In this piece, Vanguard Law and Human Rights examines the background facts surrounding the on-going clamour for exclusion of serving judges from handling pre and post election matters, harvests views of lawyers and judges in the country on the issue and argues that logic is in favour of retaining the status quo.
Between 2004 and 2006, the Supreme Court under the leadership of the second longest serving Chief Justice of Nigeria, Justice Muhammad Uwais grabbed the headlines but for the wrong reasons.
Although allegations of corruption against judicial officers at the lower courts were rife before, during and after the period, such was rare at the apex level of the judicature.
One of such rare occasions when the SC was tarred was in 1993 when a political case involving a business mogul and presidential candidate of the Social Democratic Party, SDP, Chief Moshood Abiola came before the court.
The Saturday title of the Concord Press of Nigeria called Weekend Concord had published a report which alleged that the defunct government of the Military President of Nigeria, Gen Ibrahim Babangida bribed each Justice of the Supreme Court with Mercedez Benz E220 in order to influence them to give a legal imprimatur to the controversial annulment of the 1993 presidential election believed to have been won by MKO Abiola.
The serious allegation of corruption against the Supreme Court posed a challenge to its role as the guardian of the constitution, its image and legitimacy to pronounce on matters that come before it.
The apex bench did not waste time as it sued the Concord Press at the Lagos High Court, during which available documentary evidence proved the allegation to the contrary while the Concord Press tendered an unreserved apology to the justices of the Supreme Court.
Justice Uwais-led S’Court battles serious corruption allegation between 2004 and 2006
But between 2004 and 2006, another attempt was made by some individuals to tar the image of the apex bench over an appeal in a political case involving a former Governor of Delta State, Chief James Ibori.
The summary of the case was that two non-governmental organisations—the Derivation Front and Delta Elders Forum—had issued a press release in January 2003 to allege that Ibori who was the serving governor was not qualified to have contested the 1999 gubernatorial election in Delta State, having been allegedly convicted and sentenced to a one year jail term in a case of negligent conduct and criminal breach of trust on September 28, 1995, by an Upper Area Court, Bwari in FCT, Abuja.
The two organisations had relied on the provision of section 182 (1) (e) of the 1999 Constitution which bars an ex-convict from seeking elective office in the country.
The Section 182 (1) (e) specifically provides: “No person shall be qualified for election to the office of governor of a state if within a period of less than 10 years before the date of election to the office of governor of a state, he has been convicted and sentenced for an offence involving dishonesty or he has been found guilty of the contravention of the Code of Conduct.”
The promoters of the allegation were evidently out to stop Ibori from contesting the 2003 governorship election in the oil rich Delta State.
But the governor had denied that he ever stood any trial at the Upper Area Court in Abuja in 1995 or at any other time.
A lawsuit was, therefore, instituted by two Deltans, including Dr Goodnews Agbi at the High Court of the Federal Capital Territory based on the charge sheet they widely circulated to stop James Onanefe Ibori from contesting the 2003 gubernatorial election In the state.
The matter travelled from the high court to the Supreme Court, where the apex bench held that by the charge sheet, there was indeed a conviction but that the litigants should go back to the high court for a fresh trial to establish whether or not the James Onanefe Ibori that was convicted on September 28, 1995, by the Upper Area Court, Bwari was the same James Onanefe Ibori that was the sitting governor of Delta State.
The case, for the second time, travelled from the high court to the Supreme Court where the apex bench decided that though one James Onanefe Ibori was convicted by the Bwari Upper Area Court, yet, the governor of Delta State, Chief James Onanefe Ibori was not sufficiently identified as the same James Onanefe Ibori of Delta State that was convicted in 1995.
The aggrieved promoters of the lawsuit, however, alleged that the Supreme Court decision was bought by Ibori for N5billion.
At another time, it was alleged that the then CJN, Justice Uwais travelled to London with Ibori during the pendency of the case with his wife during which a whopping sum of £3.5million exchanged hands to negotiate Ibori’s November 8, 2004, legal victory at the Abuja High Court.
The allegations did an incalculable damage to the image of the judiciary at the time as stakeholders including former World Court judge, Prince Bola Ajibola, advised Justice Uwais to speak out or sue his accusers if the allegations were untrue.
Uwais who rarely gave press interviews during his tenure as the head of the judiciary was pained by the allegation and decided to explain his side of the story in an interview with select media including the Vanguard.
