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The Oracle

The Oracle: Tinubu’s Forest Guard: Who Will Guard the Guard?

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By Prof Mike Ozekhome SAN

INTRODUCTION

WHEN THE FOREST HIDES MORE THAN TREES

To paraphrase an old African proverb, “when the forest is silent, beware, it may be plotting”. Nigeria’s forests are no longer just a canopy of trees sheltering wildlife and whispering winds; they have become a theatre of terror. Armed bandits, kidnappers and insurgents have “discovered” what ancient wisdom already knew: that the forest is the perfect hideout. In response, President Bola Ahmed Tinubu has proposed a bold and ostensibly visionary plan, the deployment of a national forest guard corps. This move has since sparked hope, skepticism, and fierce federalism-versus-unitarism debates.

At the heart of this strategy is the ambition to reclaim over 1, 129 forest reserves scattered across Nigeria’s sprawling terrain, most of which now serve as havens for terrorists and criminal syndicates. With over 130,000 armed operatives to be recruited and deployed, it is easy to view this initiative as the long-overdue solution to Nigeria’s security woes. But this move is not just about logistics and boots in the bush; it is about sovereignty, legality, and local legitimacy. Is Tinubu’s forest guard plan a federal solution to a national emergency, or is it an ill-fated centralization of local security challenges, enabling the federal government to breath down the necks of State governments?

To answer this, we must examine the legal, constitutional, and operational frameworks of Tinubu’s initiative, evaluate historical precedents, and analyze the potential risks of imposing a federally controlled paramilitary force in forests that historically and legally belong to the states. We must also interrogate whether security can be bought with arms alone; or whether it grows from the grass roots up.

But before we venture into the thicket of policy and power, let us consider the context that birthed this proposal. Nigeria’s forests, which were once ecological sanctuaries, have gradually degenerated into lawless zones of bloodbath. The green expanse that should echo with bird calls and animal grunts now reverberate with gunfire. Insecurity in rural and agrarian communities has reached such alarming heights that farmers have virtually abandoned their lands, leading to food insecurity, economic stagnation, and mass displacement. The forests no longer nurture life; they generate death.

BETWEEN POLICY AND IMPLEMENTATION

The government’s decision to respond with a large-scale recruitment of forest guards may indeed seem intuitive, after all, it aligns with the global trend of ecological militarization in fragile states. Yet, the structure of implementation matters deeply. If the architecture of this plan disregards Nigeria’s federal nature, it risks exacerbating the very crisis it was intended to solve. Forests may be rooted in soil; but the guardianship of that soil is rooted in law, identity, and community ownership. The principle of quic quid plantatur solo solo cedit applies. Forest guards who do not share the language, culture, history or kinship of the terrains they are sent to police will surely be seen as outsiders. And such outsiders in the forest may become either victims or villains.

Furthermore, this proposal arrives at a critical moment in Nigeria’s democratic evolution. Debates over state and community policing, restructuring, devolution of powers and regional autonomy are no longer intellectual abstractions; they have become national imperatives. See sections 215 and 216 of the 1999 Constitution. Tinubu’s plan whether deliberately or inadvertently, intersects with these gaping fault lines. To superimpose a federally-managed forest force without recognizing the nuanced relationships between state, land and community is to risk uprooting fragile peace and replacing it with more severe antagonism.

Now, are we really a federation in truth or merely in name? I dare say what we operate in the guise of federalism is actually a unitary form of government. Can national unity be enforced through uniformed patrols, or is it better than it be cultivated through shared values and governance? As we delve deeper, the question is not just who guards the forest, but who decides who guards the forest, and in whose name. Indeed, a deeper question: Who will guard the Guard?

 

THE FOREST, THE FEDERALIST AND THE FEDERATION

CONSTITUTIONAL REALITIES: THE POWER OF THE STATES OVER FORESTS

In any federal system, the distribution of power especially over land and internal security is a defining hallmark. Nigeria’s federalism is no exception. The country’s current structure, codified under the 1999 Constitution (as amended), clearly delineates the powers of federal, state and local governments.See sections 2(2),3(1-6) of the 1999 Constitution. A close reading of section 7 and the Fourth Schedule ( paragraph 2( b) to the Constitution highlights the responsibilities of Local Government Councils, including the control and regulation of agricultural and natural resources and by extension, includes forest land not reserved to the Federal Government. This immediately places forests, by default, under the control of the states, unless specifically designated otherwise,since Local Governments are located in states.

