By Olusegun Adeniyi
Following the death in December 2019 of Senator Benjamin Uwajumogu, then representing Imo North, a by-election had to be conducted to replace him. The fractious primaries of the ruling All Progressives Congress (APC) that followed produced many ‘winners’, each of whom went to court claiming to be the party’s candidate. With a multiplicity of court injunctions, it was no surprise that, in declaring APC victorious after the election held in December 2020, the Independent National Electoral Commission (INEC) proclaimed no candidate as a winner. Apparently unable to manage the crisis, the then APC acting National Chairman and Yobe State Governor, Mai Mala Buni, accused three Supreme Court Justices of working with the opposition Peoples Democratic Party (PDP) to scheme the ruling party out of the seat. The Justices so accused are Mohammed Musa Dattijo, Abdu Aboki and Helen Moronkeji Ogunwumiju.
The Supreme Court did not take kindly to the accusation, and Justice Dattijo expressed his anger in open court. Announcing the suspension of proceedings in the appeal by Chukwuemeka Ibezim against Ifeanyi Ararume in March 2021, Justice Dattijo said, “Let me confirm to all counsel in this matter that the Interim National Chairman of APC had written a petition against me and two other Justices of this court, namely Helen Ogunwumiju and Abdu Aboki.” Buni, according to Justice Dattijo, “alleged that my humble self had led my two brothers to attend a meeting with members of the PDP to strategize on how to subvert the outcome of this case. I must say that this is most unfortunate and my heart bleeds for this country. This is a reckless and irresponsible statement. That is how these useless statements were made in the past and that is why we are not taking it lightly.”
In Nigeria, as it is in most countries, the Supreme Court is the final arbiter in dispute resolution, and that critical institution must be beyond reproach if its decisions are to be of any value to the larger society. For that reason, those who want to impute motives or impugn the reputation of the Justices must do so based on iron-cast evidence and in the appropriate quarters; for the sake of the system and in the interest of all of us. Perhaps also for that reason, Nigerians who sympathised with Justice Dattijo and colleagues three years ago were taken aback when, delivering his valedictory last Friday, the same man rehashed some of the damaging allegations usually levelled against him and colleagues on the bench.
We must commend Justice Dattijo for being candid enough to allow Nigerians a peep into the apparent rot in the judiciary. It is helpful for the system. The housecleaning he called for is very important if we must restore public confidence in justice administration in Nigeria. But a note of caution here. There will always be a winner and a loser in a contested court case. Unfortunately, the inclination for the loser to impugn the judiciary and discredit the reputation of Judges has become popular, especially when it involves election petition cases. This is unhealthy for a democracy still striving to build enduring institutions. Therefore, whatever may have been his motivation, Justice Dattijo has also done enormous damage to the institution. He is like the proverbial hunter who killed an elephant with his cap. On the first day, as the Yoruba adage goes, many would hail him. But on the second day, the hailers would reflect that a hunter with such diabolic power could be too dangerous to associate with. And that would end the applause.
Meanwhile, Justice Dattijo has raised several pertinent issues that authorities must address. I will highlight only five. One, Justice Dattijo imputed a lack of transparency and accountability in the management of financial resources in the judicial arm of government and especially at the Supreme Court. From N70 billion in 2015, allocation to the judiciary is now N165 billion today. Yet, “Justices and officers welfare and the quality of service the judiciary render have continued to decline,” he claimed before the punchline: “It is instructive to enquire what the judiciary also does with its allocations. Who is responsible for the expenditure? An unrelenting searchlight need to be beamed to unravel how the sums are expended.”
Nigerians should be very worried by this revelation from Justice Dattijo. When in June last year Justice Tanko Ibrahim Muhammad was forced out of office as CJN, following a public letter by 14 Supreme Court Justices (including Dattijo), accountability was also the main issue: “We demand to know what has become our training funds, have they been diverted, or it’s a plain denial? Your lordship may also remember that the national assembly has increased the budgetary allocation of the Judiciary. We find it strange that in spite of the upward review of our budgetary allocation, the Court cannot cater for our legitimate entitlements. This is unacceptable!” they wrote. As I surmised at the time, it was instructive that all the 14 Justices, without any exception—and representing all ethno-religious divides in a country where the elite hardly agree on anything except their personal privileges—signed the protest letter where they also stated: “Your Lordship, with all due respect, this is the peak of the degeneration of the court; it is the height of decadence, and clear evidence of the absence of probity and moral rectitude…this act alone portends imminent danger to the survival of this court and the judiciary as an institution which is gradually drifting to extinction.” Even though the CJN office has since been taken over by one of the 14 ‘coup’ plotters, Justice Dattijo is telling us that the lack of accountability that made them write the unusual letter last year has refused to go away. To change the narrative, I have been made to understand, would require a constitutional amendment. NJC operates in an opaque closed manner and has thus far resisted attempts to compel opening the financials. So, the NJC is as accountable as the CJN in office at any period.
