NBA’s Growing Legal and Judicial Quagmire

Overview 

Over the past fortnight, there have been two significant issues of concern affecting the Nation’s Judiciary. One of these issues relates to the comments made by former Senator Adamu Muhammed Bulkachuwa (who represented Bauchi North Senatorial District in the 9th National Assembly). He claimed at the Valedictory Session held in honour of the outgoing members of the Senate of the 9th Assembly, that he was able to influence the decisions of his wife when she was President of the Court of Appeal in favour of former colleagues at the National Assembly. The comments made by the former Senator are significant enough to undermine the integrity of the Judiciary, and at the same time, impinge upon its perception of being honourable and dignified. It also, yet again, raised concerns about the true extent of the Judiciary’s independence. 

The  other issue  of concern, relates to the uncertainty in the uniform retirement age for Judges. The manner in which the legislation was hurriedly passed by President Bola Tinubu was undoubtedly flawed, and the ripple effects of this controversial piece of legislation is already beginning to take hold on some State judiciaries in the country. The Nigerian Bar Association (NBA) has been quick to address and express its concerns over the first issue of concern, but curiously, it has stayed mute on the second. This approach by the NBA to both these issues is understandably being scrutinised and questioned by several groups, Lawyers and judicial officers alike, possibly leading to what can only be perceived as a growing legal and judicial quagmire. 

The NBA President’s Reaction to Senator Bulkachuwa’s Statement 

The NBA President, Yakubu Maikyau, SAN expressed shock at Senator Bulkachuwa’s  open admission of having influenced his wife’s decisions as an  Appeal Court Judge, and called for his immediate prosecution. He backed this up in a letter sent to all Lawyers registered with the NBA, notifying us that he had written letters to the Inspector General of Police (IGP) and the Chairman of the Independent Corrupt Practices and Other Related Offences Commission (ICPC), requesting for the immediate investigation and prosecution of Senator Adamu Muhammad Bulkachuwa, for openly admitting at the Valedictory Session of the 9th Senate of the National Assembly held on Saturday 10th June, 2023 that he had influenced the decisions of his wife, Justice Zainab Bulkachuwa, JCA (Rtd ) while she was the President of the Court of Appeal, in order to assist his former colleagues and friends. According to the NBA President, by openly admitting or confessing to such acts, he is deemed to have interfered with the due administration of justice in this country. The NBA President further pointed out in his other capacity as a member of the National Judicial Council (NJC), that the judicial body had equally condemned Senator Bulkachuwa’s remarks and vowed that collectively, both the NBA and the NJC would at all times rise to defend the honour,  integrity and independence of the Judiciary. Senator Bulkachuwa, who had earlier failed in his re-election bid to remain in the Senate, was reported to have said:

“I must thank particularly, my wife, whose freedom and independence I encroached upon while she was in office, and she has been very tolerant and accepted my encroachment, and extended her help to my colleagues…”.

When we consider that Senator Bulkachuwa’s wife, who retired from the Court of Appeal Bench in 2020, was, by virtue of her office and position as President of the Court of Appeal, vested with enormous power and influence over electoral cases and that as President of the Court of Appeal, she also had the sole responsibility for constituting all tribunals and courts that adjudicated on all election petitions that arose from the 2019 general elections, including the presidential poll, we can easily see how grave the remarks of Senator Bulkachuwa actually are. His wife was also saddled with the responsibility of reconstituting panels or replacing members of the various election tribunals and courts, whenever the need arose. It was also her responsibility to constitute the Court of Appeal panels that adjudicated on appeals that arose from decisions of election petition tribunals on National Assembly, Governorship and State House of Assembly elections. The overall extent of these duties, functions and responsibilities not only reflects how grave this admission by Senator Bulkachuwa is, but further undermines the already fragile trust Nigerians have in their Judiciary. 

