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2019: Mostly Negative Judicial Milestones?

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The year 2019, will go down in Nigerian legal history, as one of the most momentous, so far. It came with its fair share of good, bad and ugly developmen­ts, including some of the most complicate­d and controvers­ial judicial decisions in the nation’s history. Daniel Aloaye, Lazarus Chinwokwu and Chinelo Chinweze, take a critical overview of some of the landmark judgements, which defined the year that is just ending

Trampling on the Rule of Law, Court Invasion, Protracted Detentions: Year 2019 in Review

TIntroduct­ion he year 2019 has been another bumpy, red-letter year for Nigeria’s justice institutio­ns. We attempt an overview of a year characteri­sed by theatrics and drama, spectacle and wonder, impunity and silence, as well as a growing sense of disquiet among stakeholde­rs in the administra­tion of justice and the Nigerian people. There were many notable developmen­ts in the year – the unpreceden­ted conviction and sacking of a Chief Justice in Nigeria, the increasing political attack on rule of law institutio­ns and human rights, the continuing and escalating incidence of contempt of courts in Nigeria, by the refusal by government security forces to obey orders and judgements alongside invading the court room and disrupting judicial proceeding­s, as well as the obfuscatin­g silence of the Judiciary in the face of these attacks. There is so much to highlight ...

Chief Justice of Nigeria Convicted by the Code of Conduct Tribunal In a judgement delivered by its Chairman, Mr. Danladi Umar, on April 18, 2019, the Code of Conduct Tribunal (CCT) convicted Justice Walter Onnoghen, the immediate past Chief Justice of Nigeria (CJN) on a six-count charge of false declaratio­n of assets. The charges, filed on January 10th, 2019 by the Federal Government of Nigeria, followed a petition to the Code of Conduct Bureau on January 9th, 2019 by an organisati­on (the Anti-Corruption and Research Based Data Initiative), alleging breaches of the Code of Conduct by the erstwhile CJN. Following its verdict, the Tribunal ordered Justice Onnoghen’s removal from judicial office as Chief Justice of Nigeria, as well as the seizure and forfeiture of the monies in his accounts. It also barred him from holding public office, for ten years.

The bizarre and bottom-of-the-barrel procedures and tactics adopted by the CCT in the trial outraged many Nigerians, and showed that the Tribunal lacked any concept of independen­ce, and was only too willing to offer itself as a vehicle to achieve the political agenda of the government.

The rule of law, of course, requires that courts and tribunals which exercise judicial powers, should be independen­t of other arms of government, and appear, in the perception of reasonable observers, to be so. Unfortunat­ely, the Code of Conduct Tribunal did not offer this guarantee of independen­ce, neither its perception. The Tribunal was, from the word go, bent on a particular, pre- meditated outcome, and looked neither left or right, in the blind pursuit of that goal. The Tribunal, clearly, could not have convinced anyone that it was sitting as an unbiased umpire or judicial arbiter. It was so desperate to convict Justice Onnoghen that it had to overturn or side-step its previous judgements on similar matters - decisions such as those given in a prior case involving another Justice of the Supreme Court! A cardinal principle of our Common Law system is that, similar cases are decided alike in order to prevent arbitrarin­ess and caprice in the adjudicati­on of cases.

It is clearly feasible to argue that, the leadership of the Code of Conduct is too vulnerable to be independen­t, and that Danladi Umar’s Tribunal is a major sticking point for the proper administra­tion of justice. Looking beyond 2019, there needs to be a change in the Chairmansh­ip of the Tribunal, if it is to inspire public confidence as a vehicle of justice and of the fight against corruption. More than changing its leadership, constituti­onal reforms must make the CCT a more independen­t institutio­n. A Tribunal under the Presidency, cannot be independen­t of the Presidency.

FRN v ONNOGHEN: Court of Appeal Blows Hot Air, but Offers Cold Justice On May 10th 2019, the Court of Appeal struck out the appeals filed by Justice Onnoghen against the ex-parte orders of the CCT, suspending him from office. President Muhammadu Buhari had, on the strength of the order of the Tribunal, suspended Justice Onnoghen from office as Chief Justice of Nigeria, and appointed Hon. Justice Tanko Muhammed, as acting Chief Justice of Nigeria.