Justice Uwais weeps over allegation of corruption
During the interview attended by this reporter, Uwais battled tears to deny the allegation thus: “It is a lie. I did not travel to London with Ibori. Neither did my wife nor the Chief Registrar travel with him for any reason. I have been on the bench for 31 years. This is the first time ever in my career that I am being accused of taking bribe. It has been done twice in this Ibori case. Why? Why? Why should that be?”
Not quite a month after the £3.5million bribery allegation in the Ibori case was made against Justice Uwais, an auto-firm, Globe Motors Holding Limited locked in a N20 billion lawsuit with its rival, The Honda Place Limited, filed a motion at the Supreme Court in the same 2005 asking the Justice Uwais to disqualify himself from the resumed hearing in the matter on the account of likelihood of bias.
The lawyer of the Globe Motors Holding Limited, one Ephraim Duru, who moved the application to disqualify Justice Uwais in the open Court on June 20, 2005, said they would not want the Chief Justice to sit on the matter because of certain developments in the case, including the on-going allegation of bribery against him in the Ibori case.
As soon as the allegation was made, there was a pin drop silence inside the courtroom. As if in a coven, the justices gathered their heads together to discuss in a hushed tone the next line of action.
In less than 90 seconds, Justice Idris Kutigi now late asked Duru from the high bench if he knew the implication of what he just said, threatening that the court might direct him to remove his wig and gown and enter the dock to substantiate his allegation.
Notwithstanding the threat, Duru refused to eat his words as he insisted that he stood by his position.
The court had to rise for the day. It was that bad.
Uwais accusers disbarred over failure to prove corruption allegation
The matter was taken up by the Supreme Court and it is history today that not only Ephraim Duru but also the two lawyers, who were at the forefront of the campaign of calumny against the ex-CJN Uwais and the Supreme Court were disbarred over the matter having failed woefully to prove the damaging allegations against Justice Uwais.
Why serving judges should be excluded from handling election-related cases—Justices Uwais, Kanyip
It was, therefore, not surprising when Justice Uwais, before and after he retired from the bench canvassed for the use of retired justices to handle political cases particularly the election petition matters to spare the judiciary of battling frivolous and unnecessary scandals.
According to him, most of the scandals that shook the judiciary in the past emanated from politicians who lost their cases in court and felt that the judicial officers, who gave such judgment must suffer for doing their jobs.
In 2013, the trial judge of a Lagos division of the National Industrial Court, Justice B. Kanyip, now President of the Industrial Court had also canvassed for a system barring serving judicial officers from entertaining election related cases in the country.
The judge who advocated the use of retired judges for such political cases was of the view that taking away such responsibility from the serving judges would not only reduce the courts’ dockets but also insulate serving Judges and safeguard their integrity especially in the eyes of discerning public
Justice Kanyip who argued that the country was blessed with plenty talented retired judges, who were not yet tired said that embracing his suggestion would also not only be economically wise, but afford the country to further benefit from the wisdom and experience of the retired judges.
17 years after, Babalola, SAN, backs Uwais, Kanyip on exclusion of serving judges from election petition matters
A foremost Senior Advocate of Nigeria, Aare Afe Babalola, had also recently argued in favour of using retired judges to handle election petition matters.
According to him: “There have been accusations and counter-accusations from politicians regarding the integrity of some tribunals. Most of these accusations and allegations ranging from the plausible to the ludicrous have often been made or informed by no other factor than the side of the political divide on which the politician making the allegation has found himself on account of the judgment sought to be impugned.
“Cases have been reported in which parties to election petitions already submitted to court for adjudication and in some cases even already adjourned for judgment, declared openly that the outcome or judgment of the petition would be favourable to them. Some have been reported to have distributed traditional wear or uniforms amongst their party members and supporters and made extensive elaborate preparations for celebrations, including engagements of musicians all before the actual judgement of the tribunal or appellate court is delivered.
“At one time, there were allegations by a particular set of petitioners that the respondent, and also incumbent governor of the state at that time, was about to take steps to arrest by judicial means, the imminent delivery of the judgment of the appellate court. The respondent in reply, aside from a denial of the allegation, posed the question whether the petitioners had not by their allegation, inadvertently given away the fact that they were already privy to the contents of a judgment yet to be delivered.
