Inevitability of the Tribunal judgement 

By Akin Osuntokun 

The week was ushered in with a gross and temperamental preview by retired supreme court Justice Mary Odili wherein she took direct aim at a party (and its surrogates) to the dispute before the Presidential Elections Petitions Court, PEPC. Her speech at a ceremony in honour of a lawyer, Mr J.K Gadzama was a study in the chauvinistic triumphalist celebration of a judicial victory in view and was remarkably badly written and poorly delivered. At the fairly partisan gathering, she assumed the posture of an aggressive agenda setting partisan privy to the judgement that would be delivered in the course of the week. There appears to be the ulterior motive of preempting the judgement of the PEPC and harangue the potential loser to take it or shove it. 

The missive was deliberately provocative and commensurately elicited a severe backlash. She courted a renewed critical attention on her pedigree including, especially, the watershed judgement given in favour of her husband, Dr Peter Odili, former governor of Rivers state by the supreme court. Whenever her tenure at the supreme court is up for discussion, this controversial judgement is guaranteed the pride of place. The practical import of the unprecedented judgement was to render her spouse, Dr Odili legally untouchable and unquestionable on his stewardship as governor between 1999 and 2007. He was granted “a perpetual injunction barring the federal government and its agencies from probing, arresting or prosecuting him”. It is curious that no other Nigerian public official of comparable circumstances had similarly availed himself of this royal exculpation, prompting the poser, if the law is personally made for Odili and should never be cited as a judicial precedent. 

Here is Justice Odili “It is no doubt appropriate that the theme is: “The Nigeria of Our Dreams, A Call to The Patriots”. 

I say so in the light of the prevailing situation in Nigeria as a result of the 2023 General Elections which has generated a lot of storm, necessitating the conversation which we are about to indulge in, as there seems to be moves to throw the nation into chaos or conflagration. This may be brought about by some individuals and groups, who fanning the ambers of hatred, bigotry, and tribalism fails to see the possible outcomes of the utterances without caution that are being thrown around.

It is human to feel cheated, or having the short-end of the stick, but one who is not declared the 

winner at any of the electoral contests, such emotions however grim does not justify bringing the 

roof down, the roof of our nation”.

“The situation does not call for the blackmail of the judges, or the posting of speculatory hypothesis, giving them such a life of their own, which run riot and accepted by the hapless and innocent in the society as the truth.

Knowing the quality of participants at this colloquium, and I am happy professional, those who are well equipped in litigation matters or electoral disputes – Chief Olanipekun is a master, and our Attorney General recently sworn in. These are experts. I am confident that having such persons here, including our Chief Host, Chief J. K. Gadzama, there is confidence that at the end of the day, a resetting of the mind would be taking place and we would keep things in perspective 

in the full knowledge that elections are seasonal, and litigation relating to thereto of the same vein” 

If any intervention can be more offensive than the statement itself, it is another statement from the same source purporting to blame the reading public for a distorted misunderstanding of the missive. If the point Mrs Odili labours to make is that some people are purportedly intimidating the judiciary, she appears to be a rather poor messenger for the message. I can hardly recollect any time I came across such an outrageous message of intimidation from a Judge. And maybe the judiciary (as represented by Odili), should be wary of the hypocrisy of frantically calling attention to the speck in another man’s eyes while hosting a beam in her own.

In contemporary Nigeria, no one could match the capacity to wreak damage on the Judiciary more than the power couple, Senator Adamu Bulkachuwa and her spouse Justice Bulkachuwa. Yet, we never heard nor expected a word of condemnation from the chairperson of the body of benchers namely, JusticeOdili. Two days later, it was the turn of the tribunal judges at the subsequent occasion of the delivery of judgement by the PEPC. The Judges practically took a cue from the Odili playbook in the proclivity for partisan bombast and the censure of divergent opinions. The Judges liberally indulged in malicious language and adversarial partisan demeanour. They kept swearing to the infallibility of INEC and insinuating insinuating a common purpose with the electoral agency. 

If we agree that Obi and Atiku leaning partisans were provocatively breathing down the necks of the judges, the question is are there no extenuating circumstances for assuming the worst of the judiciary? Is this a justification for the display of raw partisan distemper in dispensing the law?. If Senator Bulkachuwa is to be believed, regarding the conduct of the administration of justice by the immediate past president of the court of appeal (PCA), who happens to be his wife, is such Judiciary deserving of the benefit of the doubt where there are talks of corruption?.

