The Supreme Court on Trial
ENGAGEMENTS
Chidi Amuta
The Presidential Election Petitions Tribunal has since reaffirmed the declaration of Mr. Bola Tinubu as our duly elected president. In response, the two major contenders Peter Obi and Atiku Abubakar of the Labour Party and Peoples Democratic Party respectively have scaled up their legal objections to the Supreme Court. It is more like a slovenly walk up the ladder of judicial correctness, not a legal battle to assert a right or claim an entitlement. The opposition politicians are probably more preoccupied with adherence to the rule of law and a commitment to order and due judicial process. That is a minimum requirement of responsible democratic conduct.
Without prejudice to the wisdom of the Supreme Court, the high possibility is that they are likely to affirm the ruling of the tribunal. It will do so for a different set of reasons that run contrary to conventional street wisdom. It will not be because the judges are under corrupt influence. It will not be because the judges are compromised or cowardly. On the contrary, it will be because the existing laws leave them no room for escape.
Understandably, the incumbent does not seem perturbed by the judicial rituals. He is digging in in terms of ruling Nigeria, making a litany of strategic appointments and flip flopping through a barrage of key policy decisions. The law gives him the head start of waging his legal defenses of his much contested mandate from the comfort place of power incumbency. The other contestants are merely throwing legal stones at the glass house of power from the external wilderness of forlorn hope.
On its part, the public is less impressed by the legal drama. The finality of a Supreme Court verdict has since lost its celestial awe. Most Nigerians doubt that the Supreme Court will ever upturn Mr. Tinubu’s incumbency. Public doubt about a judicial outcome from the Supreme Court is embedded in the tradition of skepticism that has come to surround the reputation of the Supreme Court and the Nigerian judiciary in general in recent years.
Rightly or wrongly, ordinary Nigerians doubt the integrity of the Supreme Court let alone expect that it can possibly rule an incumbent out of office at any time in the near future. Common people believe the judges are corrupt, compromised and cowardly. In other words, there is an overwhelming public verdict that neither Peter Obi nor Atiku Abubakar will secure the reliefs they are seeking from the apex court.
People have already concluded that the Supreme Court will merely reaffirm the verdict of the PEPT.
To buttress their skepticism and general distrust of the Supreme Court, people cite a string of such verdicts in recent times. Challenges to presidential election outcomes from 1979 to the present have returned verdicts in favour of the incumbent. No one believes this instance will be different. In a few state governorship cases that went up to the Supreme Court, the verdicts have followed the same pattern. It has either been an affirmation of the incumbent or a toppling of the existing order based on disguised partisan pandering. Easily the most embarrassing instance cases is the Supreme Court judgment that chaperoned Mr. Hope Uzodimma into the Government House in Owerri while returning Mr. Emeka Ihedioha to the pool of unemployed privileged citizens.
The adverse estimation of the Supreme Court by the Nigerian public is not necessarily informed by any understanding of the fine points of legality that inform the court’s judgments. It is instead a value judgment by a perceptive and politically conscious pubic on cases that touch on the wider democratic implications of our elections. More often than not, assessments of the judgments of the Supreme Court are value judgments that are mere spillovers of Nigeria’s pervasive corruption rhetoric. A pervasively corrupt culture has bred perennial distrust about the conduct of public officers and functionaries. There is a conventional wisdom out on the streets that the quality of judgment available to those who approach our courts is a function of the quantum of money and other material inducement on offer by litigants.
In this regard, people point to the many cases in which under the Buhari presidency, a number of judges homes were searched and huge troves of cash found. Security agencies went after some judges and traced huge sums of money to their bank accounts which could not be accounted for. In other words a trail of corruption follows our judges like their politician patrons who in any case are the financiers of the wealthy judges. In going after the corrupt judges, political leaders were merely seeking to retrieve part of their loot doled out to some judges.
Therefore, the general doubt as to whether the Supreme Court will deliver a contrary verdict from the Presidential Election Tribunal has a constitutional and legislative basis. The Supreme Court and indeed all the courts in the post election court processes have been caged by the existing constitutional stipulations and applicable Electoral law on the matter of post election petitions.
Here is the Constitution: Section 285 (6) of the 1999 Constitution of Nigeria (as amended) states that “an election tribunal shall deliver its judgement in writing within 180 days from the date of the filing of the petition”. Meanwhile, the petitioners have 21 days after the date of the declaration of the result of elections to file. The law further provides that “an appeal from the decision of an election tribunal or Court of Appeal in an election matter shall be heard and disposed of within 60 days from the date of delivery of judgment of the tribunal or Court of Appeal”. This means that the declared winner would have spent no less than six months in office before the case is concluded.
Since judicial systems hardly rule in favour of potential anarchy, the time lag makes it difficult to upturn a presidential election in which the incumbent has already spent months in office. For as long as this aberration persists, there can hardly be judgments that run counter to the interests of the incumbent at the presidential level at least.
The present aberration plays in favour of the belief that order precedes law. You must have an orderly society that exists in stability before individuals can successfully pursue their legal rights. So in most cases involving the security of the sovereign at the apex level, most Supreme Courts are more likely to rule in favour of an incumbent already in power. The desirable ideal is therefore a situation in which electoral petitions are concluded before the swearing-in of winners as obtains in many African countries.
In Kenya, for instance, the time allowed between the date of declaration of presidential election result and the decision of the Supreme Court on a petition is only three weeks. Article 140 of the 2010 Kenya Constitution provides that the petition should be filed within seven days after the result is declared and “within fourteen days after the filing of a petition, the Supreme Court shall hear and determine the petition and its decision shall be final”.
