THE COURTS AND POLITICS IN NIGERIA TODAY
BEING THE TEXT OF THE PAPER PRESENTED BY CHIEF, THE HON. U. N.
UDECHUKWU, SAN AT THE NATIONAL CONFERENCE ON NIGERIAN
GOVERNMENT AND POLITICS, 1999 – 2004 AT THE UNIVERSITY OF
NIGERIA, NSUKKA ON THE 22ND DAY OF APRIL, 2004.
The classical approach to academic paper presentation, as I was taught, is to begin by
defining the terms. So I should probably define such terms as “courts” and “politics”. By
“today“ we shall refer to the time frame starting from the 29 th day of May, 1999, being
the day when Nigeria began yet another experiment with Constitutional democracy as a
form of Government. That time frame shall expire today, as I present this paper, since I
cannot pretend to know what will happen tomorrow.
“Politics” is defined as “the art and science of Government, public life and affairs” 1. I find
this definition intriguing, because the same source defines “politic” in relation to an
action, as “judicious”, “expedient”. And of a person as “prudent”, “sagacious”. One
therefore expects a “politician” to be one who acts judiciously and one who is prudent
and sagacious. Whether this definition holds through in relation to the politician in
Nigeria today, is a matter for serious debate.
“Court”, means a judicial body hearing legal cases2. For our purpose, we are concerned
with the institution, which under the provisions of the 1999 Constitution of the Federal
Republic of Nigeria, are vested with the judicial powers of the federation 3. In this
context, it is appropriate to discuss very briefly, the trinity doctrine in relation to the
plenitude of the powers of the Federal Republic of Nigeria as enshrined in the
Constitution of the Federal Republic of Nigeria 1999. Let me state here that whenever
the term “Constitution” is used in this paper, that is a reference to the Constitution of the
Federal Republic of Nigeria, 1999.
SEPARATION OF POWERS
The Constitution, and indeed the other Republican Constitutions of 1963 and 1979 of
the Federal Republic of Nigeria adopts in principle the concept of Separation of
Governmental Powers and the exercise of these powers by three organs, namely the
Legislature, the Executive and the Judicature.
Chapter 1, part II, of the Constitution deals with this separation of powers. The National
Assembly, consisting of a Senate and a House of Representatives, constitutes the
Legislature of the Federal Government.4 The House of Assembly represents the
Legislature of each State Government5. I shall say no more about the Legislature,
except so far as is necessary to relate its activities positive or negative to the theme of
this paper.
Section 5 of the Constitution provides for the Executive powers of the Federation. These
are vested in the President for the Federation and the Governors for the States. Again, I
shall say no more about the Executive except in so far as the exercise of the Executive
powers impacts on the exercise of judicial powers and functions today.
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THE JUDICATURE
The Judiciary is that branch of the government charged with the exercise of the judicial
powers of the Federal Republic of Nigeria. Section 6 (1) of the Constitution enacts that
the judicial powers of the Federation shall be vested in the Courts to which the section
relates being Courts established for the Federation. The Courts so established are The
Supreme Court of Nigeria, the Court of Appeal, the Federal High Court, the High Court
of the Federal Capital Territory, Abuja, the High Court of a State, the Sharia Court of
Appeal of the Federal Capital Territory, Abuja, the Sharia Court of Appeal of a State, the
Customary Court of Appeal of the Federal Capital Territory, Abuja, the Customary Court
of Appeal of a State; such other Courts as may be authorized by law to exercise
jurisdiction on matters with respect to which the National Assembly may make laws; and
such other Courts as may be authorized by law to exercise jurisdiction at first instance
or on appeal on matters with respect to which a House of Assembly may make laws 6.
The National Assembly or any House of Assembly may establish any Court other than
those listed in the Constitution to exercise subordinate jurisdiction to that of the High
Court. Furthermore, the National Assembly or any House of Assembly may abolish any
Court which it has power to establish or which it has brought into being7.
It will be safe to generalize by saying that the Courts vested with the exercise of the
Judicial Powers of the Federation include the Magistrate’s Courts, the Customary
Courts and such other Tribunals and Courts as the Legislature may establish from time
to time either for the Federation or for any of the States of the Federation. It is these
Courts both expressly mentioned in the Constitution or within the contemplation of the
Constitution that constitute the judiciary or the judicature under the Constitution. When
used in this paper therefore, “Courts”, “judiciary” and “judicature” shall refer to the same
institution, namely the organ or branch of government charged with judicial functions
and vested with the judicial powers of the Federal Republic of Nigeria.
CHECKS AND BALANCES
The fundamental character of the concept of Separation of Powers as envisaged under
the Constitution is the interplay of Checks and Balances. By this interplay, the fiction is,
that each arm of government shall be a check onto the others, and that each arm of
government shall be autonomous within its sphere. This is a fiction properly so called
because the three arms of government are by the Constitutional framework expected to
operate an overlapping system of administration. Each must carry on in a manner
complimentary to and not subversive of the other two towards peace and good
government. This however, is outside the scope of this paper. We are to concentrate on
the place of the Judiciary in the Constitutional scheme of things and we shall be
concerned specifically with an inquiry into how well the Courts have faired today in the
face of the political realities of the day. It is only within this narrow perspective that we
shall delve ever so briefly into the scheme of separation of functions and of interplay of
checks and balances.
JUDICIAL POWERS
Section 6 (6) of the Constitution enacts that the judicial powers vested in the judicature
by the Constitution shall extend, notwithstanding anything to the contrary to all inherent
powers and sanctions of a Court of law. It shall also extend to all matters between
persons or between government or authority and to any person in Nigeria and to all
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actions and proceedings relating thereto for the determination of any question as to the
civil rights and obligations of that person.
