Davidson Iriekpen
16 June 2009
interview
Lagos — Chief Emeka Ngige (SAN) hardly needs any introduction as a lawyer who has been involved in highbrow litigations across the country. He was one of the lawyers engaged by former Vice President, Atiku Abubakar, in his electoral cases prior to and after the general elections of 2007.
Ngige spoke to Davidson Iriekpen in Lagos
How would you rate the Nigerian judiciary in sustaining democracy in the country?
Well, I will say that the Nigerian judiciary has done its best but its best, in my own view, is not good enough. As I stated elsewhere, it is a mixed grill. There were some areas the judiciary acquitted itself while there are some where it let the people down. When I speak of the judiciary it includes the High Courts, the Election Tribunals, the Court of Appeal and the Supreme Court.
The high points in the judicial strengthening of our troubled democracy came through some landmark judgments delivered by the apex court between 1999 and 2009. They include the issue of illegal withholding of local government funds belonging to Lagos State by the Federal Government (ie A-G Lagos State Vs A-G Federation), the stopping of the Federal Government in interfering with the management and control of local government funds by State Governments (A-G Abia State & Ors Vs A-G Federation), nullification of illegal and unconstitutional impeachment of State Governors (the Ladoja, Peter Obi & Dariye cases), the nullification of the attempt to forcefully remove a sitting Vice President from office (Atiku Abubakar Vs A. G Federation), the nullification of powers of INEC to disqualify validly nominated candidates standing for election (Atiku Abubakar Vs INEC), the placement of restrictions on the powers of political parties to substitute without cogent and verifiable reasons, candidates already nominated for elections (Ararume Vs PDP and Rotimi Amaechi Vs INEC), the restatement of powers of the Federal Government to legislate on corruption (A-G Ondo State vs A. G Federation) and many others.
The low points include the judgments of Justice Egbo - Egbo and Stanley Nnaji attempting to illegally remove a sitting Governor from office based on the wishes of Obasanjo and the quislings from Anambra State, the refusal of the Supreme Court to intervene in the unconstitutional declaration of a State of Emergency in Plateau State by the Federal Government (A-G Plateau State Vs A-G Federation), the refusal of the Supreme Court to nullify patently rigged presidential elections of 2003 and 2007 (Buhari Vs Obasanjo, Buhari Vs Yar'Adua, Atiku Abubakar Vs Yar'Adua) and the numerous conflicting decisions of the Court of Appeal in election cases.
In my candid view the judiciary scored 40% on the subject of sustaining our democracy in the last 10 years. It is not a pass mark by any standard.
There seems to be discordant tunes in judgments precedent in election petition tribunals. What do you think?
The discordant tunes or what we call conflicting decisions of our various courts is very worrisome. It has made nonsense of the principle of stare decisis. This ugly phenomenon is contributing greatly to the erosion of people's loss of confidence in the judiciary as the last hope of common man. If the courts refuse to be bound by their earlier decisions, we may find that sooner than later, we shall be governed by rule of thumb rather by rule of law.
The issue of conflicting decisions is now more apparent at the Court of Appeal level. At the moment, for any principle of law, particularly on election witness, you can get at least two sets of decisions standing opposite each other. The Nigerian Bar Association has brought this anomaly to the attention of the President of Court of Appeal and he promised to look into it. We are still waiting to see what is being done to normalize the subject.
In my own view, the principal cause of this anomaly include late reporting of decisions of various courts in the law reports, non circulation of decided cases to judges for their records and attention, indiscipline among some judicial officers who without following the laid down procedure, refused to be bound by earlier decisions of their brethren and lack of candour by some lawyers who make submissions before the Judges and conceal the existence of binding precedents. These causes are by no means exhaustive.
What is the way out?
The NBA, I am aware, had made some suggestions to the appropriate authorities. The judiciary should by now take advantage of modern computer technology to disseminate judgments delivered by the Supreme Court and Court of Appeal to all judges and legal practitioners. By means of e-mail, judgments delivered by our appellate courts should be circulated to all judge and lawyers within 48 hours after delivery. This method will drastically reduce the incidence of cases being decided per incuriam.
