By Mike Ozekhome

Introduction

Another public outrage attended the ex parte order granted by a Lagos High Court against the Nigeria Labour Congress (NLC) restraining it from calling out workers on a planned nationwide strike to protest the hike in price of petroleum products by the Federal Government. An Abuja High Court had refused the application because there was no genuine case of urgency. The Federal Government went down to Lagos and surprisingly a Lagos High Court, which had co-ordinate jurisdiction with the Abuja High Court granted the order. The NLC president, Adams Oshiomhole had to tell the whole world that the order was not binding on the NLC as it was obtained from the “Black market”. The strike went on as planned and the image of the Judiciary was worse off and its independence seriously put in question.

Another controversial ex-parte order was that made by a judge in the Abuja Division of the Federal High Court restraining the governor of Anambra State, Dr. Chris Ngige from parading himself as governor. The order (which, apart from the questionability of the perceived extreme urgency attending it) could not be reconciled with the state of immunity enjoyed by the governor under the Constitution. The governor had to borrow the “Black market” appellation from Oshiomhole. Even more controversial and outrageous ex parte orders were dished out by the same court on the Anambra crisis alone.

At the heart of the issue of abuse of ex parte orders (especially in political issues) is the attendant erosion of public confidence in the independence and impartiality of the Judiciary. The ugly implications were rightly summed up by a writer as follows: “In these instances of judicial recklessness, there was always the palpable belief that unseen hands moved the court to issue such controversial ex parte orders. That is the meaning of the ‘black market’ reference made by Oshiomhole and Ngige. None of them was prepared to obey a ‘black market’ order obtained outside the ‘official market’! They never obeyed and nothing happened!

Abuse of ex parte injunction aside from the grave implications it has on the independence of the Judiciary, is also capable of wide scale socio-political disaster as was the case with the annulment of the June 12 Presidential Election. The Judiciary set the key note of the disaster that followed when an Abuja High Court presided over the late Hon. Justice Bassey Ikpeme made an ex parte order restraining the conduct of the presidential election.

In the popular case of Kotoye V C. B. N 24 the Supreme Court settled the principles governing the grant of ex parte injunctions. Principally, the order can be made,
(a) When there is a real urgency but not a self-induced or self-imposed urgency.
(b) Where it is necessary to preserve the res which is in danger or imminent danger of being destroyed, and
(c) Where there is a real impossibility of bringing the application for such injunction on notice and serving the other party.

When these factors are inapplicable, a wise judge that imbibed good judicial milk would exercise his/her discretion by turning down the application and asking the applicant to put the respondent on notice. The institution has always stood against the menace of this abuse over the years. The former Chief Justice of Nigeria, Hon. Justice Mohammed Bello once bemoaned, “indeed, there is urgent need among some of us, the judges, to appreciate that ex parte injunction which was devised as a vehicle for the carriage of instant justice in proper cases should not be converted into a bulldozer for the demolition of substantial justice, we should all realize that justice should be done to public functionaries and public institutions.

It has also been reiterated that lawyers equally have a role to play in the war against abuse of ex parte injunction. In this direction, the Hon. Justice C. P.N. Selong opined thus: “In as much as the speech of the learned Chief Justice was directed at judges, I beg to opine that the same caution should apply to legal practitioners, after all both judges and legal practitioners are Ministers in the Temple of Justice. It is my humble view that an honest lawyer who abides by the ethics of the profession should not bring an application which is manifestly unjust”.

The need for restraint from both the Bench and the Bar on the issue was reiterated at the Annual Bar Conference, Enugu by the then Chief Justice of Nigeria, Honourable Justice Mohammadu L. Uwais, who counseled thus: “I think it is not out of place to appeal to legal practitioners at large to exercise more restraint in and desist from advising their clients to bring absurd applications to court for ex parte injunctions. You will agree with me that unless such applications are brought, the inconsiderate and reckless judges amongst us will not find the opportunity to embarrass the judiciary and the profession in general.”

