Nigeria’s Broken Judicial system.
Nigeria’s judiciary has opened her doors for the New Year 2017 with a very controversial case in Abuja which has to do with the unconstitutional secret trial of Mr. Nnamdi Kanu, the Director of the Radio Biafra, a United Kingdom based broadcasting firm and the leader of the peaceful Indigenous people of Biafra (IPOB).
In the last month of last year, Mrs. Binta Murtallah Nyako, wife of the former Adamawa State governor and a judge of the Federal High Court ruled that President Muhammadu Buhari’s witnesses against Mr. Nnamdi Kanu would be shielded not just from the media but also from the accused persons who have been locked up under excruciating prison conditions and often brought to court in hand cuffs for over a year.
Nnamdi Kanu who also holds a British passport is facing charges framed by the Federal Attorney General Alhaji Abubakar Malami for allegedly heading an organization that advocates self-rule for the South East of Nigeria.
The secret trial of Mr. Nnamdi Kanu and two of his compatriots at the Federal High Court has not come without serious questions asked by different groups and persons regarding the propriety or otherwise of keeping the witnesses away from the accused when these same accused have severally been criticized by President Muhammadu Buhari in the full glare of publicly funded television.
The proceedings in secret as ordered by Binta Murtallah-Nyako offend several but relevant sections of the Constitution with specific reference to Chapter Four of the Constitution which embodies the fundamental human rights provisions and principles.
Section 36 (1) provides unambiguously thus: “In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.”
Besides, subsection 5 of the abovementioned Section affirmed that: “Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty”.
The secret trial of Mr. Nnamdi Kanu and two others also amounted to gross discrimination which is also unconstitutional given that Section 42(1) of the Nigeria Constitution averred thus: “A citizen of Nigeria of a particular community, ethnic group, place of origin, sex, religion or political opinion shall not, by reason only that he is such a person:-
(a) be subjected either expressly by, or in the practical application of, any law in force in Nigeria or any executive or administrative action of the government, to disabilities or restrictions to which citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religions or political opinions are not made subject.”
There are unconfirmed insinuations that the President entered into a ‘political’ accord with the presiding judge Mrs. Murtallah-Nyako to grant soft landing to her embattled husband retired Naval Admiral Murtallah-Nyako who is facing several fraud charges by the Economic and Financial Crimes Commission (EFCC) over his two terms as governor of Adamawa State whereby several Billions allegedly were misappropriated.
There are also signals to show that the executive branch of government under the current dispensation has disrespected the Court System and flagrantly breached binding orders of the court thereby rubbishing the Independence of the Judicial arm of government.
Apart from the consistent media warfare launched against the Judiciary by President Buhari since coming to power in May last year, certain police and security actions ordered by the Presidency targeted at judges are blamed for the weakening Judicial system that the Nigerian Judiciary has progressively become to an extent that a judge of the Federal High Court in the Abuja Division who verbally lambasted the Department of State Services for gross disobedience to court orders was attacked in a particular night but managed to escape physical violence of these operatives by pure coincidence of his absence from his home. But his brother was brutally beaten by the invading armed security forces.
Apart from the midnight invasions of homes of two Supreme Court justices and several Federal High Court judges, this government on many occasions failed to release on bail such high profile accused persons such as Nnamdi Kanu and erstwhile National Security Adviser, Colonel Sambo Dasuki.
But perhaps, what has come to define how deficient in independence the Nigerian Court system has become is the kid gloves treatment that the hierarchy of the Federal High Court and the National Judicial Council has handled controversies swirling around some ludicrous decisions of Okon Abang a judge of the Federal High Court in the Abuja division.
Okon Abang has to a very large extent created the impression that he is hired to do the biddings of the All Progressives Congress just as his many gaffes which have been rebuked by the Appeal Courts in several judgments have yet to attract sanction from the National Judicial Council.
The recent rumored transfer to Asaba Federal High Court division of Okon Abang by the Chief Judge of the Federal High Court is simply a slap in the wrists given the amount of disgrace this man has caused the image of the nation’s judiciary.
In less than Six months, through Cocktails of controversial but politically motivated orders and judgments, Justice Okon Abang has created the dangerous narrative that he has become the untouchable face of the ruling powers-that-be in Abuja.
Undeterred by monumental criticisms from rational beings, Mr. Abang has so far issued frivolous and ridiculous orders aimed at destabilization of Civil rule, respect for human rights and his presence in the bench constitutes grave threat to Constitutional democracy.
These indiscretions of Mr. Abang offends the essence and indeed the strategic place of the Judiciary in our nation building process just as the failure by the NJC to appropriately punish this erring judge means that the democracy we are currently trying to build would be irretrievably imperiled.
For instance, in 2007 at the All Nigeria Judges’ Conference, participants and the resource persons drawn majorly from the hierarchy of the nation’s judiciary had cautioned Judicial officers to avoid the temptation of playing to the gallery and allowing themselves wittingly or unwittingly to become the tool of the destabilization of political opposition or indeed judges of all strata were asked to avoid becoming a cog in the democratic wheel of progress.
