Democracy And The Tyranny Of Judges BY Chidi Amuta

Curiously, however, in Nigeria’s fledgling democracy, the judiciary has lately been operating more like an unregistered political party, one that towers above all the other parties. It not only wields the decisive gavel in political cases but has been known to hand down judgments that subvert the popular will expressed through the voting process.

Democracy And The Tyranny Of Judges BY Chidi Amuta
Those paid to protect the guardrails of democracy hardly look in the direction of the courts for enemies. Nor do most people suspect that judges could become facilitators of authoritarianism and subtle promoters of anarchy. As custodians of the rule of law, judges and the courts over which they preside are the insurance for democracy’s ultimate good. The entire edifice of democracy thrives because the judicial system is expected to act in a manner that reassures ordinary men and women that the excesses of politicians will not be allowed to endanger law and order or the presumed equality of men. That at least is the standard expectation and the reassuring assumption.

Curiously, however, in Nigeria’s fledgling democracy, the judiciary has lately been operating more like an unregistered political party, one that towers above all the other parties. It not only wields the decisive gavel in political cases but has been known to hand down judgments that subvert the popular will expressed through the voting process. Thus, in its serial nefarious interventions in political matters, the Nigerian judiciary has emerged as an interested political force and a major disrupter of the democratic process. Some judges hardly disguise their partisanship just as they are ready to hawk pre-packed judgments to the highest bidder. To that extent, part of the trouble with Nigerian democracy is the tyranny of judges in their conversion of the law into a merchandise of political confusion often in pursuit of their personal or group self aggrandisement.

An offshoot of the troublesome role of judges in fuelling political confusion is a certain lingering concern with rampant corruption among some judges. At the onset of Mr. Buhari’s second term in office, he sought to confront corruption among judges frontally. Security and anti-graft agency operatives staged a series of programmed raids on judges’ homes and offices. The findings unsettled a public long inured to tales and instances of epic public sector looting. Some judges bedrooms were literal bank vaults with troves of cash in various currencies. Some judges’ bank accounts would make low level Forbes billionaires green with envy. Some of them had real estate inventories that read like telephone books and in no way related to their legitimate earnings. A few were prosecuted, hardly found guilty and hardly any was convicted. By a curious irony, the bulk of illegal funds found with the ugly judges were traceable to proceeds of corrupt payments by the very same politicians that were hounding the judges. The chase ran cold and was discontinued. Some of those sent to search judges homes allegedly ended up sharing or re-looting the judges loots. End of chapter!

Now to the current anxiety. In quick response to an embarrassing recent epidemic of conflicting injunctions and ex parte orders on political cases, the Chief Justice of the Federation, Mr. Tanko Muhammed, last week summoned the Chief Judges of six state High Courts over a recent wave of conflicting and embarrassing court orders on political matters. The state chief judges summoned to the CJN’s admonition meeting include those of Rivers, Imo, Cross River, Anambra, Kebbi and Jigawa states.

A similar summons has gone out from the National Judicial Council (NJC) to the same set of state High Court judges to explain their role in the indiscriminate granting of conflicting ex parte injunctions from courts of concurrent jurisdiction even from states far away from the actual theatres of political trouble. The Nigerian Bar Association (NBA) whose members feed the courts with these spurious requests for ex parte motions has itself weighed in on the same side as the CJN and the NJC by condemning the rampant practice and inherent abuse of judicial powers. What has spurred this outpouring of outrage and condemnations is the embarassment which the judiciary has become to itself and the threat it now constitutes to the nation’s democracy in general. In the immediate instances at issue, two critical aspects of democracy are under direct threat.

First is the integrity of political parties in terms of their internal leadership selection and replacement procedures. The Peoples Democratic Party (PDP) has recently been wracked by a slew of crises bordering on whether their embattled national chairman, Uche Secondus, should remain in office after his legitimacy was been challenged by aggrieved members and factions within the party. In reference to one of these suits, a Port Harcourt high court ruling suspended the party chairman, Uche Secondus, from office. He was in the process of obeying the ruling with the ascendancy of two rival acting chairmen when another high court ruling quickly reinstated him. He hurried to the party secretariat to re-assume his contested position only to be informed that another state high court had just voided his position once again.

