The Controversial Kafarati: Justice Abdul Kafarati On the watch
With the sustained pressure on the National Judicial Council to investigate Justice Abdul Kafarati of the Federal High Court over his controversial rulings, this may not be the best of times for the High Court judge, writes Davidson Iriekpen.
The ripples generated by the judgment delivered by Justice Abdul Kafarati of the Federal High Court in Abuja last week is yet to subside, both in the judicial and political circles. The judge had ordered the sack of the National Chairman of the All Progressives Grand Alliance (APGA), Chief Victor Umeh and the party's National Secretary, Sani Shinkafi from office. The judgment was sequel to the suit filed by a chieftain of the party, Chief Maxi Okwu, who dragged the duo and the Independent National Electoral Commission (INEC) before the court, challenging their stay in office beyond what the constitution of the party provides for.
In the judgment, Kafarati declared that Umeh, who had been in office for over 10 years, could not validly continue in office 10 years after he was first elected. He cited Article 18(2) of the constitution of the party, which provides that any official of the party can only stay in office for a maximum of two terms of four years.
He further held that Umeh and Shinkafi, having been voted into office by voice votes rather than secret ballots as stipulated by Article 18(3) of the Constitution of APGA were not validly elected. In the circumstance, the judge ordered both men to vacate their respective offices.
Since the judgment, many analysts had suspected that there was more to the judgment than meets the eyes. First, they argued that Umeh was first elected the National Chairman of APGA on December 2, 2006. They wondered how the judge arrived at 10 years between 2006 and now.
Second, they argued that the party, APGA, was never sued neither was it a respondent in the suit, which to them, was a fertile error on the part of the judge in arriving at his judgment. This was why they alleged that the judge through his orders and judgments in recent times has not only ridiculed the judiciary but brought it to disrepute.
They are of the opinion that it was high time the Chief Justice of Nigeria, Justice Aloma Mariam Mukhtar and the National Judicial Council (NJC) investigated the judge. Observers feel that since the issues in the case were based on what a higher court, the Court of Appeal in Enugu had recently decided when a lower court, the Enugu State High Court, first sacked Umeh and Shinkafi, the judge was supposed to be circumspect.
The lead judgment delivered by Justice Tom Yakubu of the Court of Appeal in Enugu, which was unanimously upheld by other justices on the panel had held that: “There are several authorities that the courts should not interfere with. They should not interfere with the internal affairs of political parties except on issues of wrongful substitution as contained in Section 87 (9) of the Electoral Act 1999 as amended.”
It was based on the actions of some of the judges in the country that an elder statesman, Dr. Tunji Braithwaite, last week, urged the courts to save the integrity of the Nigerian legal system from the hands of people in high places, who are manipulating it.
In his submission before Justice Doris Okuwobi of an Ikeja High Court in a N10 billion suit he instituted against the Standard Chartered Bank Nigeria Limited, Braithwaite told the court to take a judicial notice of the defendant whom he said was deliberately manipulating the legal system and destroying the case.
To those who have followed the career of Kafarati, the APGA judgment was not the first controversial order or judgment emanating from his chamber. The judge first drew the ire of Nigerians in 2009 when he controversially let off the hook, a former governor of Edo State, Chief Lucky Igbinedion, when he stood trial in his court in Enugu.
In the case that many considered an example of the mockery of the fight against corruption by the judiciary, Justice Kafarati convicted a former governor of Edo State, Chief Lucky Igbinedion, on a one-count charge of corruption and gave him an option of fine of about N3.6million which the former governor paid instantly and walked out of the court a free man.
Igbinedion, who ruled the state between 1999 and 2007, was said to have used his relatives to siphon the said N2.9billion. According to the Economic and Financial Crimes Commission (EFCC), the sum was looted and transferred through numerous companies, including Gava Corporation Ltd. But Kafarati, in his wisdom, chose to set Igbinedion free with a paltry N3.6million option of fine.
A similar judgment by Justice Abubakar Talba of an Abuja High Court drew a nationwide outrage against the judiciary. The judge had given a self-confessed pension thief, John Yakubu Yusufu, an “unreasonable” sentence, which sparked a nationwide protest and disdain for the judiciary until the NJC suspended him.
In 2010, against all judicial ethics and tradition, Kafarati, in the case involving Chief Cyprian Chukwu vs Chubuike Amaechi and INEC, did not only throw caution to the wind by backdating the date Amaechi took oath of office as the governor of Rivers State but went ahead to interpret the judgment of the Supreme Court.
In the said judgment, Kafarati said even though the governor was sworn in on October 26, 2007, his tenure would end on May 28, 2011 or May 2015 as the case may. Without considering other judgments by the apex court such as the Peter Obi vs INEC case, he said since the Supreme Court said it was the PDP that won the April 2007 governorship election in Rivers State, and not the candidate (Amaechi), the tenure started counting on May 29, 2007 when the sacked governor Celestine Omehia was sworn in.
The judge held that the period spent in office by Omehia, who was sacked by the Supreme Court, formed part of Amaechi's tenure of four years. Legal pundits felt that since the original case was decided by the Supreme Court, the judge should have referred the parties in the matter back to the apex court for interpretation.