I, for one, fault the NBA President’s immediate call for the prosecution of Senator Bulkachuwa. I think it would be far more prudent and appropriate for the NBA, along with the NJC to do its own house cleaning by conducting an internal inquiry into Justice Zainab’s Bulkachuwa’s tenure (over the relevant period) as President of the Court of Appeal, in order to ascertain whether or not there is any substance to Senator Bulkachuwa’s claims of interference.   Senator Bulkachuwa has already back tracked on his statement anyway, claiming he had been misrepresented and that former Senate President Ahmed Lawan who presided over the valedictory session interrupted him and didn’t allow him to finish his speech and explain what he actually meant. It’s not for the NBA President, in my view, to tell any of the prosecuting authorities what to do or how to conduct their job. Neither would it be appropriate for them to question our Judges or look into their internal affairs, or comb through the archives to verify the veracity of Senator Bulkachuwa’s remarks. An internal inquiry would retain judicial control and independence. Besides, If need be, a prosecution could always follow thereafter, if it turns out that the whistleblowing Senator’s statement has indeed, been substantiated and verified. The danger of this approach of course, is that it threatens to also bring down the Judiciary. The former Senator couldn’t have acted alone or in isolation, after all, he’s not a Judge. This approach would be tantamount to throwing away the baby with the bath water. There is nothing to gain, at least from the Judiciary’s perspective, from taking such a drastic step. 

The Uniform Retirement Age for Judicial Officers Legislation: Why the NBA Should Take a Stand

It is worth comparing the NBA’s proactive approach to Senator Bulkachuwa’s statement, with its mute stance and attitude to the uniform retirement age legislation for Judges. Despite apparent flaws in the passage of this legislation and the overall impact this law could have on judicial structure in States nationwide, the NBA is yet to proffer any form of guidance or opinion on the new Act. 

The Uniform Retirement Age for Judicial Officers Act which has just been passed and stands as President Tinubu’s first piece of legislation. has no actual or official commencement date. This effectively means we need to revert to the Interpretation Act (Laws of the Federation 2004 ) and rely on the date the President purportedly signed the legislation into law, in order to have an effective or official commencement date. This however, creates further problems in that, if the President had no authority to sign the legislation into law in the first place how can our Judges and Lawyers then rely on that date as the official commencement date of the legislation? As either Lawyers or Judges, it is our collective duty and responsibility to guide the President and the Executive in the passage of new legislation, let alone new legislation that particularly affects us as a profession. It is for these reasons, that the NBA ought to wade into this brewing controversy and take a stand on our behalf. 

According to reports, a constitutional crisis is already developing in Osun State on this very issue. The Head of Service’s (HOS) of the State has requested on behalf of the State Governor, Ademola Adeleke, for the Chief Judge of Osun State to hand in her notice of retirement letter. This is despite the purported extension of the retirement age of High Court Judges by the Uniform Retirement Age for Judicial Officers Act, purportedly signed into law by President Bola Tinubu. If there is no official commencement date to the legislation, Governor Adeleke it would seem, appears to be in order in asking for the Chief Judge’s notice of retirement letter; and if the Chief Judge of the State refuses to comply by relying on the new Act, the question of when it commences becomes an issue of relevance. As already pointed out, reliance on the Interpretation Act would only enable Lawyers, to poke holes in the authority of the President to sign into law the legislation in the first place. There is also a further argument that a three months notice before a Chief Judge is due to retire ought to be given to the State Government. It’s for all the reasons articulated above, that the NBA should take an immediate stand on this issue to avoid the sort of constitutional stalemate that now seems to be looming in Osun State. 

Conclusion 

Statements of condemnation by the NBA President and other grandees of the legal profession at the remarks of former Senator Adamu Bulkachuwa, won’t change those perceptions that many Nigerians have already formed. If the truth be told, Senator Bulkachuwa said nothing that Nigerians haven’t long suspected. Neither was the attempt by former Senate President, Ahmad Lawan to shut Senator Bulkachuwa up, particularly convincing either. He seemed more concerned about stopping the Senator from spewing further information and implicating him and his colleagues, than the veracity of the Senator Bulkachuwa’s statement.

It is time for the Judiciary to stand up to those members of the Legislature and Executive, that continually undermine them. It’s time for them to stop playing the junior party and assert their authority; this can only be done by shunning self interest.  President Tinubu recently signed a procedurally flawed piece of legislation which is supposed to be beneficial to High Court Judges, in that it extends their retirement age. Even though the legislation is aimed at benefiting Judges, it still beholds them to point these procedural flaws out to the Government, even where their personal interests are directly affected. This is the only way they can regain the trust of the people, and their independence. For the rule of law to prevail, the Judiciary must be seen to be independent. Dr Muiz Banire, SAN in a recent article he wrote, commented that the relationship between the Executive and the Judiciary is almost that of master and servant. He called it an abomination, and further remarked that the Judiciary itself has turned itself into the cock that knows not it’s own value, but has made itself a sacrificial offering to the fox. The NBA needs to get more proactive in aiding the Judiciary to retain its independence, but in so doing, it must itself avoid being caught up in legal and judicial quagmires.