Lagos — Epilogue

In the Beginning...

Fifty-one years after the Federal Supreme Court was established and 42 years after its metamorphosis into the final court of appeal as the Supreme Court (appeals previously had lain to the Judicial Committee of the Privy Council), the apex court of the land is facing its toughest and most challenging crisis yet. A crisis of yet unknown proportions, the end of which nobody can predict.

In serious democracies and civilized societies the world over, the separation of powers of government is a sine qua non and the Judiciary is traditionally regarded as playing the serious role of societal watchdog. Indeed, the significance of the Judiciary in such societies - and Nigeria is no exception - is such that under no circumstances should that particular arm of government be found wanting either in reality or through public perception.

Often referred to as the last hope of the common man the Judiciary is expected, indeed mandated, to uphold the rule of law and dispense justice without fear or favour. Its role in interpreting the constitution and thereby defining governmental parameters and boundaries, in effect defining how governments are run and having the last say on vital, often political issues and electoral fortunes underscores its importance in any democratically run system of government. In successful democracies, its complete independence of the Executive and Legislative arms of government is non-negotiable, often taken for granted.

In Nigeria in particular, where the Legislature as epitomised by the National Assembly is perceived as being under the Executive's thumb, subject to its every whim and caprice and having lost all semblance of legitimacy, dignity and respect. Where even the Executive, in spite of its avowed war on and zero tolerance for corruption and love for transparency, has suffered some major casualties, most recently the bribe-for-budget scandal which swept off ignominiously former education Minister Fabian Osuji and Ikoyi Housing scandal which cost former housing Minister Mobolaji Osomo her job. The Nigerian Judiciary, in spite of some hiccups here and there, is expected to be above board, above the shenanigans and goings-on in the two other arms of government.

Section 6 of the 1999 Constitution vests the judicial powers of the Nigerian Federation in the courts, of which the Supreme Court of Nigeria is the apex court. Chapter vii of the same constitution dedicates some 67 sections to the Judicature. One such section is Section 230 which establishes the Supreme Court and the number of its Justices which may not exceed 21. The country's various constitutions since it became a Republic in 1963 have all accorded its Judiciary pride of place under the doctrine of separation of powers, but never before has its Judiciary been under the kind of line of fire it is currently facing, not even in the worst days of military rule. It is doubtful if the Commonwealth model of Great Britain or that of the United States has undergone this kind of siege, for siege it is. If care is not taken, it could well mark the beginning of a catastrophic and undeserved end for the Nigerian Judiciary.

From the halcyon days of the Nigerian Judiciary when Judges were practically regarded as gods and accorded great reverence and respect. From the days when passers-by removed their shoes, spoke in whispers and tiptoed with great trepidation and awe past Judges' quarters. From the days when even lawyers trembled to be in the presence of Judges. From the days when a High Court's judgment could hardly be faulted or overturned on appeal. From the days when one could hardly get even so much as a whiff of scandal, financial or otherwise - surrounding any judicial officer, from the highest to the lowest. To the present situation where all comers make any sort of accusation - from the ridiculous and frivolous to the substantial - regarding the nation's judges sparing none, not even the Supreme Court. Where lawyers hitherto unheard of can boldly stand and practically poke their fingers in the eyes of Justices of the highest court in the land. Where all and every manner of appeal is brought before our appellate courts in the guise of exercising the constitutional right of appeal. Where every minute interlocutory ruling of the High Court is appealed up to the Supreme Court and back. Where some Judges are said to have a 'persistent reputation for corruption'.

117 years after the first Nigerian lawyer Christopher Sapara Williams was enrolled to practise at the Nigerian Bar and 47 years after the first Nigerian Chief Justice of the Supreme Court Sir Adetokunbo Ademola was appointed, how did things end up this way? How on earth did we arrive at this sorry pass?

De-mystifying the Judiciary

It's hard to specify a defining or precise moment or turning point when the Nigerian Judiciary as exemplified by its Supreme Court began to be de-mystified, but certainly not a few would readily point at the decision of some of its Justices to head for court to institute a libel suit against MKO Abiola's Concord Press in the heat of Abiola's effort to actualize his mandate in the infamous June 12 election. The Concord group of newspapers had alleged in its publication that the Justices of the court, having been giving Mercedes Benz vehicles by military President Ibrahim Babangida, could not possibly be expected to be impartial in a suit involving his government and the man who was out to wrest his stolen mandate from that same government. It was a decision which left the apex court unable to form a quorum and constitute a panel that would hear Abiola's case as the Justices who had filed the suit had of necessity recused themselves from hearing the case. It was unprecedented in the history of the court.

Still others point as evidence of cracks in the highest court in the land to Honourable Justice Akintola Ejiwunmi's dissenting judgment in the Mohammed Abacha murder appeal which controversially had Abacha's son freed of all charges relating to the1996 assassination of Alhaja Kudirat Abiola. The Justice lashed out at what he described as the 'tyranny of the majority' of his brother Justices. Again, this was unprecedented.