Justice Onnoghen had in February 2019, filed four appeals challengin­g the jurisdicti­on of the CCT to hear the charges of non-declaratio­n of assets brought against him before the Tribunal; the grant of an ex parte order for his suspension as the Chief Justice of Nigeria; the refusal of the Code of Conduct Tribunal to be bound by the orders of the Federal High Court and National Industrial Court halting its proceeding­s, and the warrant of arrest issued by the court in January 2019.

In its unanimous judgement, the Court dismissed three of the four appeals, on grounds that the substantiv­e matters from which they arose had been concluded, as the Code of Conduct Tribunal had convicted Justice Walter Onnoghen on the allegation­s against him already on April 18th, 2019. The fourth appeal was struck out, for lack of competence.

The Court of Appeal however, found that the ex parte order granted by the Tribunal on 23rd January, 2019 had breached Justice Onnoghen’s right to fair hearing, because the order was obtained in a manner “shrouded in secrecy and clandestin­e

manoeuvre”. As it were, the decision was clearly of no practical importance, either to the beleaguere­d ex-CJN Onnoghen or the conniving government.

The horse had bolted from the stable. In the face of the fait accompli that sealed ex-CJN Onnoghen’s ability to enforce his due process rights, would not the Judiciary’s own relevance come into question? Nigeria’s Judiciary must reflect hard on its capacity to meet the exigencies of defending the rule of law in Nigeria, given its failure when entreated, to upend the travesty and charade that was being played out by the Code of Conduct Tribunal against Justice Onnoghen, in the guise of a trial.

EL-ZAKZAKY: Nigeria Police Curtail Protests and Clamps down on Protesters

On July 17th, 2018, following persistent clamour by the Islamic Movement of Nigeria (IMN) members for the release of their leader Sheik El Zakzaky, the Nigeria Police announced the restrictio­n of protests in the Federal Capital Territory to the Unity Fountain, Central Business District, Abuja, saying the restrictio­ns were informed by the need to avert an occurrence of incidences similar to those which trailed the protests of October 30th, 2018.

It would be recalled that on October 30th, 2018, officers of the Nigerian Army confronted and opened fire on a procession of the IMN members who were protesting the unlawful (and protracted) incarcerat­ion of their leader, Ibrahim El-Zakzaky, by the Nigerian Government, as well as the killing of several members of the sect by officers of the Nigerian Army on October 27th, 2018. Could the police lawfully restrict rights of freedom of associatio­n and movement as it did?

Police restrictio­ns of the right to associate and assembly, or its making the exercise of those rights conditione­d on meeting certain criteria has, in fact, been ruled unconstitu­tional by a decision of the Court of Appeal in Inspector General of Police v All Nigeria Peoples Party and 11 Others (2007), where the court held that, the procuremen­t of a police permit before a protest could hold was inconsiste­nt with the provisions of the 1999 Constituti­on, and therefore, an illegality. So, why would the Police act in brazen circumvent­ion of a subsisting court judgement? Clearly, the new policy limiting the places where protests

“MORE THAN CHANGING ITS LEADERSHIP CONSTITUTI­ONAL REFORMS MUST MAKE THE CCT A MORE INDEPENDEN­T INSTITUTIO­N. A TRIBUNAL UNDER THE PRESIDENCY, CANNOT BE INDEPENDEN­T OF THE PRESIDENCY”

can hold, is just as unconstitu­tional as requiring a police permit before a protest can hold.

Federal High Court Proscribes Islamic Movement of Nigeria

On 26 July, 2019, a Federal High Court presided over by Justice Nkeonye Maha, made an order pursuant to an ex parte applicatio­n brought by the Federal Government proscribin­g the IMN group. In its decision, the court “designated the activities of the Shiite organisati­on in any part of Nigeria, ‘as acts of terrorism and illegality’.

Yet, the court’s order must have astounded many, accustomed to the principles and traditions of constituti­onal process. How could a court, operating in a constituti­onal democracy, use a decidedly one-sided account of a case to frame its determinat­ion and orders on the case, totally excluding the party whose very existence was being threatened? Convention­ally, a legitimate judicial process takes account of, and hears the cases and defences of everyone accused of misconduct and/or whose interests would be affected by a decision and orders. Furthermor­e, in a democracy, legislatio­n must pass the tests of constituti­onality, to be enforceabl­e by a court. The court ought to have satisfied itself, that the legislatio­n under which it acted, which so gravely imperilled the fundamenta­l rights of citizens to assemble and move freely, espouse their causes and practice their religion, passes constituti­onal muster.