Section 36(1) of the Constitution provides that in the determination of his civil rights and
obligations including any question or determination by or against any Government or
authority, a person shall be entitled to a fair hearing within a reasonable time by a Court
or other Tribunal established by law and constituted in such a manner as to secure its
independence and impartiality.
Section 46(1) of the Constitution also prescribes that any person who alleges that any of
the provisions of chapter IV of the Constitution, dealing with fundamental human rights,
has been, is being, or is likely to be contravened in any State in relation to him may
apply to a High Court in that State for redress.
Section 232(1) of the Constitution, vests in the Supreme Court, to the exclusion of any
other Court, original jurisdiction in any dispute between the Federation and a State or
between the States if and in so far as that dispute involves any question whether of law
or fact on which the existence or extent of a legal right depends 8.
Based on these general powers, the various Courts have jurisdiction conferred on them
by and under the Constitution. This is usually amplified by the jurisdictions of the various
Courts as set out in the various statutes establishing them.
Without prejudice to the general jurisdiction of the Courts, the Constitution further
enacts at Section 4 (8) of the Constitution that except as the Constitution otherwise
allows, the exercise of Legislative powers by the National Assembly or by the House of
Assembly shall be subject to the jurisdiction of the Courts of Law and judicial tribunals
established by law. Accordingly, neither the Federal Legislature nor the State
Legislature shall enact any law that ousts or purport to oust the jurisdiction of a court of
law or of a judicial tribunal established by law.
It can be seen from this general survey of the Constitution that it is the Constitutional
intent that the judiciary under the Constitution shall enjoy the exclusive prerogative to
adjudicate over disputes, whether as it concerns citizens alone or as it concerns the
government or any branch thereof. This includes the exclusive power to interpret the
Constitution. It is this extensive power that has engendered the debate as to whether
the Courts are not higher than the Constitution in hierarchy. It is argued that the
Constitution remains a dormant peace of literary art until the courts breath life into it by
interpreting it. This however is not the place to pursue this debate. Suffice it to say, that
the power of adjudication including the interpretative jurisdiction vested in the Courts is
however circumscribed by a number of limitations including Constitutional limitations,
political constraints and the factor of judicial self-restraint.
CONSTITUTIONAL LIMITATION
The Constitution itself imposes a number of limitations on the judicial powers of the
Courts. Under Section 6 (6) (c)(d) of the Constitution, the judicial powers of the Courts
shall not except as otherwise provided by the Constitution, extend to any issue or
question as to whether any act or omission by any authority or person or as to whether
any law or any judicial decision is in conformity with the Fundamental Objectives and
Directive Principles of State Policy set out in Chapter 2 of the Constitution.
Furthermore, it shall not as from the 29th day of May 1999 extend to any action or
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proceedings relating to any existing law made on or after 15th January 1966 for
determining any issue or question as to the competence of any authority or person to
make any such law.
There are other limitations and these must include those enacted in Section 143 (10)
and 188 (10) of the Constitution, which excludes the jurisdiction of the Courts from
entertaining any proceedings or determination of the panel or of the Legislature or any
matter relating to such proceedings or determination in connection with proceedings for
the removal of either the President, the Vice President, the Governor or the Deputy
Governor.
The Courts in Nigeria have consistently held that matters pertaining to impeachment of
the President, the Vice President, the Governor, and the Deputy Governor are not
matters fit for judicial determination in the regular Courts. Yet, some unscrupulous Legal
Practitioners bent on abuse of the judicial process and goaded on by politicians have
continued to tempt the timorous souls within the judiciary into breaching this rule. In an
essay titled “THE JUDICIARY – THE SACRIFICIAL LAMB” published in chapter 3 of his
essays on the judiciary in the Government of Nigeria, T. A. Aguda of blessed memory
pleaded very passionately that:
“We should cease making the judiciary the sacrificial lamb
of people who put themselves on trial and deliberately (or
is it inadvertently?) decide later to seek the protection or
intervention of the judiciary. It is no answer to say that,
that is why the judiciary exists. I think that I have the
responsibility to say that I have never known of any
impeachment exercise either in Great Britain (where it
originated) or in the United States of America which has
ever been decided in the Courts”.
This prayer which has crystallized and become sacrosanct in Nigerian jurisprudence
has only been breached once within the political experience of Nigeria and that breach
took place in the Court presided over by Hon. Justice S. W. Egbo Egbo 9.
POLITICAL CONSTRAINTS
Political constraints come in the nature of undue attempt by the Legislature or the
Executive or a combination of them to influence the Courts. These constraints are
usually in the nature of pressures exerted on the judiciary in matters touching upon the
self interest of the Executive and members of the Legislature. It also comes in the
nature of deliberate selection of persons to be appointed Judges based on political
expediency. It also comes in the nature of subtle maneuver by the Executive and the
Legislature to manipulate the judicial institution, for instance, by withholding funds due
to the judiciary or by witling down the prestige of judicial officers.
Every Judge, as officer in the temple of Justice therefore, will have to encounter and
deal with many species of institutionalized abuse of the rule of law and the essence of
justice. The Courts must confront the specter of political intimidation from the Executive
and the Legislature. Today in politics, the Presidency has sought and apparently has
acquired over bearing influence both over the Legislature and over the judicial system. It
is the function of the Court to deal with the misguided complaints of those in the corridor
of power to whom justice can only be just when it vindicates them or their interest.
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It is the function and indeed the burden and the duty of a Judge in any Court not to
condone the ambivalence and perfidy of the Legislature or the Executive. The proper
mood of the Court had been captured quite trenchantly in the case of OJUKWU VS.