It must be noted, that it is not in all cases where a judge grants an order perceived to be wrong that an actual case of influence arises. However, the perception of the public about justice is important – whether such perception is rightly or wrongly placed. This is because the standard of justice has always been objective: based on the notion of the reasonable man. Justice must not just be done, but manifestly be seen to be done. As one writer aptly put it: “The role of the Judiciary in maintaining socio-political order cannot be compromised and once the citizen believes that somebody, other than the law and his judicial conscience, tells the judge what to say or do, then, the dangers of a system break down and institutional failure becomes real”.

Accordingly, the resolve of the National Judicial Council (NJC) to henceforth deal with judges who grant ex parte orders with recklessness cannot but be supported and encouraged. Charity begins at home. The filthy Augean stable must be cleansed.

We have concentrated on the issue of in-house cleaning by the Judiciary itself because we realize that the most ready and devastating blow to the independence of the Judiciary in the mind of the public is usually struck by the inability of some of the judges themselves to conduct the affairs of the Bench so judicially and judiciously as to inspire public confidence in their independence from external influence. Even some lawyers themselves fall into the league of those members of the public who doubt the independence of the Judiciary on the ground of questionable judicial orders. In this regard, Uche Onyegorocha, a lawyer and member of the House of Representatives while responding to a question from the press on the unpopular pronouncements of a Federal High Court judge, said: “I see undue influence in the whole process. I see a person that is not acting independently. Like I said earlier I see people playing the drum for him in the bush and he is dancing on the street”.

But beyond the question of conduct of the members of the Bench in handling cases brought before them are more technical and political issues of political, economic/fiscal and intellectual independence. These we shall presently address.

POLITICAL INDEPENDENCE

The Judiciary ought to be apolitical in a democratic dispensation to safeguard its independence. Accordingly, judges should not only be free from political affiliation, but the system should be organized in such a manner as to ensure that a judge does not give a decision biased in favour of a political party, especially the ruling party. Accordingly, Nwabueze identified two forms of judicial involvement in politics (i.e organized politics) as:
(a) decisions biased in favour of a ruling party, and
(b) judicial membership of political parties.

It is submitted that Nigeria’s adoption of multiparty democracy is healthy for the protection of the ‘political independence’ of the Judiciary. The term ‘political independence’ should be understood to mean the freedom of the Judiciary from having any form of political influence exerted ion it as to undermine its independence from any individual, group or another arm of government. Nigeria should strive to refuse any attempt to reduce the country into a one-party democracy since the political independence of the Judiciary would obviously be difficult to be achieved therein. The concept of an apolitical judge is utopian in a one-party system. According to Mr. Justice Georges, a former Chief Justice of Tanzania, “The concept of the judge as neutral, belonging to no party in the multiparty democracy, can have no meaning…Where there is one party.”

It has been argued that the involvement of the Executive in the appointment of Judges undermines the imperatives for the freedom of the Judiciary from political influence. It is however, our view that the system of appointment under the Constitution is the best we can have at present. If more caution is employed in the appointment of judges, no problem of want of independence would be posed by the appointment method. Nigeria is not yet ripe for election of judges or else the system would be thoroughly polluted by politics. (We shall look at the issue of appointment of judges subsequently).

Indications that a cross section of Nigerians believe that a section of the Judiciary might have compromised their judicial oath can be gleaned from this passage from a major national daily:

“The Chief Justice of the Federation, from indications, prefers his colleagues to stand above the fray of Nigeria’s turbulent political process. This position may have been informed by the ignominious role played by the judiciary in the country’s chequered political history. But despite the goodwill enjoyed by the judiciary due to a mature handling of suits, that sought to stop the recent general elections, the (sic) a section of the bench may have unwittingly placed this third arm of government in the dock”. (To be continued).

Thought for the Week

“We are under a Constitution, but the Constitution is what the judges say it is, and the judiciary is the safeguard of our property and our liberty and our property under the Constitution”. (Charles Evans Hughes).

By Mike Ozekhome

Introduction

The judiciary is popularly referred to as the last hope of the common man. Yet, to maintain the attributes that qualify it for this populist appellation, the independence and integrity of the judiciary must be jealously guarded and sustained so as to continue to attract the confidence of the said common-man in the ability of the judiciary to do justice to all without fear or favour.

