A TALE OF TWO SUPREME COURTS AND THE DANGER OF SELF-DELEGITIMIZATION
Emmanuel Ogebe | Washington
Nigeria’s Supreme Court sparked near universal outrage when it recently awarded senatorial candidacies to two powerful politicians who had not participated in party primary elections. The verdicts simply didn’t make sense to the average citizen who understands that democracy does not mean a non-contestant wins.
Incidentally the Nigerian Supreme Court is not the only one to incur public suspicion and opprobrium.
Last year, a judgment of the Supreme Court of the United States (SCOTUS) leaked concerning the controversial Roe v Wade abortion issue. It was unheard of for a judgment to leak ahead of delivery and this was a dark stain on the court.
The court eventually gave judgment and reversed Abortion as a constitutional right after 50 years of actually ruling otherwise leading many to speculate as to whether the leaked judgment was meant to subvert this radical multigenerational decision or to test the waters in advance. Whatever the case, the credibility of the court was damaged by this occurrence.
As a legal professional privileged to be licensed in Nigeria for over three decades and in the US for 20 years, I find lots of opportunity for comparative analysis of the two systems.
While I have not read in depth the rationale of the Nigerian Supreme court in the mystifying cases of Senator Akpabio and Senate President Lawan who didn’t contest primaries but won, the sum total of what appears to have happened in the eyes of an ordinary man is that 0+0=1.
So I decided to wait and see what the Supreme Court would do in another case this week. The facts were that a lady won the House of Reps PDP primary in my constituency while still serving as a federal government employee in Abuja contrary to existing law. The incumbent house of Reps member Ottah Francis Agbo challenged this and the court of appeal recently voided her candidacy and pronounced him the legitimate winner as he indeed contested and was next in line.
However yesterday in another bombshell ruling that makes no sense to a rational person, the Supreme Court declared the woman, Aida Ogwuche, the candidate claiming she was on “secondment” so that was similar to resignation. Secondment is redeployment to another agency. It has never meant resignation!
Upon seeing this third travesty in as many weeks, I have to come to the incontrovertible conclusion that the Supreme Court of Nigeria is losing its way. The kind of judicial reasoning that perverts the very express text and intent of the law is one that the ordinary man can only view as compromised and this has grave consequences.
In the US, homes of justices were picketed and quick action was taken to protect them. Senators mulled impeaching Justices they’d confirmed who said during confirmation hearings that constitutional abortion rights was “settled law” of the land but then overturned it.
I support neither action because I believe it is improper for justices to be personally attacked for opinions rendered in their professional capacity and I also believe that a judge cannot guarantee how he will rule on a hypothetical premise especially before a partisan panel.
In Nigeria, justices are not picketed in their homes and no threats have been made to remove them (except for the Buhari regime’s brazen assault on select justices). Nigeria has a National Judicial Council that handles complaints and discipline. I have generally found that Nigeria has a stricter code of conduct for judges than America where justices are openly partisan and have lax controls.
But despite the justices having no repercussions in the US, the party that appointed them with a declared agenda of overturning Roe v Wade suffered the wrath of citizens when the Republican Party failed to obtain a predicted victory in midterm elections that have historically been a landslide for the opposition party. Most analysts believe that the Supreme Court’s decision overturning abortion rights resulted in mass voter turnout that punished many Republican candidates.
Although Nigerian judicial appointments are not partisan like the US, there is still something problematic with the appointments process which I have written about for over a dozen years. In Nigeria, Senate President Lawan’s case came before a Supreme Court some of whose members were confirmed by his senate. That gave him a larger than life stature compared to his unknown and less influential opponent.
That is not to say that the Supreme Court is intimidated by Senate Presidents. Senate President Saraki lost initially in the Onnoghen-led Supreme Court, as Buhari attempted to unseat him, but ultimately won when the matter came back again on appeal to the Supreme court.
What is worrisome in the Akpabio, Lawan and Aida Ogwuche v Ottah Agbo case is that all three were linked to influential senators as Ms Ogwuche is the mentee of Senator Abba Umoru who succeeded Senate President Mark in Benue’s Zone C.
What this clearly warns is firstly that we need a constitutional amendment that insulates justices from senate confirmation and executive appointment as Nigerian elections invariably end up in court thus forcing this ethical dilemma. I believe the NJC when properly constituted in concatenation with the bar can create a professional mechanism for judicial appointments.
Secondly, and even more disturbing is the prospect that we now live in a post-Tanko Supreme Court. The Tanko Supreme Court was the first in Nigeria installed by coup. It occured in January, four years ago, to brazenly pave the way for 2019 election mischief which it did superbly. For the first time in Nigeria’s history, the Supreme Court upheld Buhari’s re-election on the spot and promised to give reasons later. It was an ignoble “judgment on credit” for which a nation of 200 million were owed an explanation on why their votes didn’t matter enough to warrant a considered opinion from their Supreme Court!
International human rights lawyer Emmanuel Ogebe with Stacey Abrams two-time Georgia state Gubernatorial aspirant and US Observer mission delegate to Nigeria 2023 elections
The removal of Tanko via supposed “resignation” after an unprecedented mutiny by his fellow justices over his disastrous maladministration of the judiciary’s affairs was what I called in an article then, an “end of an error.”
