By Chidi Odinkalu
“Because judges are part of
government, acting on our behalf, we are entitled to require them to abandon
their priesthood and to present their activities for assessment by
laymen.” David
Pannick, KC, Judges, p. 17 (1987)
The Guardian’s obituary on Bernard Levin, the celebrated Times columnist who died in 2004 after a long battle with Alzheimer’s disease, described him as “a passionate and eclectic journalist with a legendary capacity for work, whose career made him a host of friends – and enemies.” Among these enemies, few were as determined as the legal profession.
David Pannick, KC, recalls that Mr. Levin’s settled view was that “the legal profession had an infinite capacity for deluding itself.” He had good reason. When Rayner Goddard retired as Lord Chief Justice in 1958, Bernard Levin’s evisceration of his judicial record inspired “a clandestine meeting at which the higher judiciary considered whether the uppity columnist might be done for criminal libel.” The idea was eventually dropped.
At Lord Goddard’s death in May 1971, leading members of the legal profession
lined up to exalt his memory. In one of his less durable predictions, Lord
Denning infamously foresaw that Goddard would “go down in our annals as one of
the greatest Chief Justices.” Bernard Levin differed, describing Lord Goddard’s
tenure in the office of Lord Chief Justice as a “calamity” and his conduct on
the bench as “unjudicial.”
For his gumption, Mr. Levin
suffered condemnation from the legal profession and “after the 1971 piece
appeared Levin’s application to join the Garrick (Club) was blackballed,
supposedly a sort of revenge.” The legal profession provided a sizeable chunk
of the membership of the club.
In the quarter century after
Goddard’s death, the public came around to Mr. Levin’s viewpoint. Lord
Goddard’s clerk, Arthur Harris, would disclose that he always had “to take a
spare pair of the standard striped trousers to court on sentencing days”
because “when condemning a youth to be flogged or hanged, Goddard always
ejaculated.”
The judiciary also had reason to
revise its views. In 1998, the Court of Appeal set aside his 1952 conviction of
Derek Bentley (who was subsequently hanged in 1953) because the language of his
jury instructions were “not that of a judge but of an advocate.”
In Nigeria, the legal profession
claims to be descended from England. Its inheritance from its colonial
progenitors appear, however, to be a peculiarly tropicalized malignancy that
condemns it to a preoccupation with navel gazing. In a season in which even
senior-most judges of the highest courts of the land loudly lament the
desecration of the values of an independent judiciary, the Nigerian Bar
Association (NBA) seems bent on proving that the only courts of any worth are
those created for Kangaroos.
Pauline Tallen’s is a defining
case study. To be sure, Ms. Tallen is no ordinary citizen as such. She is a
senior politician and a reasonably successful one. In 20 years between 1999 and
2019, she was a two-time Minister in Nigeria’s federal cabinet. In 2007, she
was elected deputy governor of Plateau State, becoming the first woman to
occupy that office in any of the 19 states of Northern Nigeria.
Sometime around 15 October,
2022, Ms. Tallen was a prized guest at the reunion of the Federal Government
Girls College, Bida. The event took place in Abuja. At the time, she was also
the Minister for Women Affairs and Social Development in the cabinet of
President Muhammadu Buhari.
On the margins of that encounter, Ms. Tallen encountered the media to
whom she described a judgment of the Federal High Court as a “Kangaroo
judgment”, opining that it “should be rejected by all well-meaning Nigerians.”
At the time, Yakubu Maikyau, a
Senior Advocate of Nigeria (SAN) was less than two months into his tenure as
president of the Nigerian Bar Association (NBA), a non-governmental cartel that
exists to protect the narrow vocational interests of lawyers in the country
under the rather overblown motto of “promoting the rule of law.” For Mr.
Maikyau, Ms. Tallen made an inviting burnt offering for his vocational
shrine.
On 14 December, 2022, two months
after she made the statement, Mr. Maikyau’s NBA sued Ms. Tallen before the
Federal High Court in Abuja, claiming that her statement was “unconstitutional,
careless, reckless, disparaging, a call to disobey the judgment of court, and
therefore contemptuous of the Federal High Court of Nigeria.”
This took rhetorical
hyperventilation to a whole new level. Ms. Tallen did not claim to be
exercising any ministerial powers when she spoke on 15 October 2022. She voiced
her opinion, which did not bind anyone, including indeed herself. Even if what
she said was careless or reckless in the opinion of the NBA leadership, there
was absolutely nothing unconstitutional about it.
But, an NBA leadership
inebriated with an overwhelming sense of its own significance, would not be
deterred by good sense. They asked the court to find Ms. Tallen had breached
her oath of office to defend the constitution and, by virtue of that, to
declare her unfit to hold public office. The NBA also asked the court to
require her to purge “herself of the ignoble conduct” by publishing a
retraction of her statement in a full page of the Guardian and Punch
newspapers or, failing that, to be banned from holding public office.
This case went before Peter
Kekemeke, a judge of the Federal High Court, who, on 18 December 2023, granted
the NBA all that they asked for, including a “perpetual injunction restraining”
Ms. Tallen “from holding any public office in Nigeria by reason of her conduct
complained of.”
Writing in 1980 for the Supreme
Court of Nigeria in Raimi Edun v. Odan Community, Justice Anthony Aniagolu
emphasised that “the moment a court ceases to do justice in accordance with the
law and procedure laid down for it, it ceases to be a regular court to become a
kangaroo court.” With this case between the NBA vs Pauline Tallen, it is
amazing how a judgment could be so deliberately calibrated to damage the good
name of Kangaroos.
To begin with, on its terms, the
NBA charged Ms. Tallen with contempt of the Federal High Court. This is a
crime. Of course, a court has the powers to protect its own authority against
acts that disparage it. If the act is done within its precincts, the court can
do so summarily. That was not the case here. If the disparagement occurs
outside the precincts of the court, then the power to protect the authority of
the court does not lie in an NGO like the NBA. All that such an NGO can do is
report to the Attorney-General of the territory, who has the power to prosecute
the erring person.
In this case, the NBA took it
upon itself to topple the office of the Attorney-General of the Federation and
arrogate the powers of that office to itself. As a matter of law, the NBA
lacked the standing to invoke the jurisdiction of the court or seek the
remedies it did. Rather than direct the NBA to what it should do, the judge
enabled their malignant misbehaviour.
But he did not stop there. He turned
civil proceedings into a criminal one, and then sentenced Ms. Tallen to
criminal forfeiture of the most basic of her civic rights on the basis of civil
standard of proof and, all of this at the instance of a self-regarding
cartel.
It is impossible to speak too
lowly of this judgment, of the applicants who initiated it or of the judge who
entertained it. The only surprise is that a case which was supposed to have
been instituted to show how a Nigerian court is not of the kingdom of
Kangaroos, actually has ended up demonstrating precisely the opposite.
*A lawyer and a teacher, Odinkalu can be reached at chidi.odinkalu@tufts.edu
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