GOVERNMENT OF LAGOS STATE10, where Lord Justice Kayode Eso, said as
follows:“Under the Constitution of the Federal Republic of Nigeria
1979 the Executive, the Legislative and the judiciary are
equal partners in the running of a successful Government.
The powers granted by the Constitution to these organs by
section 4, section 5, and section 6 are classified under an
omnibus umbrella known under Part II to the Constitution
as “Powers of the Federal Republic of Nigeria”. These
organs wield those powers and one must never exist in
sabotage of the other or else there is chaos. Indeed there
will be no Federal Government. I think for one organ and
more especially the Executive which holds all the physical
powers to put up itself in sabotage or deliberate contempt
of the others is to stage an executive subversion of the
Constitution it is to uphold. Executive lawlessness is
tantamount to a deliberate violation of the Constitution.”.
In UNONGO VS. AKU11 the then Chief Justice of Nigeria the Hon. Justice M. Bello in a
comparative restatement of the law said:“In the United States of America, it is trite rule of
Constitutional law that in consequence of the principle of
separation of Governmental Powers embodies in the
Constitutions of the United States and of several States, any
statute by which the legislature attempts to hamper judicial
functions of Courts or to interfere with the discharge of
judicial duties or to unduly burden the exercise of judicial
functions is unconstitutional and void”.
In SOFEKUN V. AKINYEMI & ORS,12 Aniagolu J.S.C. put it this way:“It is essential in a Constitutional democracy such as we
have in our country that for the protection of the rights of the
citizens, for the guarantee of the Rule of law which includes
according fair hearing to the citizen under procedural
regularity and for checking arbitrary use of power by the
Executive or its Agencies, the power and jurisdiction of the
Courts under the Constitution must not only be kept intact
and unfettered but also must not be nimbled at”.
It must not be presumed that the Courts have limited themselves to these tantrums and
grumblings. In appropriate cases, they have invoked their interpretative jurisdiction so
as to overcome or circumvent the effect of harsh legislation, and the ambivalence and
perfidy of the Executive and the Legislature.
The Courts, even under military rule, adopted the interpretative axiom that exproprietary
statutes which encroach on a citizen’s proprietary right must be construed fortissime
contra proferentes, that is, strictly against the acquiring authority and sympathetically in
favour of the citizen whose property rights are affected. Therefore, as against the
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acquiring authority, there must be a strict adherence and compliance with the formalities
prescribed in the enabling statute otherwise any ouster clause in the statute will be
circumvented by a decision that the act complained of is not one done under the statute
and protected by it. See A-G BENDEL STATE VS. ALDEYAN (1989) 4 NWLR (PT.
118) P. 646. See OBIKOYA & SONS LTD. VS. GOV. LAGOS STATE (1987) 1 NWLR
(PT. 50) 385.
This activist judicial approach is even the more necessary and expected under a regime
of Constitutional democracy. The Supreme Court has in a number of recent landmark
decisions demonstrated this13. Hopefully, the Supreme Court will in the near future have
the opportunity to decide the vexed question whether the President has exclusive power
of control over the Nigeria Police Force, to the extent that he may at his whim and
caprice deny a State Governor of the authority to give to the Commissioner of Police in
charge of the Police contingent stationed in the State appropriate directives for the
maintenance of law and order in the State, including provision of necessary Police
protection to sustain itself in Government14.
Every Political attempt to impair the independence of the Judiciary is both
unconstitutional and in principle counter-productive. Unfortunately this fact is often lost
to the members of the Executive and Legislative branches of government who are
political officers elected usually in a general election. But this tendency to subvert the
judicature is a temptation, which ought to be resisted in the interest of good democratic
culture and good governance.
In O’Donoghue Vs. United States15 the United States Supreme Court made the very
trenchant observation and warning that:
“If it be important to separate the several departments of
government and restrict them to the exercise of their
appointed powers, it follows, as a logical corollary, equally
important, that each department should be kept
completely independent of the others – independent not in
the sense that they shall not co-operate to the common
end of carrying into effect the purposes of the Constitution,
but in the sense that the acts of each shall never be
controlled by, or subjected, directly or indirectly, to, the
coercive influence of either of the other departments.”
It is in recognition of the imperative of judicial independence that the National Judicial
Council was created as an independent body by the Constitution and its membership
also expressly set out in the Constitution. The National Judicial Council is an
independent body in the sense that in exercising the power to make appointments or to
exercise disciplinary control over Judicial Officers, it shall not be subject to the direction
or control of any other authority or person.
It is significant that the Chief Justice of Nigeria is the Chairman of the National Judicial
Council while the next most Senior Justice of the Supreme Court is the Deputy
Chairman. It is even more significant that membership of the Council is drawn
exclusively from within the judicature and the legal profession, except for two members
who, not being Legal Practitioners, are persons who in the opinion of the Chief Justice
of the Federation are persons of unquestionable character16.
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No member of the Council may be removed from office except by the President acting
on address supported by two-thirds majority of the Senate praying that he be so
removed for inability to discharge the functions of the office whether arising from
infirmity of mind or body or any other cause or for misconduct.
This, it can be seen, is a strong Council and it is to it that is assigned the function of
recommending persons for appointment into all the Superior Courts of record in Nigeria
as Judicial Officers. It is only on the recommendation of the Council that the President
may appoint Judicial Officers either on his own or as the case may be subject to
confirmation by the Senate or a State House of Assembly.