Two, Justice Dattijo alleged that the CJN (current occupant: Olukayode Ariwoola) runs the judiciary without any checks and balances. As presently structured, according to Justice Dattijo, “the CJN is Chairman of the National Judicial Commission which oversees both the appointment and discipline of judges. He is equally the chair of the Federal Judicial Service Commission, the National Judicial Institute, and the Legal Practitioners Privileges Committee that appoints Senior Advocates of Nigeria.” After listing other positions occupied by the CJN whom he accused of making most of the appointments in the sector without conferring with, or seeking the inputs of, fellow justices, Dattijo noted: “Such enormous powers are effortlessly abused. A person with absolute powers, it is said, corrupts easily and absolutely.” This implies rancour among the most senior judicial officers in the country who seem incapable of resolving their own internal dispute amicably. Changing these dynamics would also require a constitutional amendment, from what I understand. But in instances where the CJN have been good leaders, there were no problems. We can leave that for another day.
Three, Justice Dattijo spoke to how, by transferring the onus of determining outcomes of elections to the court rather than the voters, the judiciary is being increasingly compromised. In citing cases involving the 2019 Imo State gubernatorial election and the recent election of former Senate President Ahmad Lawan, Justice Dattijo gave veracity to insinuations of unwholesome practices. It is difficult to fault him. I enjoin readers to visit the INEC website and check the 2019 Imo gubernatorial election result. The name of the person declared validly elected by the commission has not changed, even as of last night. To go with the figures conjured by the Supreme Court, as INEC officials have explained to me, would mean that the total votes cast in the election exceeded the number of accreditations by 131,340! And despite enormous pressure by some desperadoes in the past three years, INEC has refused to buckle on the matter. That perhaps explains why the sobriquet ‘Supreme Court Governor’ may forever be a permanent indictment not only on the Justices who presided over the Imo case at the apex court but also on the rule of law in Nigeria. Justice Dattijo of course referenced some unnamed respected people in the bar to deliver his point. “It is difficult to understand how and where, by these decisions, the judicial pendulum swings. It was not so before, they contend. In some quarters, the view is strongly held that filth and intrigue characterize the institution these days! Judges are said to be comfortable in companies they never would have kept in the past. It is being insinuated that some judicial officers even campaign for the politicians. It cannot be more damnifying.” I don’t know what else I can add to that except to say that many of our Senior Advocates of Nigeria (SANs) are also complicit. Besides, we cannot exclude the judiciary from the mercantile values that now drive our society. I will also come back to this issue another day.
Four, Justice Dattijo lamented that unlike in the past when “appointment to the bench was strictly on merit,” that is no longer the case. “It is asserted that the process of appointment to judicial positions are deliberately conducted to give undue advantage to the ‘children, spouses, and mistresses’ of serving and retired judges and managers of judicial offices”, he stated. The consequence: “Public perceptions of the judiciary have over the years become witheringly scornful and monstrously critical. It has been in the public space that court officials and judges are easily bribed by litigants to obviate delays and or obtain favourable judgments.” In a milieu where, as I once wrote, politicians are no longer content hiring senior lawyers but must also have their own Judges, the less said about this the better.
Five, Justice Dattijo revealed how sectionalism has crept into the Supreme Court. “While the South-South and North-East have two serving justices, the North-West and South-West are fully represented with three each,” he stated on the current vacancies that are yet to be filled before raising a poser for which he also provided an answer. “Why have these steps not been timeously taken? It is evident that the decision not to fill the vacancies in the court is deliberate. It is all about the absolute powers vested in the office of the CJN and the responsible exercise of same.”
Ordinarily, where Judges or litigants hail from should not matter in justice dispensation but Justice Dattijo is telling us that at the Supreme Court, it does. And he illustrated his point with the just concluded election petition cases. He said that “to ensure justice and transparency in presidential appeals from the lower court, all geopolitical zones are required to participate in the hearing,” whereas the Southeast and North Central are currently excluded because no Justice is from both geopolitical zones. “It is therefore dangerous for democracy and equity for the two entire regions to be left out in the decisions that will affect the generality of Nigerians. This is not what our laws envisaged.”
This betrays the kind of thinking that goes on at our apex court and may then explain why the CJN, Justice Ariwoola as well as Justice Kudirat Kekere-Ekun and Justice Ogunwumiju (three of them, Yoruba) recused themselves from membership of the presidential election appeal panel. The CJN and some other Justices may have recused themselves because they speak the same language as the president whose matter was brought before them. But for a CJN to recuse himself on such a sensitive matter that impinges on national security is beyond shameful. That he succumbed to social media intimidation can only fuel future bullying. He ought to have shown courage. I must also make a point of caution here to those who believe it is right to share the private numbers of Judges and be threatening them and their families. These are dangerous lines that should not be crossed. There must be a limit to partisan politics.
Meanwhile, Judges have an ethical obligation to recuse themselves if they know of any reason to do so. But according to Andrea Westerfeld, a former United States District Attorney in the state of Texas, recusal is not something that should be taken lightly. “Judges have a duty to sit and decide matters brought before them unless a valid basis exists for recusal. Judges are presumed to be impartial and are trusted to apply the law fairly to all sides” hence recusal should be “where he has shown himself to be so prejudiced against one of the parties or the case’s subject matter that he cannot be trusted to rule fairly.” On 18th March 2004, the late Justice Anthonia of the United States Supreme Court settled the issue of recusal in a courageous manner.