Furthermore, the Land Use Act,1978, which is incorporated into the Constitution by reference (section 315), gives state governors control over all lands within their territory, excluding those under federal use, to hold them in trust for the people of their States. The Act empowers governors to allocate land in urban areas to individuals and organizations, and to oversee the use of non-urban land through Local Government Councils. Consequently, the direct implication is that any forest or land not classified under national parks, Federal Reserve zones, or military controlled areas, falls squarely under the jurisdiction of the state.

FEDERAL V. STATE POWER

Of Nigeria’s 1, 129 officially gazetted forest reserves, the vast majority are managed by state forestry departments under their ministries of agriculture, rural development or environment. These include large forest blocks in states like Cross River, Ondo, Ogun, Taraba, and Ekiti, many of which are vital to local economies, ecological sustainability, and food security. The federal government only controls forest areas designated as National Parks(such as Gashaka-Gumti National Park, Kainji Lake National Park, Cross River National Park, and Old Oyo National Park), administered under the National Park Service, an agency of the Federal Ministry of Environment.

Attempts to impose direct federal recruitment and control over forest guards in state-managed forests without legislative amendments or formal agreements risk violating both the spirit and letter of the law. Even within the federal legislative framework, forest policing is not explicitly listed on the Exclusive Legislative List, meaning that it falls under either the Concurrent List (shared responsibilities between the federal and states) or, in most practical scenarios, the Residual List, which is left to states’ discretion.

UNITARISM IN DISGUISE?: THE DANGER OF A FEDERAL PARAMILITARY FORCE

Unitarism masquerading as federal security cooperation is a deeply sensitive issue in Nigeria, where ethnic plurality, historical grievances, and political mistrust run deep. The idea that over 130,000 armed operatives could be centrally recruited, trained, and deployed under federal command while ostensibly operating within state territories is understandably alarming to many stakeholders. It evokes painful memories of other federally-controlled agencies that have operated with little or no regard for local dynamics and often with tragic consequences.

The Special Anti-Robbery Squad (SARS) is a case in point. Established as a unit within the Nigeria Police Force, SARS was accused of gross human rights violations, including extra-judicial killings, torture, and extortion. Its federal command structure meant little accountability to state governments or communities. The #EndSARS protests of 2020, which began as youth-led demands for police reforms, quickly morphed into a broader call for systemic change, highlighting the dangers of over-centralized security control architecture.

Similarly, the Nigeria Security and Civil Defence Corps (NSCDC), while useful in its community protection mandate, has often been accused of operational inefficiencies and jurisdictional clashes with state authorities. Cases of NSCDC operatives acting with impunity or engaging in power struggles with local law enforcement agents are well documented.

Against this backdrop, Tinubu’s forest guard plan raises critical concerns. How can a federal command effectively manage such a force across diverse terrains, languages, and cultures without falling into the same trap of over-centralization and under-accountability? What happens when these guards act outside the law, or when federal and state authorities disagree on deployment priorities? Who investigates complaints of misconduct, especially in remote rural areas? Who has the final say?

These questions are not merely theoretical. In countries with similar federal structures, such as India and the United States, forest protection and environmental policing are almost always handled at the state or provincial level, often under decentralized bureaucracies with state-specific laws and enforcement mechanisms. For instance, India’s Forest Protection Committees are embedded in local governance structures, while U.S. State Park Rangers operate independently of federal policing units unless specific interstate or federal crimes are involved.
Nigeria’s own federal structure should offer no less sophistication. The creation of another federal paramilitary force, especially one that operates deep in the natives’ forests without local allegiance or accountability, risks becoming not a solution but a security liability and worse, a political tool in the hands of a powerful centre.

INDIGENOUS SECURITY MODELS: THE CASE FOR LOCAL RECRUITMENT

The wisdom of local recruitment is both practical and cultural. Insecurity in Nigeria’s forests is not just about guns and patrols, it is about intelligence, relationships and trust. Bandits and criminal syndicates thrive in environments where locals are alienated from the security structure. Conversely, they are more easily repelled when local vigilantes, hunters and indigenous operatives form part of the security fabric.

The Nigerian Hunter and Forest Security Service (NHFSS), which operates across the 36 states and the FCT Abuja, provides a compelling model. Comprised largely of traditional hunters and forest dwellers, the NHFSS brings a unique blend of tactical expertise and cultural affinity. In states like Kogi, Kebbi and the FCT, NHFSS operatives have been instrumental in intercepting kidnap gangs, uncovering illegal encampments, and collaborating with security agencies. Their effectiveness is rooted not in superior weaponry, but in their deep understanding of their peculiar terrain, their loyalty to the community, and the trust they command from locals.