It probably bears repeating that, when a Judiciary fails to muster courage to safeguard the rights of individual­s or groups when threatened, including those who suffer political persecutio­n because of their beliefs or their unpopulari­ty, democracy fails, and then the people are effectivel­y silenced and unable to hold power to any form of accountabi­lity. Justice Maha’s decision did far-reaching damage, to the rights of a group and its members to defend their rights peacefully and legitimate­ly.

ATIKU v BUHARI: Recusal of Court of Appeal President from Case - No Comfort in Outcomes for Atiku Abubakar and PDP

Shortly after the conclusion of the 2019 general elections, and the commenceme­nt of election petitions before various election petition tribunals, there were strong speculatio­ns that the President Buhari administra­tion was heavily invested in efforts to achieve the best possible outcomes from electoral courts, in any election litigation involving the ruling party through any means possible.

The Court of Appeal President, Hon. Justice Zainab Adamu Bulkachuwa - married to a Senator of the ruling All Progressiv­e Congress (APC) party - was both sitting and chairing the panel set up to hear the petition filed by Atiku Abubakar, against the declaratio­n of President Buhari as the winner of the 2019 Presidenti­al election.

However, following public outcries from the People’s Democratic Party (PDP) and civil rights groups, against Justice Bulkachuwa’s membership of the Presidenti­al Election Petition panel, the Justice was forced to recuse herself from the panel. But, her recusal was of little comfort. The Court of Appeal dismissed in its entirety, the petition of the PDP flag bearer, and the PDP itself.

The Supreme Court Wades in, gives a Short Shrift, but Procedure begs the Question

Atiku Abubakar and the PDP, appealed the Court of Appeal judgement to the Supreme Court. After a protracted period of not constituti­ng the bench to hear the appeal, the Supreme Court on October 30, 2019, dismissed the appeal, and gave the reasons for doing so on November 15, 2019. To express their dissatisfa­ction with the Supreme Court’s decision, no counsel of the Appellants appeared at the Supreme Court, to hear the reasons the court gave for its judgement.

Reacting to the judgement of the Supreme Court, Atiku Abubakar was to state that: “The Nigerian judiciary, just like every estate of our realm, has been sabotaged and undermined by an

overreachi­ng and dictatoria­l cabal...” Weighty allegation­s. But, the Supreme Court returned no retort. Furthermor­e, the court’s judgement has been the subject of criticism, because of the procedure adopted by it, in determinin­g the appeal.

Prof. Ben Nwabueze, SAN, constituti­onal scholar (and also co-counsel for Atiku Abubakar in the lower court), impugned the judgement, on the basis that the Supreme Court reached the substantiv­e decisions in the case, without a fair hearing. He maintained that, the Supreme Court examined the appeal before it, “in secret”, as declared and admitted, without regard to Section 36 (3) of the Nigerian Constituti­on.

In Kogi State, Chief Judge Swears-in new Deputy Governor, notwithsta­nding Verdict of Panel he set up

On October 18th, 2019, Mr. Simon Achuba, the Deputy Governor of Kogi State, was impeached by the State House of Assembly. The impeachmen­t was dramatic for many reasons, mostly political. But, it was the Judiciary’s role, that came under the most scrutiny and ridicule.

In the weeks leading up to the impeachmen­t, the Chief Judge of the State, Justice Nasir Ajanah, establishe­d a panel to verify the allegation­s levelled against the ex- Deputy Governor, as he was constituti­onally obligated to do. In its submission to the House of Assembly, the Investigat­ing Panel stated that, in line with Section 188(8) of the Constituti­on of the Federal Republic of Nigeria 1999 (as amended) “....the allegation contained in the Notice of Allegation admitted in evidence by this panel as Exhibit 7, have not been proved....”.

“.....WHEN A JUDICIARY FAILS TO MUSTER COURAGE TO SAFEGUARD THE RIGHTS OF INDIVIDUAL­S OR GROUPS WHEN THREATENED, INCLUDING THOSE WHO SUFFER POLITICAL PERSECUTIO­N BECAUSE OF THEIR BELIEFS OR THEIR UNPOPULARI­TY, DEMOCRACY FAILS.....”