In the appointment of Judges therefore, Executive and Legislative influence ought to be
kept reasonably minimal. How well this operates, in practice will depend however on the
behaviour of the President at any given time. Where the President is determined to
override the sphere of authority of the Legislature and the Judiciary in a bid to totally
control all the powers of the Federal Republic of Nigeria, the otherwise adequate
Constitutional provision might become subject to presidential subversion. The National
Judicial Council has played its role very creditably and enviably so far despite the
determination of the Executive and the Legislature from time to time to undermine its
success.17
In the matter of removal of Judicial Officers especially the Head of the judicial arm of
government, the position is less satisfactory. Section 292 (1) (a) of the Constitution
makes the Chief Justice of Nigeria and the Administrative Heads of all the various
Courts within the Judicature at the Federal level removable by the President acting on
an address supported by two-thirds majority of the Senate.
Similarly, the Chief Judge of the High Court of the State and other administrative heads
of Superior Courts in the State may be removed by the Governor acting on an address
supported by a two-thirds of the majority of the House of Assembly of the State 18.
The warning about a lawless Executive, hell – bent on the subversion. of the trinity
doctrine of separation of powers in the Constitution becomes more ominous here.
Where there is a collusion between the Legislature and the Executive against the head
of the judiciary, the fate of the judiciary becomes glaringly exposed to jeopardy.
This was demonstrated in Ebonyi State, when the Legislature and the Executive cooperated to remove the Chief Judge of the State from office even when the National
Judicial Council had in a letter requested both organs to stay action on the matter
pending investigation by the National Judicial Council.
It is suggested that in the nascent democratic culture, which we are nurturing, exclusion
of the National Judicial Council in the matter of removal of principal Officers of the
judicature is unsatisfactory. In fact, the removal of the head of the judiciary ought
exclusively to rest upon an advice by the National Judicial Council addressed to the
President or the Governor. It has been sufficiently demonstrated by the Legislature that
the impeachment process is the first weapon of choice whenever the Legislature wishes
to subvert the will and independence of its own leadership or that of the Executive. The
Legislature will not hesitate to use the same procedure in the event of the slightest
irritation by the judicature. Surely, it cannot be objectionable to suggest that the National
Judicial Council which recommended the head of the judicature for appointment in the
first instance should be involved in the process of removing him.
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Unfortunately, the goal of total financial independence for the judiciary is yet to be
attained both under the Constitution and by appropriate legislation. It would appear that
a self-accounting judicature would remain a goal to be pursued but never attained. For
as long as the goal remains elusive, it would continue to be convenient for the Executive
to act the benevolent pay-master dictating the tone for the piper – the Judiciary. It is in
the nature of political power in Nigeria today that the holder tends to see everything in
terms of political patronage, even facilities necessary for smooth operation of the
various branches of government. In a situation such as this, it takes the very
quintessence of judicial imperturbability and equanimity to survive on the bench and do
justice between the state and the citizenry. On the other hand, it will take a Statesman
President, or Governor mindful of the best interest of the people of Nigeria, and able to
sublimate his ego and self interest to the over all good of the nation and posterity to
allow a bold and independent judiciary to function. In the politics of today in Nigeria, I
am afraid to say that I am unable to find that Statesman President and the absence of
such a Statesman President does not encourage the emergence of the Statesman
Governor.
JUDICIAL SELF RESTRAINT
Apart from limitations to its powers under the Constitution and the other limitations
contrived by the Legislature and the Executive, the Judiciary by deliberate policy
imposes additional limitations on it self. Only a brief reference to some of these can be
accommodated within the time left to us:
(a)
(b)
(c)
(d)
In the performance of their interpretative functions, the Courts abstain from
reading into the express words as enacted meanings extraneous to them.
Therefore where words are used in the ordinary sense, the Courts give them
their ordinary meaning. Where words are used as terms of art, the Courts
interpret them in that manner19.
The Courts abstain from enlarging their jurisdiction. Thus if it is clear from the
words used that the Constitutional intent is to oust the jurisdiction of the Court,
the Courts scrupulously uphold the view which excludes their jurisdiction.
Section 6 (6) (c) and (d) and Sections 143 (10) and 188 (10) of the Constitution
contain such ouster provisions. See now the decision of the Court of Appeal
Port Harcourt Judicial Division in ABARIBE VS. ABIA HOUSE OF ASSEMBLY
(2000) FWLR (Pt. 9) 1558.
The Courts concern themselves with the declarations of the law – jus dicere as
opposed to the making of the law – jus datum. Accordingly, Courts do not as a
rule make policy pronouncements as to what the law ought to be20.
In the performance of their juridical as well as judicial functions, the Courts
abstain from deciding hypothetical questions not even in the exercise of the very
wide powers to make declarations. Through the principle of locus standi, the
Courts have always demanded that whoever moves the Court must show his
standing and allege a legal right in jeopardy21.
RECILIENCE OF THE JUDICIARY
The Judicature is the only arm of government, which has never been subjected to total
dismissal by the Military usurpers and pretenders since the beginning of the Nigerian
experiment. It can claim therefore to be the most mature, most enduring, most stable
and professional of the three arms. It is also the only arm, which demands of its
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members not only the best education possible and the highest intellectual exposure
possible but also a long period of professional training and a code of conduct
internalized in this training. It is indeed, the only specialized branch of the three arms of
Government. It is therefore the most well equipped of the three to succeed. That it
succeeded successive Military governments and the Political brinkmanship of
successive political governments in the past, is a tribute to its resilience and relevance.
To continue to survive and succeed, both the Executive and the Legislature must desist
from infiltrating it with persons of questionable character who are not therefore fit and
proper persons to be appointed as Judges. They must also desist from involving the
judiciary in the resolution of essentially political question for which the usual political
wheeling and dealing process is a better option. Thirdly, they must desist from seducing
or intimidating the judiciary “to toe Government line”.