The Justice of the Supreme Court (JSC) as he then was Dahiru Musdapher wrote as follows: “In order to safeguard the rights of the citizenry; promote accountability, transparency and other essential virtues of a decent and just society; to ensure the subsistence of a functional state under the Rule of Law; it is necessary to promote, strengthen and protect the integrity of our Judicial system as well as the integrity of the individual adjudicator that is charged with the onerous responsibility of the dispensation of Justice.”
The words of Justice Musdapher are thus: “The judiciary is the arm of government that is responsible for the determination of the rights of the citizenry; amongst themselves and between them and the state. Judiciary is saddled with the constitutional responsibility of providing essential checks on the executive arm by reviewing its actions to determine whether or not they are in line with the standards established by the Constitution.”
“In addition, the Judiciary has the responsibility to determine whether or not the laws passed by the legislature violate the provisions of the Constitution or the other established legal requirements especially in a young democracy like ours.”
Writing on the essence of Judicial Independence, Chief Justice Lamar in Beanregand vs. Canada (1986) 2 S.C.R 56, 70. said “Judicial Independence is essential for fair and just dispute resolution in individual cases and it is the life blood of democratic constitutionalism. Without judicial independence there can be no preservation of democratic values.”
Justice Musdapher also reminds us that: “Impartiality is essential to the proper discharge of the judicial office. It applies not only to the decision itself but also to the process by which decisions are made. Judges must perform their judicial duties without favor, bias or prejudice and ensure that their conduct both in and out of court maintains and enhances the confidence of the public, the legal profession and the litigants in the impartiality of the judicial system.” To think that a Federal High court declined to allow President Buhari parade masked witnesses against Nnamdi Kanu only for Binta Murtallah-Nyako of same court of coordinate jurisdiction to give a contrary rule, is enough to conclude that the Nigeria Court system has broken down.
Again the monumental cases of indiscretions of another Judge of Federal High Court Mr. Okon Abang are so well known even as several Appellate Courts have through several well considered judgments lambasted him for standing the law on its head.
For instance, on 18th August 2016, the Court of Appeal in Abuja came down heavily on Justice Okon Abang of the Federal High Court Abuja over his ruling on June 27, 2016, removing the Abia State Governor, Dr. Okezie Ikpeazu, averring that his judgment was biased and turned the law on its head.
The court held that Justice Abang erred in law and occasioned a miscarriage of justice against the governor when he refused to give fair hearing.
The court further held that the judge pre-judged the matter when he touched on the substantive issues at the preliminary stage without hearing the appellant.
The justices who heard the case were Ibrahim Shatta Bdliya, Philomena Buwa Ekpe, Morenikeji Ogunwumiju, Abubakar Datti Yahaya and Saidu Tanko Huseni.
In the considered view of many observers, Justice Abang has in the last couple of months acquired a notoriety for his controversial rulings that have raised genuine apprehension and reinforced the perception of lawlessness in the Nigerian judiciary.
Aside his controversial ruling on the Okezie Ikpeazu vs. Samson Ogah case, he has granted series of orders that have added to the confusion over the leadership crisis in the People’s Democratic Party (PDP).
Abang also refused to recuse himself from a corruption trial involving the former National Publicity Secretary of the PDP, Olisa Metuh, after the latter accused him of bias and being his classmate at the Nigerian Law School between 1987 and 1988, a claim Abang denied but which extensive evidence later emerged to show that he was economical with the facts around his law school days.
The Appeal Court has since ruled Justice Abang as unfit in the following scathing words: “committed grave violence against one of the pillars of justice” relating to fair hearing.
The Appellate court ruled that Justice Abang raped democracy in his order that the Independent National Electoral Commission (INEC) should issue a certificate of return to Dr. Samson Ogah when there was no evidence of forgery or criminality against the appellant.
Justice Ogunwumiju held: “After reading through the judgment several times, I was amazed at how the trial judge arrived at his conclusion of perjury against the appellant when there was no evidence of forgery. His findings are ridiculous.
“The judge must have sat in his chambers, unilaterally assessed and computed the taxes of the appellant and came to the conclusion that he did not pay the required taxes.”
“Courts are not allowed to speculate, as the trial judge did in the instant case. In one breadth, the trial judge spoke from the two sides of his mouth when he claimed that he based his findings on supply of false information and in another breadth he came to the conclusion that the appellant committed perjury even when there was no allegation of forgery and no allegation that he did not pay tax.”
Justice Ogunwumiju also held that the trial judge turned the head of the law upside down in his conclusion that it was the appellant that should bear the burden of proof of an allegation made by Ogah.
She held: “With respect, we disagree with him because it is the person that makes the allegation of falsehood that must prove it.
