IDEAs 9th February 2024
One Year after the vote: IDEAs in the JUDICIARY
Before the show got under way, Ayo Obe mentioned that the show this week would be about the IDEAs in the performance of the Judiciary, and that we had as our guest, Ikeazor Akaraiwe, a Senior Advocate of Nigeria, to examine the issue with us.
Kicking the discussion off, Ayo introduced Ike who had come all the way from Enugu, and said that we would look at the Integrity, Democracy, Ethics and Accountability issues in the way that the Judiciary has comported itself since the last elections. The first thing we should look at was the performance of the Judiciary in relation to elections, because ordinary jobbing lawyers like herself were continually having their matters adjourned because election matters took priority. But although it was long since the Supreme Court held that the Independent National Electoral Commission did not have the right to bar candidates on the basis of non-qualification or some defect in the nomination process: that only the courts could do that. Consequently the courts had been tied up in all manner of litigation over these matters. She wondered whether it made sense for INEC to be unable to say: Excuse me, you are a 16 year old Cameroonian and you cannot run for election in Nigeria?
Ike said that what the law has done is to give INEC responsibility without authority. INEC should be empowered to disqualify candidates. Ayo interjected that as it doesn’t have that power, it was the courts that were in the firing line. Ike agreed that this had clogged up the courts and has slowed down every other case apart from electoral litigation., and maintained that it was wrong to run an electoral system where the body that had responsibility for running an election lacked authority to discipline those who breach the rules. The result was that INEC had been weakened. He agreed with Ayo that it was the Judiciary that was taking the flak for this, being accused of deciding who won or did not win elections, and said that too many cases were going to the Judiciary. Judges were accused of corruption because the politicians had discovered that it was going to be the courts that would decide who was to be Governor, Senator or House member, and those politicians who are going to be crooked would attempt to compromise the courts.
Ike said that too many matters were going to court, but that even if we cannot stop people from going to court, INEC should be given the authority to take certain steps. Even if at the end of the day, people would still go to court to challenge INEC’s decision, it should have that authority.
Ayo said that whereas a few years ago, technical qualification issues were treated very seriously, citing the case of Bayelsa where a man won the election only to have it thrown out because of some defect in the educational qualification submitted by the man he had picked as his running mate. She said that after the presidential election where the court rejected all the complaints which had been centred around who was qualified or not, who was validly nominated or not rather than around who got the most votes, and that by the time we had the last spate of gubernatorial election petition appeals, it was as though the Supreme Court was saying that it was not going to look into all those details about valid qualifications and nomination, whether the right party executive did the nomination and so on, and that it was going to treat those as less important than who got the most votes.
Ike said that there was so much to say about that approach, but as time was short, he listed some issues. First, currently the Supreme Court was overworked so it had seemed to have decided to drop delving into qualification etc. and go to the meat of the matter. Whether that was the right approach or not was a different matter, because the question of whether a candidate was qualified or not could not be ignored. But the point was that the court is overworked. He has long been a proponent of the idea that not every case must come to the Supreme Court, and supported the system used in the United States of America where you can only approach the Supreme Court with leave, and he suggested that we need something like that here otherwise landlord and tenant matters would all end up at the Supreme Court.
Ike continued that the Supreme Court did not look good if it is now ignoring issues of qualification and so on, when just four or eight years ago, it cancelled an entire ticket in Bayelsa because the running mate who was nominated by the winner of the primary had some minor defect in his certificate. The Supreme Court ought to have specifically overruled itself in Bayelsa and said: We were wrong in the Bayelsa case and we have changed our view. But that this was something that the Supreme Court hardly does nowadays, and that lack of forthrightness about such changes of direction were what made people feel that there is some kind of shenanigans going on.
Ayo agreed, saying that on too many occasions connected with political cases, the Supreme Court would give a decision but say that it was “not to be taken as a precedent”, and “should not be followed”. She said that that was what made the judicial process look like a lottery: that when you get to the courts, it would be what the judge thinks on the day.
Ike regretted that the Supreme Court only sees itself as a court of law and of justice, and does not remember that it is also a court of policy. It can take certain steps as a matter of policy. For example, in the Plateau State situation where the Supreme Court was displeased with the Court of Appeal and used harsh language in overturning its decision on the governorship election, but could not do anything about the House of Assembly members who had been sacked by the Court of Appeal because they had no right of appeal to the Supreme Court. He was of the view that what the Supreme Court should have done as a court of policy, was to say that having taken such a decision with regard to the governorship, its pronouncement must apply willy nilly to the House of Assembly even though it knows it has no statutory authority to entertain any appeal from them.
