Bulkachuwa:Burden on presidential election tribunal – Lawyers
Recusing Herself Is Not Supposed To Be An Indictment- Omoregie
Since confidence is sine qua non in criminal trials, legal practitioners are unanimous in their submission that Justice Zainab Bulkachuwa’s continued presence in the presidential election petition tribunal, would call to question, the integrity of the panel. They equally stressed that the billowing cloud of likelihood of bias would only be diffused after the Court of Appeal President has recused herself from the tribunal, if she is not to embark on a pre-determined mission.
While one of the lawyers specifically questions the value of justice that is lacking in confidence, another urged Bulkachuwa to toe the line of the late Justice Atinuke Ige, who did not wait for any application to be lodged before recusing herself from a matter involving her husband, Mr. Bola Ige, then Governor of Oyo State in the 1980s.
The Peoples Democratic Party (PDP), which is the petitioner challenging the election of President Muhammadu Buhari of the All Progressives Congress (APC), last week asked Bulkachuwa, whose husband, Adamu Mohammed Bulkachuwa is a card-carrying member of the APC, and a Bauchi State senator-elect to recuse herself to forestall the possibility of bias in the process.
But instead of doing so, she asked the PDP to file a formal application to that effect, a development that generated a lot of debate regarding the right and proper procedure to adopt is such circumstances. Edoba Omoregie, a professor of law at the University of Benin while examining the issue agreed that it is right for the judge to recuse herself and allow the most senior justice of the court to empanel the tribunal because it is a routine administrative matter.
“Ideally, the next most senior justice of the Court of Appeal should be given the responsibility to empanel the election petition tribunal. It’s a routine administrative matter. It ought not to generate any controversy,” Omoregie said. “There’s no doubt that there’s a situation of what the courts have identified as real likelihood of bias from the facts. This is not supposed to be an indictment of the President of the Court of Appeal. In fact, she ought to have honourably recused herself before now. I wonder why she didn’t. Perhaps, it’s her refusal to do the needful at the earliest opportunity that has created the unfortunate impression that she’s probably on a pre-determined mission,” the university teacher said.
According to Omoregie, the usual practice is that judges never wait to be called upon to withdraw from sitting over matters under circumstances similar to this. Once there’s an indication to the knowledge of the judge of real likelihood of bias, the judge normally brings it to the attention of litigants.
“It’s sad that that seems not to be the practice any more. After all, there are other competent justices of the Court of Appeal who can preside over the petition; and there’s a next most senior justice of the Court of Appeal, who can constitute the panel.“The whole purpose, actually, is to clear any possible doubt of bias. It’s not to guarantee that a litigant who raises it will be victorious as a matter of course. The success or failure of his matter must only depend on the merit of his case,” he explained.
Lagos-based lawyer, Mr. Chris Okeke, quoting the late Justice Chukwudifu Oputa of the Nigerian Supreme Court said that justice is rooted in confidence.“Of what value is justice if it is lacking in confidence? Confidence is so important that in criminal trials, the defendant would always indicate the willingness and decision to be tried in a particular court. Where this is lacking, it will be a clear evidence of absence of fair hearing.
“In my opinion, since a party to the dispute has indicated lack of confidence in Justice Bulkachuwa, it will only be proper if she recues herself from that panel. Where, however, she refuses, she has called the integrity of that panel, as well as any decision it will eventually arrive at to great question,” he said.This is the more important because her panel was empanelled to settle a dispute. “So, she will be creating a new dispute by her refusal to recuse herself from the membership of the panel. Thus, she would be said to have not resolved the first dispute, while creating a new one.
“In sum, it is procedurally and jurisprudentially correct where she recues herself from being a member of that panel. In her absence, another justice could be appointed into her place,” Okeke stated.The National President of the Committee for the Defence of Human Rights (CDHR), Mr. Malachy Ugwummadu, also a legal practitioner said Bulkachuwa recusing herself is not only procedural, but consistent with both the Code of Conduct for Judicial Officers.
According to him, Section 36 (1) of the 1999 Constitution (as amended) emphasises the need for a properly constituted court or tribunal established by law and dispenses justice within a reasonable time, but more importantly, a court constituted in such a manner as to guarantee its independence and impartiality. He said: “What is in issue is the likelihood of bias and not bias itself.
When in the 1980s, Mr. Bola Ige, then Executive Governor of Oyo State was brought before Justice Atinuke Ige, his wife, his Lordship now of blessed memory, she did not wait for any application to that effect before she recused herself from the matter, declined to adjudicate the matter and referred the file back to the Chief Judge for re-assignment. “There are legions of authorities on this, how much more when the application is brought before her. It’s however not granted, as a matter of course, it must be predicated on credible ground and evidence.
“By Section 239(2) of 1999 Constitution, the Court of Appeal shall be properly constituted once it has at least a panel of at least three justices of the Court of Appeal, which must not necessarily include the President.” Toeing the same line of argument, Lagos-based lawyer, Mr. Theophilus Akanwa explained that the petitioner is only pointing out the area of conflict of interest in view of her husband’s position with the APC.
“In courts, what judges do if a party before them makes an allegation of likelihood of bias is to hands off the case. This is what I expected the Presiding Justice of the Court of Appeal to have done honourably. It will be procedural for Justice Bulkachuwa to voluntarily recuse herself from that proceeding,” he said, adding that the chances of the application to step aside succeeding is high. His words: “She cannot be a judge in her own cause. She cannot be part of the panel to decide the application. She is to appoint members of the panel to hear the application, whom I believe would do justice to the petition without fear or favour.”
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