2019: Mostly Negative Judicial Milestones?
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”