Professor Nwabueze and the Supreme Court Solomon Ukhuegbe
Rejoinder “THE NOTION THAT JUDGES’ DELIBERATIONS MUST BE “PUBLIC”, IS RIDICULOUS. WHAT, IN FACT, SECTION 36(1) REQUIRES TO BE HELD IN PUBLIC, ARE “THE PROCEEDINGS OF A COURT OR THE PROCEEDINGS OF ANY TRIBUNAL.” JUDGES’ DELIBERATIONS, ARE NOT A PART OF “P
TProfessor Nwabueze’s Statement
he statement issued on October 31, 2019 by Professor Benjamin Nwabueze concerning the determination by the Supreme Court the previous day of the Atiku Abubakar Presidential election petition merits careful reading, if only because of the eminence of its author. In the view of Professor Nwabueze, the statement by Chief Justice Ibrahim Tanko Muhammad that, the Panel of Justices “examined all the briefs of argument and the exhibits for over two weeks and we have all agreed that there is no merit in this appeal” was unconstitutional, because the hearing of the appeal on October 30 could not constitute a fair hearing, and therefore, violated Section 36(1) and (3) of the Constitution. According to Professor Nwabueze, “What happened in the Supreme Court on 30th October, 2019 is therefore, a farce, not a valid hearing and determination of the appeal lodged by former Vice-President Atiku Abubakar against the victory of President Buhari in the 2019 Presidential election, as declared by INEC”.
Nwabueze’s argument, has two parts to it. First, “the manner the Panel was appointed, did not accord with Section 36 of the 1999 Constitution, which provides for fair hearing.” Second, “No ‘examination’ of all the briefs of argument and exhibits as announced by the CJN in the statement...can constitute a fair hearing required by Section 36 of the Constitution, in the absence of the parties”.
It should be observed at the outset that, as the Supreme Court is yet to give reasons for dismissing Mr. Abubakar’s appeal, the substantive decision of the court is not (yet) open to criticism. Second, Professor Nwabueze was part of the legal team of the Petitioner/Appellant during the trial. In fact, he famously appeared briefly before the PEPT, announced himself as counsel on record for the Petitioner, and briefly addressed the Tribunal on behalf of the Petitioner. Other counsel for the Petitioner, including lead counsel Dr. Livy Uzoukwu, SAN and Dr Mike Ozekhome, SAN, have been highly circumspect in their reaction to the court decision.
Possible Grounds of Objection
It is not clear, what Nwabueze’s objection about the constitution of the Supreme Court Panel for the October 30, 2019 hearing is. However, it seems to be this: “Can the Supreme Court function as regards the hearing of the appeal before the seven-man
Panel to hear the appeal was appointed, and the names of the members announced to the public? When exactly was the appointment of members made?” Thus, he disputes whether the court as a duly constituted Panel could properly have “examined all the briefs of argument and the exhibits for over two weeks”. Hence, Nwabueze queries, “the question arising is as to whom the word, ‘we’, in the CJN’s statement refers. Can the ‘we’ be a reference to the Supreme Court?”
There is no doubt that the parties filed their briefs and exhibits at the Supreme Court, over two weeks before the October 30 hearing. We do not know when the CJN empanelled the court, for hearing. It has always been clear that, that is the exclusive and unsupervised responsibility of a Chief Justice. There is no requirement that he should make a public announcement, whenever this is done. On the contrary, a Chief Justice may have good reasons not to do so, in a politically sensitive matter. At any rate, he always has the right to remove or add to the Panel any time before the hearing. It doesn’t make any sense to suppose that the court was empanelled on the morning of October 30, just before the hearing began. We expect Judges to study the records and briefs carefully, before a hearing. In any case, it is not clear how not publicly announcing the Panel before October 30, adversely affected the Petitioner’s right to a fair hearing. If the Petitioner had any reservations about one or more members of the Panel, for example, the matter should have been raised immediately the hearing began. Nothing of the sort was done, and there has been no suggestion of any reservations even now.
Professor Nwabueze’s second ground, is related to the first. He says, “As the examination referred to in the statement by the CJN was not held in public, it is not the hearing required by Section 36(3) of the Constitution. Secret hearings and trials, are abhorrent to democracy”. According to him, “The ‘examination’ referred to in the CJN’s statement, was certainly not done in the presence of the parties. The examination ‘of all the briefs of argument and the exhibits for over two weeks’ before 30th October, as announced by the CJN, could not be the fair hearing required by Section 36 of the Constitution. No ‘examination’ of all the briefs of argument and exhibits as announced by the CJN in the statement quoted above, can constitute a fair hearing required by Section 36 of the Constitution in the absence of the parties. Furthermore, not only is the hearing required to be conducted in the presence of the parties in order to be a fair hearing, Section 36(3) requires it to be held in ‘public’. Section 36(3) is quite clear and unequivocal, on this point.”
Does Professor Nwabueze expect judges’ pre-hearing or post-hearing deliberations to be done in the presence of the parties, in order to ensure fair hearing? Briefs of argument are written submissions by parties, and the trial record completely documents the matters the parties have brought before the court for resolution. Oral argument before the Supreme Court is strictly limited, and very often, Lawyers simply orally adopt their briefs as their submissions. There is nothing distressing in a Panel selected to hear a case, conclude from reading the briefs and record, that an appeal lacks merit, even before oral arguments, which cannot, and is not allowed to be radically different from what is contained in the brief. Judges’ deliberations are a component of fair hearing, only to the extent that the briefs and record must be considered by the court in reaching a decision. The notion that Judges’ deliberations must be “public”, is ridiculous. What, in fact, Section 36(1) requires to be held in public, are “the proceedings of a court or the proceedings of any tribunal.” Judges’ deliberations, are not a part of “proceedings” of a court or tribunal. If they were, then the deliberations would need to be included in the record of proceedings. This is never done. EVERYWHERE, Judges’ deliberations are closed to the parties and the public, and is usually confidential.
In conclusion, Nwabueze submits, “Finally, the decision of the Supreme Court dismissing the appeal for lacking merit is a law within the meaning of Section 1 of the Constitution and, being inconsistent with Section 36 of the Constitution, it is, by the self-executing declaration in Section 1(3), null and void. Section 1(3) is a self-executing declaration, and does not require anything else to bring it into effect. In other words, the decision dismissing the appeal, is null and void without further ado”.
It is not clear, what purpose this statement is intended to serve. I do not want to believe that the nation’s most able Constitutionalist, is suggesting that the Supreme Court decision of October 30, 2019 has not LEGALLY settled with finality, the dispute raised by the petition of Mr. Abubakar. It would be simply tragic, if that was the intention. Section 287(1) of the Constitution makes it clear: “The decisions of the Supreme Court shall be enforced in any part of the Federation by all authorities and persons, and by courts with subordinate jurisdiction to that of the Supreme Court”.