The judicial conundrum and coming elections

The Nigerian judiciary has always been central to the entrenchment of the rule of law. It is one of the three arms of government that has struggled through the infamy of executive interference whether by military or civilian governments yet not relented in its protective function as the watchman of the system.  Time and again, the judiciary has saved the polity from dictators and fundamentalists from both ends of the Nigerian leadership spectrum, often at the expense of the lives of its members. During repressive military regimes, it was the judiciary that was the bastion of hope for the common man. In 1974, the Supreme Court in the case of E.O Lakanmi & Ors v. A.G Western Region through Justice Ademola Adetokunboh and his brothers, Justice George Baptist Ayodola Coker, Justice Ian Lewis, Justice Charles Olusoji Madarikan and Justice Udo Udoma questioned the fundamentality of military decrees. The response of the General Yakubu Gowon regime would be to promulgate Decree No. 28 of 1970, nullifying decisions of the courts taken before or after the decree. Similarly, the Supreme Court came to the rescue yet again in the case of Gani Fawehinmi v. General Sani Abacha where the sanctity of the constitution was upheld.

In spite of these recorded successes of the judiciary in upholding the rule of law and many reforms it has undertaken to ensure it carries out its functions effectively, it continues to be the whipping boy for the failings of the system.  In October 2016, agents of the state secret service, the DSS, raided the homes of notable judges across the country. Federal High Court judges like Justices Adeniyi Ademola and Nnamdi Dimgba found themselves playing hosts to the DSS, along with Justices Sylvester Ngwuta and John Okoro of the Supreme Court. In Kano, the residence of a High Court judge, Justices Kabiru Auta, along with the residences of Muazu Pindiga of Gombe, Justice Samia of Sokoto, Justice Mohammed Liman of Port Harcourt and Chief Judge of Enugu, Justice A.I Umezulike, were raided. While many regarded these raids as a violation of the law, the president’s many supporters who favour strongman antics of his government applauded the raids. For these supporters, delineation of power among branches of government is an expendable theory, to be discarded for a more monarchical approach to governance with reliance on the amiable goodness of the president’s kingly nature to govern well. Drawing inference from their rhetoric on physical and virtual spaces, the president’s integrity was an institution itself and therefore could replace democratic institutions in the fight against anti-corruption. Media trials commenced and as usual charges were laid against the judges and the mantra of ‘judiciary needs to be cleansed’ controlled the narrative.

On the January 25, 2019, Nigerians woke up to the news that the president had taken the onslaught against the judiciary further by suspending the Chief Justice of Nigeria, Walter Onnoghen, based on the order of the Code of Conduct Tribunal. The president immediately swore in Justice Ibrahim Tanko Mohammed as Justice Onnoghen’s replacement. His action nearly sparked constitutional crisis and a conundrum emerged, giving rise to questions on the legality of the CJN’s suspension. Many argued that the 1999 Constitution, the grundnorm of all laws in Nigeria, clearly outlines the procedure for the removal of the CJN in Section 292 and that the executive circumventing the constitution in favour of an interluctory injunction at the CCT had executed a coup. Relying on procedural law to mediate the conundrum, it is clear that there were breaches occasioned by the executive’s action.  According to Section 3 of the Code of Conduct Bureau and Tribunal Act, a case of asset declaration involving a public official shall first be lodged at the Code of Conduct Bureau before proceeding to the tribunal, and where the officer admits his error, the matter need not proceed to the tribunal at all. This provision, like that of Section 21 empowering the NJC to make recommendations to the president on the hiring and firing of the CJN, has been largely ignored by the executive. In defence, the executive has maintained that the political undertone to this action is merely in the imagination of mischief-makers and that the CJN’s offence before the law is his failure to declare his assets.

No sooner had Justice Onnoghen been stripped of his office and dragged before the court of public opinion, did a high court sitting in Gusau, Zamfara state, on January 25, 2019, ruled that the APC be allowed to present candidates in the elections. Even though Justice Ijeoma Ojukwu of the Federal High Court in Abuja took a contrasting decision on the same day, Governor Yari of Zamfara in recognition of the Zamfara judgment has commenced his campaign on behalf of Alhaji Muktar Shehu Idris, his former Commissioner for Finance, who is running for governor. Similarly, in Rivers, the Appeal Court on February 4, 2019, granted a stay of execution of the judgment of the High Court nullifying APC primaries in Rivers state, giving the APC another opportunity in the political playing field. The Supreme Court on February 8, 2019, through Justice Mohammed Dattijo and four other justices, would reverse this decision, upholding the ruling of the High Court. An observer of these events may not be entirely wrong to marry the judicial rigmarole to the suspension of the CJN.

This writer believes the concern of the executive for the rule of law is commendable and is not interested in pointing out that many in the current administration have been found wanting in respect of the law. Procedural law exists to check the judiciary and is a form of democratic control. Let the law run its course without interference from the executive arm of government. Let the NJC do its job as it has done in the past in respect of erring officers.

The coming elections will also be a test for the Buhari government. As more and more government agencies fall in line in clear violation of the principle of bureaucratic neutrality as enshrined in the Electoral Act and the constitution, whether through the attendance of their agency heads at political events or deployment of state resources towards the presidential bid of the president, the question of INEC’s ability to be an impartial umpire is unavoidable. Can the body, witnessing the intimidation of presumed enemies of this government, deliver free, fair and credible elections? Will the Buhari executive continue its tradition of interfering with the functions of established institutions? Independent institutions are the distinguishing hallmarks of modern democracies. The executive must refrain from engaging in actions that will take us back to the days of tyranny and oppression.

Ayim, a lawyer, writes from Abuja.

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