A retired Army General, Peter Aro, hailed the development as a critical step in addressing rising insecurity within Nigeria’s forested regions, particularly the scourge of banditry, kidnapping, and insurgency. Forest guards must possess field survival skills, terrain literacy, and community integration. These are not qualities one can mass-produce in Abuja through crash course training programmes. Furthermore, security should be intimately linked to traditional institutions, such as village heads, district councils, and traditional rulers, who provide crucial intelligence and moral authority.

Security analyst Chidi Omeje has also pointed out the danger of sending “fresh recruits with basic firearms” into forest zones where criminal elements are known to possess military-grade weapons. He advocates for a dual-layered model, where locally embedded forest guards work alongside the military and police but under local command structures.

There are also precedents for success. The Amotekun Corps in the South West, and the Benue Community Volunteer Guards, are examples of locally-driven initiatives that have shown promising results. While not without their challenges, these corps are better attuned to the local environment and have the legitimacy to act swiftly in ways that federal forces cannot.

Furthermore, a decentralized approach would stimulate local economies. Recruitment of indigenes provides employment, instills civic pride and strengthens the social contract bond. It also ensures that the guards see themselves as protectors, not as occupiers, a distinction that is vital in volatile communities where the line between security agent and aggressor is often thin.

In summary, while the federal government has a legitimate role in coordinating national responses to threats, its approach must be that of a facilitator, not a commander. Support through training, funding, surveillance technology (e.g., drones, forest mapping systems), and standard setting is invaluable. But command and control must remain at the state level, rooted in the soil, culture, language, idiosyncrasies and rhythms of the communities the guards are sworn to protect.

Between The Forest And The Firepower: Finding The Right Strategy

The Forest As Nigeria’s New Battlefield
Nigeria’s forests, once treasured for their ecological richness and environmental contributions, are increasingly viewed through the lens of national security. Spanning over 10 million hectares which is about 10% of the total land area of Nigeria, Nigeria’s forest reserves are now being infiltrated by violent actors and used as operational bases for bandits, insurgents, arms traffickers, and cross-border criminal networks. These reserves especially those in Kwara, Niger, Benue, Taraba, Zamfara, Kaduna, and Oyo have morphed into de facto war zones, where traditional policing is rendered ineffective and the military often finds itself in reactive mode.

One particularly troubling example is the Kainji Lake National Park, a protected area that spans the borders of Kwara and Niger States. Though it is officially under federal protection, its vast and difficult-to-monitor terrain makes it a prime corridor for terrorist and bandit movements. According to security reports from the Nigerian Army’s 8 Division, several armed groups have taken advantage of the park’s proximity to Nigeria’s northwestern and central states to establish hidden bases, smuggle arms, and coordinate attacks.

Similarly, the Old Oyo National Park, which straddles Oyo, Kwara, and Niger States, has become a hotspot for criminal activity. Local intelligence from communities surrounding the park indicates that bandit groups expelled from Zamfara and Katsina have found refuge in this forest. These criminal elements exploit the remoteness of the area and the absence of a permanent security presence to regroup and launch attacks on nearby settlements.

Beyond national parks, numerous ungazetted forests especially in the Middle Belt serve as strategic hideouts for Fulani militia groups, foreign mercenaries, and rogue elements linked to organized crime. In Benue State, Governor Hyacinth Alia has repeatedly warned of incursions by foreign terrorists, allegedly linked to cross-border herder militias. The Upper Ogun Forest Reserve, a large forest block in Kwara, has also come under scrutiny following reports that Mahmuda terrorist group members used it to transit between Nigeria and the Republic of Benin.

The implications of these developments are profound. Without forest security, Nigeria not only risks losing its forests to environmental degradation but also ceding large swaths of land to non-state actors, thus turning forest reserves into breeding grounds for violent extremism. Yet, while the urgency to act is undeniable now, the quality of response matters more than its speed.

Deploying undertrained or poorly equipped forest guards into these volatile environments would be akin to sending lambs into a lion’s den. The intelligence, terrain mastery, and firepower required in such engagements go far beyond the remit of conventional paramilitary forces. You cannot send men with shotguns into a forest ruled by terrorists with RPGs. This is not hyperbole, it is a stark reality, backed by recurring video evidence of bandits showcasing sophisticated weaponry, satellite communication tools, and, in some cases, armored vehicles.