As matters now stand, no one is sure of who is in charge of the day to day running of the party as Secondus clings on to office in defiance of confusing court rders. The intervention of the party’s Board of Trustees and various elders conclaves to fix a date for the party’s convention is not likely to resolve the crisis with so many cases still in courts.

The ruling APC is itself not immune from instability resulting from conflicting legal interpretations of its present state of interim leadership. Soon after the Supreme Court ruling on the election petition of the former Deputy Governor of Ondo State challenging the victory of Governor Akeredolu, key legal voices in the APC hierarchy quickly used the ruling as a basis to challenge the legality of retaining the Governor Buni-led caretaker committee of the party. The sum of the argument was that if Buni had been joined in the suit, there probably would have been a different and more favourable outcome. In this opinion, Mr. Buni’s leadership is in violation of the constitution of the party as he is a substantive governor and cannot also be a substantive party chairman. There are many number of court cases instituted to challenge the incumbency of the caretaker on the basis of this contention. Only the anticipated party convention before the end of the year is retraining some of the potential judicial combatants. There again, the stability of a political party is subject to the whims and vagaries of conflicting judicial interpretations and outcomes.

In this process, the very survival and integrity of the major political parties is being subjected to a ridiculous judicial ping pong by lawyers and judges with doubtful motivations. Ordinarily, political parties are the building blocks and lifeblood of a democracy. They produce successive political leadership of the nation through their internal leadership selection processes. They determine the direction of public policy through their ideological underpinnings and the programmes they canvass in their manifestoes. The direction of a nation and the well being of its citizens is a direct reflection of the state of the parties that comprise its political ecosystem and also emplace the governments in power.

Of course the legitimacy of party leaderships and the processes that produce them is subject to occasional legality stress tests based on contests based on the party constitution and of course the general relevant laws of the land. The role of the judiciary in preserving the integrity and coherence of political parties is inherent in its overall responsibility to guarantee and protect the rule of law in a democracy. When judicial rascality encourages perennial crises in political parties, the very survival of the nation as a democracy is under threat. Judges that tacitly encourage dissidence and confusion in the leadership of political parties are undermining the foundation of democracy.

A different threat to democracy is active in Anambra State. In the countdown to the November governorship elections in the state, there has been an avalanche of court actions and conflicting rulings on who should fly the flag of the various parties especially the ruling All Progressives Grand Alliance (APGA). The unstated assumption is of course that any candidate supported by the incumbent governor, Mr. Willie Obianor, of APGA would almost certainly move into the Governor’s Lodge in Awka. That assumption has fed serial controversies as to who is the legitimate candidate of the party for the November election. The Independent National Electoral Commission (INEC) has had the unenviable task of constantly changing the approved candidate of the party for the November polls in obedience to constantly changing and conflicting court orders emanating from courts of concurrent jurisdiction in far flung states. As matters stand now, no one knows exactly who will be on INEC’s final ballot for APGA in the November Anambra governorship election.

Here again, a purely intra party political process, namely the selection of a party candidate for an electoral contest has become the football field of political entrepreneurs and judicial scavengers. In the process, the consciousness of the electorate is being shredded and tormented. The people of Anambra State are being deprived of the certainty to freely debate and openly campaign to choose the candidates of their choice for governor. In this unfortunate drama, the Nigerian judiciary is again leading the charge.

Ordinarily, the special position of the courts and judges especially in political matters confers on them a great deal of power. The indiscriminate conflicting judgments and injunctions are therefore nothing short of impunity and abuse of power. And in a democracy, nothing is more lethal than wanton abuse of power. It injects elements of authoritarianism into a democratic milieu and soon enough converts the rule of the majority into the dominance of those rich and powerful enough to thwart the popular will by bribing judgments and purchasing court injunctions and judgments.

The current atmosphere of rampant judicial rascality is not novel in the short history of our young democracy. It all comes down to power politics and, many believe, the money that fuels it. In this clime, very few things survive a handshake let alone an embrace with politics and politicians. Nigerian politics taints and toxifies nearly all that it comes into contact with.