“He queried why they would be so bothered that anyone was trying to arrest a judgment if they had not been assured that it (the judgment) would be in their favour? He stated further that the petitioners had already distributed celebration uniforms to their supporters. The judgment, when it was eventually delivered, was in favour of the petitioners.
“In yet another case, a newspaper reported soon after conclusions of arguments on a contentious application before a tribunal, that the application had been granted by the said tribunal. This was despite the fact that the tribunal was yet to deliver its ruling on the said application. It had as a matter of fact adjourned its ruling by over 48 hours in open court.
“When this anomaly was investigated, it was discovered that the media accounts of the grant of the application were influenced by a media statement sent to several media houses before the actual delivery of the ruling in open court by one of the media assistants to one of the parties in the petition. Most curiously, the eventual decision of the tribunal, when it was eventually handed down by which it granted the application, tallied with the accounts reported by the newspapers a day before. “Having regard to the numerous, persistent, and disturbing accusations made against election tribunal judges by desperate politicians, the coincidence or otherwise of judgments which were predicted by politicians, who had made victory preparation in advance of the judgments, and the tempting pressure in a poor economy, is it proper for serving judges to handle political cases?
“In any event, whether the “prediction” of politicians regarding the outcome of yet to be delivered judgments pans out or not, the integrity of the judiciary is always the ultimate loser. This is so for if the “prediction” is found to be correct, the losing side will forever point to the fact that the judgment had already been known well in advance of the delivery of same. If on the other hand the “prediction” is found to be false, then supporters of the losing side will also forever allege that some underhand dealings were responsible for the change in the judgment from what they had been told or assured to expect.
“This heightened level of attention and criticism is bound to affect the psyche of some judges and rub off on their ability to discharge their duty. It exposes them in several instances to a situation in which their every conduct and pronouncement is expected to measure up not to the dictates of the law but to the high and often misguided and misplaced expectation of the public which in most cases is totally ignorant of the position of the law. “Judges being human beings and not infallible may sometimes unwittingly yield to some of these pressures and let themselves be influenced by totally irrelevant factors. Furthermore, serving judges are of course very much interested in career advancement,” Chief Babalola had argued,
A prominent member of the inner bar, Mr. Samuel Okutepa, SAN, had also voted in favour of using retired judges to handle election petition cases.
Notwithstanding the calibre of Nigerians clamouring for amendment of relevant sections of the 1999 Constitution to exclude serving judges from handling election petition matters, there are also top-flight legal practitioners who argued that it was better not to disturb the status quo, arguing that using retired judges would worsen the situation.
Some of the top legal practitioners, who spoke on the issue are former President of the Nigerian Bar Association, NBA, Mr. OCJ Okocha, SAN, a member of the inner bar and renowned academic, Prof. Akinseye George, SAN, a prominent member of the inner bar and former lead counsel to Muhammadu Buhari, Chief Mike Ahamba, SAN, and an Abuja-based silk, Mr. Israel Olorundare, SAN.
Okocha disagrees with Uwais, Babalola, others
According to Okocha, “Even if retired judges are used, the integrity of the judiciary is still at stake. And then we all know that our judges retire from the high court at the age of 65 while they retire at the age of 70 from the Court of Appeal and the Supreme Court.
“Knowing Nigeria for what it is with our medical facilities, and knowing the judges themselves with the conditions they find themselves when they retired, most of them are old and feeble.
I do not think they are suited to do the rigorous work of the election tribunal.
“Besides, election petition cases are time-bound. They have limited time to do their work so that the country can move forward. I don’t subscribe to the fact that retired justices should be brought back from retirement to sit on election petitions.
“I am aware that the alternative they proposed when they were doing constitutional review was the creation of constitutional courts to hear only political matters such as election petition matter to determine who was properly and validly elected. It did not scale through.
“I think proliferation of courts is not even a good thing. I believe that the regular judges, who have their reputation at stake should be allowed to do the job. They know that if they allow politicians to corrupt them, then, their image is already tarnished.
“And let me say this: politicians like to raise all those issues: oh, it was a political judgment. It was a kangaroo court. But a fair conscience fears no accusation. Judges who constitute election petition tribunals and have done their work with truth and justice in mind, will not listen to all those frivolous allegations. They will do their job. And if they know there is one authority over them, the NJC, if they go and soil their hand and an allegation is booked against them, then, their whole career as a whole will be put in jeopardy. For all those reasons, the sitting judges should continue.
