Standing up to Supreme Court

CICERO/Issues

The last may not have been heard about the threat by the Supreme Court to sanction members of the public, who are in the habit of criticising its judgments, as more persons continue to question its decision, writes Wale Igbintade

The criticisms that trailed the judgment of the Supreme Court  affirming the Senate President, Dr. Ahmad Lawan as the authentic senatorial candidate of the All Progressives Congress (APC) in Yobe North in yesterday’s National Assembly elections have refused to die down.

Following the attacks, the apex court had reacted in anger, warning that its silence must not be mistaken for weakness or cowardice.

The apex court, in a statement by its Director of Press and Information, Dr. Festus Akande, accused the critics of serving some vested political interests, and warned that its judges “are not politicians and should not, by any stroke of imagination, be cast in that mold either”.

It said over 600 cases had so far gone to court from just party primaries which were conducted by political parties without any encumbrance or interference from any external bodies.

It added that if political parties failed to organise themselves well by managing their internal wrangling maturely and chose to bring themselves to the court, it was duty-bound to adjudicate in accordance with the provisions of the law and not the dictates of any individual or deity. 

The statement read: “It is so disheartening to learn that some individuals and groups of persons who ought to know better and even assume the revered positions of role models to a larger proportion of the citizens are now sadly, the very ones flagrantly displaying ignorance and infantilism in the course of defending the indefensible.”

 The Supreme Court’s position aligned with that of the President of the Nigerian Bar Association (NBA), Mr. Yakubu Maikyau (SAN), who had vowed that any lawyer criticising the court’s decisions would be sanctioned by the association.

Speaking at a valedictory court session in honour of the retired judge of the Federal High Court in Abuja, Justice Ibrahim Buba, the NBA President, reprimanded some lawyers for castigating the Supreme Court stating: “We are calling on the court to ensure that these lawyers face the consequences as the NBA will take steps in bringing the lawyers to book. Attacks by groups, political parties or individuals under any guise will not deter us, rather it will boost our resolve to do more for the country.”

But reacting to the threats to sanction lawyers criticising the judgments of the apex court, the Ben Nwabueze Centre for Constitutional Studies and the Rule of Law described the statements issued by the apex court, and the President of the NBA as misguided. It specifically called on the Supreme Court not to be unduly worried by criticism of its judgments, saying it should be self-evident if such judgments pass muster.

In a statement, titled: ‘Court Judgments Are Open to Criticism’, signed by its Coordinator, Chijioke Okoli (SAN), the centre said administration of justice is a social good of which the general public are the consumers. It noted that it was inconceivable to deny consumers an opinion on the product, especially one which they were forced to purchase in the circumstances.

It added that apart from the critical need for public accountability of all facets and institutions of the state apparatus, including the judiciary, criminalisation of criticism of judges was not consistent with the fundamental right to freedom of expression enshrined in the Nigerian Constitution.

It stated that the Nigerian public and the legal community in particular needed to be reminded that criticism of judges could be traced to biblical times, when St. Paul in Acts of the Apostles (chapter 23, vs.3) trenchantly criticised the judges who subjected him to punishment for acting contrary to the law in his view, and unflatteringly lampooned them as “whited sepulchers”.

The statement read: “It is obvious that some of the recent judgments of the Nigerian courts, especially the Supreme Court, in high profile political cases have generated understandable controversy. Understandable, because some seemingly settled principles of law have been made by the decisions to appear not so settled and also challenged many people’s sense of justice. It is equally not in doubt that some of the criticisms are beyond the pale, degenerating in some cases to personal vituperative attacks on individual judges. Some of the disagreements, especially by some lay persons, undoubtedly appear to have been disagreeably expressed.

“Indeed, administration of justice is a social good and of which the general public are the consumers. How could the consumers conceivably be denied an opinion on the product, especially one which they are forced to purchase in the circumstances? Truth be told, these consumers and their advisers have had cause for serious worry with the trend in the recent past. For many areas of law and procedure the Nigerian legal practitioner is routinely confronted with conflicting decisions of the superior courts, including the apex court.