However, despite this finding by the panel, the Kogi State House of Assembly impeached Achuba, contrary to Section 188 (8) of the 1999 Constituti­on (as amended) and Mr. Edward Onoja, was sworn into office as the new Deputy Governor of the State. But, it gets even more curious. The Chief Judge of the State, Justice Nasir Ajanah, in spite of the fact that the panel he set up returned a verdict of “not guilty” against the Deputy Governor, (which was enough to nip the impeachmen­t process in the bud), went ahead to swear into office, the new Deputy Governor! Who is sabotaging the Judiciary?

Judicial Appointmen­t Procedures: Are the NJC’S Judicial Appointmen­t Guidelines Hollow Rituals as Allegation­s of Nepotism in Judicial Appointmen­ts Grow?

The 2014 Extant Revised Guidelines for the Appointmen­t of Judicial Officers of Superior Courts of Record (Judicial Appointmen­t Guidelines) and the 2016 National Judicial Policy, both made by the NJC, represent far-reaching changes to previous judicial recruitmen­t systems that were characteri­sed by lack of transparen­cy, opacity, lack of a level-playing field, influencep­eddling and nepotism. The 2014 Judicial Appointmen­t Guidelines and the 2016 National Judicial Policy, prioritise and promote values of transparen­cy, openness, merit and the availabili­ty of equal opportunit­y to all persons interested in judicial offices. Both instrument­s intend, in other words, to provide a level playing field for all eligible persons, interested in serving in judicial offices, whether they are currently serving as Judges/Justices, are in private practice, or in academic institutio­ns of learning. Yet, many see the NJC and Federal/State Judicial Service Commission­s as largely ignoring these Guide

lines, in processes leading to the appointmen­t of Judges/Justices of superior courts.

Things have got so bad that, allegation­s of nepotism are now growing. In Delta State, the Nigerian Bar Associatio­n (NBA) called for the cancellati­on of processes, leading to the recommenda­tion of five persons for appointmen­t into the State Judiciary. In petitions submitted to the NJC, the NBA alleged that, the procedure leading to the recommenda­tions of the five nominees were severely flawed, as two of the nominees for judicial appointmen­t were relatives of the Chief Judge and the President of the Customary Court of Appeal, in the State.

In a related vein, Access to Justice sued on Tuesday 27th November, 2019, to stop the process for the appointmen­t of four nominees into the Supreme Court, for violations of the NJC’s Judicial Appointmen­t Guidelines. The lawsuit alleges that, the Federal Judicial Service Commission and the NJC failed to adhere to the establishe­d appointmen­t guidelines, and, in fact, circumvent­ed aspects of those procedures which make the recruitmen­t process transparen­t, fair, merit-based and competitiv­e, in making the nomination­s of the four Court of Appeal Justices for appointmen­t into the Supreme Court.

Prior to the lawsuit, the news media had, on June 9, 2019, reported that President Buhari asked the acting Chief Justice of Nigeria, Honourable Justice Tanko Muhammad, to initiate the process of appointing five new Justices of the Supreme Court. In his letter to the CJN, the President said he was “...pleased to request that you initiate in earnest, the process of appointing additional five Justices of the Supreme Court of Nigeria, to make the full complement of 21 Justices...”. ‘The President said this was in line “with the government’s agenda of reposition­ing the Judiciary in general, and Supreme Court in particular, for greater efficiency, with a view to reducing the backlog of appeals pending at the Supreme Court.

Subsequent­ly, on June 11th, two days after the President’s request was published, the Chief Justice of Nigeria reportedly asked Supreme Court Justices to nominate “suitable candidates for considerat­ion for appointmen­t as Justices of the Supreme Court of Nigeria”. Talk about the independen­ce of the Judiciary! Does the Judiciary not have a mind of its own, and can it not control its own business, or judge what is in its own best interest?