“I know that this will affect their regular cases but that is the sacrifice lawyers and their clients will have to make. And it depends on how the judges schedule their work. They should schedule their work in such a way that even if they go for election petition which is time bound, they will be in a position to come back to finish or continue with the pending cases they have before their regular courts,” he submitted.
3 reasons we should not fall into error of using retired judges —Prof George
A renowned academic, Prof. George, SAN, said he disagreed with those canvassing for amendment of the constitution to exclude serving judges from handling election petition cases.
He said: “Honestly, I do not think we should use retired judges to handle election petition matters for three reasons. One, retired judges are no longer legally contracted. They have concluded their tenure. That tenure is what gives them some form of extra allegiance to the state. The fear of being dismissed for misbehaviour is no longer there. And it is very important in a matter of election petition,
“Two, most of the retired judges are old. None of them is less than 65 years. Most of them are 65 and above because at the high court, they retire compulsorily at 65. At the Appeal and Supreme Court, they retire compulsorily at 70. So, already, they are no longer dynamic. The election matters are very tasking, loaded and time-bound. It is energy sapping.
“Thirdly, the fact that someone has retired makes them more susceptible to undue influence by politicians, especially when most of them retired into the kind of life that they would not want for themselves. That is why we are advocating improvement in the welfare of judges, to strengthen the working conditions of serving judges. When you appoint somebody into election petition tribunal, you need to monitor such person very closely, his lifestyle and the rest. Let us know how they live.
“To help those who are doing the job, I think we should digitalise the tribunal, so that the work can become faster using technology. You can watch at the proceedings digitally because it is recorded. Everybody can watch it.
It’ll be an error giving election petition matters to retired judges –Olorundare, SAN
Mr. Olorundare, SAN, said policymakers should not fall into the error of giving election petition matters to retired judges for adjudication.
According to him, “It will be worse if we use retired judges. The retired judges have no stake again in the judiciary. So, the politicians will just cash and carry them. But the serving judges and justices, they still have disciplinary action that await them. Nobody will want to be dismissed or retired compulsorily for taking something.
“Even allegations of corruption or appearance before NJC is a dent on their image which they will want to run away from. It is better to remain with serving judges. You can discipline them unlike those who are no longer under any disciplinary action.
“You see, head or tail in Nigeria and among black minds generally, we don’t accept defeat easily. It also happens even in advanced country. But theirs is a little different because they have been used to discipline. Whether you like it not, one side will win, another side will lose. Even our government, they don’t accept judgments in good faith. And the judiciary is part of the government. You can’t separate the judiciary from the government of Nigeria.
“Our attitude to court judgment is not limited to politicians but government itself. If a high court in Kwara State for instance gives judgment against government, you will see how they will be pursuing that judge all about. I have been in a state where a judge gave judgment against a state government and the governor was now telling us that he will go and remove generator from the house of that judge and withdraw his police. We told him: ‘Your Excellency, you can’t do that. If you do it, you will be undermining the judiciary, the third arm of government.’ He said yes, he doesn’t care. So, you can just see, we don’t accept judgment in good faith. This is the problem. What do you make of that one.
“It is the attitude and mentality of a black mind. They know they are wrong. When they know that a judgment is against them, they will say the other party has bribed the judge. Nobody accepts judgment in good faith especially in Nigeria.
“Using retired judges will be worse because nobody will exercise disciplinary control over them. Under what law are they going to be sworn in. It can be easily challenged, that it is an illegality.”
Using retired judges for election petition will not work—Ahamba, SAN
Another member of the inner bar, Chief Ahamba, SAN, said retaining serving judges to handle election petition matters was much better than going for retired judges.
“Using retired judges to handle election petitions cannot work in Nigeria in this era. If it worked sometimes, you can’t use them in this era.
“The retired judges when they are gone, they are gone. They can’t come back. The government should try to impose sanctions on those who don’t behave like judges in election petition cases.
“The fact is that whether a judge is serving or not serving, a corrupt mind is a corrupt mind. The problem in Nigeria is the impunity with which wrongdoings are treated, because nobody calls anybody to question. In public service, if somebody goes contrary to the ethics and the norms, they should be sanctioned. That is the way to live in a society. That is my view.”
Although lawyers on both sides have persuasive arguments, logic appears to be on the side of continuing with serving judges instead of using tired judicial officers without much stake to handle sensitive issues that could destroy its democracy and break the country.