By Chief Mike A.A. Ozekhome, SAN, OFR, FCIArb, LL.B, LL.M, Ph.D.
INTRODUCTION
Nigeria has become one huge joke. She has been so dehumanized in such a way as to generate one form of absurdity or another, on a daily basis. Nigeria has become a sickening contraption of one scandal per day.
Indeed, Nigeria, under the president Muhammadu Buhari government, does not practise democracy at all. Rather, it practises electonocracy, judocracy and executocracy. I will explain these terms I have personally coined from my personal lexical dictionary. “Electionocracy” is a system of government where elections are held as a ritual at intervals (4 years in the case of Nigeria), with the emergent elected or selected leaders, rather than giving the electors democracy dividends; merely stabilize themselves in power,and start looking forward to the next election.
“Judocray” is a genre of government practised in Nigeria, where Presidents, Governors, Legislators and LG Chairmen are thrown up in an election, enmeshed in legal callithenics, and get conceived, incubated and delivered in the hallowed precincts of our courts; rather than true the ballot box.
“Executocracy”, as practised in Nigeria, is an aberrant form of government where the executive arm of government acts in torrerem of other arms of government, browbeat, intimidate, harass and subjugate them. It is usually headed by a maximalist, autocratic, dictatorial head, who views himself as Loius XIV of France. Loius XIV was so intoxicated with the effect of liquor-inebriating power that in 1655, he proudly stood in front of parliament and declared “L’etat, C’ est moi” (I am the state). He said this to indicate his complete hold on power.
JUSTICE MARY ODILI AND AN INTIMIDATED JUDICIARY
The case of cerebral, apolitical and fecund Jurist, the honourable Justice Mary Ukaego Peter-Odili, whose judgements drip with intellectual depth and breadth,has once more thrown up the quagmire the judiciary faces as the third arm of government. As far back as the 1780s, three great American Federalists, Alexander Hamilton, John Jay and James Madison, theorized on the different aspects of checks and balances between the three arms of government- the Legislature, the Executive and the Judiciary. This doctrine of separation of powers had, in 1778, been popularized by the great French philosopher and jurist, Baron de Montesquieu.
In his federalist paper No. 78, Hamilton theorized that the Judiciary is the weakest of the three branches of government, because it has “no influence over either the sword or the purse, …… it may truly be said to have neither FORCE nor WILL, but merely judgment”. This was as far away as May 28, 1788.
Predicated on this, successive Nigerian governments- colonial, military and civilian- have always, to varying degrees, been intimidated, harassed, terrorized and overawed by the judiciary. The courts, like the proverbial phoenix that rises from its ashes, have refused to be obliterated. Thus, in the Military Governor of Lagos State v. Ojukwu (1986)- LPELR-3600 (SC), the Supreme Court warned that the rule of law must be obeyed even under military dictatorships. See also A.G of the Federation v. Guardian Newspaper Ltd (1999)-LPELR-3162 (SC).
THE CRUDE RAID ON JUSTICE MARY ODILI’S HOUSE
In the night of Friday, 29th October, 2021, some fully armed security agents crudely invaded the serene house of Justice Odili at No. 7, Imo River Street, Maitama, Abuja. A senior counsel who had heard the breaking news alerted me. The human rights activist in me immediately snapped; and I rushed to the house, wearing only trousers and a long sleeve shirt, right on my way from the Nnamdi Azikiwe Airport to my home in Abuja (from Lagos). I met that the security agents had just retreated to the shadows of the trees around the area. They were either scared or ashamed of their crude and bizarre act. Indeed, the rapid emergence of human traffic from the vicinity must have forewarned the agents of darkness that October 29, 2021, was quite different from late Friday night on October 8, 2016, till the early hours of Saturday. This was when hooded DSS operatives invaded the serene houses of Justices Adeniyi Ademola, Nnamdi Dimgba; the CJN, Justice Walter Onnoghen and Justice Sylvester Ngwuta, JSC.
Justices Dimgba, Ademola and Ngwuta were later exonerated from any wrong doing or malfeasance. No one in government apologized to them. Justice Onnoghen, a whole sitting CJN, was not so lucky. He was hunted down and hounded out of power through an exparte court order issued by the Code of Conduct Tribunal (CCT), an inferior tribunal of record not even recognized under section 6(6)(a) of the 1999 Constitution. As a southerner, perhaps, he was not entitled to sit on the revered seat of the CJN; the first ever since Justice Ayo Gabriel Irikefe (1985-1987). Nigeria, we hail thee.