Military Might Vs. Paramilitary Prowess: A Strategic Dilemma

At the heart of Nigeria’s forest security conundrum lies a fundamental strategic mismatch. On one side is the proposal to deploy lightly armed forest guards; on the other is a threat landscape populated by insurgent groups with military-grade capabilities. Nigeria remains one of the most affected countries by terrorism, with Boko Haram, ISWAP, and multiple bandit groups shifting focus from urban bombings to rural forest insurgency.

Reports confirm that many of these groups are now entrenched in forests stretching from Zamfara to Taraba, taking advantage of limited surveillance and sluggish security response. These criminal outfits reportedly employ rocket-propelled grenades (RPGs), improvised explosive devices (IEDs), drones and night-vision equipment, a sophisticated arsenal far superior to the basic AK-47s or pump-action rifles many forest guards are expected to wield. This power disparity raises a serious question: Can forest guards, even in significant numbers, hold their ground against such adversaries?

A Desirable Narrative

The answer, quite evidently, is no, at least not alone. This does not render the forest guard model irrelevant, but it necessitates a reimagining of their role. Forest guards should not be conceptualized as primary combatants but as intelligence operatives, terrain scouts, and first responders. Their role must be complementary, not confrontational, with local guards. Embedded within local communities, they are best positioned to detect unusual movements, provide early warnings, and assist in planning police or military interventions.

Such integration would mirror the highly successful model employed by the Civilian Joint Task Force (CJTF) in the North-East, which supported the Nigerian military in combating Boko Haram. The CJTF did not go to war with terrorists alone. Rather, they provided community intelligence, identified suspects, and enabled smoother military operations.

The same should apply to forest guards. Deployed as community embedded liaisons, their greatest strength lies not in brute force but in proximity, familiarity, acculturation and adaptability. They must work in synergy with the local guards, Army, Police, DSS, and NSCDC, ensuring that information gathered at the grassroots level informs strategic planning at the federal level.

Another vital element is equipment and communication infrastructure. In many rural areas, mobile networks are poor, and emergency communication is non-existent. Forest guards should be equipped with satellite phones, GPS trackers, surveillance drones, and bodycams. Training must include combat survival, hostage negotiation, and tactical withdrawal protocols. It’s not enough to train them how to fight; they must also learn when, where and how not to fight.

The Path Forward: A True Federal Partnership

While President Tinubu’s forest guard initiative is ambitious and well-intentioned, its execution must be shaped by constitutional fidelity, operational pragmatism, and community trust. Nigeria’s diversity requires policies that are locally adaptive but nationally coordinated. A strategic roadmap should therefore include the following:

Legislative Reform and National Forest Security Act

This act should define the parameters of forest security across the federation. It must empower states to create, manage, and control forest guard units while providing room for federal assistance in the form of funding, training standards, and interoperability protocols with federal security services. The act should also clarify jurisdictional boundaries, ensuring there’s no operational conflict between federal and state forces.

Indigenous Recruitment and Decentralized Command

Only indigenous recruits, drawn from host communities, should serve in forest guard units. This principle ensures language proficiency, cultural awareness, and community acceptance. State governments, in partnership with local traditional rulers, should drive recruitment processes, with background checks vetted by local police and DSS operatives. This will mitigate risks of infiltration by criminal elements.

Technology-Driven Surveillance Infrastructure

Equipping forest guards with modern tools is not optional; it is imperative. Drone surveillance, motion-triggered cameras, satellite-linked walkie-talkies, and forest mapping systems should be deployed. The National Space Research and Development Agency (NASRDA) and Nigerian Communications Commission (NCC) can play a supporting role in developing and deploying such technologies.
Strategic Federal Support, Not Operational Control

The role of the Federal Ministry of Environment and Office of the National Security Adviser must be clearly coordinative, not administrative. Federal agencies should support states through centralized training academies, logistics depots, and intelligence sharing platforms, but the command structure should remain domiciled in state ministries or specially created state security commissions.

Community Accountability and Oversight Boards

Every state should establish Forest Guard Oversight Committees composed of community leaders, the youth, civil society groups, religious figures, and security agencies. These committees would track operations, address complaints, and ensure that forest guards act within the bounds of law and ethics. Regular town hall reports and audits should be mandated.

Integrate Environmental Protection and Counter-Insurgency Goals

One major flaw in Nigeria’s security strategy is the siloed approach to environmental policy and national security. The forest guard initiative offers a unique opportunity to bridge this divide. Forest guards should be cross-trained in both environmental protection and tactical field surveillance, thereby serving a dual purpose: preserving Nigeria’s biodiversity while countering environmental crimes that fund insurgent activities.

