Likelihood of bias: When should a judge disqualify self from proceedings?


The opposition Peoples Democratic Party (PDP) and its candidate, Alhaji Atiku Abubakar, believe they would not get justice at the Presidential Election Petition Tribunal except the President of the Court of Appeal, Justice Zainab Bulkachuwa steps down as chairman and member of the tribunal. They fingered her alleged affinity with the ruling All Progressive Congress (APC) as reason. They have consequently made an oral protest to the tribunal to which they were directed to formally document their apprehension. Our Correspondent, KEHINDE OSASONA, got reactions of cross-section of lawyers on the moral issue. Excerpts:

Bulkachuwa should recuse herself- Daniel Venda

Yes, I heard, but I am not sure. You will confirm that. There was an allegation that Bulkachuwa alleged to have said: ‘No matter how elections are conducted, someone will always complain’ and that pre-supposes that elections that were conducted were okay and someone is complaining. So, the losers will always complain.

Is she denying that allegation or not? That for me will determine whether or not she needs to recuse herself. And she should not give a ruling on that by herself; she should be testifying that she never made such an allegation. But if she knows that she did, it is only expected that she recuses herself if she knows she will not be fair.

If she made such a statement, which I cannot verify because I was not there, then the statement in itself makes the losers look like somebody that does not have a good case and he is crying foul simply because he or she lost. So, it makes the chairman look as if she does not have an open mind.

Already there is a legal ground for them to feel that she would not be fair. So, I think I will support that she should withdraw her membership of the tribunal.

It is advisable for Bulkachuwa to step aside – Kolawole Isaac

Morally speaking and legally speaking, once a judge is presumed to be biased or there is likelihood of bias in whatever the outcome of a judgment could be, it is advisable for the said judge to step aside.

First and foremost, it is assumed that the influence of Bulkachuwa’s husband, an APC Senator-elect and his son’s who also contested under APC cannot be wished away.

It is presumed in the public parlance that such a person may not give a valid judgment or that there may be likelihood of bias.

Even if she feels otherwise, irrespective of the outcome, for reasonable people out there, their assumption could be that she is likely to compromise. My candid advice at this juncture is that she should step aside and allow other judges carry on with the task ahead.

I align myself with Atiku, legal team’s position -Barr. Chijioke Dike

I believe apart from the morality side of it, I subscribe that she should step down. Even legally, when a litigant loses confidence in a presiding judge, automatically he or she should just hands off so as not to alter the cause of the proceedings.

Even in your normal regular court, once a litigant or appellant or whoever that is in court says No, ‘I don’t want this matter to be before this judge’ both on moral and legal grounds, the judge will leave, he or she should recuse. There are many instances like that.

In essence, I align myself with the position of Atiku and his legal team on this matter.

The allegation made by PDP legal team in order – Barr. Monday Adah

As a practising lawyer, even in my dream world, if this question is thrown to me, I don’t have cause to re-think before I give the expected answer: I think Bulkachuwa should step down with immediate effect.

The PDP legal team are not just alleging, they were pointing to issue of fact that were glaring to the world upon which this court is placed. Ordinarily, the court has envisaged this long time before today. Mind you, PDP is not calling that she should not become court of appeal justice again, no. That is not the call.

Come to think of it, if she decided to take the case file home to work on it, how will she conceal the case file from her husband? No way. And there is no way the husband will see the file and not get interest in the case.

But at this particular panel, ‘excuse yourself and allow a neutral judge take charge’. That was PDP’s demand and in order to clear other people’s mind as well, I think it is in order that she steps aside.

It is left for the court to decide – Moses Awuru

What the law says is that if you have any reason to doubt the confidence of a panel or any of the members, you can raise that. That was exactly what PDP has done by challenging the competence of the president of the Court of Appeal.

For now, it is left for the court to decide whether what they rely on in challenging the competency of the court of Appeal is genuine or not. That is what is before the court and now it is left for the court to decide.

Parties in legal matter has rights to raise issues – Haroun Eze

My reaction is that a party in any matter has the right to raise issues that will amount to justice being done. For the PDP to have raised issue that the presiding judge should excuse herself and not preside over the matter, then there is more to it.

Meanwhile, the court has asked the PDP to make formal application to that effect. So, it is left for the court to decide the matter to see whether there is substance in the issue that has been raised or not.

On whether on moral or legal ground she should remain in the panel, the position of the constitution is clear: Where such a matter is before a court and there is suspicion that the judge would not do reasonable justice because of interest, then the onus is on the parties involved to do the needful.

She can continue if … Emmanuel Utomi

It is a matter before the court which bothers on morality. So, if they are asking for the president of court of appeal to step down on moral ground, then the court has to look at reasons adduced by the PDP and its legal team.

However, caution must be taken so that next time somebody will not just wake up one day and say ‘step down’ on moral ground. So, it should not be automatic because she also has the legal right to stay put. Again, what if it now amounts to dancing to the tune of enemies?

The position of the law is clear on what judges should do if … – Benneth Nnaemeka Eke

The position of the law is that when a judge is sitting in a matter and there is a doubt or there is an allegation that she has an interest in that matter, no matter what, that judge has to excuse him or herself.

Knowing full well that whatever decision she might take whether wrongly or rightly, that doubt would always be there.

For me it is not good for the legal system, the Nigerian judiciary and court as an independent arbiter when such doubt continues to pervade in the system.

So, when a judge is sitting and there is an allegation against him or her or is related to the litigant in respect to that matter, that judge is supposed to excuse herself. That is the position of the law or else whatever she dispenses could be overturned by an apex court.

Without Bulkachuwa, the panel can still be re-constituted – Benard Nafagha, Ex-NBA Chair, Bwari

In any case, Justice should not only be done but seen to have been done. Since the PDP and its legal team are apprehensive, I think the proper thing is for Bulkachuwa to recuse herself from the panel. Without her, the panel can still be reconstituted.

If she refuses and at the end of the day PDP loses, they will say ‘Ooh, we said it before’ and if they did not, it would be as if it was as a result of pressure mounted on her that made her to rule otherwise.

So, the best thing is for her to recuse herself considering the affinity with ruling government as alleged by the petitioners.

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