Hon. Justice Kutigi and his Judicial Legacy
Detribalised Jurist
He was unarguably, one of the most detribalised jurists, a nationalist and patriot in every sense of the word. He related mostly with respect to the content of a person, he knew nothing with discrimination of whatever nature. Generally, he liked to train and mentor legal minds, irrespective of the person’s background, tribe or religion. This was just how he wanted to inculcate the attitude or culture of hard work, diligence or meticulousness, in his lieutenants, children and people around him. He never left for home, until he finished all his work for the day, as it was not in his character, to leave anything that ought to be done pending. Hence, while working with or for him, one needed to be conscious of the choice of words to apply, dot your 'i's and cross your’t’s. Upon all, he was an exceedingly good role model, a big team player, always wanting to carry everyone along. That was why he never had an axe to grind or had rancour with any of his brother Justices on the Supreme Court bench.
He exhibited his workaholic nature, when he was appointed in 1976 the Solicitor- General and Permanent Secretary, North-Western State, and became the Attorney- General and Commissioner for Justice, Niger State from 1976 to 1977, a position he held concurrently with the offices of the Solicitor – General and Permanent Secretary, as well as that of Director of Public Prosecution. He was fondly called by his colleagues in the Niger State Executive Council, “Three-in one”.
Kutigi CJN’s Judicial Reforms
Justice Kutigi introduced a number of judicial reforms on becoming the Chief Justice of Nigeria. He, it was, who amended the 1979 Fundamental Human Enforcement Procedure Rules that later becomes Fundamental Rights (Enforcement Procedure) Rules 2009. This is largely known in the legal parlance, as
the ‘’Kutigi Revolution’’. He amended and signed into force on November 11, 2009, and immediately made it effective from December 1, 2009. The enactment which he did pursuant to Section 46(3) of the 1999 Constitution (as amended). was a bold and radical step to tackle Human Rights abuses, by deepening and strengthening canons of democratic practice in the country.
The Rule is an improvement on what was obtainable under the Fundamental Rights (Enforcement Procedure) Rules 1979, which was marred by defects such as locus standi and unacceptability of public interest litigation. Hitherto, the principal means for enforcing human rights, were the prerogative writs of Habeas Corpus, Certiorari, Mandamus and Prohibition. These were often found cumbersome, somewhat technical, and lacking in the flexibility necessary for the proactive pursuit of human rights claims. The introduction of the 1979 FREP rules, was aimed at bringing greater speed and dynamism to the enforcement of Fundamental rights in Nigeria.
The FREP Rules 2009 was made in order to streamline and expedite the enforcement of fundamental rights in Nigeria, and to provide solutions to myriads of problems associated with the Fundamental Rights (Enforcement Procedure) Rules, 1979, such as the necessity to obtain the leave of court by way of motion ex parte before the commencement of fundamental rights action. The FREP Rules, 2009 also allows Lawyers and litigants, to file their briefs even if the Applicant is detained. In other words, it is not necessary that, the Applicant must be physically present before the Commissioner for Oaths to swear to his statement or affidavit. Before the 2009 Rules, the procedure for the enforcement of Fundamental Rights in the High Courts, required bringing up the action within a specified period of time from the occurrence of the breach of such rights, but under the 2009 Rules, specifically, Order III Rule I thereof, the limitation of the period of time has been done away with.
Again, under Clause 3(f) of the Preamble to the 2009 FREP Rules, the court shall in a manner calculated to advance Nigerian democracy, good governance, human rights and culture, pursue the speedy and efficient enforcement and realisation of human rights.
Kutigi CJN’s Legacy
Justice Kutigi’s legacy will live on, not only in the tremendous contributions he made to national development, but also in the FREP Rules. No narrative of the struggle for judicial activism in the protection of constitutional rights, can be authentic or complete, without a mention of his prodigious contribution to it.
The FREP Rules 2009, fundamentally changed the landscape of enforcing constitutional rights in Nigeria. It simplified fundamental rights litigation, made it speedier, and created a separate, inexpensive filing-cost regime for human rights cases, thus, ensuring that poverty was, as far as human rights cases go, not a significant barrier to access to justice. The Rules also direct courts to ensure that international norms of human rights are applied, in the resolution of domestic human rights claims. Litigants can now file fundamental rights enforcement actions, irrespective of the amounts claimed, by paying fees that do not exceed about N1000 in total.
I can recall it was during his tenure in office as the Chief Justice of Nigeria and Chairman of the National Judicial Council, that the edifice that today stands as Secretariat of the National Judicial Council, was approved and constructed. Thus, repositioning the Council for the task and challenges ahead, which is the hallmark of extraordinary vision and uncommon leadership quality of the late jurist.
Justice Kutigi became the Chief Justice of Nigeria on January 18, 2007, and held sway till December 31, 2009, when he attained mandatory retirement age of 70 years and retired. One can say without fear of contradiction that, that period remains one of the most trying periods in the history of our Judiciary. It was a period that the Judiciary more than ever before, took steps to restore public confidence, and the ultimate enthronement of the Rule of Law. It was a period the Judiciary witnessed an unprecedented flow of cases that generated a lot of public interest, particularly election petition cases, and a number of other equally sensitive constitutional matters.