Illegal logging, poaching, and charcoal trading are multi-billion-naira black-market economies that fuel insecurity in rural areas. According to the United Nations Office on Drugs and Crime, environmental crimes in West Africa generate funds that are often funneled to criminal cartels and armed groups. A forest security force that understands these dynamics can better dismantle such networks.
It is imperative to partner with the Federal Ministry of Environment, Nigerian Conservation Foundation, and international organizations like UNEP to embed environmental crime detection into forest guard training modules.

Establish a Centralized Forest Intelligence Command

Given the complexity of forest based criminal operations and their links to wider terrorism and transnational crime, it is essential to build a dedicated forest intelligence infrastructure. This unit, the Centralized Forest Intelligence Command (CFIC), should be a joint inter-agency platform bringing together the Police, NCDC, DSS, Military Intelligence, Nigerian Immigration Service, local guards and Forest Guard Commanders from each state.

CFIC would use advanced tools such as geospatial intelligence (GEOINT), signals intelligence (SIGINT), and drone reconnaissance to provide real-time threat mapping, track insurgent movements, and anticipate forest-to-urban migration of threats. Such an initiative would vastly improve response time and prevent security breaches before they happen.
The CFIC should be integrated into Nigeria’s National Security Architecture under the supervision of the National Security Adviser, but operated through a state federal coordination model with joint personnel and interlinked command centres.

Promote Cross-Border Forest Security Cooperation

Given that Nigeria shares porous forest borders with Benin Republic, Niger, Chad, and Cameroon, it is vital to recognize the transnational dimension of forest insecurity. Bandits and militants frequently move across these borders, exploiting weak surveillance and diplomatic inertia.

Nigeria must lead in establishing a Regional Forest Security Pact in collaboration with ECOWAS and the African Union (AU) security platforms. This pact would promote joint patrols, shared intelligence, coordinated raids, and the establishment of joint forest monitoring stations in border regions like Borno, Taraba, Cross River, and Sokoto.

The Ministry of Foreign Affairs should work with ECOWAS to initiate bilateral and multilateral forest security agreements, underpinned by joint training programs and extradition protocols for forest-based offenders.

Conclusion

Where The Trees Stand Tall, So Too Must The Constitution

In the final analysis, Nigeria’s forest guard initiative under President Bola Tinubu offers more than just a policy experiment; it presents a litmus test for the country’s commitment to federalism, local empowerment, administration and smart security strategy. The forests in question may be dense with trees, but the issues surrounding them are denser still: constitutional authority, operational viability, regional identity, and national unity.

We have seen how the forests have evolved from mere ecological zones into the dark sanctuaries of insurgents, traffickers, and mercenaries. We have seen how well meaning central interventions, if not delicately structured, can become bulldozers flattening both local agency and constitutional principles. And we have seen how a locally grounded, technologically equipped, and constitutionally-compliant model can actually work transforming the forest guard idea from a controversial headline into a security legacy.

But let us be clear, you do not fix a leaky roof by installing a chandelier. You do not solve rural insecurity with a flood of centrally deployed gunmen unfamiliar with the peculiar terrain or the tongues spoken therein. Instead, Nigeria must adopt a model that blends local trust with federal muscle, traditional knowledge with modern technology, and constitutional wisdom with operational pragmatism.

The forest is watching, as are the communities who live by it, feed from it, and now fear it. Let us ensure that the guardians we appoint are not strangers in camouflage, but sons and daughters of the soil; trained, trusted, and tethered to the trees they are sworn to protect. After all, if we cannot see the forest for the law, we may end up losing both. And in that case, the trees would not be the only casualty left standing in silence; our Democracy may also be.

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The Oracle

The Oracle: The Independence of the Judiciary in a Democratic Dispensation (Pt. 3)

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By Prof Mike Ozekhome SAN

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,

  • When there is a real urgency but not a self-induced or self-imposed urgency.
  • Where it is necessary to preserve the res which is in danger or imminent danger of being destroyed, and
  • 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:

  • decisions biased in favour of a ruling party, and
  • 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

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The Oracle

The Oracle: The Independence of the Judiciary in a Democratic Dispensation (Pt. 2)

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By Prof Mike Ozekhome

Introduction

Last week we commenced this series with some operational definitions, today we shall continue and conclude on the definitions and take a critical look at some cases – their good parts, deficiencies and worst case scenarios. Read on. 

