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Nigeria’s courts of unequal injustice and curious appointments

By Chidi Anselm Odinkalu
21 December 2021   |   3:07 am
Nigerian courts can do unfathomable things, like install a man who was well beaten into fourth position in an election as the winner.

Nigerian courts can do unfathomable things, like install a man who was well beaten into fourth position in an election as the winner. They are so transparent, they can even equip a (Christian) shaman to foresee this judicial eventuality as a “vision”. Some have called these courts the “lost hope of the common man”. Despite credibility deficits that afflict it, Nigeria’s judiciary continues nevertheless to be an object of considerable public fascination. Therefore, when the Supreme Court convened in special session on December 8, 2021, to mark the formal commencement of the 2021-22 legal year, the country paid attention.

The highlight of the special session was the speech of the Chief Justice of Nigeria (CJN), Dr. Ibrahim Tanko Muhammad, which he delivered “in compliance with our age-long tradition of assembling to give account of our performance in the outgone year.” His report provided a troubling insight into the multiplex issues that ail Nigeria’s judiciary. There is a lot in that report that merits attention. I focus on three here.

The first is jurimetrics or what the numbers tell us about the state of Nigeria’s judiciary. According to Chief Justice Tanko Muhammad, the Supreme Court entertained 681 motions (applications) and appeals in 2020-21 judicial year. A motion is an application by one or more parties in a pending case seeking permission from the court to do something connected with the case or seeking its protection pending the determination of the case. 412 representing 60.5% of the 681 cases heard by the Supreme Court in 2020-21 were motions; comprising 312 motions in civil appeals; 95 in criminal appeals; and five in “political cases”. The remaining 269, representing 39.5% of the cases heard by the Supreme Court, were appeals. They included 139 civil appeals, 102 criminal appeals, and 28 “political cases”. In all, the Supreme Court delivered 216 judgments. By contrast, the Supreme Court of the United States of America heard 62 cases in 2020-21 and issued 67 opinions. In the United Kingdom over the same period, the Supreme Court heard 61 appeals, issued 54 judgments and disposed of 171 applications for permissions to appeal.

Reflecting on the record of the Nigerian Supreme Court, Chief Justice Tanko Muhammad “confidently” claimed that “this scorecard is impressive.” On the contrary, I would argue that these numbers are quite disturbing. To begin with, they indicate that the scarce resource that is the bandwidth or time of the Nigerian Supreme Court is now mostly spent on trifles. That is what it means to spend 60.5% of the time of the court during the year on motions. The Chief Justice himself very much concedes this point in his report when he calls for the relevant laws to be amended “to make most appeals to end at the Court of Appeal.”

Notably, 33 or nearly five per cent of the 681 cases considered by the court during the year were “political cases”. This is a curious category. Judicial doctrine ordinarily views political cases with reluctance. Nigerian law knows nothing of the sort. It knows of election petitions, which are contests over the outcomes of elections. These are mostly governed by the Electoral Act, which prescribes strict time limits for their disposal. It is possible that the category of “political cases” in the usage of the CJN includes election petitions but that seems unlikely. The more likely thing is that this is a category for cases instituted by Nigeria’s politicians concerning mostly intra or inter-party squabbles over how to run the internal affairs of political parties or share the spoils in the political plunder of the country.

For example, the High Court of Rivers State ordered the removal of former Chairman of the Peoples Democratic Party (PDP), in August 2021. Two months later, in October, the Court of Appeal decided the appeal on this judgement and by December, the Supreme Court was ready to hear arguments in the case. By contrast, ordinary civil appeals easily take over a decade to get assigned for hearing in the same court. By assigning priority to “political cases” in this manner, the Supreme Court sustains a two-track judicial system by which it puts the interests of politicians above those of the citizens whom they are meant to serve. It also encourages the twin evils of undue judicialisation of politics and the politicization of the judiciary. If it were to insist on politicians taking their place on the queue of judicial dysfunction, they will be forced to either find a way to fix the judiciary or else fix their internal party dysfunctions or spare the judiciary from deciding “political cases.”

This leads me to the second major highlight in the report of the CJN. On October29, 2021, persons described as “unknown security operatives” raided the residence of a Supreme Court Justice to execute a search warrant issued by an Abuja Chief Magistrate, which the same magistrate subsequently set aside. In response to this incident, the CJN took time in his report to warn: “(We) have had enough dosage of such embarrassments and harassments of our (judicial) officers across the country and we can no longer take any of such shenanigans. The silence of the judiciary should never be mistaken for stupidity or weakness…. The time to oppress, suppress or intimidate judicial officers is over.”

This declamation would have counted for a lot if the judiciary was not itself the architect of its own loss of credibility and authority. It was the judiciary that contrived to allow the immediate past CJN to be sacked on the strength of a grossly irregular ex-parte order by an administrative tribunal within the executive arm, which is what the Code of Conduct Tribunal is. The creation of a supersonic track for “political case” renders the judiciary complicit in unequal justice. A significant number of judicial appointments have increasingly become tainted by tendencies of dynastification, commodification, or what someone recently described as “genitalization”, trends which assume that judicial temperament can be transferred by inheritance from parent to child, by purchase in the market of political favours, or as sexually transmitted between lovers. A judiciary that allows itself to be stiffed in this manner loses the standing to fight for its institutional independence.

This matter of judicial independence is implicated in the third issue arising from the CJN’s report. As a result of the incident involving the controversial raid on the premises of a Justice of the Supreme Court Justice, the Chief Justice declared that the judiciary “are making efforts now to ensure that henceforth, every search warrant or arrest warrant must be issued with the knowledge and approval of the Chief Judge of the respective State/Federal High Courts as the case may be.” This is probably the most troubling line in the CJN’s 26-page long report. It was clearly made without authority.

The powers of magistrates and Justices of the Peace to issue arrest or search warrants are established in parts 3 and 18 of the Administration of Criminal Justice Act, 2015. They are not granted by the CJN nor does the law require that they be made subject to the pusillanimity of any Chief Judge. The prescription that the CJN seeks to introduce without lawful authority is both disproportionate to and also more dangerous than the harm that he seeks to cure. The exercise of these powers requires that only persons who are fit for purpose be considered for appointment as magistrates. Sadly, this is far from the case. Instead, magisterial appointments have become another market for judicial and political insider-dealing. I am surprised that the CJN is surprised.

In the interim, across the Federal Capital Territory and much of the country, they have suspended issuing warrants because of this declaration by the CJN. A defective warrant can easily be set aside, but the harm that will be inflicted on public safety and security and on the confidence of the public in the judicial process as a result of the idea that the Chief Justice has floated will not be easily cured. When the Chief Justice of Nigeria behaves as if he is above the law, his advocacy for politicians to respect the law becomes a self-defeating circus.
• Odinkalu, a lawyer & a teacher, can be reached at chidi.odinkalu@tufts.edu