Indeed, the title of this paper becomes urgently relevant in view of the difficult times the judicial institution as a whole has been going through in recent times, as regards its integrity and retention of public confidence. Never in Nigeria’s history (not even during the repressive and tyrannical era of military juntas) has the judiciary suffered such high degree of public bashing, ridicule and contempt as it has in recent times.

Of late, the Judiciary has come under intense criticism and experienced serious erosion of public confidence, so much that its indispensable independence and impartiality have been put to serious doubt by an ever-increasing cross section of Nigerians. While some of the events that gave rise to these doubts were largely misunderstood by the public, the truth remains that some events have shown an even more urgent need to safeguard and defend the political, fiscal/economic and intellectual independence of the Judiciary in this dispensation. The imperatives for an independent and impartial Judiciary in a democracy are great and pressing. This is bolstered by the general feeling and expectation of greater freedoms in a democracy. The protection of human rights is implicit in open democracy. The Judiciary is the greatest bastion for protection of human rights.

The aim of this article is not to place the Judiciary in the dock and try it for the alleged ‘offences’ for which it has recently been perceived (rightly or wrongly) to have committed. Consequently, we would do no more than merely restate some of the events which in the opinion (however flawed) of most Nigerians seem to signify a compromise of its independence and integrity. Our own value judgment would be minimal. We therefore enter a caveat that those who expect the main focus of this paper to be on trashing the judicial institution may be a little bit disappointed at the end. The paper shall conclude with a focus on the role of an independent Judiciary in Nigeria’s nascent democracy.

Definition of Terms

There is hardly any term than can be properly and exhaustively defined (strictu sensu). We shall however adopt dictionary definitions of our principal terms as working definitions to aid clarity of analysis.

The noun ‘independence’ is derived from the adjective ‘independent’ which connotes the following attributes:

“Free from the authority, control or influence of others, self-governing… self-supporting, not dependent on other for one’s living, not committed to an organized political party…not subordinate…not depending on another for its value.” (Oxford Dictionary).

We now turn to the key and operative word, the ‘Judiciary’. The term has been defined as:

“That branch of government invested with the judicial power; the system of courts in a country; the body of judges; the bench. That branch of government which is intended to interpret, construe and apply the law.”
It has however been argued at various times that this definition (as exhaustive as it might appear) is restrictive. It has been suggested that a working definition of the term ‘Judiciary’ may:

“Include the messengers, clerks, Registrars, Bailiffs, the Police, the other security forces, the members of the Bar and such persons that have anything to do with the Judiciary and this will ultimately include the generality of the populace”

For the present purposes however, it would be something of a stretch to suggest that perhaps the generality of Nigerians are part of the Judiciary. Nwabueze agrees with the wide definition of the term, but sees the usage as a somewhat permissible ascription of terminology as regards its composite brother term, the Judicature. According to the learned author:

“There is a certain amount of looseness in the use of the word ‘Judiciary’. In its strict meaning it refers to the ‘judges of a state collectively, but it often (loosely) used interchangeable with ‘judicature’, a wider term embracing both the institution (the courts) and the persons (the judges) who compose it.”

‘Democracy’ is still best known with its Lincolnian definition as ‘government of the people, for the people and by the people’. It is however important to state that our type of ‘democratic dispensation’ has not qualified to be simply referred to as democracy (when the word is stretched to its utilitarian of limits). At best, Nigeria is passing through the process of democratization from years of military dictator ship to civilian governance. Being a process, democratization primarily embraces the steps that go into internalizing the norms of democracy after the institution of a democratically-elected government. In this connection, following democratic elections, there comes a period where governments, institutions and the populace imbibe the democratic culture and principles, and gradually drop autocratic and uncivilized tendencies. This is the cross-roads at which the contemporary Nigeria finds itself. Nwabueze, therefore, sees democratization as:

“The infusing of the spirit of liberty, democracy, justice, the Rule of Law and order amongst the people.”

The point we arrive at is that Nigeria’s Judiciary (which involves both the system of courts and the judges has a pivotal role to play in this democratic dispensation in upholding the rule of law and holding the balance between constitutional and unconstitutional acts. Democratic practice in a limited government being essentially a regime of adherence to constitutionalism, legality and the rule of law, the presence of an independent Judiciary is a sine qua non for successful democracy. An independent Judiciary acts like a compass in complex and turbulent voyage of democracy. Its performance or lack of it determines whether or not the ship of state anchors safely.