Definition of Terms (continues)

During the colonial and military regimes, the Executive always attempted to undermine the Judiciary, erode its independence and powers of coercion and have a field day with illegality and impunity.  On those occasions, the Judiciary always stood up courageously to uphold the rule of law.  In Eshugbayi Eleko Vs. Government of Nigeria the Judicial Committee of the Privy Council declared null and void and of no effect whatsoever the deportation of the Oba of Lagos from his domain to an entirely different part of Nigeria on the ground, inter alia, that the Governor had no such power inspite of the fact that the Governor was then vested with both executive and legislative powers. It held:

“No member of the executive can interfere with the liberty or property of a subject except on the condition that he can support the legality of his action before a court of justice.”

In Lakanmi & Another Vs. A-G, Western State, the Supreme Court courageously declared null and void Edict No. 5 of 1967 promulgated by the Western State Government and Decree No, 48 and 45 of 1968 promulgated by the Federal Military Government, on the ground that they were ad hominem legislations.  The legislations dealt with forfeiture of assets.  The Supreme Court held that the 1963 Constitution clearly provided for separation of powers between the Judicial and the Executive and that Decree No. 45 of 1968 was a clear usurpation of the Judicial powers of the courts.  Chief Rotimi Williams has then argued that the Decree which named specific people and confiscated their property were ad hominem and unconstitutional.  The Supreme Court held that the legislations amounted to judicial rather than legislative acts and struck them down.  In reply, the Federal Military Government of General Yakubu Gown promulgated Decree No. 28 of 1970 to undermine the Judiciary.  The Decree was audacious and even brutal in its title:  “The Federal Military Government (Supremacy and Enforcement of Powers Decree No. 28 of 1970.”  The Decree restated the sacredness and unquestionability of any Decree or Edict promulgated or purported to be promulgated by the military government.  But the Adetokunbo Ademola-led Supreme Court at the time was not intimidated.

In Governor of Lagos State Vs. Ojukwu Kayode Eso,JSC emphatically declared that:

“Under the Constitution of the Federal Republic of Nigeria, 1979, the Executive, the Legislature (while it lasts) and the Judiciary are equal partners in the running of a successful government. The powers granted by the constitution to these organs by Section 4 (Legislative Powers), Section 5 (Executive Powers) and  Section 6  (Judicial Powers) are classified under an omnibus umbrella  known under part II to the Constitution as Powers of the Federal  Republic of Nigeria’. The organs wield those powers and one must never exist in sabotage of the other or else there is chaos, Indeed there will be no federal government. I think, for one organ, and more especially the Executive, which holds all the physical powers, to put up itself in sabotage or deliberate contempt of the other is to stage  an executive subversion of the constitution it is to uphold. Executive lawlessness tantamount to a deliberate violation of the constitution.”

There are many  cases decided during the military era and under democratic environment that underscore the relentless efforts by other arms  of government, especially the Executive to erode  the independence and vibrancy of the Judiciary as a way  of expanding their own frontiers of influence, unquesitonability and impunity.

Since the Executive has considerable (if not total) influence over the wealth of the State and over the appointment of Judges, it continuously seeks to make the Judiciary dependent by starving it of funds and by influencing the enthronement of mediocrity  on the Bench.  Issues in independence of the Judiciary may thus be broadly classified into three, viz, political independence, economic independence and intellectual independence.  Before looking at these issues in detail, we may take a look at the face of Nigeria’s Judiciary so that the issues can simultaneously be matched with the ease.

The Case (The Good, The Bad, The Ugly)

“Since I made the order of the remand of the accused person last Thursday and up till about 10 minuets before I sat this morning, I have been under untold pressure and threat from many quarters urging me to arrive at a particular decision ever before I listen to the accused.  Let me make it that as a Muslin, the teaching of my religion is clear about death being  the ultimate.  I am therefore not bothered about any such threat.  I am, however, worried about the untold pressure coming, as it were, from unexpected quarters…  To continue with this case will…..be a breach of the solemn pledge I made when I became a judge (i.e) to administer justice without fear or favour and without ill-will or affection.  In view of the foregoing, I hereby remit this case file to the honourable chief judge for re-assignment to another judge.”

In this way,  Honourable Justice Mashood Abass of the Oyo State High Court washed his hands off, like Pontius Pilate, of the trial of Otunba Iyiola Omisore and other accused persons standing trial for the murder of Late Chief Bola Ige, SAN (Slain Attorney-general of the Federation).  After the controversial withdrawal of the judge, allegations of undue pressure, bribery, arm-twisting tactics, threats and promises directed against the judge inundated the media.

Before, the breaking of this unpalatable story, a sordid allegation of bribery had been trailing the Election Tribunal that sat in Akwa Ibom State over the petition of Dr. Imeh Umanah, against the election of the then incumbent governor, Obong Victor Attah.