Over and above technical constitutional and legalistic issues, there is a more fundamental aspect of the reliance on the courts to determine electoral outcomes. An aberration seems to have been accepted as the norm. In a democracy, the essence of periodic judicial interventions in election matters is to promote democratic culture especially the primacy of the rule of law. It is also designed to strengthen the confidence of the people in the process and instill accountability in the political leadership. Reducing our courts, including the Supreme Court, to vote counting stations with Judges now deciding the outcome of elections, allegations of election fixing, deal-making and corruption have become rife.
The increased prominence of and recourse to judicial outcomes in election matters is a dangerous omen for Nigeria’s democracy. Politicians now go into electoral contests uncertain that the electoral body (INEC) will return a free and fair verdict. They therefore prepare to duel in court, believing that tribunals and courts will give them the fairness and justice denied by the electoral body, namely INEC.
It has therefore become axiomatic that INEC declared results will be defective and unfair. Even INEC itself has become content with the recourse to the courts to complete their job, hence the refrain of ‘Go to court”. INEC seems to have transferred confidence in its own technical capacity to the judgment of courts. A democracy in which the umpire or electoral body lacks confidence in its own integrity and technical efficiency and instead transfers the burden of its fairness and integrity to the judiciary has serious fundamental problems.
The virtual transfer of the burden of determining electoral outcomes to the judiciary, especially the Supreme Court, has encumbered it with a political responsibility and a moral burden. No one knows what code of conduct regulates the conduct of our Supreme Court judges these days. It remains uncertain whether our Supreme Court judges are barred from receiving material favours from individuals or corporations even where the givers have no case before the affected judge. This is made more problematic by the civil service fixed tenure if our Supreme Court judges. They are appointed and serve according to a pecking at the behest of the president. Their conduct is subject to a loose regulation by the National Judicial Council.
Whatever the latitudes in the present environment, the Judges of Nigerian’s Supreme Court and indeed the entire judiciary establishment now have a huge moral burden. They must first admit that there has been a major erosion of the ethical and professional standards in their fold. Nigerians continue to search in vain for judges of stiff moral and ethical standards who also embodied brilliant professional standards and intellect to earn the epithet “learned”. Nigeria once had Justices Danley Alexander, Kayode Eso, Chukwudifu Oputa, T.S. Elias, Ayo Irikefe, Karibi White etc. These were men of solid conviction, profound intellect and impeccable character and commitment to the highest ethical standards. In their days, Nigerians could swear by the judgments of the Supreme Court. Even the military stood in awe of the moral stature and intellectual sagacity of these men of law and letters. As Chinua Achebe lamented shortly before he passed on, “there was once a nation.”
Our situation contrasts with the United States. Supreme Court judges serve a life tenure. They either sit till they die or voluntarily opt to retire. Every vacancy on the US Supreme Court is filled by a nominee of the president subject to Senate confirmation. More often than not, presidents nominate judges to the Supreme Court based on a combination of professional track record in the field and ideological leaning. You are either a liberal judge or a conservative. This connotes implicit partisanship in broad terms as conservative judges tend to be Republicans and liberal judges are essentially Democrats in tendency. Racial diversity has recently been thrown in as a factor that influences presidential nominations to the Supreme Court. There is no civil service pecking order to observe. It is a meritocratic system.
Given the life tenure of US Supreme Court judges, their ethical code is more or less left to their individual moral judgments as well as the perception of the public. Generally, the system frowns at Supreme Court Judges hitching a free ride in a private jet owned by a party financier or Wall Street influencer. Even enjoying a courtesy vacation or renting property as a favour from individuals or corporations with known political or business clout in Washington poses serious ethical problems.
Currently, the only black judge on the Supreme Court, Mr. Clarence Thomas, is under serious ethical scrutiny. Mr. Harlan Crow, a friend of his and Republican party funder bought a house from Justice Thomas and flew him on a private jet and also took him on a cruise. Similarly, Justice Samuel Alito took a ride in a private jet paid for by another Republican donor. Though there is no requirement under US law for these judges to report or disclose these private favours, there has been a public backlash about their conduct. This is against the background of the code of ethics in the US pubic service which bars public servants from receiving gifts in excess of $20!
In contrast, Nigerian Supreme Court judges are known to routinely receive huge gifts from business and political ‘friends’. Some of them have influenced choice public appointments for their family members and wards. Others have reportedly received holiday flight tickets and luxury hotel bookings from political and business figures in return for undisclosed judicial favours. It was rumoured that a Chief Justice of Nigeria was retired prematurely for fiddling with official funds to the tune of billions of Naira.
Another was similarly investigated, briefly prosecuted and then compulsorily retired because officialdom found an incredible balance in his personal bank account. One judge who became Chief Justice of the federation was so much in the back pocket of a former Governor that the governor would travel and bring back for the judge several suitcases full of shoes of different colours. While the judge was entitled to have friends, the problem was that the governor in question had numerous requests for judicial intervention for which he demanded the help of the shoe-loving judge. In an ecosystem where the definition of corruption is rather elastic, it becomes even harder to exonerate our judges from charges of possible graft.
On these post election cases, there is a need to urgently rescue the Supreme Court from imminent irrelevance and oblivion. The challenge is to unfetter the courts by reviewing the constitutional provisions and legislative enablement that relate to the timing and completion of post election petitions. Once we can free post election judicial processes from the burden of incumbency, then the judiciary will be free to dispense justice according to law and in pursuit of natural justice and fairness to all. Thus freed from the encumbrance and blackmail of incumbent power, all aggrieved contestants can approach the law in meekness as equal seekers for justice.
But the most important route to save the judiciary from being killed by politics is to focus attention on evolving a foolproof electoral system. When election outcomes determined by INEC become impeccably reliable, there will be little or need for recourse to judicial absolutism. The judges will regain their integrity and the Supreme Court will reclaim its faded glory.
