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ELSEWHERE in the world, especially in the United States [US], from where we allegedly copied our presidential system of government, there has been a raging battle about the content and the composition and the ethics and the supremacy of their Supreme Court [SCOTUS for short]. I understand that the nine-member composition of that court was not backed by any explicit law. But once nominated by the President of the country and approved by the Senate, an associate justice so appointed will serve for life unless the appointee voluntarily retires from office.
It must be noted, however, that the SCOTUS is heavily political with an incumbent President nominating only a judge who would be sympathetic to that President’s party’s tendencies on weighty matters such as the right of women to make decisions about their bodies [reproductive rights and abortion] and unhindered voting rights. A different President and his party would be keen to anoint a judge who would ban abortion at any stage of a pregnancy even if the pregnancy is as a result of incest or rape or that the expectant mother is a child of barely 10 years with a fragile body or that the woman would be in mortal danger in carrying the pregnancy to term. The nominee judge could also be someone who is inclined to support laws that would disenfranchise Blacks, Hispanics and other ethnic minorities during elections.
But the mother of all battles currently raging in the US is that the nine justices are laws onto themselves. Every level of the court system in that country has codified laws guiding the ethical conducts of judges. Not the Supreme Court.
Associate justices of SCOTUS accept gifts, including luxury items, flying in the private jets of politically exposed persons to vacations in exotic and enchanting locations worldwide, and yet would refuse to recuse themselves from cases, which come before them in which their benefactors are either directly or indirectly involved. The point here is that corruption in the judiciary is not exclusive to developing societies such as Nigeria.
In Israel, citizens occupied the country for much of this year because their Prime Minister, Benjamin Netanyahu, who was, still actually is, facing corruption charges decided to push through a bill in the Knesset [parliament] to hand the lawmakers the powers to overturn or vary the decisions of Israel’s Supreme Court. In other words, the judgment of the country’s Supreme Court would no longer be final. The majority of Israelis would have none of it and so decided to stage serial protests and demonstrations. In fact, it has been alleged that the ‘Occupy Israel’ protests partly caused the distraction that led to the surprise and bloody and humiliating coordinated attacks on Israel on October 7 by Hamas, a militant arm of the State of Palestine, which governs Gaza.
So, the Supreme Court in the US and that in Israel are sources of concern to both countries. And at the root of the problems in those countries is corruption. And sometimes the overreach by the justices and politicians.
Here, we have been living with corruption and ethical challenges in our courts and judiciary for decades. Tanko Mohammed was a former Chief Justice of Nigeria [CJN]. He was decidedly unfit for the office and that was glaring even while he was screened by the Senate. But he became. One of his legacies was that, on December 19, 2019, in Kaduna, he said the Muslims had the numbers to make the Nigerian Constitution dominantly Sharia- compliant. He made a futile attempt to deny his unbecoming statement by blaming a surrogate but the denial made him look more pathetic. Appointing an unfit person to any office would not just be unethical but it would be corrupt. His successor Olukayode Ariwoola has been no better. He blatantly hobnobs with politicians and makes partisan public statements. Once, he was in Rivers State to inaugurate now former Governor Nysom Wike’s projects. There he patronizingly claimed that it would be hard for any other governor to beat the feat of Wike.
Of course, he was treated to a king’s reception. Whatever else happened in private would only be known between the CJN and the former governor. As if that was not enough, Ariwoola about the same time inserted himself into the internal problems of one of the political parties, the Peoples Democratic Party [PDP], claiming that the five governors who were working against their party in the run-up to the February and March elections were heroes. He praised the rebels to high heavens. Ariwoola’s ‘ruling’ was in spite of the fact that the dispute between the governors and their party was not before his court. Later a panel of the Supreme Court, which he constituted, ruled against the PDP in a controversial presidential election dispute. Ariwoola has gone even further in his perfidy. He now describes any group of Nigerians, which criticized some rulings and weird judgments of his Supreme Court as a mob, a word he obviously borrowed from the ruling party and its supporters. APC and its supporters are wont to label any group, which criticizes its policies and actions as a ‘headless mob’, the merits of the criticisms notwithstanding. It could be the apparent roguish conducts of the Supreme Court justices that compelled the likes of Olisa Agbakoba and a few other senior and respected legal minds to moot the idea of expanding the appointments of justices into the Supreme Court to include senior lawyers, and not restricted to elevations from the bench below, and to think of the possibility and desirability of stripping the Supreme Court of the power of finality on litigation. It is the creeping sign of the loss of faith in the last hope of the common man. Indeed Prof. Chidi Odinkalu, a senior lawyer and prolific writer and analyst, had cause to describe our judiciary as the “lost hope of the common man”. He has repeatedly said nepotism bordering on incest is rampant in our judiciary.