In spite of total neglect of the infrastructure of the Courts, members of the political
branches of the Government, the Executive and the Legislature feel no compunction
proclaiming the Courts as the last hope of the common man.
But they will continue
to exhibit ambivalence and perfidy towards the judiciary! However, any Judge who lends
a helping hand to the desecration of the temple of justice is a misfit in the Court and a
disgrace and dishonour to the judiciary.
It was Honourable Justice T.A. Aguda who once referred to the Judiciary as “the
sacrificial lamb". Indeed, it is the beast of burden. Like the donkey, much is expected of
it but little is invested on it22, even by men and women who after every four years must
go to it to revalidate their hold to political power.
To those who aspire to be Judges in spite of the daunting tasks and bleak prospects,
they should be reminded of an advice previously given by the Honourable Justice T.A.
Aguda drawn from the words of Jesus the son of Sirach as recorded in Ecclesiastes in
the Apocrypha Chapter 6 V. 7 “Do not aspire to be a Judge, unless you have the
strength to put an end to injustice; for you may be intimidated by a man of rank and so
compromise your integrity.”
THE COURTS AND POLITICS IN NIGERIA TODAY
We, as the present generation and citizens of this country, Nigeria have inherited a
nation with a chequered political fortune. We started as independent nationalities and
tribes. We became an amalgamation of diverse nationalities under colonial
administration. Eventually we became an independent nation under the Commonwealth
of Nations. We started off as a parliamentary democracy after the British model. Then,
we fought a bitter war of national reunification. We became a republic organized after
the American model. No sooner had we taken off as an independent nation than our
political elite began an unwitting walk down the road to perdition. The evil seeds of
social injustice and political disequilibria began to germinate and to take root. Professor
Chinua Achebe in his prophetic political fiction – A MAN OF THE PEOPLE – captured in
bold relief the steady decline of our national ethos, down the abyss, down to the time
when our soldiers broke out of their barracks and ineradicably jeopardized the
development of civic and political culture of governance, social responsibility, social
justice and the rule of law.
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By a twist of fate, whenever the soldiers retreated to the barracks, Chief Nanga would
resurrect and pick up his old tricks. By the process of evolution, he eventually
transformed himself into a Military General and continued the process of political
disorientation of the country. On retirement from the army, he transformed himself into a
Civilian President exhibiting the same old characteristics.
This unfortunate distortion of political culture, social values, norms and ethics brought
about more than three decades of military disorientation of our political perspectives,
growth and development. From one military coup to another, the very fabric of our
political and civic norms and values suffered progressive and inexorable debasement.
Life has become devalued, our currency is devalued, our educational system is
devalued, our social culture is devalued, our political ethos is devalued. Every regiment
of military adventurers in power who marched by, further trampled upon the debris of
our social debasement and shame.
The consequence of this state of aberration is that during the short intervals when civil
rule was reintroduced and when the culture of democratic governance came in for
relearning, most political dramatis personae lacked any ethical precedents to draw from
and therefore went about their act as if the object of politics is to grab power and money
by any means. Many politicians for lack of civic culture and the attribute of
statesmanship became more of ordinary political animals than statesmen.
The greatest obstacle to unbridled pursuit of power, money and influence, is the rule of
law. Chief Nanga therefore considers the law and the Courts established to apply them
as an uncomfortable straightjacket from which he must free himself if he could, or
otherwise as a device to be used to legitimize the fraud and oppression of the citizenry.
This was basically why the experiment of Civilian Government failed between 1979 and
1983. The military created a distorted political landscape and ushered in the civilian
politicians to gambol in it. The ex – soldiers soon got bored with the odium of early
retirement and spectatorship and therefore jumped into the political bandwagon and
made straight for the driving seat.
In the year 1999, we began another experiment. This time, the level of social
decadence and absence of refined civic and political culture had reached an
unimaginable proportion. Politics has become a trade and the merchants make
stupendous financial outlay for the sole purpose of hijacking the structure of
Government, both executive, legislative and judicial, with a view to controlling the State
and its treasury to the detriment of the ordinary man. It does not matter at what level in
the political pecking order the citizen finds himself, the philosophy of greed and avarice
have become the order of the day. I liken it to an endangered specie scampering out
and away from the cesspit. The rule of survival is to kick the one below as hard as you
can while doing all you possibly could to overtake the one above you.
In a setting such as this, justice is the victim. The judicial system becomes the
scapegoat for the masses who throw all their frustrations at it and blame it for all their
travails and confinement to the bottom of the cesspit. The Courts become mere trading
post for the mindless rich who go before it with the credo that the cash justifies the
judgment. In this State of Affairs, what does the Rule of Law mean? What is the function
or relevance of the Judge? What is the value and content of Justice? What has the
Judge or the Court to do with it? Where lies the energy and impetus for social reform?
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Replicando! The Judge and the Court have a lot to do with it. The Judge must
necessarily impact on the State of Affairs either positively or negatively. He impacts on
the system negatively, by becoming a part of the decadent system, sharing in the
decadence of the system and confessing an inability and lack of the moral strength to
change the system. He becomes therefore, like the woman of easy virtue, willing and
available to be cajoled or seduced or otherwise subverted by Chief Nanga and his
political fellow travelers and the mindless rich, merely in a bid to survive and hopefully,
one day, to approach the top of the cesspit. He covets political influence and is ready to
trade off justice for a little political benefit. He begins to dream dreams of becoming a
millionaire through political paychecks in exchange for justice and honour. He begins to
value himself in terms of the Lexus Jeep and extravagant opulence.