In December 2002, Scalia had gone to the duck-hunting camp of a friend in Louisiana, along with the then Vice President Dick Cheney on Air Force Two. But at that period, Cheney had a case before him. That was what prompted the Sierra Club to file a petition asking Justice Scalia to step aside from the case. In dismissing the petition and refusing to step aside from the case, Justice Scalia’s judgement (which I once referenced on this page) was interesting, and this was the way he started: “The implications of this argument are staggering. I must resign because a significant portion of the press, which is deemed to be the American public, demands it. The motion attaches as exhibits the press editorials on which it relies. Many of them do not even have the facts right. The length of our hunting trip together was said to be several days (San Francisco Chronicle), four days (Boston Globe), or nine days (San Antonio Express-News). We spent about 48 hours together at the hunting camp. It was asserted that the Vice President and I ‘spent time alone in the rushes, huddled together in a Louisiana marsh,’ where we had ‘plenty of time to talk privately’ (Los Angeles Times); that we ‘spent quality time bonding together in a duck blind’ (Atlanta Journal Constitution); and that ‘there is simply no reason to think these two did not discuss the pending case’ (Buffalo News)…”
After highlighting the various inconsistencies in the editorials attached to the motion, the late Justice Scalia now said most memorably: “while the political branches can perhaps survive the constant baseless allegations of impropriety that have become the staple of Washington reportage, this Court cannot. The people must have confidence in the integrity of the justices, and that cannot exist in a system that assumes them to be corruptible by the slightest friendship or favour.”
I have in the past decade written dozens of columns on our judiciary because of its importance to our democracy. We must appreciate the work that our Judges do even in the face of many daunting challenges. From inadequate funding to being castigated in a society where most people are bad losers to being scorned and trolled on social media, it is now very difficult for judicial officers in Nigeria. Yet, many of them are professional in their duties, strive to dispense justice according to law and are not corrupt. Sadly, public perception is often drawn from the antics of the corrupt few.
In the spirit of Justice Dattijo’s valedictory speech, let me end this piece with excerpts from my August 2016 intervention, ‘When Judiciary Goes on Trial’ where I referenced David Philip Pannick’s book, ‘Judges’, published in 1987 by the Oxford University Press. I enjoin judicial officers in the country to find the book and read it. Now, I can leave readers with a rehash of what I wrote seven years ago: “In Nigeria, we have had situations where politicians are openly heckled as thieves, and some have had to survive mob attacks by whiskers. We must not allow a situation in which the people would also openly turn against our men and women on the bench.
“At the bottom of the crisis of integrity bedeviling the Nigerian judiciary is a flagrant abuse of the concept of rule of law. The rule of law is underwritten by some fundamental assumptions. It assumes that all citizens are equal before the law and therefore can approach the court expecting to get justice irrespective of their station in life. It also assumes that those who will interpret the law and dispense justice will be above reproach and remain impartial. It is moreover predicated on orderly conduct to the extent that the judiciary in most dispensations is allowed to be self-regulating, hence its independence.
“Unfortunately, recent developments within the Nigerian judiciary, especially the cascade of spurious judgments and the frequent instances of misconduct among judges, only point to a betrayal of nearly all those foregoing assumptions. Yet, when judges are compromised, public confidence in the rule of law as the basis of order in society also evaporates. But the NJC can save the rest of us from the prospect of disorder. As things stand in Nigeria today, it is also in its enlightened interest to do so. May the day never come when an enraged public would begin to stone or disrobe otherwise eminent judges in the marketplace…”
Finally, it speaks volume that valedictories are now being used by the high and mighty to make confessions that expose the underbelly of the judiciary in Nigeria. Four months ago, on the floor of the Senate, it was Senator Bulkachuwa who told us some inconvenient tales. Now, it is Justice Dattijo’s turn. And to borrow his own word, nothing can be more ‘damnifying’. I hope it would engender the necessary soul-searching among his colleagues. If this democracy is to survive, as I have repeatedly stated, it is imperative that the judiciary as an institution and judges as individuals not only be impartial in justice administration but also that the wider public have the confidence that cases affecting their well-being will be decided fairly and in accordance with the law. I wish Justice Dattijo happy retirement.
Congratulations, Ngozi Azodoh
It was a measure of her resourcefulness and diligence that two former Health Ministers, Professor Ihechukwu Madubuike and Dr Olorunnimbe Mamora joined hundreds of other prominent personalities last Saturday at The Everlasting Arms Parish (TEAP) of the Redeemed Christian Church of God (RCCG) to celebrate Dr Ngozi Azodoh as she retired from the civil service after 30 meritorious years. Until she left the civil service, Azodoh was the Director, Health Planning, Research and Statistics at the Federal Ministry of Health. Congratulations, my sister.
• You can follow me on my Twitter handle, @Olusegunverdict and on www.olusegunadeniyi.com