However I wondered how the Buhari regime was going to wangle 2023 elections without a willing northern stooge like they had done before.
The trifecta of inexplicable judgements for Akpabio, Lawan and Ogwuche seem to say that something has been worked out.
To be fair, the first two cases were APC cases and the Ogwuche case was PDP. However the common denominator was that powerful Senators were involved in all three cases. But then Senators of both parties participate in judicial confirmations which I argue conflicts with the separation of powers doctrine.
It would appear that the truism relates here that you can take the Court out of Tanko’s hands but you can’t take Tanko’s fingerprints off the court.
The damage we feared has indeed happened that the court hasn’t recovered from the trauma of political interference and usurpation by Buhari. Tanko never faced justice for his acts but was eased out reportedly due to ill health and incompetence (even corruption) but he had achieved his 2019 election agenda. This is a frightening scenario going into 2023 elections.
The ruling party APC may well suffer consequences from the electorate in this week’s elections for the Supreme Court’s bizarre judgments like the Republicans did in November’s elections but will the court again frustrate the will of the people?
All said and done, one consequence is clear - palpable loss of institutional credibility. In the US, the SCOTUS investigated and failed to determine the source of the leak further worsening its public perception. The watchman could not watch himself…
In Nigeria, the Supreme Court temporarily extended the use of old Naira notes in a move which would have been populist considering the hardships of the populace. However Buhari has defied the court’s order and even the public views it with suspicion because they doubt its altruistic and juristic intent. At the end of the day, the court’s order has been universally flouted.
The real danger now is with the combination of fiscal and financial torture inflicted on Nigerians as Buhari’s parting gift, should any more funny judgments attempt to thwart or suppress the electorally expressed voice of the people in a historic election, Nigerians’ famed endurance may lose its elasticity with casualties for the court and country.
"Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?..If people actually believe it's all political, how will we survive? How will the court survive?" This was Justice Sotomayor’s strident query in a case known as Dobbs v. Jackson Women's Health Organization in 2021 but it could very well have been said in the context of Nigeria’s Supreme Court today.
The Supreme Court is viewed more as a policy court than a law court or a justice court. Sadly it risks being now seen as a gamble court - one where parties roll the dice (or load the dice) and wish for luck not law. This ought not to be. Citizens must have confidence that the nation, constitution and citizenry win and the best efforts are made to achieve substantial or proximate justice at the apex court. It is after all, the Supreme Court of Nigeria and not the Supreme Court of the Influential.
I conclude with the issue of personal diplomatic sanctions against justices which is a question I have in recent times been asked by journalists.
Full disclosure, in 2019 I advocated visa sanctions on Justice Tanko Muhammad Chief Justice of Buhari (CJB) but it wasn’t for any rulings he gave in court. It was for his complicity and conspiracy to unconstitutionally overthrow a sitting Chief Justice of Nigeria and takeover his position.
While aware that some of the bad actors in the polity had incurred US visa sanctions, I recently gathered that this may have been extended to the judiciary as well.
I am concerned because this may be tantamount to punishing a judicial officer without fair hearing for an opinion expressed in his judicial function which the US embassy lacks the sophistication and nuance to properly discern.
For instance I saw a leaked Wikileaks US embassy Abuja cable which erroneously claimed I took a former AGF to my dad’s chambers (it was my classmate and state governor not the AGF). The Political Counsellor also falsely claimed that Nigerian law “sequesters” judges from meetings in chambers which is untrue. Thus the American embassy’s cable was wrong in fact and in law.
Given the room for error and potential injustice as illustrated above, I recommend that the US and like-minded embassies impose visa restrictions strictly on the basis of proven allegations of corrupt influence or reckless endangerment by judicial officers.
Secondly I would urge that such judges be given an opportunity during a visa interview or in writing to address these concerns about “anti-democratic” actions.
While it appears somewhat intrusive into internal affairs to query a judge about his judgments, visas are the exclusive preserve of the issuing country under international law and one prefers a chance where a judge can address questions than be sanctioned without that courtesy.
Incidentally, it isn’t only America diplomatically interfering with other countries.
Nigeria’s ambassador in Washington once denied former U.S. ambassador to Nigeria, John Campbell’s visa application because of the latter’s book about Nigeria and utterances.
Subsequently, his successor charge d’ affairs went even further asking the Buhari regime to revoke my Nigerian passport to punish and prevent me from testifying in the U.S. Congress about human rights atrocities in Nigeria.
He apparently briefed Buhari that I was the son of a justice who denied his 2007 election appeal and needed to be dealt with. I have since sued them in court for this very unconstitutional act.
The end to this comedy of errors was that this charge d’ affairs was then succeeded by a retired appeal court Justice as a reward for ruling in Buhari’s favor thus illustrating once more how obscene favoritism can be. The judge-turned-ambassador eventually died in office instead of peacefully at home.
So all told, it will ultimately vest in Nigerians how best to handle a derailed Supreme Court which instead of a court of law has become a court of luck.