2019: Tough year for the judiciary

The year 2019 is one that cannot be forgotten in a hurry. Being an election year, there were several unprecedented developments believed to have been orchestrated by the political class to gain upper hand over opponents.

For the judiciary, it was a year of turbulence and that, which put various laws and Acts to a test. In 2019, the foundation of the judiciary was shaken vigorously for reasons believed to be politically motivated.

Although the misfortune that befell the third arm of government began two years ago, the events of 2019 were certainly considered as coming to fruition of those early acts, culminating in making vulnerable the once revered arm of government.

First among the travails of the judiciary in the past year was the fall of the immediate past Chief Justice of Nigeria, Justice Walter Onnoghen.

Like a finished script waiting for enactment, the dramatic intrigues that brought down the then number one judicial officer of the federation from the exalted position of deciding people’s fate to a vulnerable personality raised so must dust, thereby giving credence to the Shakespearean philosophy that “When beggars die, there are no comments seen but heavens themselves blaze forth the death of princes.”

The entire episode spanned between January 9, 2019 when a petition was written against him and April 2019, when the Code of Conduct Tribunal headed by Justice Danladi Umar convicted him for false assets declaration.

Justice Onnoghen who was inaugurated CJN in March 2017 by the Vice President, Professor Yemi Osinbanjo, following public outcry over the systematic delay to deny him the opportunity, promised to carry out much desired judicial reforms.

Between his tenure in office and his controversial removal, Justice Onnoghen maintained a very firm stance against external interference, particularly from the political class and other two arms of government.

In every gathering, he continually charged his colleagues to remain committed to the course of justice without fear of intimidation.

But as early as January 9, 2019, the news of a petition against him by a Non-Governmental Organization under the aegis of Anti-Corruption and Research Based Data Initiative through its Executive Director, Mr. Dennis Aghanya, filtered in the air. Like an evil wind, the Code of Conduct Bureau (CCB) quickly acknowledged receipt of the petition and proactively filed a six-count charge against Onnoghen within the next three days at the CCT.

The charges include failure to declare his assets between June 2005 and December 14, 2016; false declaration of his assets on December 14, 2016 by allegedly failing to declare his domiciliary dollar, euro and pound sterling accounts, as well as his two naira accounts, all domiciled in a commercial bank in Nigeria.

Onnoghen was finally arraigned after futile efforts to get him arraigned and prosecuted in absentia. In fact, the CCT boss insisted that his former boss must be personally arraigned and face trail like any other, as according to him, the law is no respecter of anyone.

Humbly, Onnoghen submitted himself to the course of law and was publicly arraigned like every other citizen.

Some lawyers described the day Onnoghen was arraigned as the darkest day in the history of the nation’s judiciary. And while efforts were on to save him, President Muhammadu Buhari on January 25 swiftly suspended him and in his place, swore in Justice Tanko Muhammad, as acting CJN.

Justice Walter Onnoghen

Initially, Justice Onnoghen’s trial attracted solidarity of individual lawyers and groups, including the leadership of Nigerian Bar Association. However, the number of lawyers that voluntarily accompanied him to court dwindled gradually until April 18, 2019, when the Umar-led tribunal finally nailed him.

Upon his conviction, Umar handed down severe punishment on Onnoghen such as his immediate removal from office and forfeiture of his monies in the bank accounts, which he failed to declare to the federal government.

Beyond that, he was barred from holding any public office for 10 years.

The appointment of Justice Tanko I. Mohammed was not well received by some Nigerians, because they felt the entire process appeared orchestrated and due process was not followed.

Nigerians also observed with keen interest, the seamless transition of power from the old CJN through the National Judicial Council (NJC) without any encumbrance.

In fact, the controversy generated by the perceived unlawful ousting of the past CJN dominated public discourse for a very long time. For some people, it was politically minded to frustrate electoral and other matters that could be interesting to the executive arm of government.

Beyond the inglorious exit of Justice Onnoghen and subsequent acceptance of the office by his subordinate, another issue that played out in the year 2019 was what many described as the year of ‘executive rascality.’

The overbearing influence of the executive through its anti-graft and law enforcement agencies, which was first tested in 2017 with the midnight raid of about nine justices, continued to gain momentum even up till 2019 with flagrant disobedience to court orders.

Some of the victims of such executive defiance include the former National Security Adviser, Colonel Sambo Dasuki, who was initially placed under house arrest and later on December 1, 2015, arrested by the operatives of Department of State Service (DSS) over a $2billion arms contract fraud allegation.

Rather than charge Dasuki to court, the DSS held him captive in spite of several national and regional court orders demanding his release.

The Court of Appeal, Abuja Division, issued the last of such court orders demanding his release on July 15, 2019. The appellant court had declared the continued detention of Dasuki as illegal, unlawful and unconstitutional.

