By Awa Kalu, SAN
Many discerning Africans would be able to recall the dimensions of the legend of the rat which went to swim with the lizard.
The lizard, smooth-skinned, had the dip and dried up very quickly. Unfortunately, the rat, very hairy and fat, fizzled out with cold because it could not dry its body as fast as the lizard. It is possible to relate the current fiasco in the judiciary with that tale.
Under our extant constitution, there are three arms of government- the legislature, the executive and the judiciary. It is undeniable that both the legislature and the executive arms have since independence, been mired in allegations of corruption and despite assurances of a reverse, relief has not come. Little wonder that the British historian, Edward Gibson, several centuries ago, quipped that, ‘corruption, the most infallible symptom of constitutional liberty.’
Similarly, Robes Pierer, French Lawyer and revolutionist claimed in 1793 that ‘Any institution which does not suppose the people good, and the magistrate corruptible is evil’. ‘All these men’, according to Robert Walpole, British statesman, ‘have their price’. It appears that recent events have cemented the very damming impression, that quite a handful of Judges ‘have their price’.
The picture painted by mainstream newspapers in the past weeks gives every stakeholder in the judiciary massive cause for ‘intestinal disquiet’. For instance, THISDAY, Monday, August 30, 2021(vol. 26, No. 9639), led with the screamer,‘ Concern’s Mount as Court Injunctions, Orders, Threaten nation’s Democracy’. On the same date (August 31), Leadership Newspaper (No, 3704) noted that the ‘CJN moves to save Judiciary’. On September 6, 2021, VANGUARD disclosed that the ‘CJN to quiz6 CJs today’, ‘demands court records’.
The last banner headline compelled me to visit the bathroom, for, I could not quite picture different Chief Judges, armed with presumably, fat records of proceedings, huffing and puffing to Abuja to defend judgments and orders they did not make. It is quite elementary that in the configuration of high courts in our judicial system, the Chief Judge is not a Headmaster nor is he a Supervisor-General.
In the exercise of the jurisdiction vested in each of the High Courts, the Chief Judge is merely Primus Inter pares-first among equals. Consequently, the Judges who made the disturbing interim orders ought to be carpeted. No High Court for the purpose of the exercise of its jurisdiction needs the Chief Judge. In addition, my little knowledge of judicial administration is that the High Courts operate in Divisions, each of which is overseen by an Administrative Judge.
Far more injurious to our judicial system are the implications, in a federal system, of the Chief Justice, a head of court in his own right, assuming suomotu, the right to inquire into the exercise of jurisdiction of any other judge, including the right to discipline any judge. With utmost humility, the law as it stands, vests the responsibility for the investigation or discipline of judges on the National Judicial Council, NJC. Things are unravelling too fast and it is hoped that the baby will not be thrown away with the bathwater even as a panacea for damage control.
It is significant to underscore the point that when a national Newspaper such as THISDAY, on its front page draws attention to the distress, created by conflicting court orders, the panic button is pressed. For the purpose of a reminder, it must be noted that courts loath interference with the affairs of corporate organisations as well as voluntary associations. This position of the law has received judicial blessings in several cases which brilliantly adorn our law reports.
The crisis in party politics as acknowledged in Okafor v. Onuoha, (1985 6 NCLR 204) formed the substratum of the decisions of the Court of Appeal. The court approved the statement of the law in American Corpus Juris Secundum to the effect that ‘the law as to judicial treatment of disputes within voluntary associations, in general, applies to political parties.
Except to the extent that jurisdiction is conferred by statute, or the subject has been regulated by statute or legal right has been conferred by previous party action, the courts have no power to interfere with the judgment of the constituted authorities of established political parties in matters involving party government and discipline or to determine disputes within a political party as to the regularity of the election of its executive officers, committed men, or convention delegates or as to the nomination of its candidates for public office’. This position of the courts’ avoidance of political questions has been consistent with the position of the apex court. How then, as we ask in pidgin English, ‘did water enter the coconut?’
A High Court in Rivers State had issued an order of interim injunction restraining Uche Secondus from carrying on as National Chairman of the People’s Democratic Party, PDP, pending the hearing and determination of a suit challenging his continued stay in office.
Secondus, according to the ruling by Justice O. Gbesam, had been ordered to stop parading himself as a member of the PDP on grounds of his suspension from the party.
Two days after, Justice Nusirat Umar, a vacation judge of the Kebbi State High Court, being a court of coordinate jurisdiction with the one in Rivers State, not only entertained the case but also gave her own orders restoring the embattled National Chairman of the party to his position. This was after the Deputy National Chairman (South) of the party, Elder Yemi Akinyomi had assumed leadership of the PDP in an acting capacity.
Twenty Four hours after the Kebbi State ruling, another court of coordinate jurisdiction in Calabar, Cross River State, further restrained Secondus from parading himself as Chairman as well as from presiding over the National Executive Committee, NEC, meeting of the party held at the weekend. The interim order was issued by Justice Edem Kufre.
The situation is not different in the All Progressives Grand Alliance, APGA, which had also been engulfed with leadership squabble between the Jude Okeke and Victor Oye factions.
In this case, former Central Bank of Nigeria, CBN, Governor, Chukwuma Soludo is having a running battle with Chukwuma Umeoji. The litigations are tied to who the authentic Chairman of APGA is, in Anambra State, amongst Chief Victor Oye, Chief Njoku and Jude Okeke. Meanwhile, judges in Anambra, Jigawa, Imo and Abuja had intervened in the matter causing Independent National Electoral Commission, INEC to at various times list and delist both the names of Soludo and Umeoji as candidates of APGA.
The electoral umpire had on July 16, 2021, published the name of Umeoji as the APGA candidate following an order by the Jigawa State High court on June 28. On July 18, 2021, Justice Charles Okaa of Anambra State High court directed INEC to publish Soludo’s name as APGA’s candidate. Meanwhile, Justice Iheka of the Imo State High court again ordered INEC to publish Umeoji’s name. The PDP in Anambra is currently in a terrible position as the INEC presently does not feel comfortable with the conflicting orders.
This worrisome development in our courts is antithetical to the actualisation of the just society and independent judiciary that we all aspire to, and they run contrary to everything we teach and hold dear as a profession. Indeed, they do nothing but bring the judiciary and the entire system of administration of justice to ridicule.
The political stratum in themselves are faced with the ordeal of answering to incessant court orders with conflicting instructions, leaving the bystanders with the impression of a shady undertone. Just when progress is about to be made in the political sphere, a new order settles in.
What ought to be paramount at this time, is for the Learned Chief Justice of Nigeria, in the spirit of the ultimate good that he is pursuing, to follow due process in cleaning the Augean stable. The firefighting approach will not produce any enduring results. The NJC, in addition, must gird its wing in order to protect the judiciary from self-destruction. A stitch in time will surely save nine. Surely, the rat must avoid swimming with the lizard.