Concerns about our judiciary are not new anyway, only that the rot is getting deeper and cancerous by the day. A former Chief of General Staff under a military regime, the late Gen. Oladipo Diya, once alluded to corruption in our judiciary in a gripping and graphic manner. He spoke about judges writing two unassailable judgments on any particular case and awarding victory to the litigant who gave the fattest bribe money to the judge. Now only apprentice litigants offer fat envelopes of bribe money to a judge. The fad is to buy the judge and the institution of the judiciary wholesale, lock, stock and barrel.
The way the Supreme Court is going by antagonizing litigants and many other Nigerians except honchos of the ruling party and their supporters, we may yet arrive at a stage where litigants appearing before the justices of the Supreme Court would have no choice than to insist that the justices recused themselves on allegations of bias. We have been there before. In 1994, some Supreme Court justices had sued Concord Newspapers owned by business man and politician, Moshood Abiola over alleged libellous publication against them. Eight justices instituted the action. As the libel case wound its way up from the lower courts, a panel of the Supreme Court was compelled to be set up in anticipation of the case getting to the apex court. The five-member panel ruled in 1996 that the affected eight justices must recuse themselves from hearing the matter saying that the named eight justices must ‘disengage themselves from having anything judicially to deal with the case whenever it comes to the court’. Imagine the judicial anarchy that would ensue today if eight of the remaining 10 Supreme Court justices were to be compelled to recuse themselves from any case brought before them on account of suspected bias arising from their public posturings and utterances.
And this is why the latest scandal confronting the Supreme Court should be concerning. Last week the Labour Party [LP] accused the apex court of not ruling on its challenge of the presidential election petition court’s findings on the disputed election in February. In a press statement the LP claimed that ‘The Supreme Court issued a hearing notice dated 25th October 2023, notifying the Labour Party and its candidate in the Presidential Election, Mr. Peter Obi, that judgment would be delivered on their appeal to the Supreme Court in Appeal No. SC/CV/937/2023 on Thursday, 26th October, 2023.
‘On the 26th of October, 2023, LP and her lawyers were in court. The Supreme Court proceeded to read the judgment in Appeal No. SC/CV/935/2023 filed by the Peoples Democratic Party [PDP]. After that, the Presiding Justice, His Lordship John Inyang Okoro JSC, verbally stated that the decision in the LP appeal would abide by the judgment just delivered in respect of the PDP appeal’. The LP said the stand of the court on her appeal was ‘extraordinary, terribly shocking, most unprecedented and unacceptable’.
The party claimed that the ‘appeals filed by both the PDP and the LP from the Court of Appeal to the Supreme Court were two distinct appeals which emanated from two separate judgments of the Court of Appeal. The two appeals were not even consolidated at the Supreme Court but were heard separately’.
LP alleged that at ‘the separate hearing of both appeals, the question was never raised, the parties never agreed, and the Court neither gave a directive nor ordered that the judgment in one appeal would abide by the decision in the other. The petitions from where the two appeals arose were heard separately at the Court of Appeal based on separate pleadings and different sets of witnesses. Thus the facts of the two petitions were remarkably different’.
The LP proceeded to itemize at least five of the marked differences between its petition and that of the PDP.
The Party claimed that it had repeatedly demanded for the certified true copy [CTC] of the Supreme Court judgment on its appeal to no avail. Obviously there cannot be a CTC for a non-existent judgment if the allegations of the Labour Party are true. According to the LP every court in the land, including the Supreme Court, is duty-bound to “furnish all parties to [any] cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof”.
The justices in the Nigerian Supreme Cult, their Registrar and the collaborating judicial bureaucracy have proven that there was no judgment on the appeal by the Labour Party by not producing a CTC. It bodes evil when an apex court is seen to be breaking the law. The options before the Supreme Court are obvious though not palatable: It should publicly counter the weighty allegations of the LP, produce and publish their judgment on the LP petition, issue immediately the CTC of their judgment on the petition of the LP, or remain cocooned in their Hall of Infamy.