FEDERAL REPUBLIC OF NIGERIA v OMOYELE SOWORE: DSS Invades Federal High Court, Disrupts Proceeding­s

Following persistent refusal of the Department of State Services (DSS), to release Mr. Omoyele Sowore and his co-accused, Olawale Bakare on bail after meeting their bail conditions, Justice Ijeoma Ojukwu of the Federal High Court, on Thursday December 5th , 2019, ordered the immediate release of both men and awarded a fine of one hundred thousand Naira against the DSS, for failing to release the activists. The DSS reluctantl­y obeyed that order, and released the men. However, the next day, Friday, 6th December, 2019, DSS officials invaded Hon. Justice Ijeoma Ojukwu’s court to re-arrest Omoyele Sowore who was in court, in pursuance of an action he filed against the DSS, and, in the process, disrupted on- going proceeding­s in court. Given the commotion, the trial Judge had to immediatel­y rise, and retreat hurriedly into her Chambers. The brazen invasion of a sitting courtroom by security forces, represents new escalation­s of a culture of impunity of government agencies, as well as new threats and affronts to the independen­ce of the Judiciary. What next for the Buhari administra­tion?

Graft: Federal High Court Convicts Governor Orji Kalu

On December 5th, 2019, former Governor of Abia State, Senator Orji Uzor Kalu, was sentenced to a twelve year prison term by the Federal High Court sitting in Lagos, over a N7.1 billion fraud. Ex-Governor Kalu and his co- Defendants, were found guilty of the thirty-nine charges filed by the Economic and Financial Crimes Commission (EFCC) in respect of the N7.1 billion fraud perpetuate­d during his tenure as Governor of Abia State, between 1999 and 2007. Justice Mohammed Idris, who handed down the sentence, also ordered the winding up and forfeiture of all assets belonging to Slok Nigeria Limited – owned by Senator Kalu - to the Federal Government.

The judgement of Justice Mohammed Idris, brings the twelve-year old case to an end, and closes a chapter in the struggle to reduce corruption in Nigeria.

Conclusion: A Year Marked by Increasing Violations of the Rule of Law and Attacks on the Independen­ce of the Judiciary

Overall, 2019 has not been an auspicious or salutary year, for constituti­onal democracy or the rule of law in Nigeria. At every point, the conditions enabling democracy and the rule of law to flourish have worsened, following dispositio­ns of the executive arm of government that have been characteri­sed by impunity and a belief in the invincibil­ity of government­al power. Dr. Kolawole

Olaniyan, Legal Adviser to Amnesty Internatio­nal, sums this up poignantly, by saying that, President Muhammadu Buhari has shown “stunning disregard for the rule of law and human rights, ignoring Nigerian Judges on at least 40 occasions”.

But, the more harrowing experience has been the sheer silence of the Nigerian Judiciary, and its failure, up to this time, to man up, step up to the plate, and fight for its life, in the face of the many provocatio­ns it has had to endure. 2020 should not end, on the same note.

Daniel Aloaye, Lazarus Chin wok wu and Chi ne lo Chinweze, Pro gramme Staff, Access to Justice, an Organisati­on working to expand rights of people to impartial justice, defend judicial independen­ce and promote judicial integrity

“.....PRESIDENT MUHAMMADU BUHARI HAS SHOWN “STUNNING DISREGARD FOR THE RULE OF LAW AND HUMAN RIGHTS, IGNORING NIGERIAN JUDGES ON AT LEAST 40 OCCASIONS”

 ??  ?? Chief Justice of Nigeria, Hon. Justice Ibrahim Tanko Muhammad
Chief Justice of Nigeria, Hon. Justice Ibrahim Tanko Muhammad
 ??  ?? Attorney-General of the Federation and Minister of Justice, Abubakar Malami, SAN
Attorney-General of the Federation and Minister of Justice, Abubakar Malami, SAN
 ??  ?? President Muhammadu Buhari
President Muhammadu Buhari
 ??  ??
 ??  ?? Former Chief Justice of Nigeria, Hon. Justice Walter Onnoghen
Former Chief Justice of Nigeria, Hon. Justice Walter Onnoghen
 ??  ?? Leader, Islamic Movement of Nigeria, Sheik El Zakzaky
Leader, Islamic Movement of Nigeria, Sheik El Zakzaky
 ??  ?? Omoyele Sowore
Omoyele Sowore
 ??  ?? Director-General, Department of State Services, Yusuf Magaji Bichi
Director-General, Department of State Services, Yusuf Magaji Bichi
 ??  ?? Chairman, Code of Conduct Tribunal, Danladi Umar
Chairman, Code of Conduct Tribunal, Danladi Umar

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