Unsafe democracy and tricky electoral justice system

Even as experts on strategic distraction in the polity appear to be succeeding in imposing some frivolous agenda including a third-term-for-Buhari ambush on the media space, I would like to draw our attention to what I have considered a weightier matter of the law and governance in these perilous times. I want us to reflect on whether we can rely on the present state of the judiciary to secure this our rickety democracy.

Political scientists may have their say about the most important arm of government in a democracy. Professors including Ben Nwabueze may have posited powerfully about the strategic importance of the legislature.

Influential researchers and legal luminaries such as Tunji Abayomi, PhD who have dug very deep on the inestimable power of the executive may have told us about the potency of the powers in the hand of a man the organic law of the land introduces to the citizens as the chief executive of the federation.

Even the pen-power men may be boasting about their powers as the ‘monitoring spirit’ of the constitution as the Fourth Estate of the Realm, which has the powers to hold the other three arms to account.

But I want us to consider the implications of impurities in the arm of government, which has a responsibility to ensure that these powerful men in the other arms of government can’t rule anyhow. I mean the arm that can ensure that it is only the law that rules is not to be trifled with. It is not about supremacy of any arm of government. I would like us to have some introspection on the consequences of what D. Olu Olagoke, a professor of English, mused years ago in his remarkable drama sketch, ‘The Incorruptible Judge’ (1962), which warns that, ‘If the citadel of justice is corrupt, the body politic will be completely rotten and collapse…’

The origin of where the rains began to beat us concerning the judiciary may not be useful in this connection. But perception that most of the ministers in the temple of justice are no longer worthy of our trust, is widespread to the extent that most citizens are already fearful of the elephant in the room: that our judiciary today is not credible enough to secure this democracy in some critical ways.

In the first instance, since a Justice of the Supreme Court, Kayode Eso drew attention to his own perception about the state of the judiciary before he joined his ancestors that some Justices handling election petitions had curiously become billionaires, that arm of government has made the late Justice Eso to be an oracle of some sort. In other words, a lot of water has since gone under the bridge of our nascent democracy.

And here is the thing, brazen corruption of our political and democratic environment by elected and appointed politicians has desecrated the sanctity of the electoral system and ballot box.

As rightly predicted too in 2014, by Chief Wole Olanipekun, (SAN), because we no longer respect the wishes of the electorate as demonstrated through the ballot box, electoral sovereignty has been curiously taken from the electorate and deposited in the Courts and Tribunals.

The courts have since 2007 been declaring governorship candidates who were never voted for as duly elected. Because of the unethical and corrupt conduct of primaries, states such as Zamfara and Rivers lost electoral sovereignty when governorship, senatorial and house of representative elections were declared null and void by the apex court and a particular political party lost all.

Now in Nigeria, governors are afraid of forming their cabinet until the Supreme Courts have declared them duly elected. National Assembly and State Assembly members can’t sleep well until the Courts of Appeal have declared them elected. Electoral sovereignty now belongs in the court and not the people. It is thus curious that politicians now do whatever is politically possible to be declared elected by the electoral officers and they take the battle to courts where ‘electoral justice’ is finally served.

At ‘The Nigerian Women Strategy Conference’ with the theme: “Building Bridges of Opportunity: 2015 Elections and Beyond” on February 17, 2014 in Abuja, Chief Olanipekun, concluded in his paper titled, ‘Clarifying the electoral judicial system in Nigeria’ to the participants at the conference organised by the then Speaker of the House of Representatives, Hon. Mulikat Akande Adeola:

“…Through this conference, our women should come out very boldly as the conscience of the nation and stoutly make a case against the continuous corruption of our political and democratic terrain, either by elected or appointed politicians. The sanctity of our electoral system and the ballot box should be maintained, rather than being desecrated, as we have it now. It is because we no longer respect the wishes of the electorate as demonstrated through the ballot box that, more or less electoral sovereignty has been taken from them and deposited in the Courts and Tribunals, as it were….”

I am sure the women and indeed the political class did not heed the warning of Olanipekun, a very experienced minister in the temple of electoral justice system in the country. He too has helped many governorship and even presidential candidates to recover and retain their mandates through the system he was warning the nation about in 2014.

Now the monster is waxing stronger by the day. I think the state of the judicial system, which has become more worrisome since the curious removal of the then Chief Justice of Nigeria, (CJN) Walter Onnoghen through an administrative tribunal before the last general elections should be of huge concern to not only the Office of the Citizen but to the authorities in the land who would like the international community to do business with us.