The Judge impacts on the system positively, by rising above the system and its
decadence in other to make things better. He becomes a catalyst for change to the
better. He refuses to be purchased with ill-gotten money in order to serve the ignoble
purposes of corrupt political journeymen like Chief Nanga. This needs a great deal of
boldness and fearlessness, an ability to place the polity and posterity above self, the
summoning of higher ideals of what is Godly and therefore just, the courage to shut
down the cesspit and in its place to build a temple of justice and a heaven for the
citizens and the oppressed.
The question is how have the Courts chosen to play under the Nigerian politics of today.
Unfortunately, two Judges in particular have given the judiciary a very bad name. For
reasons other than pursuit of justice they have undertaken to breach very badly the
rules enshrined in the code of conduct for judicial officers just to satisfy political
godfathers. Before delving into the sad experience at the High Courts level of the
judicature, a brief mention must be made of the Supreme Court and the Court of
Appeal.
THE SUPREME COURT
It can be said justifiably that the Supreme Court of Nigeria has remained resilient,
vibrant and a role model of what a Court of Law and not only an apex Court ought to be.
This statement may well be open to criticism from certain quarters. It is true however,
that the Supreme Court has so far maintained a remarkable resilience despite the
valiant effort to politicize it. Any person who has access to the work of the Supreme
Court and who understands the dynamics of its business can only but marvel at its
ability to withstand the political pressures increasingly brought upon it.
THE COURT OF APPEAL
What is said of the Supreme Court is to a large extent true of the Court of Appeal. It is
unfortunate however that very recently the Court of Appeal sitting at Enugu had been
exposed to public opprobrium. It is said that in the course of reading a judgment, the
audience in the Courtroom became restive and even made a move towards the bench
compelling their Lordships to hastily retire into chambers.23
11
Two things must be said about this event. Firstly, it is unfortunate that due to political
pressure, the Court of Appeal was exposed in the eye of the public as being suspect. I
will say no more on this since the dust is yet to settle.
Secondly, it is unfortunate that the audience in a Courtroom became so disenchanted
and alienated from the confidence and respect that ought not naturally to inure to the
Court that they had to desecrate the Court of Law in protest.
Harry Nwana, a columnist with the Vanguard Newspaper wrote an insightful article titled
“SHOWING INDIFFERENCE TO EMERGING ANARCHY”. He said inter alia:
“All the paraphernalia of respect, packaged for the Bench,
are now progressively and dangerously being eroded. The
excuse is that democracy permits freedom of speech and
action not even where both are stupid and irresponsible.
Shrouding Judges in some kinds of awe and magnificence
for effectiveness makes a lot of sense. Therefore, for a
gang of unruly protesters to scare four Tribunal Judges
into escaping from side doors for safety at Enugu, is an
introduction of a bad trend. Should it endure, and go
unpunished it will signal the onset of anarchy in Africa’s
biggest nation. If the stage has come when Judges and
Chairmen of judicial inquest can be intimidated and their
lives openly threatened in Court, we might as well not
have Courts and Judges24.
Surely, I share this sense of outrage. But those who have the privilege and the honour
to be Judges in the affairs of their fellowmen, must remember and bear well in mind that
respect must be earned not demanded. Respect must not be taken for granted. They
must consider this very axiomatic observation by Chinua Achebe, that if a rational man
believes that what is being shared will go round and that he would get his share when it
is his turn, he is most likely to sit down and wait for his turn. If however, he entertains
doubt about the justice of the sharing process, and believes that his share might elude
him if he didn’t do something to help himself, he might start a scramble.
Those who live in glass houses must not throw stones. He who brings home antinfested faggots must not complain when lizards come to party.
THE KANGAROO
The Nigerian Constitution did not provide for Kangaroo Courts. It provides for Courts
guided by rules. This is because Nigeria had never pretended to be a rogue State
operating outside the fringes of world civilization, even though it may have been
categorized high in the list of corrupt nations. In fact, Nigeria signed the African Charter
of Human and Peoples Rights and made it a part of the Nigerian corpus juris, thereby
signifying with pride that Nigeria is a member of the committee of civilized nations which
respect the rule of law. Aniagolu, JSC once said that the moment a Court ceases to do
justice in accordance with law and procedures laid down for it, it ceases to be a regular
Court to become a kangaroo Court.25
12
Some Judges in this democratic dispensation have made themselves misfits and a
curse to the higher bench, having sold their souls to the devil and become ministers in
the temple of Lucifer.
I shall now trace the tragedy of Hon. Justice S. W. Egbo Egbo and Hon. Justice S. C.
Nnaji to sketch from contemporary political events how these two gentlemen,
supposedly learned in the law and unfortunately elevated to the higher bench, brought
the citadel of justice to gross disrepute and did their images eternal disservice.
THE POLITICS
When President Olusegun Obasanjo was sworn into office on the 29 th day of May, 1999
he made a speech. In that speech, he spotlighted the keynote of his presidency. He was
going to march on toes! He was going to cause pain! He would take on the low, the high
and the mighty!
Apparently, to ensure delivery on these promises, he engaged a strong team of Private
Legal Practitioners to wage his legal campaigns in various Courts in execution not only
of his personal wars but in defence of his allies. He also engage rapid reaction Amada
of image launderers to wage his public relations campaigns. It became their main
objective to thoroughly abuse and vilify anyone who dared to criticize “baba” no matter
how constructively26.