In Enugu State, matters came to a head when an Election Tribunal had to relocate to Abuja to complete its job after alleging that Enugu State was no longer safe for its honourable members.  These are bad times for the Judiciary!.

But in Anambra State,  the State Chief Judge, Honourable Justice C. J. Okoli proved to be a pride of the Judiciary when he smartly ‘made himself unavailable’ during the July 10, 2003 abduction of the governor of Anambra State,  Dr. Chris Ngige by his political enemies.  The House of Assembly had passed a motion asking the Chief Judge to swear in the Deputy Governor as incumbent governor, but the Chief Judge was not available to carry out the resolution.  By that act, his lordship saved the Judiciary from being enmeshed in the dirty politics of the state, which almost consumed the other arms of government.

More than any other factor, the abuse of ex-parte injunction by some judges has immensely contributed to the erosion of public confidence in the Judiciary under this democratic dispensation.  Most of the ex parte orders granted under controversial circumstances involved situations where the Executive was either the direct beneficiary or had an interest which the public believed (rightly or wrongly) the Judiciary merely ‘co-operated’ to protect.  This perception is a dangerous omen for independence of the Judiciary, because the Justice must not only be done but must be manifestly seen to have been done.

During this democratic dispensation, an Abuja High Court granted an ex parte order stopping the national convention which of the All Nigeria Peoples Party (ANPP) when preparation for the convention had already gulped millions of naira and party members had already converged at the venue in Abuja.  Most Nigerians did not believe that the Judge was not acting in the interest of the rival ruling Peoples Democratic Party (PDP) given the controversial and damaging circumstances under which the order was made.  The resulting outrage cost the judge his job.

Another, Abuja High Court made an order restraining the National Assembly from further deliberating on a bill before it to amend the Independent Corrupt Practices and other Related Offences Act 2000.  The Executive was interested in killing the bill. The order was made in defiance of the trite principle of the doctrine of separation of powers which precludes the courts from assuming jurisdiction over a bill that has not become law.  In articulating the position of the Court of Appeal on the question of Judicial interference in the law making process purportedly under section 4(8) of the 1999 Constitution, Hon. Justice Mamman Nasir, P. said:

“though the courts have been given very wide powers under the subsection, the intention is not to authorize the Judiciary to interfere with the legitimate exercise of the powers of the legislature or the procedure to be followed in such exercise at power given to the courts comes into action after the legislature has enacted the law…”.

A similar controversy trailed the ex parte order given by the same Abuja Federal High Court which directed the Independent National Electoral Commission (INEC) to issue a certificate of return to Chief Adolphus Wabara (PDP) as Senator representing the Abia South Senatorial Zone.  INEC complied (apparently reluctantly) and Wabara became the president of the senate the next day.   The source of the controversy was that INEC had earlier declared Elder Dan Imo (ANPP) as the winner of the seat.  As Ogbham-Emeka, a counsel in Mike Ozekhome’s Chambers observed about the controversy in ThisDay Law,

“The question how the Abuja Federal High Court assumed jurisdiction over the matter and how the issue became one suitable for an ex parte order raked up a lot of dust. When the dust subsided not a few people concluded that it was the court and not the electorate that gave Senator Wabara the Abia South Senatorial ‘mandate’.  But that was not to be the end of the regime of such demonstrable judicial anarchy that force litigants to choose which court order to obey and which not to obey, a situation that spells doom for a regime of law and order”. (To be continued).

Thought for the Week

“A functioning, robust democracy requires a healthy, educated, participatory followership and an educated, morally grounded leadership”. (Chinua Achebe).

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The Oracle

The Oracle: Enforcement of Fundamental Human Rights Under the 1999 Constitution of Nigeria (Pt. 4)

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By Prof Mike Ozekhome SAN

INTRODUCTION

In our last discourse on this series, we examined the procedure for enforcement of fundamental rights, including applications for leave; as well as the substantive application itself and the reactions that follow. Today, we shall continues from where we stopped with the substantive application itself and the reactions thereto and later x-ray the applications to squash proceedings; applications for production and/or release of persons restrained; orders for bail, production and access to medication. Please read on.

SUBSTANTIVE APPLICATION: THE MOTION OR SUMMONS (Continues)

In the case of LAWRENCE OLUSEGUN ADEYEMO V. C.O.P, OYO STATE ([2021] LPELR-56272(CA)), the applicant requested the court for a writ of habeas corpus under order 2 of the fundamental Rights (Enforcement Procedure) rules 1979 which provision enjoined the applicant to serve all parties who are or might be interested in the proceedings. Although the affected party had put up appearance, but raised a preliminary objection to the application for non-compliance with the statutory conditions. Babalakin. J. (as he then was) struck out the application on the ground that order 2(1)(4) is mandatory whether the application is for mandamus, certiorari, or habeas corpus.

