By Chidi Anselm Odinkalu
In June 2020, Malawians took to the streets and the judges joined to resist the attempt by President Peter Mutharika to fire Chief Justice Andrew Nyirenda in order to enable him rig a presidential re-run. The people trusted the Chief Justice more than the president, so they got rid of the president in order to keep the Chief Justice. One month later, in Mali, an uprising began when an unpopular ruling party used the Constitutional Court to rob the opposition of its victories, eventually leading to the dissolution of the court and a military coup.
Judicial immersion in political disputes is hazardous and judges called upon to do it have a clear choice to either resist importunations that compromise their authority or canoodle with the politicians at the risk of irremediable damage to judicial office. Nigeria’s Supreme Court appears to have made its choice and the consequences are unflattering.
At
the beginning of 2019, the President Major General Muhammadu Buhari (retd), procured the termination of a Chief Justice of Nigeria in
a manner that manifestly flouted the constitution. A public long inured to the
machinations of a judiciary many of whose senior members appeared to treat
their judicial oaths with levity, chose not to take notice.
This
denouement was long in the making. On January 18, 2008, Nigeria’s Supreme Court
installed Chibuike Rotimi Amaechi as Governor of Rivers State in Nigeria’s
Niger Delta. Mr. Amaechi scored 6,527 out of 6,577 votes cast in the primaries
organised by the then ruling Peoples’ Democratic Party ahead of the
governorship election on April 14, 2007. The party hierarchy duly forwarded his
name to the Independent National Electoral Commission as its candidate.
However, on February 2, 2007, the
party withdrew Mr. Amaechi’s name and asked INEC, then chaired by an alchemist
called Maurice Iwu, to substitute in his stead one Celestine Omehia who did not
participate in the primaries. Mr. Amaechi sued to challenge the substitution
but while the case was pending, the party dismissed him from the PDP; INEC then
organised the elections, declaring Mr. Omehia the validly elected governor of
Rivers State.
In
a judgment of unprecedented audacity, the Supreme Court on October 25, 2007,
sacked Omehia, affirming Amaechi as the winner in which he did not campaign. In
reasons issued on January 18, 2008, Adesola Oguntade,
the Supreme Court Justice who delivered the lead judgment with which all six
other justices on the panel concurred, said “the sum total of the recent
decisions of this court is that the court must move away from the era when
adjudicatory power of the court was hindered by a constraining adherence to
technicalities. This often results in the loser in a civil case taking home all
the laurels while the supposed winner goes home in a worse situation than he
approached the court.”
Olayiwola
Aderemi, another Justice on the panel, added, “The judgments of this court must
not be final only in name, but must be seen to be really final in the sense
that they have legal bite that makes the judgments truly conclusive. All issues
that will make its judgments reasonable and conclusive must be clearly
addressed by the Supreme Court. This court has a standing and rigid invitation
to do substantial justice to all matters brought before it. Justice to be
dispensed by this court must not be allowed to be inhibited by any
paraphernalia of technicalities.”
Whether the Supreme Court has any
memory of having issued these is now questionable. On January 13, 2020, the
court issued a decision by which it declared as winner, the man who came fourth
in the 2019 election for Governor of Imo State. To arrive at that wonderment, the court relied solely on the
evidence of a manifestly crooked deputy commissioner of police with a wizard’s
calling in conjuring up votes from ghosts. Invited to review an evidently
perverse outcome the following month, a majority of the court framed the
question as a challenge to their existence, making avoidable fetish out of an
outcome that brought the court to manifest disrepute.
One
Justice, Chima Nweze, from Enugu State (not far from Imo State, the theatre of
this judicial magic), dissented, warning with remarkable prescience
that the judgment “will sooner or later haunt our electoral jurisprudence.” The
judgment accomplished more, however; Imo State promptly descended into anarchy
under the rule of a Governor voted for exclusively by Supreme Court Justices
none of whom will ever live near Imo State.
The Supreme Court appears not to
have taken any notice though. In Yobe North Senatorial Zone, in North-East
Nigeria, Bashir Sheriff Machina emerged in May 2022 as the candidate of the
ruling All Progressives Congress to fly its flag in the contest to represent
the constituency in the Senate in the 2023 general election in primaries
monitored by INEC. That seat also happens to be occupied by the current Senate
President, Ahmed Lawan, who has been in the National Assembly since 1999. In
June 2022, Dr. Lawan sought and lost the ticket of the party for the
presidency. INEC did not monitor any other APC primary for the Senate in Yobe
North, so no other person could have emerged validly besides Machina.
Yet,
on February 6, 2023, the Supreme Court ruled that Ahmed Lawan,
who did not participate in the only valid primary, was the APC candidate for
the Yobe North Senate seat. Conveniently disregarding its own decision 15 years
earlier requiring the court “to do substantial justice to all matters brought
before it,” a three-person majority hinged its decision on the jaw-dropping
premise that the lower courts lacked jurisdiction to question bare-faced
robbery perpetrated against the winner because an originating summons was the
wrong form of action by which to commence the proceedings. Chima Nweze, who
dissented when the case affected his people in South-East Nigeria wrote the
lead judgment this time while Adamu Jauro, the Supreme Court Justice from Gombe
which borders Yobe State in North-East Nigeria, dissented.
Machina
sued by originating summons because a Practice Direction by the Chief Judge of the Federal High
Court in July 2022 required that. If he failed to comply, the
Court would have declined his case. The Supreme Court punished him for
complying with the rules of court applicable when he sued. To achieve that, a
five-person panel of the court effectively overruled long-established precedent
which only a seven-person panel can.
A
friend described the court’s reasoning as “agricultural jurisprudence”; and
another complained that it felt like “a scene of profound judicial
hooliganism.” “Supreme Court Machinates Machina” was how
one newspaper described it. In a 2009 book, Obi Nwabueze, law professor and
Senior Advocate of Nigeria (SAN), accused the Supreme Court of having played a
“discreditable part” in denuding the courts and governance in Nigeria, citing
the court’s chronic failure “to appreciate that the question of who should rule
Nigeria is not one to be decided by a perverse and narrow legalism, by the
technicalities of the rules of evidence, practice and procedure and by
considerations of expediency.”
Not
done, on 8 February, the Supreme Court issued an exparte order in
an original jurisdiction suit initiated by three states concerning the
implementation of Central Bank of Nigeria policy. The claimants deliberately
failed to join the CBN because they knew that if they did, the court would
decline the case in its original jurisdiction.
Much of what issues from the
Supreme Court these days in these matters of high political salience cannot be
explained logically. To many, the Court has become a danger to the rule of law
as no one can sensibly advise anyone based on predictions of what a responsible
court would do.
15
years ago, Olayiwola Aderemi, sitting as a Justice of Nigeria’s Supreme Court,
warned that “democratic government and society as a whole can only function
fairly and properly within a framework of laws, justly, fearlessly and fairly
administered by men and women who have no obligation save to justice itself….
it does not, of course, mean that judges are licensed to do exactly as they
like; quite the opposite. They must allow themselves to be guided by well
tested principles so fashioned that lead to justice.” Could the Supreme Court
be hard at work to ensure democratic government and society as a whole don’t
function?
*Odinkalu, A lawyer and teacher, can be reached at chidi.odinkalu@tufts.edu
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