His first articulated action was a confrontation with the Senate. He began a deliberate
assault against the independence of the Senate and its leadership. He orchestrated the
downfall of one Senate President after another in order to find a stooge. He began a
frenetic cat – and – mouse struggle with the Speaker of the House of Representative in
a bid to obtain absolute suzerainty over the Executive and Legislative arms of
Government. He made a valiant bid for total personal control of the party apparatus of
the ruling party to which he belonged. He took on the Nigerian Labour Congress (NLC),
but when the heat became unbearable for him, he turned to the Courts for protection
These battles remained inconclusive until the end of the President’s first term. He
apparently made up his mind that neither the incumbent President of Senate nor the
Speaker of the House of Representatives nor indeed the leadership of the party would
return during his second term, the materialization of which, he was in no doubt about.
The President of the Senate Pius Ayim Pius took one look at the behemoth that the
President of the Federal Republic of Nigeria had become and backed away from further
participation in politics. The Speaker of the House of Representatives Alhaji Umar
Na’abba, the intrepid, picked up the gauntlet. He was “dismissed at the polls”!. The
leadership of the party of course was changed. Labour still smoldered like a restless
volcano under judicial surveillance.
Come 2003, a person who believed he lost an election into the Senate and who filed an
election petition at the appropriate Tribunal was in the meantime declared elected by
INEC in a revised declaration of results. And even when this declaration was still hotly
being challenged at the Election Tribunal, and the issue whether INEC was competent
to alter a result once declared, was pending before the Court, a Federal High Court at
Abuja ordered that he be sworn in as a Senator. He was! and of course eventually
became the President of the Senate, while all the judicial proceedings were still pending
in the Courts!
13
I read from the Daily Sun Newspaper of Monday, April 12 th, 2004 a front page teaser
“I’m a stooge – Wabara.” I was then referred to page 12 of the publication. I went to
page 12 of the publication and this is what I saw:I’m a stooge, says Wabara
“Senate President, Chief Adolphus Wabara, has said
he is contented with being called a stooge or rubber
stamp Senate President.
Speaking at his country home in Ohambele in Ukwa East,
where some Local Government chapters of the ruling
Peoples Democratic Party (PDP) from Abia State paid
him a solidarity visit at the weekend, Wabara said his joy
of being a stooge was derived from the fact that he had
used the rubber stamp position to attract development
projects to Abia State and the entire South East.
“I have been told that I’m a stooge; a rubber stamp; my joy
is that before you rubber stamp a document, you must first
of all read it. So I accept to be called a rubberstamp
Senate President. I don’t have anything to hide.
“By being a stooge or rubber stamp, I have been able to
bring Julius Berger to rehabilitate roads in Abia: the Alaoja
electricity project has been restored at more than N5
billion and the Aba – Owerri Road has been rehabilitated.
“I rather remain a stooge and get things done than being
fighter who gets nothing at the end of the day for the
State”.
It is possible that the President of the Senate was thoroughly misquoted. In fact, I
choose to believe that he did not extol the benefits of being a stooge and that he did not
in fact refer to himself as a stooge. But it appears to me that what was ascribed to the
President of the Senate represents politics in Nigeria today. You must be a stooge to
make political progress and there is nothing else but political progress to be made. To
“succeed” or to “obtain benefits for your people” or to “successfully hold any office” you
must be someone’s stooge. If you cannot be the stooge of Mr. President, then better be
the stooge of someone who is lucky enough to be a stooge of Mr. President.
One man who appeared to be not willing to be a stooge whether of the President or of
the President’s stooge is the Medical Doctor, Officer of the Order of the Niger, Chief
Chris Nwabueze Ngige, the Governor of Anambra State elected into office on the 29 th
day of May, 2003. So precisely, on the 10th day of July, 2003 a coup was staged to oust
him from power. This coup was led by a serving Police Officer who up till he eventually
died in retirement was never prosecuted or even interrogated.
When the coup failed, there was a switch of strategy. The beast of burden – the
judiciary was called in and it was not difficult to find a stooge, sitting in one of the
Federal High Court Halls at Abuja – the same one who produced the Senate President.
This stooge was an overzealous kangaroo. He made an order ex parte ordering the
14
Governor of Anambra State to vacate his office. There was an outrage nationally and
internationally. Someone got terribly embarrassed. The Hon. Attorney – General and
Minister for Justice was sent into Court to vacate the order. The Judge felt quite
embarrassed and stammered, “well I didn’t do it after all”. The rest as it concerns that
Judge is history.
Another stooge was found at the Enugu High Court. He gave an order to the Inspector –
General of Police to remove the Governor of Anambra State from office “in the same
way he helped to restore him after the botched coup of 10 th July, 2003”. Even the order
of the Court of Appeal, Enugu suspending the order of the Enugu High Court has not
recommended itself to the Presidency and the Inspector – General of Police for
implementation. The same Attorney – General and Minister for Justice who rushed to
Abuja to put an end to the judicial scandal at the Federal High Court there, has not
summoned sufficient political courage and professional independence to do the same in
respect of the judicial scandal of Enugu. This is politics today in Nigeria.
It is obvious that the President has not succeeded in imposing his will absolutely on the
judicature including the Independent Corrupt Practices Commission (ICPC) and the
Anti-corruption Tribunal and the Election Tribunals. This is not however for want of a
determined effort. You can ask Governor Ibori of Delta State and all those other
recalcitrant and obdurate persons who have dared to manifest political independence.
You may also ask the Chief Judge of Anambra State.
THE COURTS
Up till the year 2003, no one would have imagined that a Judge of the High Court would
exhibit the kind of rascality so far witnessed between 2003 and 2004 in Nigeria. Before
the year 2003, it was considered anathema for any High Court to order a Governor to
be removed from office, let alone the Governor of another State.