Members of the old set-up at The Guardian would recall how the man Chief Obafemi Awolowo himself named ‘the Law’, Chief FRA Williams, would come to see the Editor of The Guardian with his own signed ‘Letter to the Editor’ whenever he found any stories in any newspapers, which put the judiciary in any bad light. The old man with a lot of medals on law practice and an authentic Senior Advocate of Nigeria would always tell the Editor before submitting the letters, “My son, you shouldn’t write anyhow stories that can ruin the reputation of the judiciary like that…that is the last hope of the common man…if that last hope is ruined, all is lost…”

Then the giant died. Thereafter, the last man standing for the majesty of the law, Chief Gani Fawehinmi joined him. Now, what will Chiefs William, Fawehinmi and Justice Eso be discussing about the Temple of Justice in the presence of the God of Justice in heaven?

As a citizen of this great country, I  am worried because if the executive arm is rotten, it can be replaced and fixed; if the legislature is compromised and weak, it can be democratically replaced too; if the media becomes a weapon of mass distortion facts for the other arms, it can also be replaced by even foreign media, but as Professor Olagoke had warned, ‘if the citadel of justice is corrupt, what will happen to the body politic that is bound to be rotten and collapse?

Elders of the land should be concerned about the last hope that the common man is fast losing. The political class that is benefiting from the (incipient) rot in the ‘temple of justice’ should be worried about the consequences of the anger of the common man who is about to lose the last hope iconic Williams advertised to him – the judiciary.

There should be serious introspection on this now. While reflecting on the electoral justice system and the last hope the common man is losing, read the lamentation of Femi Falana on the state of the judicial system even in Abuja where citizen Sowore would have been curiously convicted without organic trial but for vigilance of the counsel. Read the account here as told here the other day in a piece titled, ‘Behold, the monster has returned’  https://guardian.ng/opinion/behold-the-monster-has-returned/

Richard Akinnola on judiciary under the military
As I was saying the other day on the public presentation of “Testimony to Courage: Essays in Honour of Dapo Olorunyomi” and a “Conversation on the shrinking media and civic space in Nigeria” in Lagos, there was a revelation on the state of the judiciary too in the years the military ruled by a veteran judicial reporter and editor, Richard Akinnola who was a member of the panel on “Keeping Power in Check”. According to Mr. Akinnola, it was instructive and even curious that the judiciary appeared bolder under military rule than in a democracy. Hear him in part:

“In Richard Akinnola v. General Ibrahim Babangida and ors (1993) over the promulgation of Newspapers Registration Decree 43 of 1993, the government challenged my locus standi and the jurisdiction of the court due to ouster clauses in the Decree but Justice Hunponu-Wusu of the Lagos High Court, ruled in my favour that l had locus standi and that the court had jurisdiction.

On Guardian newspapers Ltd v. Attorney General of the Federation on same Decree 43 of 1983, the Lagos High Court ruled in favour of The Guardianand nullified the Decree.

There were others where the courts ruled against the military government –
* Military Governor of Lagos State v. Ojukwu (1986) 1NWLR (PT 18). It was in this case that Justice Kayode Eso of the Supreme Court, coined the phrase – “Executive lawlessness” to describe the actions of Lagos State government.

In State v. Akpabio (1993)4NWLR (PT 286),Justice Samson Uwaifo (then of the Court of Appeal), said of the roles of judges:

“The dispensation of justice is not left to the whims and caprices of of any judge, founded on shabby reasoning and perfunctory performance. It is not too much to expect the judiciary to set the pace in the quest for excellence in the discharge of public duty. But if the judiciary takes a back seat through unsatisfactory input by judges, even of superior courts, it will sooner became a lame duck and irrelevant in the reckoning of the astute or even the common man.”

Also, in the case of The Guardian newspapers Ltd and other five subsidiary companies located in the Rutam House, over the closure of the newspaper, the court of Appeal, while allowing the appeal of The Guardian, was unsparing in the manner it upbraided the government.

Justice Ignatius Pats-Acholonu (who read the lead judgment), said inter alia on the issue of ouster clauses:

“It is frightening in that the military government is literally saying that any matter it states to be the law of the land in whatever way it is conceived, must stand unquestioned by the Court of law. I would even say that the type of injunction and the imperial language used in these laws, seem to place them, even above normal mortals.

“It is well known, even we mortals have sometimes questioned some divine laws like the injunction that we should love our enemies and do good to those who calumniate against us. If in an unlikely case (l hope I am wrong), of a Decree that states that every citizen should commence the act of destroying his own houses as it is for the efficacy and stability of the government, so the apologists of legal positivism, enthusing in Austinian theory of legal formalism, shall shout alleluia as court would then admit of such decree in the court of law… Should the court fold its hand when a law that offends the grundnorm established or set up by the military, is violated by the very revolutionary that sets it up…? “