Of course, with the dint of hard work and sense of fairness, he alongside other Justices of the Supreme Court, were able to weather the storm, and equally helped in restoring the public confidence in the Judiciary.
It seemed that at every turn in his life, by providence, he faced a daunting task that ordinarily would have swept some people out of way. The way he was able to tackle such, has relatively distinguished him as an outstanding judiciary administrator. He has to his credit as the first, and so far, the only CJN who has had the rare privilege of swearing in his successor in office as he was retiring on December 30, 2009, in the person of Hon. Justice Aloysius Iyorgyer Katsina-Alu (GCON) of blessed memory. Conventionally, the President and Commander-in- Chief of the Armed Forces of the Federal Republic of Nigeria, swears in the Chief Justice, but President Umaru Musa Yar'Adua was not available on this occasion, due to ill health.
In view of the controversy that trailed his action of swearing in his successor, Justice Kutigi justified his initiative or deed as follows. ‘’For the first time in the history of this country, the Chief Justice of Nigeria has sworn-in the incoming. It is the first time (clapping). That it is the first time, is not the fault of anybody. This is because the law has always been there. The swearing-in of the CJN, is either done by Mr President or the outgoing or retiring Chief Justice. Now the occasion arises to perform the function, which I have just done. I am aware that this has generated a lot of commentaries and controversies, from people who were supposed to know. ‘’The law is there. There is nothing new. If you look at the Oath Act 2004, you will see the provision there, where the CJN, Justices of the Supreme Court, President of the Court of Appeal and the Justices of the Court of Appeal, among others, are all listed in a column, all of them, according to the Act, are to be sworn in by the President or the Chief Justice of Nigeria”. Kutigi justified action.
‘’The provision is there, and it has always been there. That the outgoing CJN has never done it, does not make it wrong. The law is clear. If you also look at the 1999 Constitution, it also makes it clear: that the person who has the responsibility of swearing-in the new CJN, is the Chief Justice of Nigeria. What I am saying is that, there is nothing new about it. The law is there, but for the first time we are just using it today. And, let me say that, I will be attaining the age of 70, Insa Allahu, by midnight today’’.
Barely five years after he left the Supreme Court Bench, Justice Kutigi resurfaced in the public domain once again, as ex-President Goodluck Jonathan appointed him in 2014 Chairman of the Constitutional Conference. On August 21, 2014, Justice Kutigi noted in his speech while submitting 2014 National Conference Report to ex-President Jonathan that, ‘’when 494 Nigerians are assembled to address the fears, disappointments, aspirations and hopes which have accumulated over one hundred years, it is only to be expected that the debates would be robust; and indeed, the debates were robust. It was only to be expected that tempers would fly; and tempers did fly.
‘’We did not try to ignore, or bury our differences. We addressed these differences, while respecting the dignity of those holding these differences, and sought to construct solutions which would become building blocks for a just and stable nation’’, Justice Kutigi stated.
In his own remark, ex-President Jonathan said, ‘’on behalf of all Nigerians, let me thank you most sincerely, for your hard work. Your tireless efforts aimed at coming up with recommendations to chart a path of peaceful coexistence, sustainable development, justice and progress as we march into our second centenary, shall not be in vain’’.
In the valedictory speech he delivered on January 20, 2010, Justice Kutigi said it all, that ‘’it has always been my prayer since l assumed the office of the Chief Justice of Nigeria, that I should leave behind a Judiciary better than the one I met. I thank Almighty Allah, for our modest contribution. I am positive that the Judiciary of this great country is one, and would remain one of the best judiciaries in the world.
‘’I cannot end this address, without expressing my gratitude to my brother Justices of the Supreme Court for their support, cooperation and understanding, during the period I worked with them. We certainly have shared periods of challenges and difficulties together. You would agree with me that, there were inconveniences and sacrifices that we have all encountered and made, in order to salvage the name and good image of the Judiciary. You have indeed been very supportive. Over the years, we have worked as a team to achieve the set goals. As I retire and leave the bench, I wish you my learned brothers, Allah’s guidance and protection’’.
Thucydides, a medieval Historian said when Pericles was asked to give the official funeral oration for the Athenian soldiers who died at one of the opening battles of the Peloponnesian War chose to say, “for famous men have the whole earth as their memorial: ...in people's hearts, their memory abides and grows. It is for you to try to be like them. Make up your minds that happiness depends on being free, and freedom depends on being courageous. But, the bravest are surely those who have the clearest vision of what is before them, glory and danger alike, and yet notwithstanding, go out to meet it’’. Pericles' Funeral Oration by Thucydides (c. 460 BC – c. 400 BC).
Adieu! Baba. May Allah Have Mercy on your soul, and grant you eternal rest in Aljannah Firdaus.