APART from the incurable optimists who are sold to the belief that they can still find a pin in a haystack, many Nigerians have already started looking beyond the Supreme Court for justice over the matters arising from the February 2023 presidential election. The Supreme Court of Taslim Olawale Elias, Chukwudifu Oputa, Kayode Eso, Salisu Modibo Alfa Belgore, Dahiru Musdapher, among others, has since gone and probably never to be recovered. It was a golden era of philosopher-justices. They were not in competition with operators elsewhere in the society for the vulgar display wealth and flaunting of ostentatious lifestyle.
They were proud without being haughty.
They walked with carriage not designed to demean others. They displayed courage with righteous indignation. They did not wear their connections or associations with politically exposed persons of their era as a badge of honour. In short they were all, almost all, dignity personified.
During that era, unlike today, judges and justices promptly recused themselves from cases before them once there was any appearance of conflict of interest.
They did not need to be pressured. Our judicial history is replete with such cases. Today our experience is that judges insist on presiding over cases where their interests are overwhelming and manifest.
We experienced one such absurdity in 2019 ahead of the ligation over that year’s presidential election. Justice Zainab Adamu Bulkachuwa was the president of the Nigerian Court of Appeal. Her’s was the tribunal/court of first instance for the presidential litigation. She inserted herself into the five-person panel to hear and determine the electoral dispute between Alhaji Atiku Abubakar, the losing candidate of the Peoples Democratic Party [PDP] and the declared victor, Maj -Gen. [rtd] Muhammadu Buhari of the All Progressives Congress [APC]. There was an uproar. Justice Bulkachuwa had a husband, Adamu, who was an elected and serving senator on the ticket of the APC at the time. Justice Zainab Bulkachuwa did not think it mattered. She also had a son who unsuccessfully contested for an office on the ticket of the same APC in their home state of Bauchi. That also did not matter. It took a sustained national outcry before she reluctantly recused herself from that case.
Years later, in June 2023, Senator Adamu Bulkachuwa revealed that he encroached on the judicial independence of his wife when she was the head of the Appeal Court to seek and obtain favours for his friends and colleagues. Speaking on the floor of the Senate Adamu had said: “My wife, whose freedom and independence I encroached upon while [she] was in office, and she has been very tolerant and accepted my encroachment and extended her help to my colleagues”. He later attempted unsuccessfully to walk back the revelation in the wake of the outrage and backlash from Nigerians.
An apparently exposed Justice Bulkachuwa went on the offensive, saying in a statement dated June 17 that: “My attention has been drawn to a trending video of what was said by my husband, Senator Adamu M. Bulkachuwa. I want to state categorically that l never at any time compromised my oath of office to favour any party who appeared before me throughout my judicial career spanning 40 years of my service to my country. My decisions were always based on the facts, the law and in accordance with my conscience and oath of office”. But the horse had already bolted from the stable, so not many Nigerians believed her because she did not sound believable. In the wake of the scandal, some notable Nigerians demanded a comprehensive review of the cases decided by Justice Zainab Bulkachuwa either as a sole judge or as part of a panel of judges.
To be fair, suspicion of judicial influence peddling and possible compromise did not start with Zainab Bulkachuwa. Like in other parts of the Nigerian society, compromise, contamination and corruption had been eating away at the fabric of the judiciary for decades. Almost 30 years ago, a former Chief of General Staff, Armed Forces Ruling Council [AFRC], the late Gen. Oladipo Diya claimed that some Nigerian judges had become so crooked that they could write two unassailable judgments on the same case with a view to awarding victory to the party that paid the highest bribe money.
