Nigerian judiciary and absurd confiscation of the power of the electorate
By Sonny Ogulewe
In providing a stimulating background to this article that borders on the unfolding absurdities and paradoxes of the Nigerian judiciary, I have chosen to retell two instructive stories to drive home the issues in the most graphic fashion. The first is The Emperor’s New Cloth, a literary satire written by a Danish author Hans Christian Andersen which was first published in 1837. The folktale characterizes the vanity and illusions of power and of course its consequences. In the story, the emperor had a coterie in the palace who knew his indulgences and ensured the emperor was sedated by it. He loathed honest advice and consequently turned the palace into a competition of lies and sycophancy which pleased the emperor greatly and soothed his ego. So, while the emperor was encapsulated in the illusions of his invincibility, the empire plunged fast into a catastrophe. The high point of the story was that the emperor was deceived into dancing naked before his subjects who applauded his buffoonery until one lowly courtier drew his attention to his nakedness.
A story was also told of a very intelligent young lawyer who was a torn in the flesh of one magistrate in a local Magistrate Court where he appeared regularly. The magistrate had endured this young lawyer’s perceived intransigence over time and was not prepared to take it anymore. So, one fateful day the young lawyer appeared before the court and made a very brilliant argument on his matter and the magistrate having made up his mind to humiliate the young lawyer, refused to be persuaded. After the young lawyer had made his argument while still standing, the magistrate looked at him in the face and shouted “Counsel, I hate you”. The court went silent and the young lawyer would not take the magistrate’s obvious indiscretion retorted “Mi Lord the feeling is mutual”. That was the end of the matter. The magistrate lost his esteem and respect before the lawyers that subsequently appeared before him.
The two stories illustrate the worrisome scenarios in the Nigerian judiciary of today where the judges have defiantly arrogated to themselves such invincible powers vested on the electorate to choose those to preside over their commonwealth. The judiciary has therefore succeeded in expropriating the powers of the electorate to such an extent that the critical tenet of democratic practice which is the power of the electorate to choose who governs them has been diminished. This arrogance is capable of driving the people to the intolerable threshold and time when they could boldly tell the judges: “Mi Lord, the court is not pleased”. And this will be the beginning of anarchy.
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In this realization it is easy to conclude that our nascent democracy is obviously under existential threat. This is clearly instructive by the conflicting, ridiculous and vexatious judgments emanating from our tribunals and regular courts of law. Nigerians are searching for the brave lawyers or courageous citizens that would tell their Lordships the truth. Many Nigerians strongly believe that our judiciary has suddenly become a bull in a China Shop.
Not a few scholars and top retired judicial officers however have demonstrated their loathsomeness over the disturbing situation in the judiciary. Some of those who have voiced out their concerns over the emerging confiscation of the power of the electorate by Nigerian judiciary include; Professors Sam Amadi, Chidi Odinkalu, Farooq A. Kperogi, Justice Musa Dattijo Muhammad of the Supreme Court and former Court of Appeal justice Oludotun Adefope-Okojie . In one of Kperogi’s recent articles, he had observed: “It’s oddly ironic that the judiciary, which should be the bulwark of democracy, has become such a dreadful terror to democracy that people are seeking to protect democracy from it. The courts have become the graveyards of electoral mandates. Judges have not only descended to being common purchasable judicial rogues, but they have also become juridical coup plotters.”
Again, he decried that “the major preoccupation of pro-democracy activists is no longer how to keep the military from politics and governance but how to save democracy from the judiciary. In other words, in Nigeria, our problem is no longer fear of military coups but the cold reality of “frighteningly escalating judicial coups”. According to him, a “judicial coup d’état, is a situation where judicial or legal processes are deployed to subvert the choice of the electorate or to unfairly change the power structure of an existing government and where “the courts are used to achieve political ends that would not be possible through standard political processes”. It’s now so bad that counting the votes of the electorate is no longer an important component of the democratic process since politicians can get from the courts what they lost at the ballot box. This is a dangerous state for any democracy to exist.