If the word ‘independence’ still connotes freedoms from the authority, control or influence of others, and if it still points to an institution which is self-supporting, (not dependent on others), not committed to a political party, not subordinate and not depending on any person or other institution for its value, then the Nigerian Judiciary must politically, economically and intellectually be seen to be self-reliant in order to be called an independent Judiciary. It has been urged (albeit ad ignoranta) that the doctrine of separation of powers does not presuppose independence of one arm of government from the other. This flawed argument is usually impressively hinged on the doctrine of checks and balances. It was used extensively against the Legislative arm in their efforts to operate independently of the executive arm during the first (6) six years of return to democracy. It is, however, submitted that the constitutional doctrine of checks and balances does not derogate from the doctrine of separation of powers.

It is not intended to confuse the doctrine of separation of powers with the issue of judicial independence. Whilst it is right to argue that the latter is a fall-out of the former, it is important to note that the issue of judicial independence has an additional constitutional, political and moral importance in our national life. This is because after the Constitution of the Federal Republic of Nigeria 1999 has successfully separated the powers of government in sections 4, 5 and 6 thereof, it goes ahead to provide unequivocally that:

“The independence, impartiality and integrity of courts of law, and easy accessibility thereto shall be secured and maintained.”

It can easily be seen that judicial independence entails, but is not limited to, separation of powers. Thus in construing the meaning of the expression ‘independence of the Judiciary’, Nwabueze argues:

“We tend to think that the independence of the Judiciary means just independence from the legislature and the executive. But it means much more than that. It means independence from political organs of government or by the public or brought in by the judges themselves through their involvement in politics.”

It is unarguably that the most prominent issue in judicial independence is the freedom of the Judiciary from any form of political influence, whether exerted from outside or self imposed. Another learned writer sees judicial independence to mean:

“The independence of the judges to think freely and act freely according to the dictates of their conscience in line with the provisions of the law without any let or hindrance or fear of repercussion from any quarters whether from the legislative, Executive, individual members of the public or even from the ghost of the individual judge’s past, present or future.”

Unless the Judiciary is aggressively shielded from political influence from the other two arms of government, especially the Executive, the chances of such influence being actually exerted over it are indeed bright. The Constitution made both the Executive and the Legislature generally amenable to the jurisdiction of the ordinary courts. Accordingly, the judicial power vested in the courts by the Constitution extends:

“To all matters between persons, or between government or authority and to any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person.”

It is natural for a branch of government which wields a preponderant of coercive power and exercises power over the purse, (but still has the possible sanction of the Judiciary lurking over it), to attempt to stultify, hijack or control the machinery of the Judiciary. That is the only way, in a democracy, the government can check the ‘menace’ and interference, of the courts and thereby amass more powers and secure impunity unto itself in defiance of constitutionalism and due process.

Thought for the Week
“The bedrock of our democracy is the rule of law and that means we have to have an independent judiciary, judges who can make decisions independent of the political winds that are blowing”. (Caroline Kennedy).

By Mike Ozekhome

INTRODUCTION

The unfortunate misstep and subsequent fall of President Bola Ahmed Tinubu during this year’s Democracy Day celebrations (which he has since humorously dismissed as a form of Yoruba “dobale” -genuflection)-quickly swirled around and became the stuff of internet gossip and street-corner small-talk. Reactions varied widely but, many tended to make light of it, while others (the usual suspects?) saw it as evidence of the President’s physical incapacity to cope with the tedious demands of his office. Political opportunism also set in, with yet others seeing the mishap as an “I-told you-so moment”, openly voicing their belief that the President’s main opponents in the last election – Atiku Abubakar and Peter Obi (particularly the latter) – would not have suffered that fate, given their presumed better physical fitness.

Some of these remarks were, undoubtedly, uncharitable – especially in the lead-up to the Muslim festival of Id-el-Adha (or Sallah) just a few days away. President Tinubu is, of course, a Muslim. As a fellow human being, he deserves our sympathy and prayers for sound health – an indispensable requirement for the rigours of that job, popularly believed to be one of the most demanding and powerful in the world. With power surely comes huge responsibility and citizens’ expectations for performance.