“The court erred when he imported the phrase, ‘as and when due’ into the PDP 2014 guidelines. The judge would not have imported the phrase into his findings if a copy of the PDP guidelines had been attached to the originating summons. The judge violated the party’s guidelines.” Any self-respecting judicial officer against whom these degrading statements have been made ought to honorably resign, but not Abang.
It is noteworthy to state that many analysts strongly hold him responsible for the crises rocking the PDP. Mr. Abang has granted a number of orders that have added to the confusion in the party, thus fuelling deep seated suspicions that he was being used by the ruling party in Abuja to decimate, degrade and destroy the PDP.
Aside the series of controversial orders he had delivered to stop the PDP’s national convention, Abang has also acted in a manner largely suspected to be on a preplanned and choreographed mission to kill the PDP.
His clear bias and spectacular blunder emerged, when he sat on appeal on a judgment delivered by a similar court of concurrent jurisdiction presided over by Justice Abdullahi Liman of the Federal High Court sitting in Port Harcourt.
We are aware that as a way of permanently resolving the legal crises plaguing the PDP, Justice Liman had in a judgment delivered on July 4, declared that the May 21 national convention of the party, where the Senate Ahmed Makarfi-led National Caretaker Committee was inaugurated was valid, stating that its decisions did not violate any known law or the constitution of the party.
But Mr. Abang in the poetic description of a writer played the spoiler when he illegally sat as superior court and infamously adopted interlocutory order to invalidate the verdict by holding that the purported convention held in Port Harcourt on May 20 was in violation of two court orders of the Lagos Division of the Federal High Court, which barred the PDP and INEC from holding the convention.
Literally elevating his court to an Appeal Court status, he consequently barred the Makarfi-led caretaker committee from exercising any authority or taking any decision on behalf of the PDP on account of being an illegal body. This is an affront to the rule of law.
When the Appeal Court nullified the ruling of Mr. Abang’s Federal High Court on October 14 which recognized businessman Jimoh Ibrahim as the authentic candidate of the People’s Democratic Party, PDP, for the November 26 election, Okon Abang was slammed and criticized.
A three-member panel of Appeal Court judges led by Ibrahim Salauwa said the judgment delivered on October 14 was as fraudulent as it was violent.
“The entire ruling of the 14th of October is a nullity. It is hereby set aside. Everything that was done at the lower court is a fraud,” the court said.
The court also described the June 29 judgment which gave rise to the October 14 ruling, as a gross abuse of Ahmed Makarfi’s right to fair hearing.
“It is a gross abuse of section 36 (1) of the constitution, particularly the right to fair hearing,” the court said.
“We set aside the highly misplaced; most fraudulent judgment on June 29,” it added. Why as the NJC not moved against such a character described in such outrageously despicable terms by a litany of appellate verdicts?
Justice Abang’s devious, embarrassing and injudicious pronouncements have shown him to be a ready and willing tool in the hands of the ruling APC Federal Government. All that the government needs do to get quick pre-determined judicial orders is to simply employ the unholy services of Abang as an attack dog. The government now goes forum-shopping, withdrawing ongoing pending cases from courts of uncompromised and courageous judges, and handing them over to Abang to do the desired hatchet man’s job. And he does always, without qualms or scruples.
In carrying out his master’s and puppeteers satanic orders, Abang knows no shame, entertains no fear of God and broods no opposition, whether from lawyers or litigants. He has become a rampaging lord and master onto himself, pouring filth and scum on the hallowed citadel of justice on a daily basis. He desecrates and defiles justice with impunity, forcing justice to lie prostrate on its belly, to the shame and consternation of a bewildered nation.
Mr. “Injustice” Abang must be plucked and yanked out from the judiciary with the urgency of now, to save the already troubled judiciary from total externally-manipulated collapse. If it collapses, it will be bye, bye to democracy, rule of law and human rights.
The other emerging reality that defines how diminished the voice of independence has become within the judicial system in Nigeria is the failure on the part of President Buhari to recommend Justice Walter Onoghen for confirmation by the Senate as the Chief Justice of Nigeria on substantive basis for the first time in the last 30 years, the head of the executive arm sent the name of the most qualified Justice of the supreme court only to act as Chief Justice for a month.
There are insinuations that President Buhari who has severally appointed only Northerners to sensitive national security offices is plotting to use subterfuge to drop Justice Onoghen but to fetch a Justice of Northern extraction from Bauchi stateto be named the Chief Justice on substantive ground.
It is imperative that everything is done to free the judiciary from the enslavement placed on it by the current executive arm of government.
It is a bit of a disappointment that President Muhammadu Buhari, who prior to coming to office always had recourse to the court system, is now presiding over a government that has gradually built notoriety for willfully disrespecting the institution of the judiciary. To even know that his Attorney General and Minister of Justice circumvented established rules by ordering the invasion by secret police of premises of judges is heartrending. I call on President Buhari to respect judicial independence.
*Emmanuel Onwubikois head of Human Rights Writers Association of Nigeria (HURIWA) and can be reached @ www.emmanuelonwubiko.com