However the Supreme Court in recent times in respect of the fundamental rights enforcements has favourably leaned towards the equitable principle of “Ubi Jus Ubi remedium”, therefore looking more at the substance rather than the form. Hence the liberalization of the procedure for the enforcement of fundamental rights as exposed in the case of ABACHA V. FAWEHINMI ((2000) 6 NWLR (Pt. 660) 228) and UBI UJONG INAH & ORS V. MARCUS UKOI ((2001) (CA) 41981.

APPLICATION TO QUASH ANY PROCEEDINGS

Sometimes it may be necessary for an applicant by way of certiorari to apply to the court for an order that such proceedings be removed from a particular court or tribunal to another court for the purpose of being quashed for lack of power and/or jurisdiction to entertain such proceedings or make such order.

However, an applicant shall not be able to question the validity of any order, warrant, commitment, conviction, inquisition or record unless before the hearing of his application (Motion or summons), he has served a certified copy (CTC) thereof together with a Copy of the application on the Attorney-General of the Federation or of the State in which the applicant is being heard (as the case may be).

The court in granting an application seeking to quash proceedings, shall direct that the order, proceedings, conviction or the records of an inquisition be quashed forthwith upon being removed into the court hearing the application.

APPLICATION FOR PRODUCTION AND/OR RELEASE OF PERSON RESTRAINED

By virtue of Order 4 of the Fundamental Rights (Enforcement Procedure) Rules, where an applicant complains of wrongful or unlawful detention, the court or judge to whom the application is made ex-parte may make an order forthwith for his release from such detention.

The court may also direct that an originating summons (as in form 2) be issued or that an application therefore be made by notice of motion (as in form 3). The court may also as it deem fit adjourn the ex-parte application so that notice thereof may be given to the person against whom the order for the release of the applicant is sought.

ORDER FOR BAIL, PRODUCTION, AND ACCESS TO MEDICATION

Pursuant to order 4 of the bail application, the court upon application may grant to the detainee reliefs including bail, production of the detainee, access to mediation etc.

The court may grant bail at ex-parte stage, pending the substantive application. Where an applicant complains of wrongful or unlawful detention, the court may subject to its discretion order that the person restrained be produced in court. And where such order is so made, it shall constitute a sufficient warrant to any superintendent of a prison, police officer in charge of a police station, police officer in charge of the complainant or any other person responsible for his detention, to produce or ensure the production of the person so restrained or detained in court.

For the purpose of enforcing a person’s fundamental rights, no matter where a detainee is kept he can be allowed access to his personal physician or medically prescribed drugs.

It suffices to note here, that once an order has been made by the court pursuant to the Enforcement Rules, and for the purpose of enforcing or securing the enforcement of any of the fundamental rights provided for in the constitution, such order must be complied with. Failure to obey or comply with any order so made by the court under these rules will incur proceedings for the committal of the party disobeying such an order.

CONCLUSION

Without any controversy, the idea of human rights and personal liberties has become firm and secured. The universality and immutability of human rights are now globally accepted. Consequently, any nation that slacks or shyies away from the diligent protection and enforcement of human rights stand the precarious risk of being shunned by decent and civilised nations. The United Nations seems to have captured the importance and primacy of the issue of human rights and its protection when it poignantly stated as follows:

“Human Rights and fundamental freedoms are the birth right of all human beings, their protection and promotion is the first responsibility of Government” (Universal Declaration of Human Rights (UDHR).

It is the duty of every Government everywhere and every courts of law in every jurisdiction to promote, protect, uphold, and ensure enforcement of fundamental Human rights at all times, because these rights encapsulate the very essence of man.

The end.

THOUGHTS FOR THE WEEK

“Human rights, of course, must include the right to religious freedom, understood as the expression of a dimension that is at once individual and communitarian – a vision that brings out the unity of the person while clearly distinguishing between the dimension of the citizen and that of the believer”. – Pope Benedict XVI.

“Because no matter who we are or where we come from, we’re all entitled to the basic human rights of clean air to breathe, clean water to drink, and healthy land to call home”. – Martin Luther King III

“Human rights are not only violated by terrorism, repression or assassination, but also by unfair economic structures that creates huge inequalities”. – Pope Francis.

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