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I sympathise with the Nigerian judiciary. This is because, of all the state institutions, executive, legislative, the judiciary, the press and Civil Society Groups, it is by far the most vulnerable. It has in the last few years gone through great stress and strain as a result of the conspiracy of the executive and the legislative arms of government which with lacuna deceptively left in their laws, tie the hands of the judiciary they both regard as a stumbling block because quite often they are driven by selfish interest as against public interest.
This perhaps explains why the political class and their political parties, according to the Chief Justice of Nigeria, Olukayode Ariwoola “could not manage their affairs well and ended up having about 600 cases from the party primaries alones in courts” during the last election. Unfortunately, instead of putting their rancorous house in order, the judiciary which is often made to carry the can for the malicious actions of politicians, often become becomes the scapegoat. The fear until last week was therefore whether tarred with the same brush with the political class, the judiciary that is increasingly coming under threat of political sore-losers, their supporters, their sympathetic media and those pretending to be public intellectuals, can as a part of a whole, be holier than the whole.
But the current leadership of Nigeria’s Supreme Court gave an indication of the direction it was headed when on Thursday October 22, 2023, it upheld President Bola Tinubu’s election through a unanimous judgment passed by seven Supreme Court judges, who threw out his challengers’ opposition which did not question the fact that he won the election ‘round and square’ with 37% of the popular votes at the expense of his warring opponents, but based on purely technicalities. It last Friday further consolidated this position when it chastised the justices of the various appeal courts that had attempted to upturn victories of popularly elected governors including Lagos State governor, Babajide Sanwo-Olu, Alex Otti of Abia, Bala Mohammed of Bauchi, Cross River’s Bassey Otu, Abba Yusuf of Kano, Caleb Mutfwang of Plateau, Francis Nwifuru of Ebonyi and Dauda Lawal of Zamfara.
With the Supreme Court’s last Friday judgment, hailed by the opposition as “representing the triumph of democracy…and reaffirming the sanctity of the ballot as the determining factor for democratic legitimacy,” came some relief for the embattled Supreme Court whose credibility had for years been under repeated assault of political gladiators.
Its travail started when the Supreme Court nullified the election of Emeka Ihedioha of the Peoples Democratic Party (PDP) as governor of Imo State and declared Hope Uzodimma of the All Progressives Congress (APC) as the winner of the March 9, 2020 governorship election even when the latter came a distant fourth during the state gubernatorial contest. The Supreme Court was to lose further credibility with the high-profile political cases of Lawan Vs Machina and Godswill Akpabio Vs Independent National Electoral Commission (INEC) and others, in which the court endorsed Akpabio and Lawan as candidates for the senatorial seats of their constituencies even though they were not available for the primaries of their political parties.
The cases according to a Punch newspaper editorial “have evoked excoriating public criticism and perceived somewhat as perverse… The decisions show that the Supreme Court is slavishly adhering to technical legalisms and formalism at the expense of substantial justice”. And for the same reason, Lasisi Olagunju of the Tribune accused the “the Supreme Court justices of abducting this democracy… and deciding who rules and who does not… They have evolved to become Bashorun Gaa of Old Oyo; they enthrone and dethrone as it pleases them.”(Nigerian Tribune Dec. 18, 2023).
The credibility of the apex court got further battered with “All eyes on the judiciary’ smear campaign led by sore losers – Atiku Abubakar and Peter Obi and their supporters in the February 2023 presidential election. They openly expressed lack of confidence in the ability of the current leadership of the Supreme Court to guarantee justice and went on to claim without proof, that the judiciary under him was the worst in 45 years. Last week they swallowed their words.
But there are others who were genuinely concerned about the fate of our country and that of our young democracy. Among such concerned Nigerian opinion leaders are ex-president Goodluck Jonathan and Femi Falana (SAN), a celebrated human rights lawyer). For President Jonathan “the ballot paper should decide who holds any elective office from the councillorship to the presidency. That is democracy. “I am not saying the judiciary is not doing well. But my point is that our laws should suppress the issue of the judiciary returning candidates… If a candidate is declared winner after a flawed electoral process, what the courts can do is to annul the election and order a fresh one, where a winner will finally emerge through the ballot.”
And for Femi Falana and others, “Judges are not suited to determine the winners of elections…determining winners of election is an exclusive reserve of the Independent National Electoral Commission” (INEC) if things are done properly”.
Last Friday’s Supreme Court ruling must therefore be seen as a tribute to all those who campaigned for the sanctity of elections based on electorate’s votes cast at the polling booths and as much a tribute also to the current leadership of the Supreme Court that chose to listen to the people.
It is on record that similar campaign carried out in the past was ignored by the past leadership of the apex court who was probably convinced that justice was better served by upturning victories of popularly elected candidates on technicalities to demonstrate the judiciary’s zero-tolerance for disobedience of court orders as was the case in Zamfara in 2019 when duly elected officials from governorship to state House of Assembly members lost their positions and in Rivers where candidates and their supporters were disenfranchised.
The current leadership of the apex court on the other hand, whilst not denying that there was disobedience of courts orders in Plateau State, was sensitive enough to protest by voters in both Plateau and Kano to come to terms with Lord Denning’s dictum to the effect that “Justice must be rooted in confidence, and confidence is destroyed when right-minded people go away thinking: “The judge was biased.”
But the current leadership of the Supreme Court and the NJC and the president must go a step further by ensuring those Appeal court justices chastised for ignoring Supreme Court’s earlier pronouncements and for presiding over cases in which they did not have jurisdiction in Kano and Plateau must be sanctioned. In the corporate world, once there has been an infraction of corporate rules, the opportunity of getting to the apex of one’s profession by the erring officer becomes very slim. The problem with the judiciary is that judicial officers are hardly sanctioned for infractions or incompetence but promoted even when their fitness is in doubt.
As argued by Abiodun Owoniko (SAN) while answering questions on ARISE Morning show last Tuesday, ‘there should be career progress delay’, before they are allowed to move to the next level which is the Supreme Court” because of the danger they pose to the health of the judiciary.