Un till the year 2003, no one, could have imagined that under the political landscape of
Nigeria in a Constitutional democracy and civil rule, Tribunals would be used to hunt
down, intimidate and over awe “political decedents”. By decedents is of course meant
people who have not accepted to be stooges.
Section 285 of the 1999 Constitution vests exclusive jurisdiction in an election Tribunal
to determine petitions as to whether the terms of office of any person under the
Constitution has ceased. The same Constitution under Section 188 made copious
provisions in relation to the removal of a Governor from office. That provision expressly
excluded the exercise of any jurisdiction in the matter by a High Court Judge.
In 2003 and in 2004, two Judges have acted in breach of the Constitution by delving
into these matters in breach of their oath of office and the code of conduct. That they
have not been dismissed from service, despite the recommendation of the National
Judicial Council, that it took or takes so long for the Executive to consider the decision
of the National Judicial Council on the matter is an indication that they are indeed well
favoured stooges and that very soon, a device may be tried in order to “whip the
National Judicial Council into order”.
QUO VADIS
15
The question is where are we heading to? Si a jure discedas, vagus eris, et erunt,
omnia omnibus incerta. This translates roughly into “if you discard the law, you will go
astray, and everything will become uncertain to everyone. The judicature must not be
used as a political terror machine for inflicting pain on political opponents. It must not be
perceived as an alternative device for gunboat politics under a Constitutional
democracy. To do so, will be a return to Military dictatorship.
Those who today exploit the Courts for unjust ends should remember that the evil that
men do lives after them and the distortions we create today may return to hunt our
children tomorrow. To hand over to our children a banner without stain ought to be our
chiefest resolve.
The Judges who sit in the Courts must remember that posterity will judge them. Those
who wield political power must also remember that power like all things of this world is
transient.
The words of Justice Krishna Iyer, contained in his book – LAW VERSUS JUSTICE
holds through in Nigeria today. I am therefore temped to quote him as follows:
“The disease of corruption, in its widest connotation, has
affected all parties, and even militant organizations,
although substantial differences in degree and opportunity
may exist. The purity and neutrality of the judiciary itself is
in jeopardy. A broad consensus on vital values enshrined
in the Constitution and a basic integrity in the
instrumentalities and the actors who operate it, baffles our
grasp”.
Until all players on the political platform starting from the President himself learn to treat
the Courts with respect and to let the Judges work without being intimidated, subverted
or manipulated, the dream of a great Nigeria will remain a utopia.
Chief, the Hon. U. N. Udechukwu, SAN.
Attorney – General / Commissioner for Justice
Anambra State.
16
NOTES
1.
2.
3.
4.
5.
6.
7.
8.
9.
Oxford Dictionary of current English, 1996 Edition.
Ibid
1999 Constitution – Section 6(1)(2) &(5)
Ibid – Section 4(1) &(2)
Ibid – Section 4 (6) & (7)
Ibid – Section 6(3) & (5)
Ibid – Section 6(4)
A – G Fed. Vs. 36 States (2001) 7 SCNJ 1
FHC/ABJ/CS/400/2003- Dr. Udeh Vs. Dr. Chris Ngige & 8 Ors.- Ruling of 26 / 8 / 03
Contrast:
(i).
Balarabe Musa Vs. Speaker K. S. H. A (1982) 3 NCLR – 450
(ii).
Musa Vs. Hamza (1982) 3 NCLR 229
(iii).
Musa Vs. K. S. H. A (1984) 5 NCLR 421
(iv).
A. A. Adesanya Vs. The President SC 1/81 of 15 – 5 – 1981
(v).
Abaribe Vs. A. S. H. A (2000) FWLR 1558
10.
11.
12.
13.
(1986) 1 NWLR (Pt. 18) 621 at 633 para G
(1983) 9 SC 126
(1980) 5 – 7 SC1
(i).
A – G Fed. Vs. A – G 36 States (2001) 7 SCNJ1
(ii).
A – G Lagos Vs. A – G Fed. & Ors. (2003) 6 SCNJ 1
(iii).
A – G Abia Vs. A – G Fed. & Ors.(2002) 3 SCNJ 158
(iv).
INEC & Ors. Vs. Balarabe Musa & Ors. (2003) 1 SCNJ 1
14.
15.
16.
17.
18.
19.
20.
21.
SC/3/2004 - A – G Anambra A – G Fed. & 36 Ors.
Volume 77, Lawyers Ed. US 1356
1999 Constitution, Third Sch. Part 1 paragraph 20 (I)
C. 1
22.
23.
24.
25.
26.
Eg, the delay in implementing these disciplinary recommendations against S. W. Egbo – Egbo & S. C. Nnaji
1999 Constitution – Section 292 (1)(9)(II)
Aburime Vs. The State (1978) 4 Fed 55 at 73
A – G Lagos Vs. Dosumu (1989) NWLR (Pt III) 552 at 574
Nduhe Vs. Ibezim (2002)5 SCNJ 247 at 266 L. 35. See on Locus Standi–Nkenchor Vs. The State (1985) S.
T. A. Aguda – The Judiciary in the Government of Nigeria – 1983 – P 90
23 E/EPT/19/2003- SEN. UBA VS. HON. UKACHUKWU & 4 ORS. date 26 / 2 / 2004
Vanguard: Vol. 20: No. 5491, Wednesday, April 4, P13.
Edun Vs. Odan (1980) 8 – 11 SC 103 at 127
The Nobel Laureate Prof. Wole Soyinka and Col. Umar Mohammed (retd.) have recently been hit. Of
course Ikemba Nnewi, Dim Odumegwu Ojukwu carries the scare of multiple hit.
17