Not only did the court ordered his immediate release from detention, the judge went on to impose N5million fine on the DSS as compensation to Dasuki for the breach of his fundamental right.

Unfortunately, every court order and civil society agitations had continued to fall on deaf ears until some foreign bodies began to pry into the issue of human rights violation by Nigerian government.

No doubt, it was the fear of likely sanctions by some powerful nations of the world that necessitated the reluctant, unceremonious order by the President through the Attorney General of the Federation and Minister of Justice, Abubakar Malami (SAN) on December 24, 2019 for the release of Dasuki and Sowore.

In the same situation was the leader of Islamic Movement of Nigeria (IMN), Sheikh Ibrahim El-Zakzaky, who was arrested in Kaduna on December 2, 2016, for breach of public peace.

El-Zakzaky’s arrest and prolonged detention alongside his wife, Malama Zeenah against several court orders, has continued to generate public debates. The development has also led to killings of innocent citizens who are caught up in the face-off between security personnel and Shiite members during their regular protests in Abuja and Kaduna, most times, culminating in tragic confrontation with law enforcement agents.

Another drama that shook the judiciary in 2019 was the arrest and detention of the convener of #RevolutionNow, Omoyele Sowore, and his co-defendant Olawale Bakare.

Sowore was initially arrested on August 3, 2019, by the DSS for alleged treasonable felony following his call for a protest against the government tagged, RevolutionNow. In spite of court orders demanding his release, he had remained in custody until December 24, alongside Dasuki.

Recall that the government has toiled with his release orders until Justice Ijeoma Ojukwu gave 24-hour to the DSS. Consequently, he was released but his freedom was short-lived as he was traced to the courtroom less than 24 hours later for re-arrest and detention.

The move to re-arrest him inside courtroom created rowdiness as his supporters and legal team struggled to shield him from the DSS.
On the positive side, although the leadership of the judiciary could not carry any visible reforms as planned by Justice Onnoghen, it was not all gloomy for the sector.

The NJC succeeded in elevating some justices from the lower courts to the appellant and Supreme Court respectively. There was also a new leadership at the Federal High Court level with Justice John Tsoho appointed the Chief Judge of the Federal High Court. In fact, there has been relative calm since the enthronement of the new leadership.

Meanwhile, the court also convicted some ex-governors, found guilty of financial embezzlement. The most recent was the former Abia State Governor, Orji Uzor Kalu.

The activity of the judiciary that crowned the year was the judgments handed down by Election Petition Tribunal set up to hear petitions emanating from the general elections.

Lawyers and other stakeholders have described the electoral jurisprudence differently. While some described it as a miscarriage of justice, others felt the tribunal and higher courts were saddled with heavy workload that they found only little time to go through voluminous briefs and emerge with sound judgment within the time stipulated by law.

In his general assessment of the sector in the year under review, a Port Harcourt-based lawyer, Mr. Festus Oguche, described it as a year of genteel turbulence for the rule of law and the administration of justice in the country.

According to him, these upheavals were marked with judgments on election petitions that did nothing but to arouse public sentiments and misgivings on the rule of law and the sanctity of the judicial process and the extent to which they conformed to the principles and standards of justice.

He added that “there is also the frightening dimension in the flagrant disobedience of court orders and abuses of process by the executive arm, which resulted to the dramatic invasion of the hallowed temple of justice by the DSSS and the total show of shame that resulted thereby, the apology to court by the DSSS and the feeble defence of the Attorney notwithstanding.”

According to him, the Supreme Court judgment in the Ekiti Governorship polls was one that further evoked doubts regarding the efficacy of the justice system to deliver on its constitutional mandate.

“People are yet to come to terms with the reason for the decision. It is settled that judicial decisions do not necessarily have to conform to public expectations but then, the idea of justice must not radically depart from certain defined notions of logic and reason.

“The issue is straightforward – the Tribunal on Ekiti did not meet the criteria, which was specifically on its quorum on the day it delivered its judgment on the matter. The issue of quorum is a judicial act and within the competence of court, substantive justice being the focus of our system would have been better attained if the matter was determined on its merits.

“The decisions on the election petitions showcased the manifest flaws and inadequacies in both our electoral and justice systems -the obvious fallouts, which call for rigorous reforms. The highlights of the decisions, particularly those of the presidential election raised fundamental questions as to the fairness and objectivity in our judicial process.”

Oguche also questioned the rationale behind the exclusion of electronic evidence in election adjudication, having been properly entrenched in Evidence Act.

“The fact that the Electoral Act is silent on it is completely immaterial. One would think that a data based evidence which points at the direction of an exercise that involves demographic calculations ought to have been relied on by a Tribunal as test for the correctness or genuineness of that exercise,” Oguche stated.