THE FAKE AND PHONEY SEARCH WARRANT
To be sure, Justice Odili is not any ordinary Judge or Justice. She is the second most ranking Justice of the Supreme Court, next only in rank to the Chief Justice of Nigeria (CJN), the Hon. Justice Tanko Mohammed.
A search warrant dated 29th October, 2021, had been procured by one CSP Lawrence Ajodo, who claimed to be attached to the “Joint Panel Recovery Ministry of Justice”. This panel is said to be comprised of agents from the EFCC, the Nigeria Police and personnel from the Ministry of Justice.
One Aliyu Umar of “No. 9, Maigoro Street, Niger State” (never heard of any address without the name of a village, city or town; except the state), had paid #500 and deposed to an affidavit as far back as 13th October, 2021. This was 16 clear days before 29th October, 2021.
Umar’s affidavit did not even mention Odili’s name or address. He merely deposed that he had “observed some illegal activities to be going on in some Houses within Abuja and its environs”; and that “all information provided by me to the EFCC is true and correct to the best of my knowledge”.
Based on this inchoate and incoherent affidavit not worthy of the paper it was written on, one CSP Lawrence Ajodo applied for a search warrant 15 days later, on 28th October, 2021. The application addressed to the Chief Magistrate Court, Zone 6 Wuse, Abuja, was headed ‘Application for your requisite consent and to issue to me CSP Lawrence Ajodo Force AP No: 201192 attached to Joint Panel Recovery under Ministry of Justice, a search warrant to enable me carryout investigation of compliant on oath by Mr Aliyu Umar Ibrahim, about illegal activities at No. 9, Imo Street, Maitama, FCT, Abuja’.
Armed with this application, Chief Magistrate Emmanuel Iyanna, immediately approved the search warrant. When the bubble burst with public ruckus and widespread uproar, the Chief Magistrate beat a hasty retreat and annulled his order immediately, in the following words:
“upon misrepresentation to the honourable court that led to the issuance of a search warrant in favour of Joint Recovery, Ministry of Justice against House 9, Imo Street, Maitama, Abuja, dated October 28, 2021. In view of the above fact search warrant is hereby revoked”.
THE GREAT MISCHIEF
The search warrant clearly bears No 9, Imo Street, Maitama. How did that metamorphose into Justice Odili’s No 7, Imo River Street, Maitama. If it was not premeditated to deliberately embarrass Justice Odili, why did the security agents not mistakenly go to other nearby streets, such as Imo River Close, River Niger, River Benue, Nike Lake and Ekoro Oruro River Streets? What is the connection between No. 9, Imo Street and No. 7, Imo River Street? I cannot find it. Or, can you? CSP Ajodo had been directed by Chief Magistrate Iyanna to investigate the “commission (or suspected commission) of the offence of illegal activities suspected to prone to crime (sic) at No. 9, Imo Street Maitama, Abuja”. So, why did the security team go to No. 7, Imo River Street?
How did “some illegal activities going on in some houses in Abuja” which never listed Odili’s house, metamorphose into her serene home where the learned Jurist was perhaps busy poring away on legal matters?
WIDESPREAD PUBLIC CONDEMNATION
I believe this invasion was obviously targeted to once more embarrass Justice Odili, as security agents had done in February, 2020, after she presided over a panel that delivered the Bayelsa governorship election appeal at the Supreme Court. They did not care that she never read the lead judgement; and that even if she had, she could not have forced the other four Justices to agree with her position. But, this time around, the Nigerians could take none of it. They struck. As a lawyer and rights activist who was physically present, ‘korokoro eyes’, at the scene of the dastardly invasion, I immediately condemned it as being politically motivated, ruling out the possibility of a honest mistake. Governor Nyesom Wike of Rivers State literally breathed fire, condemning the seige and calling for immediate justice. Vibrant and courageous NBA President, Mr Olumide Akpata, rose to the occasion in a statement issued on behalf of the NBA:
“The Nigerian Bar Association (“NBA”) received with grave concern the news of the unlawful siege on the Abuja residence of a Justice of the Supreme Court of Nigeria, Honourable Justice Mary Ukaego Peter-Odili, last night by officers of one or more of the Nigerian security agencies.
Almost 24 hours later, information concerning the basis of the siege remains hazy and the subject of speculation, apart from reports that the invasion was pursuant to a search warrant issued by a Magistrate Court in Abuja, which search warrant has now been revoked.