Judicial coups have been on the rise in the past few years and have become more manifest under President Muhammadu Buhari’s watch until today. Some of the notable judicial coups include the January 14, 2020, Supreme Court judgment on Imo governorship election which sacked Emeka Ihedioha who had the popular mandate and replaced him with someone that came a distant fourth in the election. This unjust decision from the apex court that toughed-off world-wide controversy and condemnations produced the first recorded “Supreme Court Governor” by the obvious use of “judicial abracadabra” to subvert the popular will of a wide-spectrum of Imo people. Another classical instance was in the case of Ahmed Lawan, former Senate President. Here was a man who didn’t run for an election, and admitted so in comments and actions was strangely declared the “winner” of the same election by the judiciary. These are just a few examples of the bizarre judicial coups.
There are, nonetheless, many other similar scenarios in the recent past and more are still unfolding as in the cases of Zamfara, Kano and Plateau states governorship and National Assembly elections. Kano’s judicial coup was, in fact, unashamedly laughable that the purported Appeal Court judgment was radically at variance with the manifest contents of the judgment. Some legal activists such as Femi Falana, SAN and Professor Chidi Odinkalu have spoken in ferocious condemnation of this open judicial sore
One of the sad and stark realities of image crisis that has engulfed the judiciary is erosion of people’s confidence in the institution meant to be the bastion of the common man in the country. For instance, penultimate week, the governorship candidate of the Peoples Democratic Party at the just concluded Kogi state governorship election, Sen. Dino Melaye boldly said he had lost confidence in the judiciary and that the Nigerian judiciary instead of being the last hope of the common man has become the “lost hope”of the common man. How much low could our judiciary go to merit this kind of opprobrium? It has indeed become so ridiculous that there are now social media views among lawyers that clients these days prefer to pay judges than to engage and pay the lawyer well because engaging the services of a lawyer has become more of a formality that may lead to no just end.
Similarly, only recently, a human rights activist, Sesugh Akume petitioned the National Judicial Commission over what he described as a ghoulish anomaly whereby aides of a Senator and respondent in a tribunal matter had released the judgment of a pending Appeal Court judgment hours before it was read by the court. This amounts to a study in judicial scandal and fraud. The question is how did the once respected bench including the apex court previously presided over by foremost jurists such as Adetokunbo Ademola, Taslim Elias, Atanda Williams, George Sowemimo, Muhammed Bello, Muhammed Uwais and a host of others get to this shameful level? When citizens begin to express such concerns about the judiciary it is easy to conclude that democratic paralysis has set in while as a praying nation we keep believing that it is well with the nation instead of standing up in harmony against the “emperor” and the judicial tricksters to save our nascent democracy.
Nathan Sharansky in his book The Case for Democracy, had warned that “it is the lack of justice not democracy that is the greatest threat to peace and security”. The judiciary is the last bastion of democracy and for democracy to be in a position to effectively reproduce itself, the judiciary is expected to play the sacred role of a midwife and the conscience of the society and essentially the last hope of the common man. People resort to self-help where they are certain they will not get justice at the courts. Few days ago, the house of the Resident Electoral Commissioner of Kogi state was attacked by unknown gunmen following the outcome of the Kogi state governorship election, which allegedly could have been triggered by the perception that the court would not after all deliver justice in an election that was clearly rigged. When a people resort to self-help because of the bad perception of an institution such as the judiciary it is the beginning of anarchy.
Sadly, it is self-evident that the judiciary is not prepared to urgently embark on desired introspection, self-examination and soul-searching to adjust appropriately in the overall interest of the nation and survival of democracy. Rather, the judiciary resorts to grandstanding beclouded by the eroding illusions of infallibility. If not, how would one interpret the reaction of the Chief Justice of Nigeria, Justice Olukayode Ariwoola that public perceptions would not influence their judgments and one would ask if the justice is not meant to be given to the people yet the people’s outcry of injustice does not matter. Perhaps his own interpretation of justice is only a reflection of his own prejudices not according the norms and tenets of justice.
This finds huge validation in Kperogi’s submission that the judiciary is becoming unacceptably treacherous and over pampered monster that is exercising powers that are beyond the bounds of reason. The time to collectively rise against this debilitating institution and in one accord tell the Justices the bitter truth is now, else they will completely ruin our nation, our commonwealth and our power to decide our political fate. The country obviously needs us to together courageously tell His Lordships “Mi Lord, the court is not pleased”. Only this will make the institution to wake up to the reality to save itself and our democracy.
Sonny Ogulewe, Ph.D, wrote from Abuja
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