Whether the President scores a pass mark or not in terms of job approval rating is for history (or posterity) to judge. One year is certainly too short to make the conclusion that he has failed. So, let us collectively hold our fire and bid our time. But even at that, no one can deny the fact that Nigerians are in theirs worst years, dying of hunger, squalor and wretchedness. The middle class has been wiped out with less than one percent of state captors enjoying national largesse. Perhaps, the second year in office would be a more appropriate time to assess him to determine whether the IMF and World Bank-induced economic policies will boost production, create jobs, bring down prices and alleviate the suffering of the Nigerian masses. Suffice it to say that to me, it is yet still early in the day and the jury is still out.

This is all the more so, in my opinion, because, history is replete with world leaders who put a physical foot (or both feet) wrong (some more than once) and got up, dusted themselves and forged ahead, stamping their feet (pun intended!) on the sands of time, leaving indelible footprints and track records of achievement and performance on the job and in history. The following are a few examples:

I. President Joe Biden: He has famously stumbled on the steps of Air-Force One on at least three occasions, getting back on his feet each time, unassisted and moving on. He is 81 and warming up to run for a second term against maverick Donald Trump.

II. Former President Gerald Ford: One of the most accident-prone world leaders ever, dead or alive, was former US President Gerald Ford. His catalogue of falls spanned virtually every surface, including aircraft steps (again!) while on a visit to Austria in 1975 when his bum knee gave way. He even fell on the stairs of the White House. Though the official reason for this was a bad knee gave way, this did not stop cynics from tagging him as something of a bumbling klutz! Yet, Ford is remembered for managing the worst economy in the four decades after the great depression augmented by spiraling inflation and recession.

III. Ronald Reagan: Yet another former American President, he also endured a similar indignity in 1984 in Seattle, Washington. Luckily for him, it was not captured on video and only still images thereof exist of his so-called pratfall. But he went on to impact on America with his Reaganomics, overhauling the income tax code exempted millions of low income earners. His charm, eloquence and courage after the assassination attempt on him remarkably revived America’s pride in the presidency and the nation.

IV. Barack Obama: This first black American President whose grandfather was a Kenyan cattle rearer also came a-cropper when, sometime in 2015, his trademark sprightly confident jaunt failed him while disembarking from Air Force One. He ended up in a heap, needing no less than 12 stitches to his hip.

V. Hillary Clinton: While the husband of the former First Lady was dodged more by salacious ex-marital stories than physical falls, his wife probably took ‘the Fall’ (pun intended!) when, as Secretary of State to former President Obama, she stumbled while on her way to her car at the State Department, fracturing her elbow in the process.

VI. Robert Mugabe: Sometime in 2015, the former Zimbabwean President Mugabe was famously captured prostrate on a red carpet following a fall at a public event.
VII. Margaret Thatcher: Britain’s first female Prime Minister ( “iron lady” ) also came ‘crashing down’ sometime in 1982 while on a trip to China, as she made her way out of a Town Hall (no pun intended!).

VIII. Thorning-Schmidt: Also in 2015, the then Prime Minister of Denmark (also female) lost her footing and landed on her knees as she disembarked the stairs of the Elysee Palace in Paris, France.

IX. Xi Jinping: the incumbent President of China, came close to falling down during the International Economic Forum in St. Petersburg in Russia in 2019, but for eagle-eyed aides who stepped in at the last moment.

X. Boris Johnson: Another former British Prime Minister, he also lost his balance when he tripped and fell during a military commemorative event in 2015.