The Honourable Attorney-General of the Federation under whose office the team that purportedly carried out the raid is allegedly domiciled has also denounced the team, which suggests the inference that the residence of the second most senior judicial officer in Nigeria was raided by rogue security agencies. The grave implications of this possibility leave a lot to be desired.
When viewed in the context of a similar raid on the premises of Supreme Court Justices in 2016, the rationale of which was never fully explained or indeed justified, the NBA interprets last night’s incident as a part of an orchestrated affront on the Judiciary, designed to intimidate and ridicule the Judiciary. The NBA will no longer allow this to continue.
In case the law enforcement agencies have not learnt their lessons, events like this do nothing but erode the independence of sacred democratic institutions like the Judiciary, undermine the rule of law in Nigeria, and set the country back in the quest to instil confidence in citizens of Nigeria, Nigerian businesses, and foreign investors that Nigeria operates a democracy with an independent Judiciary…
To be clear, last night’s event is an affront on the Judiciary and grossly undermines the democracy that we profess to practise…the aims and objectives of the NBA include the protection and defence of the independence of the Judiciary and the Rule of Law in Nigeria, we will be convening an…”.
The Body of Senior Advocates of Nigeria (BOSAN), the registered umbrella body of revered silks, added its weighty, silky voice thus, after meeting with Attorney-General of the Federation, Abubakar Malami, who flatly denied involvement of his ministry: “When judges’ lives, careers, security and safety, when their independence is threatened, then democracy is also threatened”. BOSAN, through Chief Adegboyega Awomolo, SAN, also met with the CJN, warning that “The body of SANs is very concerned about lives, security and safety of our judicial officers anywhere and everywhere”.
In a rare show of engaging the public after years of lacerating and excruciating humiliation in the hands of the Executive, the apex court of Nigeria crawled out of its self-imposed cocoon, through its Director of Information, Dr Festus Akande.It warned that “the Judiciary should not be misconstrued by anyone or institution of government as the weeping (perhaps, whipping) child among the arms of government”. He went further: “This incident appears to be in isolation but we cannot let it be swept under the carpet. The incident must be investigated and investigated thoroughly. Nigerians are interested in this matter. It should not be politicised; it’s a matter of grave, political and constitutional importance.
There are three arms of government: the executive, the legislature and judiciary. One is not supposed to be in ambush or overriding the other or threaten the other’s existence, otherwise democracy is at risk”.
Other bodies, groups, organizations have risen up to condemn this rape of the Judiciary, some with very caustic words.
THE LEGAL POSITION
To remove a judge, it must be in accordance with the Constitution; not arbitrarily, whimsically and capriciously.
Section 158 and Paragraph 21 Part 1 of the Third Schedule of the 1999 Constitution clearly empowers the National Judicial Council (NJC) with the power to handle all complaints. This position was accorded judicial imprimatur in the case of Nganjiwa Vs. Federal Republic of Nigeria (2018) 4 NWLR(Pt.1609) 301, where the Court of Appeal held that “if any judicial officer commits a professional misconduct within the scope of his duty and is investigated, arrested and subsequently prosecuted by security agents, without a formal complaint report to the NJC, it will be a usurpation of the latter’s constitutionally guaranteed powers under Section 158 and Paragraph 21 Part 1 of the Third Schedule, thereby inhibiting the NJC from carrying out its disciplinary control over erring judicial officers as clearly provided by the Constitution… it is only when the NJC has given a verdict and handed over such judicial officer (removing his toga of judicial powers) to the prosecuting authority that he may be investigated and prosecuted by the appropriate security agencies”. This decision means that the independence of the Judiciary and judicial officers is wholly guaranteed and that no security agency or prosecuting authority in Nigeria, however highly placed, has the power to investigate, arrest, detain, or prosecute a sitting judicial officer, without first referring the matter to the NJC, and await the outcome and directive of the said NJC.
SO, WHO DID IT?
The question remains: with the AGF, IGP, EFCC, and other security agencies denying complicity, who did it? Who wanted Justice Mary Odili dead, maimed, humiliated or disgraced out of office when she has just till May 12, 2022, to honourably retire from the Bench at 70, after serving her country meritoriously? And why? They must all be fished out promptly, tried and punished in accordance with the laws of the land. In addition, the Federal government through the relevant authorities must render a PUBLIC APOLOGY and make restitution to Justice Mary Ukaego Peter-Odili, who, during the event, was badly shaken and put in great danger of life and security, with her entire household. This case is not such as can be swept under the carpet in the usual Nigerian manner. NO!!!
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