In the effort to unseat Delta State Governor James Ibori, an amorphous and hitherto unheard of group calling itself the Derivation Front alleged, rather stridently, that the Justices of the Supreme Court had received a bribe of a staggering sum of N5billion from the governor in a desperate bid to obtain judicial validation of his mandate as chief executive of the oil-rich state. The group would not let up steam and INTERPOL eventually was called in and the Justices of the court were quizzed. Most unprecedented in the history of the court. The group had in its possession the Court's lead judgment which apparently had been leaked by an unscrupulous member of staff, a report which the court itself confirmed. It had never happened before. It was a first for the Nigerian Supreme Court.

Just this year, Nigerians were confronted with the shocking news of the desecration of the office of the Chief Justice of Nigeria when his office was broken into and burgled. This happened in the heat of the accusations of the Derivation Front and it was clear that yet to be ascertained persons were getting desperate as the political stakes were high.

And now, yet another amorphous and unknown group with a similar sounding name, the Patriotic Derivative Front has written a petition against the highest office in the Judiciary, the Chief Justice of Nigeria, alleging that a party to an appeal before the court of which he's a member of the panel hearing it, had bribed Honourable Justice Muhammadu Lawal Uwais with 13 Honda cars. Could the petition, very badly written with terrible grammatical errors (THISDAY published a full version yesterday) be a pointer as to the sort of characters who are behind what many believe are very scurrilous allegations? Counsel to Globe Motors in open court two days ago, directly accused the panel headed by Uwais and hearing the appeal of receiving this bribe to pervert the course of justice. Completely unprecedented. The Justices of course took exception to this manner of making an allegation and challenged the lawyers to come forward with proof to substantiate their allegations.

Throw enough mud and some may stick?

That is what not a few discerning minds believe must be the philosophy (if indeed it can be called that) behind the unprecedented spate of damaging allegations against the Justices of the Supreme Court, in particular Chief Justice Uwais. As the stakes get higher and higher in the various appeals and suits before the court, it is thought that those who have a lot to lose should the court's judgment not favour them are rising up to that challenge in their own devious way. They are taking no prisoners and what is known in local parlance as a roforofo fight is the only way they know.

A retired Justice of the Supreme Court told THISDAY yesterday in regretful tones that, 'people are fighting rough in Nigeria now'. He however warned that this strategy is at best, dubious and is bound to backfire. 'It's like over-using antibiotics - after some time it will not work anymore. When there are so many frivolous allegations of corruption and the whole process is abused, when a correct allegation of corruption is then made, no one will take any notice'. Such cases may indeed, very well end up like the boy who cried wolf in Aesop's Fables.

The move to unseat a seating Chief Justice by unknown persons with vested interest as this is seen in not entirely unknown in the Commonwealth. In Sri Lanka just a few years ago, an unsuccessful attempt was made to remove the Chief Justice on various nebulous grounds, some of which included allegations that he had a girl friend. A motion was in fact sent to that country's parliament to remove him from office. The Chief Justice challenged the move in court and sought and obtained an injunction against it. The Speaker of the Parliament wrote a lengthy opinion overruling the court order, an unheard of move. The potential crisis was however defused when the matter was resolved out of court.

Some have expressed the view that the present travails of Chief Justice Uwais as politically motivated. The Supreme Court under his watch has heard and decided several constitutional landmark cases with high political stakes and a few more are scheduled to come up for judgment soon.

It is believed that perhaps relying on the typical Nigerian attitude that there's no smoke without fire and the adage that repeating a lie often enough will make it begin to sound like the truth, the orchestrating hands behind the various allegations and petitions can successfully make some of the mud stick. Many lawyers who spoke with THISDAY were agreed that it would be a sad day for the Judiciary should they succeed. Indeed, it may well be a sad day, not only for the Judiciary, but the entire country.

How Shall it be in the end?...

As it is, many believe that the hidden hands orchestrating the allegations are convinced those allegations would put the CJN in the rather unfortunate dilemma of either getting provoked to leaving office before his term ends next year - in which case the fickle public could well say, 'didn't we say he had something to hide?' Or he may choose to weather the storm and refuse to be stampeded out of office - in which case the same public could very well say, 'didn't we say so? He's refusing to go, there must be something he's gaining there'.

In either scenario, he would be fighting to save his integrity and reputation which have been carefully built up over the years. He would be fighting to turn what some choose to see as a lose-lose situation to a win-win situation.

In today's world of economic interdependence by nations, when Nigeria is on an unrelenting foreign investment drive, in need of foreign capital to jumpstart its economy, where it has often been said by the elusive foreign investor that the judiciaries of developing nations are not strong enough to resolve serious economic issues, a crisis such as is playing out in the nation's highest court can be ill afforded. Should those various amorphous groups be allowed to have their way, it would merely give foreign investors an excuse to continue to insert foreign arbitral clauses in contractual agreements in order to circumvent our national courts. The question is: Can we afford to have this happen?