Apart from the corruption of some judges, the capture of the judiciary has been long in the making. Prof. Anselm Chidi Odinkalu recently reminded us of how vacancies in the Supreme Court were routinely filled by candidates who emerged victorious from presidential election litigations since the return of democracy in 1999. Usually the first candidates to be rewarded with elevation to the Supreme Court were the panelists who decided for the President in the litigation at the Appeal Court. Whenever there were split judgments, the justice[s] who decided for the opposition suffered stagnation and retirement. Do not believe us, just conduct a casual study. On September 6, 2023, all the five justices of the Appeal Court who sat on the presidential litigation found in favour of the candidate of the APC, Alhaji Bola Ahmed [Adekunle] Tinubu. Unless the unexpected happens, they will soon be automatically elevated to the Supreme Court. If President Tinubu does that, as he would certainly do, he would not be guilty of any wrongdoing. He would only be consolidating on a convention that has tended to perpetuate the perception of judiciary capture by the partisan political class. There are currently no fewer than 10 vacancies in the Supreme Court and so the President has ample opportunity to fill the court with judges who will be sympathetic to cases affecting him.
If information in the public domain is anything to go by, the depleted Supreme Court is already in a turmoil over the hearing of the cases arising from the February presidential election. The Court is reportedly battling to select fit, proper and eligible justices for the panel. Allied Peoples Movement [APM], Labour Party [LP] and PDP are contesting the award of victory to APC by the ‘Independent’ National Electoral Commission [INEC].
Commencement of hearing was scheduled for yesterday [Monday, Oct. 23]. Sadly, the fear of many Nigerians is that the Supreme Court will invoke and rely on technicalities to summarily dismiss the germane petitions of the three opposition parties. It will be within the remit of the justices if they do so decide because technicality is part of Nigeria’s jurisprudence. But one of the grounds of the petition of the APM does not lend itself to being dismissed on the grounds of technicality. And that is the vexed issue of the then vice presidential candidate to Tinubu, Kashim Shettima, lending himself to be nominated to two different elective offices at the same election cycle. That act clearly offends the laws of the land.
The Presidential Election Petition Tribunal/Court admitted as much but it still derisively dismissed that infraction, saying whimsically that Shettima’s illegal act was not done intentionally. From childhood we have been assailed with the aphorism that ‘ignorance is not an excuse in law’. This saying has been so for decades until it stopped being so with the PEPT[C] on September 6.
Beyond Shettima’s established and unlawful double nomination which rendered his and Tinubu’s joint ticket in the election invalid, the tasks before the Supreme Court justices go beyond the mere interpretation of the letters of the law.
The fallouts from the litigation in Chicago in the United States of America [USA] and the deposition therefrom do not conduce for the justices to attempt to hide behind one finger in the coming ruling. They are confronted with adjudicating on what should constitute the acceptable minimum values for Nigeria, going forward. All the claims that were supposed to qualify Tinubu to contest for the Presidency have been faulted. To start with he indicated in his filings with INEC that he never attended any primary or secondary schools. So those ones are off the table. At Chatham House, London in 2022, Tinubu said he had applied for and received from Chicago State University [CSU] a replacement for his ‘lost’ diploma/certificate. The university said there was no such request and that there was no such replacement. So either Tinubu or CSU lied. CSU testified on oath, Tinubu did not. Tinubu claimed that he passed through Government College, Lagos in 1970. It has been determined that the college was founded in 1974. In addition, it has been found that some of the papers that ‘qualified’ Tinubu for admission to CSU bore the gender of a female. There is no information in the public domain that Tinubu underwent sex change since after he supposedly graduated from CSU. By the way, CSU said on oath that they do not know the source or origin of their university’s diploma/certificate that Nigeria’s President filed with INEC. Stripped of all legal jargons and technicalities, the simple and ordinary reading of the CSU disclaimer is that the certificate Tinubu filed with INEC was forged. And Nigeria’s
law is clear on certificate forgery and lying on oath.
If the Supreme Court finds for Tinubu, what the justices would have succeeded in doing is that the system rewards crookedness and that honesty is no longer the best policy. They will be sending a clear message to the younger generation that righteousness is a vice and that the end justifies the means. They will be telling the political class including contestants in the looming elections in Bayelsa, Kogi and Imo states and subsequent polls in Nigeria that winning is more important than playing by the rules.
The justices would also be confirming the claims ahead of the elections by the APC that Nigeria was a jungle which has no place for those who play by the rules. Your Lordships, the ball is firmly in your court.