“This state of affairs should worry all concerned stakeholders, especially the NBA whose motto is promotion of the rule of law. Aside from the befuddling conflicting decisions of the apex court, there is its undue attachment to technicalities which is clearly at variance with the magisterial intellectual gravitas of such courts in other jurisdictions. It would for example be difficult for an intelligent lay person to understand the sense in the Supreme Court making a fetish of whether a court process was signed in the name of a person or a law firm, and nullifying otherwise meritorious cases notwithstanding that issue of life and death may be involved.”

In the final analysis, the court speaks for and defends itself through its judgments, the strength or lack thereof of which intellectual and moral- is almost invariably self-evident.”

It, however, cautioned those inclined to criticising the judges, adding that such should be done as fairly and constructively as possible. It added that malicious criticisms of judges are not immune from the strictures of the law of defamation.

In his view, a public interest lawyer, Jiti Ogunye, noted that a careful reading of the provision of Section 133 of the Criminal Code Act and provision of Rule 33 of Rules of Professional Conduct shows clearly that what is prohibited is the misrepresentation (in speech or in writing) of proceedings of court in a manner that demeans the judge, or prejudices or interferes with the fair trial of a case and judgment thereof, while the court proceedings are pending.

Ogunye in his article titled: ‘Is it wrong to criticise court judgments in the media’, argued that Section 133 of the Criminal Code, which deals with contempt ex-facie curiae (outside the court) and provision of Rule 133 does not apply to criticism of court’s judgments (final) by lawyers (whether or not they participated in cases wherein those judgments were delivered), and non-lawyers, after court proceedings in those cases have ended.

He submitted: “In spite of all that is known about the sub-judice rule, we make bold to state that the due administration of justice is a matter of public interest, and, therefore, a fair matter for public comment. Trial proceedings, conduct and decisions of the judge are matters of public interest which may be lawfully commented upon as soon as judgment is rendered in a case.

“There is no provision in the Criminal Code Act and Rules of Professional Conduct that prohibit media criticism or critique of judges and judgments, after delivery of judgments, by lawyers and non-lawyers. We are aware that Rules 30 and 31(1&2) of the Rules of Professional Conduct state that lawyers are officers of the court and that they owe the courts a duty. We insist, however, that being officers in the temple of justice and owing the courts a duty do not preclude lawyers from criticizing judges and their judgments in the media”.

Ogunye stated that lawyers and non-lawyers have a right to hold opinions and express such opinions publicly through the media, whether those opinions are on court judgments or not.

Also, a veteran journalist and rights activist, Mr. Richard Akinnola, in an open letter to the Chief Justice of Nigeria (CJN), titled: ‘I Would Criticise the Supreme Court’, accused the CJN of unprecedented steps to gag the public in criticising and subjecting apex court’s judgments to public scrutiny.

Akinnola added that what he would not subscribe to are personal, scurrilous attacks of justices. 

 He argued that if judges could criticise themselves over a judgment, the members of the public are also entitled to do so.

“My Lord, the Supreme Court has a lot to do to change the public perception about it, because justice is rooted in public confidence and this cannot be achieved by threats and gagging members of the public from criticising its judgments.

“May l end this letter, my Lord, with these quotes: “Judges and court alike are open to criticism and if reasonable argument or expostulation is offered against any judicial act as contrary to law or public good, no court could or would treat that as contempt of court”

 “Justice has no place in darkness and secrecy. When a judge sits on a case, he himself is on trial…If there is any misconduct on his part, any bias or prejudice, there is a reporter to keep an eye on him.

“With the greatest respect my Lord, your judgments are subject to public scrutiny, particularly when they impart on public policy or political processes. Perhaps, my Lord is oblivious of the perception out there in the public domain, that the Supreme Court in the past couple years has been compromised, compared to the Supreme Court of yore during the time of Kayode Eso, Otutu Obaseki,” he added.