On the famous travails of Sowore and the initial disposition of court to his liberty as seen in the stringent bail conditions imposed on him, he noted that at a point, the prosecution was literally pushing its own conditions for bail with finality, “culminating in the defiance of the order granting bail until the court’s angst turned on the prosecution, accompanied with punitive orders for disobedience.”

Sowore’s subsequent release attracted the disdainful reaction of the prosecution when it invaded the court for his re-arrest.

His release later under the hand of the AGF was premised, according to Malami, on compassion grounds, not necessarily on the earlier orders of the court. Malami in a complete detour from his earlier position insisted there has not been any disobedience of orders of courts, not only in Sowore’s case but also in Dasuki’s, as there are appeals challenging the grant of the bail applications already pending.”

Oguche therefore reminded Malami that the ECOWAS Court of Justice had also ordered the release of Dasuki in a substantive judgment with damages attached years ago, and which the authorities failed to obey.

“His reliance on appeals as justification for the defiance of the order will not avail him here as the ECOWAS Court has no appellate jurisdiction. It is still doubtful if the principles support Malami’s postulations that a contemnor could justify his disobedience by simply filing an appeal.”

Setting agenda for the New Year, Oguche hoped that the judiciary will be made to function appropriately and within its organic mechanism, with less of the regular hiccups and travails that distort its essence and functionality.

“The recent move by the government in retracing its steps towards respect and obedience to court orders is quite commendable and must be encouraged”, he stated.

For the Abuja-based Senior Advocate of Nigeria, Jibril Okutepa, 2019 will go down memory lane as a trying moment for the legal profession.

He said: “It is a year that for the first time in history, the hallowed court was invaded. This is the year that saw the exit of many judicial officers in controversial circumstances and a year that so many things happened.

“It was a year that the judiciary had to look before it leaped and it should not be so”, he said.

“ I wish that 2020 would be better because if we continue the way we are going, the damages that would be done to our national interest would be unquantifiable. I say so because any country that the judiciary is toiled with and the rule of law is ignored, development would be far from it and we would be heading towards the jungle.”

Okutepa however scored the judiciary good in terms of judicial performance, not minding the excruciating circumstances the judges are exposed to.

“Judges have done creditably well and as judicial officers, they run by judicial precedence. I am only calling on them to take a look at the precedents towards 2023 and depart from them when necessary for the attainment of justice and for the purpose of judgment delivery.

“Let there be justice in judgment delivery and let the people know that justice has been served no matter whose ox is gauged.”

Buhari

Another senior law, Mr. Amobi Nzelu, believed that the judiciary has come a long way considering that it is the only organ of government that survives in the face of any invasion.

“The military will decree out the existence of the legislature but they will keep the judiciary. It is the only arm that survives every incursion in Nigerian politics. You cannot decree out the judiciary but you can decree out the legislature.

“The judiciary has done very well in the sense that some of them have raised their heads above to say: “This thing should not happen this way or it should not happen that way.”

“But here, we run a government of blackmail. If for instance, you bought a particular item on credit and they know you bought it on credit, if you want to talk any day, they will tell you, ‘You bought this thing on credit o.’ That is what they do but things should not be done that way.

“The judiciary has stood its ground until they invaded it. They invaded the houses of some judges in the wee hours of the morning. I think that was the last assault on the judiciary.

On expected judicial reforms, Nzelu identified unbundling of the judiciary as the first practical step.

He canvassed establishment of Supreme Court in the six-geo political zones of the country.

According to him, that will enable appeals to terminate at the geo-political zone unless the issue is a federal matter.

“When this is done, it will be easy to access justice. Once they unbundle these courts and allow states to appoint their judges rather than centralizing the appointment of judges, things will begin to work faster and better”, he held.

Also speaking, a professor of law, Sam Amadi stated that the process of repairing the reputation of the judiciary should start immediately.

According to him, both the Bar and Bench should admit that law and its practice in Nigeria are endangered in terms of reputation.

“The new CJN faces an uphill task in assuring cynical Nigerians that he is up to the task of protecting judicial integrity. It is not his fault that he came through a highly disreputable process. But he can redeem and win over the cynics through eloquent expression of courage, independence and erudition, which the court has lacked so far,”Amadi said.

He continued: “I think there’s need for wide-ranging reforms of processes for appointment and disciplining of judges and may be a constitutional amendment to downgrade the Code of Conduct Tribunal back to the status of an administrative tribunal subject to review of High Court.

“Never again should secret police invade residences of judges in the name of anti corruption campaign. This leads to more corruption because the biggest corruption is corruption of process, and the subtle intimidation of judges. Of course all these will not happen unless we have a robust and reform-minded NBA that is led by men and women of intellect and integrity,” Amadi stated.