Ayo pointed out that we had just said that the Supreme Court was overworked – weren’t we now going to be burdening it with more cases? Yet she agreed that that case exposed what happened when matters had to stop at the Court of Appeal, noting that the Supreme Court had not just overturned the decision of the Court of Appeal, it had used excoriating language on it in doing so.
And yet, Ike said, the Court of Appeal’s decision on the House of Assembly members stands – a classic case of injustice! So he felt that the Supreme Court needed to have taken the bull by the horns and said that even though it had no jurisdiction in House of Assembly election petitions, as a court of policy and having taken such a decision in respect of the governorship election, it should say that its decision should apply to the House of Assembly cases. He recalled former Chief Justice of Nigeria Katsina-Alu making such a pronouncement on an occasion when he was a member of a delegation of the Nigerian Bar Association led by its then President, Rotimi Akeredolu to visit the CJN in chambers. Akeredolu asked the CJN why he had called for the case file of the Sokoto governorship election to be brought to him when he had no jurisdiction over the matter (because at that time, in 2007, governorship election petitions terminated at the Court of Appeal). Katsina-Alu had replied that Sokoto State was on the verge of a breakdown of law and order. So that year, the Supreme Court heard the case because it felt that there was a public policy imperative.
Ayo noted that we don’t have any provision in Nigeria that allows constitutional matters to be taken directly, and that while we may say we would like to have something similar what they have in India or South Africa, many would feel that looking at the way our judges have behaved in some cases, we had better not give them any more leeway that would end up looking less like law and more like ‘What I want to do’.
Ike said that the problem with the way our judges have been behaving was in the quality of judicial appointments. We have many bright lawyers who would be willing to go onto the Bench, but we have ended up sacrificing meritocracy for mediocrity. Such judges end up making mistakes, and people think that they do the wrong thing because of bribery and corruption whereas it is often that they simply don’t know enough.
Ayo took this as a cue to remark that she had wanted to discuss more than just election matters, because there were also IDEAs questions in the general performance of the judiciary. For example, the issue of judicial appointments was in question because of the fact that the son of the current Chief Justice of Nigeria had been appointed to the Bench, and it was said that another relation of his was also in line for promotion. While one may ask whether it was a crime to have one’s father as the CJN, there was a point at which one begins to ask whether such relations were taking their turn, whether there were no other more qualified people. She asked whether it spoke to the Integrity of the judicial appointments? Was it Ethical?
When Ike replied that he would not want to be too harsh on the CJN over the appointment of his son, because the question was whether the person was qualified, Ayo remarked that all that was required was that the person should be ten years post call! Ike agreed that unfortunately the Constitution is rather relaxed about the qualification, saying that it would be different if there were credible accusations that the candidate for appointment was a bribe taker or bribe giver, but in the absence of that, if someone was willing – given that judges are so poorly paid … Yes, despite that, some are struggling to be appointed to the Bench and that there were possibly some other perks such as houses and vehicles that could make up the difference, but on the whole, it was not wrong if a qualified child of a CJN was appointed to the Bench.
Ayo said that apart from the issue of appointments to the Bench, questions had also been raised about the way the Judiciary handled its finances. She referred to the report of the Auditor-General of the Federation about moneys that had not been properly accounted for by the Supreme Court, and that while she did not want to harp on the cliché that “the judiciary is the last hope of the common man”, she wondered how it looked to members of the public who took their cases to court for impartial adjudication only to find that there were questions about the Integrity and Ethics of the adjudicators, because like Caesar’s wife, they are supposed to be above suspicion.
Ike said it is the Chief Registrar who is the accounting officer for the Supreme Court, noting that there were some dreadful reports of obsession with money and contracts about which something needed to be done – possibly making the CJN to be the chief accounting officer of the court? Ayo said we are already complaining that the CJN chairs too many of the bodies in the Judiciary, but while Ike agreed, it would be the courts that would be blamed. Maybe they needed to be more careful about who is appointed as Chief Registrar! Ayo agreed, but said that it still comes under the heading of the Judiciary, and when it comes to Accountability, that seems to be lacking.
Ike said that the problem is that nobody goes to court and is convicted for corruption, and that maybe if that were to happen, it would have an effect on others who might be tempted. He agreed that a few people had been convicted, but said that it was not enough, and said that more needed to be done.
In wrapping up, Ayo thanked Ike for coming all the way from Enugu (or Ikeja) and said that the Judiciary was also under IDEAs – Integrity, Democracy, Ethics and Accountability. It is not outside the system, and that Nigerians were entitled to challenge it and to question it and to demand that it live up to our IDEAs.