By Akin Osuntokun
Before grappling with the subject matter of this column today, I feel encouraged to get readers acquainted, if they are not already, with certain universally applicable concepts and perspectives of law. They are Natural law, Positive law, Judicial activism and the Separation of powers.They provide a meaningful backdrop to the surveillance of the rule of law in Nigeria
According to my sources, ‘the theory of natural law believes that our civil laws should be based on morality, ethics, and what is inherently correct; that laws should reflect moral reasoning and should be based on moral order.This is in contrast to what is called “positive law” which holds that there is no connection between law and moral order’.
Proponents of judicial activism are persuaded ‘that the courts can and should go beyond the applicable law to consider broader societal implications of its decisions.The specific decisions that are activist are controversial political issues’.
‘Separation of powers is the division of the legislative, executive, and judicial functions of government among separate and independent bodies
The purpose is to prevent the concentration of power and provide for checks and balances’.
Now to the column proper- beginning with the rave of the moment, namely, Senator Adamu Bulkachuwa. He confessed:
“Mr. Chairman, I must say that okay, to round off, since that is what you want me to do, I will do that and I must thank particularly my wife whose freedom and independence I encroached upon while she was in office and she has been very tolerant and accepted my encroachment and extended her help to my colleagues.”“I know – I look at faces in this chamber whom have come to me and sought for my help when my wife was the President of the Court of Appeal and I am sure…”
In a left handed salute and acknowledgement, Nigerians owe a debt of gratitude to Senator Adamu Bulkachuwa for laying bare before the public glare, what we have always suspected of the Nigerian judiciary. We now know for certain that the culture of rampant corruption in the Nigerian judiciary is alive and kicking, thanks to the loving husband of the former president of the Nigerian court of appeal..
The Supreme Court is the final arbiter of the law in Nigeria and the ultimate destination for all cases before the lower courts. As such, the apex court is the personification of the Nigerian judiciary, in its entirety. Hence it is from its conduct that we draw the exemplars of the culture to which Mr Bulkachuwa speaks.
First, on the last governorship election in Imo state in 2019, the Supreme Court rules:
“It is thereby ordered that the appellant votes from 388 Polling Units unlawfully excluded from the appellant vote declared shall be added and that the first respondent, Emeka Ihedioha, was not duly elected by a majority of lawful votes cast at the said election.”
Responding to this judgement, here was fellow Supreme Court Justice Chima Nweze:
“The decision of the Supreme Court in the instant matter will continue to haunt our electoral jurisprudence for a long time to come. This court has a duty of redeeming its image. It is against this background that the finality of the court cannot extinguish the right of any person. This Court has powers to over rule itself and can revisit any decision not in accordance with justice,”
In tandem, we learnt from another source that ‘Professor Ben Nwabueze accused the Supreme Court of playing a discreditable part in manufacturing a jurisprudence of electoral impunity, lamenting the failure by the Court 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.”
Second, is the Supreme court judgement on the eligibility of Senator Ahmed Lawan and Senator Godswill Akpabio to contest, simultaneously, for the presidency and the Senate haven taking no part in the APC primaries: Delivering the unanimous judgement of its five-member panel led by Kudirat Kekere-Ekun, the Supreme Court held that the Federal High Court and the Court of Appeal were wrong to have assumed jurisdiction in the suit because the issue of candidate nomination lies squarely with political parties.
The explicit implication of the judgement of the Supreme court here is that regardless of how the party candidate emerged, with or without participation in party primaries, such a candidate is eligible to contest. It also found no offence in contesting for two electoral officers at one and the same time.
Another instance is the upturning of the conviction of Senator Orji Uzor Kalu: “The trial court found him guilty of corruption in December 2019 and was sentenced to 12 years in jail. But in one of a series of questionable judgements given by the Supreme Court, his jail time was nullified on technical grounds: that the judge who jailed him was ineligible to handle the trial having been elevated to the Court of Appeal’s bench as of the time he concluded the case”.
There will always be bad eggs in any institution or organ of government including the Judiciary. In any functional society however, such bad eggs are the exception and not the rule. A situation of crisis therefore arises where the bad eggs become the rule rather than the exception. In this latter instance, what you then have amounts to institutional subversion.