Rewind to Imo State in 2020. The 2019 governorship election overwhelmingly returned Mr. Emeka Ihedioha as the winner of the election. He was duly sworn in and began in earnest to showcase exemplary people oriented leadership in the state. Meanwhile, a series of election petition processes were ongoing at the Election Tribunal, Court of Appeal and even the Supreme Court. Mr. Ihedioha seemed to have his mandate all secure and confidently assured.

The election petition case escalated to the Supreme Court which on January 15, 2020 surprisingly altered the state’s political landscape. A controversial Supreme Court verdict sacked the short- lived administration of Mr. Emeka Ihedioha of the PDP and installed Mr. Hope Uzodimma of the APC as governor of the state. In the Imo case, the Supreme Court judges literally trespassed into realms constitutionally reserved for INEC by veering into the zone of vote tallying. To be fair, nothing stops a court from using mathematical data as an evidential basis of a judgment.

First, the court took over INEC’s role as ultimate vote tallying agency. Not only that, the court revalidated votes that had been nullified as defective by INEC without caring to ascertain how many of these controversial votes there were. Worse still, the court relied on the evidence of a controversial witness- just one police officer- to arrive at its verdict. In an apparent haste to hand Mr. Hope Uzodimma the keys to the Owerri Governor’s mansion and toss Mr. Ihedioha into the job market, the Supreme Court retrieved and tallied the INEC discredited votes and arrived at a ruling that produced a voter turnout far in excess of the total number of registered and accredited voters in the affected polling stations.

Even in an age where every cheap smart phone is a calculator, the apex court lost sight of this mathematical incongruity, electoral curiosity and political minefield. The Supreme Court simply leap frogged Uzodimma from a fourth position in the original score ranking to number one and governor in an instant. In an apparent haste to hand Uzodimma the keys to the Owerri Governor’s mansion, the court retrieved and tallied the INEC discredited votes and arrived at a ruling that produced a voter turnout far in excess of the total number of registered and accredited voters in the affected polling stations.

In the process, the court opened itself to charges of vicarious ballot inflation amounting to election rigging. These are felonies that Nigerian politicians are repeatedly charged with but hardly get convicted for. In the aftermath of this ruling on the Imo governorship elections, therefore, it became hard for the public to choose between the Supreme Court and crass partisan politicians.

The growing tradition of judicial recklessness is not exactly the fault of the judiciary. Its origins and driving force are essentially political and societal. We have bred a political class that has a fundamentally transactional attitude to power. Nigerian politicians treat and approach political contests as the equivalent of warfare in which they have to conquer their opponents through the deployment of everything at their disposal. Cash and violence are the principal weapons of choice. Politicians have been known to bribe INEC election officials to twist the ballot, the police to barricade their opponents and even the military to terrorize their rivals. Even when they lose the very elections, politicians have been known to bribe or blackmail judges to overturn legitimate electoral outcomes. Through the overwhelming influence of politicians on the judiciary, our democracy has been so disfigured that we now rely on the verdict of a handful judges to validate or vitiate the verdict of millions of voters.

The unsavory conclusion is that the Nigerian judiciary has in recent times constantly mired itself in odious political mud. In the process, it has descended from the pinnacle of learned discourse to the rough and tumble of street corner banter and gutter sniping. Hardly anyone out there takes our courts, judges and judgments seriously anymore. Among common folk these days, the reputation of our judges and the courts over which they preside is repeatedly thrashed and lampooned by fish mongers, two penny whores, casual artisans and assorted palm wine bar patrons alike. Struggling free from this reputational mess will be hard and prolonged, if ever.

The supremacy of the rule of law only finds meaning in a democracy because there is a standard expectation that the instruments of law will exemplify order.

Something goes awfully wrong when the law itself violates the codes of orderly conduct and becomes a source of anarchic behavior. That is exactly where we stand now. The countdown to the fraught 2023 electoral season is a bad time for our judges to exhibit their trademark rascality and crass mercantilism. These judicial bad manners are endangering our democratic prospects and laying the red carpet for authoritarianism and anarchy. It is a playground for unscrupulous politicians. And we are all at risk.

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The views/opinions expressed in this publication are those of the authors and do not purport to represent the views/opinions of The Metro Lawyer (TML), its affiliates or any of its staff.

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