enough is enough.” It then warned: “The Nigerian judiciary cannot only bark, but can also bite. We can no longer be treated with disdain and levity. The rule of law and constitutionality must govern our conduct so that we can tag along with the comity of nations and be taken seriously, too.”

The fact of the matter, however, is that resisting the executive’s bully must go beyond belly-aching and threat issuing from the other arms. Both aggrieved arms must come together to take concrete actions to abate its arrogance and hostility. This must include, in this season of constitution amendment, a wholesome review of the exclusive control of the coercive machinery of state, including the police, the secret agencies and the military by the executive.

After all, when Montesquieu, the French political philosopher, propounded the doctrine of separation of powers, he was clear about its aim which was to balance power relations among the three arms of government in such a way that no one arm is in a position to dominate the other. And to the extent that the distribution of responsibilities is dynamic, it is legitimate to seek constant review of functions, particularly when it becomes obvious that the exercise or abuse of any power allotted to an arm is tilting the balance against the other two.

Over the years, the exclusive control of the coercive machinery of state by the executive has been used to the disadvantage of the legislature and the judiciary. This has been particularly so under military-turned-civilian presidents Olusegun Obasanjo and Buhari. And to avoid a situation of self-help that the Supreme Court’s statement hinted at on Tuesday, the feeling is strong that the operational control of the executive over the police, secret agencies and the military be diluted through a series of legislative reviews of extant enabling acts aimed at making them less subservient to the executive. This would require a deft collaboration between the legislature and the judiciary. And it is only then that enough would be enough.