Secondly the courts, particularly the Court of Appeal should resume the publication of Reserved Judgments of the Court of Appeal. Another way out is at regular judges conference of all courts, the participants should endeavour to discuss decisions on various issues and agree on a common line of reasoning.
Do you feel we can amend our constitution if Nigeria is to go forward?
Certainly there are various provisions in our constitution that need amendment. These provisions include grey areas like the tenure of governors whose elections were previously nullified and they got re-elected. There is need for a clear provision specifying that such Governors or even the President will have their tenures computed from the time of their first election, though nullified. The issue of the structure of INEC and making it completely independent requires urgent amendment. There is also the issue of Court of Appeal being the final court on governorship elections which should not be the case and many other areas.
But I will like to emphasize that our major problem is not the Constitution per se but the operators of the constitution. No matter how perfect a Constitution is, if you bring somebody like Obasanjo as an operator, that constitution with all its perfections will still be subverted. So a change of heart by our politicians and some of our judicial officers is more crucial to the survival of our democracy than amending the constitution.
The National Assembly and the President have recently been involved in an imbroglio over the 2009 appropriation bill, what is the implication for our democracy?
It is ironic that with the PDP controlling both the Executive and the Legislative arms, there is still logjam in the budgetary process. It is an evidence of a disorganized government. As Chinna Achebe said in his book "Things Fall Apart" quoting the Irish Poet, William Butler Yeats "Turning and turning in the widening gyre; The Falcon cannot hear the Falconer; Things Fall apart; the centre cannot hold, mere anarchy is loosed; and everywhere the ceremony of innocence is drowned".
This is what is exactly happening in Nigeria. The ruling party cannot get its acts together. They are supposed to be implementing the same manifestoes but discordant tunes have become the order of the day. Our democracy is doomed if we continue like this.
Lawmakers now insert outrageous amounts in the Budget and connive with unscrupulous elements in the ministries to divert the money into their personal pockets. If we continue like this, we shall definitely end up like Zimbabwe and Somalia, if care is not taken.
I have sounded this note of warning before and nobody is listening. I am repeating it here once more.
Do you think the logjam can be resolved through legal means?
I think the Executive arm of Federal government should file an action to challenge the legality of the National Assembly appropriating money for the Executive arm hearing in mind the provisions of Sections 80, 81 and 82 of the 1999 Constitution.
I do not think it is constitutional for the NASS to unilaterally insert into the Budget estimates as presented by the National Assembly. The need for a judicial pronouncement on this recurring issue has become more than necessary at the moment, particularly form the apex court. The NASS has challenged the Executive to go to court. I think the Executive arm should take the challenge and set the ball rolling.
How do you see the current administration's rule of law policy?
In my own view, the rule of law policy of this government is actually and truly a rule of thumb policy. The government preaches one thing and does the opposite. The same thing applies to their rebranding gimmicks. If you consider how the government operates, you will see insincerity and bad faith in its actions. The Ribadu saga, the Siemens scandal followed by Halliburton and Ekiti rerun are few examples of the federal government's rule of thumb policy. It will definitely not lead us anywhere.
There are some important constitutional issues that need to be resolved before the 2011 elections, like tenure elongation for some governors who won re-run election in the States. How do you think these issues can be resolved?
I think the case that needs to be urgently resolved is the issue of tenure of Segun Oni in Ekiti State. I am happy to observe that some political parties in Ekiti State have approached the court to seek judicial interpretation of Oni's tenure. Ultimately, the matter will end up in the Supreme Court.
Without prejudging the matter, I think Oni's case is different from that of Peter Obi or Sylva, Imoke or Nyako. The Ekiti rerun was held in 63 out of about 180 electoral wards. It was not a state wide rerun. That makes a world of difference. Taking oath of office twice, in my view, is non sequitur. Anyway, I think the opposition parties in Cross River, Bayelsa, Kogi, Adamawa and Sokoto states should seek judicial interpretation of the tenure of their respective state governors. It will help in the growth of whatever we call our "nascent democracy."
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