Another reason the judgment generated a lot of suspicion was the speed of delivery that had never been recorded in the country's judicial history. Within 14 days from the filing, service and all other court procedures, Justice Kafarati gave judgment in favour of Amaechi
At a point, the actions of Justice Kafarati became somewhat irritating that the Civil Society Network Against Corruption (CSNAC), a coalition of over 250 anti-corruption organisations petitioned the Chief Justice of Nigeria, Justice Aloma Mukhtar, in her capacity as the NJC Chairman, requesting the investigation of acts of judicial misconduct by Justice Kafarati.
The group noted that in view of the ongoing reforms of the judiciary by the National Judicial Council (NJC), it was imperative that Justice Kafarati is investigated before he destroys the judiciary
In the petition signed by the coalition's Chairman, Olarenwaju Suraju, it enumerated the many alleged judicial misconducts by the judge to include: An ex-parte motion restraining the EFCC from further investigating Mr. Ifeanyi Ubah over his involvement in the multi-billion naira fuel importation scam even when he knows that it is improper to restrain security agencies from performing their duties.
It also referred to Senator Igbeke vs. Prince John Emeka where Justice Kafarati gave ex-parte order directing INEC to give a Certificate of Return to the plaintiff who did not contest the Anambra North senatorial district election, and another between Senator Igbeke and Prince John Emeka, where the judge granted an ex-parte order restraining the police from investigating or prosecuting Igbeke for forgery.
In yet another case which the group said Kafarati did not handle properly was the one involving Justice Eri and the ICPC where he granted an ex-parte order restraining the ICPC from investigating or prosecuting the plaintiff in respect of an allegation of N6billion fraud.
It also cited a case between Senator Bode Ola and ACN, where Kafarati gave judgment and directed INEC to include the name of the plaintiff as the Ekiti State senatorial candidate of the ACN. The group further alleged that the candidate of the party, Mr. Babafemi Ojudu, was not a party to the suit while the ACN was served with the originating summons less than two hours before the judgment was delivered.
The group recalled also that Kafarati granted an ex-parte order restraining the INEC from conducting the Cross River State governorship election, adding that the embarrassment was so much for the judiciary that the then Chief Justice of Nigeria, Justice Dahiru Musdapha, had to direct him to set aside the ex-parte order which he did.
Finally submitting on Kafarati, the group said in the case of PDP vs. PPN, Kafarati entertained the suit in defiance of the directive of the Chief Judge of the Federal High Court that the suits arising from election disputes be heard in their respective jurisdictions.
It noted that the judge would later withdraw from the case after granting an order to substitute the names of certain candidates. In all these cases, the Court of Appeal upturned Kafarati's decisions, with some ending with reprimands.
Reacting to his sack last week, Umeh said: "Justice Kafarati was gravely in error, so there is nothing to worry about. The convention has no foundation, and the said convention relied on by the court has been set aside by the Court of Appeal. We are unruffled by the judgment because we know that the court of appeal will at all times protect its judgment.
"Recalling that it is the same judge that nullified Oyinlola's election, the judgment which is a hatchet job arrived late as APGA has successfully prosecuted the Anambra governorship and winning with a landslide and the just concluded local government elections, I enjoin our party men to disregard the judgment as this is clearly a judicial rascality."
Another chieftain of APGA, Chief Willy Ezugwu, has also called on the NJC to probe the case. He said the ruling was a clear indication that Nigeria might be heading for the era of politics of brigandage.
Ezugwu who is also the National Secretary of the Conference for Nigerian Political Parties (CNPP) said the NJC and the CJN must immediately investigate to know how and why justice was sold in this matter given the curious nature of the ruling.
According to him, the action of Justice Karafati amounted to passing judgment on earlier rulings of the Court of Appeal and the Supreme Court on the same matter, noting that it was not a lower court that should set aside the ruling of superior courts.
“This is the same dummy judgment that was sold in August 2012 by the Justice Umezulike of Enugu High Court who considered a matter over which he had no jurisdiction. How can a court dissolve an elected National Executive Committee of APGA without first annulling the election that produced members of this body?
“We would continue to be appalled by the extent to which people will go to truncate our well cherished democracy but we remain undaunted and we have taken the needed steps to set aside this black market judgment in addition to filing for a stay of execution as provided by the law. We must know that this kind of judicial brigandage continues because perpetrators of such acts in the past have not been punished adequately as provided by law," he said.
A senior lawyer who spoke to THISDAY on condition of anonymity described the verdict as “black market judgment that will crumble at the Court of Appeal the way other judgments by judge had crumbled.
Some of the judgments of the judge have in recent times, attracted the attention of the EFCC, which has begun his probe alongside six other judges, cutting across the various strata of the judiciary with the judge as their main target.
A source had hinted that the case file revealed that Justice Kafarati allegedly owns huge cash assets in several bank accounts including properties, shares and farmlands in Kwami area of Gombe State and except these allegations are unfounded; Kafarati may have had his cup full.