Yet they affect the posture of righteous indignation as if there is no basis to doubt their integrity. These are Judges over whom the spouse of Bulkachuwa presided, as the president of the court of appeal. For that matter, did the president himself, Bola Ahmed Tinubu, not adopt the common belief that Judges are corrupt “You don’t expect your judges to live in squalor, to operate in squalor and dispense justice in squalor. If you don’t want your judges to be corrupt, you got to pay attention to their welfare” rationalised the president. 

What crimes have the international observers, especially the European Union, EU, committed to warrant their victimisation?. Do their reports not connote the international standard we aspire to attain?. These are expert monitors whose professional calling is informed, unjaundiced assessment of elections worldwide. In the course of this they had been in this country several months before the election.They contributed millions of dollars to support the successful conduct of the elections and have thereby earned their seat at the table. Above all is the lack of partisan interest in who wins the elections. If it is absurd to contemplate that the observers will know better about the law than the Judges, so it is illogical of any judge to presume to know more about the Nigerian elections than these observers. 

Systemic Crisis

My understanding of the contemporary Nigerian perversion is that it is a systemic crisis 

where you can establish the lapse of a part thereof from what ails the whole. If Nigeria is sick and corrupt, there is no reason to disbelieve that the executive, legislature or the judiciary are any less afflicted, especially in the absence of any evidence to the contrary. Inspired by the culture of judicial activism (‘that the courts can and should go beyond the applicable law to consider broader societal implications of its decisions’), I get repeatedly asked by anxious Nigerians whether they can expect the judiciary to do what is right by Nigeria. 

My default position is to patiently explain that Nigeria is in a systemic crisis in which none of the indwellers of the system is immune to catching the pathogen of the crisis. If the Nigerian judiciary is typically Nigerian, it is unrealistic to expect the institution to behave exceptionally. If a country regularly tops the chart of the most corrupt countries in the world, what is the probability of finding an exceptional oasis of integrity? It is impossible to isolate any institution of government from the implication of Nigeria as a failed state. A failed state is indicative of systemic crisis and collapse where no part can be individually salvaged for remedial attention. It is a case of we float and sink together. 

In almost all societies governed by law and have not lapsed into dysfunction, there is a positive correlation in the behaviour of the three organs of government, legislature, executive and the judiciary. And the obverse is equally true. Nigeria is a typical example. To its potential destruction, the Nigerian judiciary is now badly implicated in the enthronement of presidents. It remains true that power corrupts, absolute power corrupts absolutely. More than any other factor, the over centralisation of power, (personified by the president) is the most subversive agent provocateur of political crisis and instability in Nigeria. In its pursuit, nothing is spared, no prisoners are taken (not the legislature, neither the judiciary nor INEC etc) It is what drove Nigeria to seek escapism in the palliative of the rotation of power which has hardly fulfilled its aspiration as an instrument of tempering the trend towards the winner takes all politics. 

Federalism 

The policy prescription of the adoption of the systemic crisis perspective to the Nigerian crisis is the holistic constitutional review towards the restoration of federalism. It may be an unintended consequence but a return to federalism will relieve the judiciary of its attendant implication in the destructive tendency inherent in the over centralisation of powers. Wherever it occurs, the abnormal implication of the judiciary in the determination of political power has proven a present and direct threat to the integrity and stability of the polity. Not without its shortcomings, federalism, as such, ‘is a response to political conflict, not an optimal strategy that a nation with a unified political identity is likely to enthusiastically embrace.; it is a suboptimal compromise designed to resolve situations that threaten to descend into even less attractive possibilities’

It is admitted that ‘countries with ethnic, linguistic, or religious divisions that substantially coincide with territorial boundaries confront special problems in making democracy work. They are vulnerable to intense intergroup conflict, which all too often leads to violence or to attempts at secession.. In large states that must contend with geographically based ethnic, religious, or linguistic cleavages, some form of regional autonomy is inevitable. And one institutional device intended to mitigate such strains is federalism’. Unfortunately, rather than face up to solve our political problems, we have been adjusting and coming to terms with them as the new normal.