XI. Vladimir Putin: Russia’s long-reigning president also fell during a game of ice hockey in Moscow in 2019 when he (ironically) tried to applaud spectators.
Even former Vice President Mike Pence tripped while running up the steps of Airforce One in a remarkably similar circumstances as President Joe Biden. In July, 2023, Fiji Prime Minister, Sitiveni Rabuka, was forced to cancel an official visit to China after falling and hurting his head.
The foregoing shows that President Tinubu is in good company when it comes to presidential falls and that, as stated by a famous sage, it is not falling that matters, but rising each time you fall. However, beyond merely getting up and forging ahead, it is the kind of legacy one lives behind – what one will be remembered for-that counts. Therefore, let us all collectively and individually join hands in the spirit of goodwill echoed by the words of our old (now new) national anthem, in wishing the President a successful (and accident-free!) tenure. We cannot afford for him to fall and fail because we shall be the worse for it and bear the brunt together. The circumstances of his fall, are, however, reminders of the labors of our heroes past (a verse from our now discarded national anthem!) – this time the presumed winner of the June 1993 President, Chief M.K.O. Abiola, who was matyred in redemptive messiahnism.
In this connection, I commend former President Muhammadu Buhari (as I did in 2018,even though he was not my idea of a good president) for ensuring that the National Assembly passed the requisite law, by which June 12 of every year ( rather than May 29) is marked as a public holiday. I recall my remarks on this issue 6 years ago, on the passage of that law, when I observed as follows;

“On June 12, 2014, I moved a motion at the National Conference that, not only should June 12 be declared a national holiday and the real Democracy day, but that Chief M.K.O. Abiola and all the souls of the faithful departed of those who gallantly lost their lives fighting for the realization of June 12, be remembered and immortalized. I demanded for one minute’s silence for those heroes. The leadership of the Conference led by Justice Idris Legbo Kutigi agreed with me and a minute silence was accordingly observed. To me, it is not the right argument that PMB, did it for political reasons. Yes, he may very well have done it to shore up his battered political image and fast dwindling democratic credentials. But, the inescapable fact is that he has done the right thing for which history will remember him. This is the more reason, I believe the argument should now go, why he should retire quietly to his Daura home, having done one great thing for which he would be remembered.” (See https//:diplomaticwatch.com,june-12-as-nigeria’s-democracy-day-president-buhari-has-done-the-right-thing-for-which-hhistory-will-rremember-him-ozekhomee-san, June 8,2012).

LESSONS OF JUNE 2012

I believe that the best way President Tinubu can demonstrate that he has learned the lesson of the tragic events in our national history which that day represents is captured in my advice a year ago. As they it still very pertinent, I would like to reiterate it here:

“What this present government led by President Bola Tinubu should borrow from the June 12 lesson, is good governance of peoples’ policy and not anti-people’s that will further impoverish the already beleaguered people, who are already prostrate on their bellies. Policies that will make life better for the people. But, most importantly, Tinubu must listen to this, even if it is few things he can do. He must take steps to give Nigerians, a peoples’ Constitution, people-driven Constitution made by the people themselves, subjected to a referendum. You cannot amend the present Constitution which is a schedule actually attached to Decree 24 of 1999. It’s a militarily imposed Constitution. No amount of amendment can cure it of its original sin for being made by the military and not by Nigerian people. Even the preamble that says we the peoples of Nigeria do hereby give to ourselves the following Constitutions tells a lie about itself. Therefore, Tinubu must take deliberate steps, to ensure that the Constitution drafting committee, through a constituent assembly of the people, is established and the product that will emerge from it will give Nigeria a true federal system, not the present unitary system where the Federal government controls 67 items on the exclusive legislative list up to how you conduct your marriage through the marriage Act. Until he (Tinubu) makes a people’s Constitution subjected to referendum which will enjoy peoples’ legitimacy as was done in Iraq, Iran, Eritrea, South Africa, Egypt, Tunisia, Kenya,until he takes that deliberate step, Nigeria will continue to suffer of perpetual motion on its axis without progress.” (see https://www.naijanews.com/2023/06/12/democracy-day-what-tinubu-govt-should-borrow-from-june-12-lesson-ozekhome, 12th June,2023). It is clear to me therefore that there is no nexus between the falling of a President and his failure or success. We have all, at one point in time or the other tripped and fallen. It has nothing to do with age-whether old or young. It is just a natural phenomenon to lose balance and fall. Isaac Newton’s Law of Motion regarding gravitational force teaches us that much. It is therefore unhelpful to make a big issue of Tinubu’s misstep and fall on June 12, Democracy Day. Given the excruciatingly difficult times we are in, we appear to have completely lost our decency, humanity and sense of empathy, care and affection one for the other. It does not matter whether it is the President or the common man. We must desist from this ungodly trajectory and allow our religious teachings temper our political cravings for blood and vendetta with Godliness. God bless Nigeria.