At its maturation, this phenomenon is characterised as state capture- which refers to the way ‘formal procedures (such as laws and social norms) and government bureaucracy are manipulated by government officials, state-backed companies, private companies or private individuals, so as to influence state policies and laws in their favour’
It is within this concept of state capture that we can best locate the crisis of the judiciary. The other organs of government namely the legislative and the executive are, of course, equally implicated. What we then have is a systemic crisis in which none of the organs can be meaningfully isolated for remedial action.This is presently the case with Nigeria. The argument is that given the near criminal capture of all the arms of government, it is unrealistic to assume that the judiciary will not follow suit.
Nonetheless there are several dimensions to the crisis of the Nigerian judiciary. The crisis (of the judiciary) is the crisis of the Nigerian constitution, especially in regard of overcentralisation of power at the centre. Lord Acton aptly admonished that power corrupts, absolute power corrupts absolutely. Today, the most destabilising factor in Nigerian politics is the take no prisoners pursuit of the Nigerian presidency by contending factions of a self-destructive power elite.
In its zero sum dimensions, “the premium on political power became so exceedingly high that political contestants regarded victory at elections as a matter of life and death struggle” The judiciary is thereby co-opted and subverted to become the hired gun of desperate unscrupulous politicians. From this subversion at the national level, those at the subordinate levels have duly taken a cue.
Of equal significance is the utility of the unintended consequence of federalism. There is the profitable coincidence that federalism is, at once, the cure prescribed by the wholistic systemic crisis diagnosis of the entire Nigeria sickness and of a judiciary gone rogue.There is however the caveat that this ascriptive role (of federalism) is Nigeria specific. Taming a criminally implicated judiciary is not a generic role of federalism
We have come to learn that the institutional subversion of the judiciary has largely emanated from its power of adjudication over the eligibility of who should contest and who should not contest elections; who wins and who loses elections especially at the governorship and presidential election levels.
The overcentralisation of powers at the centre has precipitated and fuelled a desperation that is subversive of any legal and moral norm in the pursuit of its acquisition. Being the final arbiter of formal political conflicts, it is inevitable that the judiciary will become the major casualty of this anomaly. It then follows that any countervailing measure such as devolution and decentralisation of power will commensurately diminish the incentive to subvert the institutional integrity of the judiciary.
There is the saying that all politics is local and by dint of the same logic, it can be validly argued that all development challenges are local. For development to take root, it has to be localised and owned by the beneficiary local population especially in a polity that is defined by large scale diversities and disparities. This self-prescriptive decentralisation and devolution of powers is the philosophy behind the Nigerian federalism. It was true in 1960 as it is true today.
Even if we did not have the crisis of the judiciary in mind, whenever the case is made for the restoration of federalism, it is now clear that this constitutional remedy has the potential to tame the monster. Without the murderous desperation to acquire the presidency, it is improbable that there would be a judiciary buyer of the sale of the inducement to subvert the course of justice.
Another dimension to the ailment is the immanent threat of facistic encroachment where presidents begin to arrogate to themselves the arbitrary privilege to determine what constitutes the boundaries of legitimate judicial intervention and
pronouncements.The proper recourse for any president who is not satisfied with the conduct of the judiciary is the national judicial council. The president has no power in the constitution to appropriate and arrogate such leviathan sovereignty to himself.
In this tendency to take liberty for license we need look
no further than the exemplified pronouncements of Presidents Muhammadu Buhari and Bola Tinubu. Said Buhari “Our apex court has had cause to adopt a position on this issue in this regard and it is now a matter of judicial recognition that; where national security and public interest are threatened or there is a likelihood of their being threatened, the individual rights of those allegedly responsible must take second place, in favour of the greater good of society.” In similar fashion, Tinubu threatened that “It has become imperative to state here that the unnecessary, illegal orders used to truncate or abridge democracy will no longer be tolerated.”.
To recap, the problem of Nigeria is a near systemic collapse which must to be addressed as such if the country would survive. Pending the acceptance of this prescription, all attempts at isolating the sporadic and episodic manifestations for remedial initiatives will end up in self-defeating smokes and mirrors.