An agenda for the bar and the bench in 2022

The year 2021 tested the Bar and the Bench in their joint commitment to justice and defence of the Rule of Law, in various respects. Whereas the Covid-19 pandemic and its attendant lock-downs had crippled activities in the courts as with other segments of the Nigerian economy for the better part of 2020, the Nation saw the gates of our courts shut down again by the second quarter of 2021 for upwards of three months due to the strike action by the Judiciary Staff Union of Nigeria (“JUSUN”) campaigning for full autonomy of the judiciary.

Section 121(3) of the 1999 Constitution appears to make provision for funds due to the judiciary to be paid directly to it, through Heads of the respective courts created under the Constitution. To give teeth to this provision, President MuhammaduBuhari had on 10th May 2020 signed Executive Order 10, which gave the Attorney General of the Federation working in cahoots with the Accountant General of the Federation powers to withhold funds due to the Judiciary of States from the federal revenue pool, and pay over same to the Heads of courts concerned.  But this would not go down well with the Governors who saw the audacious, yet altruistic move as a constitutional aberration and an affront to the principle of federalism which undergirds the Nigerian Constitution. The die was cast.

While the Governors beseeched the Supreme Court for an interpretation of the associated provisions of the Constitution which they contend, absolves them from the running and maintenance of the courts have not created them,  JUSUN agitated for enforcement of the status quo ante bellum and forced the hand of all relevant stakeholders with a prolonged strike which would not abate until the intervention of the NBA leadership, the Federal Ministry of Labour and Employment, the Chief Justice of the Federation and the Presidency.

However, it appears that what was eventually negotiated with the striking union was just an end to the strike, and not necessarily a resolution of the vexed issue as they continue to linger in several states. It is unsurprising, therefore, that JUSUN has given the world notice that it would embark on another strike when activities for the 2023 elections kick-start. In the meantime, the governors’ action at the Supreme Court remains subjudice. Perhaps a resolution of same one way or another would come to shape the outlook of that protracted constitutional crisis.

So while the strike lingered, the Bar and the Bench suffered, with justice administration in a country that is infested with a problem of backlog of cases, brought to its knees. This particular event in some sense could pass for a highlight of the challenges posed to the justice sector in the year 2021. But it was not all.

As political activities in preparation for the recently held Anambra State gubernatorial election and the then leadership crisis in the opposition Peoples Democratic Party (“PDP”) wore on, some unscrupulous lawyers and judges, saw in it, an opportunity to muddle the pristine waters of justice for reasons best known to them. In the PDP affair, three (3) High Courts of coordinate jurisdiction in different states dished out conflicting Court orders over the same subject matter in a particularly embarrassing incidence of forum shopping.  The Bar barked and called for the heads of the lawyers and judges involved in the judicial bazaar of sorts. Not to be outshined, the National Judicial Council (“NJC”) joined the fray.

In Anambra, the same familiar menace stuck out like the proverbial sore thumb. An Election that was billed to hold in Anambra State,  saw controversial judgments flying from one corner of the country to the other: Ibadan; Abuja; Owerri; and even as far as Birnin Kudu in Jigawa State, about 950 kilometers away from Anambra. It took the intervention of the Court of Appeal sitting in Kano and Owerri, and ultimately the Supreme Court to put a final stop to the madness while deprecating the judicial officers involved.

It is heartwarming that the National Judicial Council has disciplined some of the judges involved in that judicial abracadabra, even though some critics contend that the punishment is no more than a slap on the wrist. The NBA has promised that it would equally discipline the lawyers involved in that professional nonfeasance if they are found liable by its Disciplinary Committee. That, however, remains to be seen.

As though the judiciary had not seen enough for the year, Nigerians were stunned when the residence of Hon. Justice Mary Peter Odili─ a ranking member of the Supreme Court of Nigeria was raided in Gestapo style,  by some security operatives purportedly acting at the instance of the Honorable Attorney General of the Federation,  Abubakar Malami SAN and upon the execution of a search warrant which has since been exposed as fraudulently procured. It was particularly bad as it brought back memories of a similar attack on the residences of some senior judicial officers in 2016.

As investigations into the actual circumstances leading to the incident continue to linger, Nigerians await with bated breath the outcome. It is quite commendable in this wise, that the OlumideAkpata-led NBA has vowed to get to the root of the matter through the Monday OnyekachiUbani-led Fact-Finding Committee. This Commentator is of the view that this would make for an independent finding over an incident that has power-play from high quarters written all over it on the one hand, as well as stamp the role of the Bar as the protector of the Bench which can only be seen, but not heard.

The above incidents albeit in no particular order sum up the challenges faced by the Bar and the Bench in the previous year; yet, there are indications that some of these challenges may continue in the New Year for some reason(s) which I shall shortly explore, and therefore call for more caution and vigilance by the twin institutions.

For starters, the year 2022 will usher in the 2023 general elections which the Electoral Commission has stated for the first quarter of 2023. If the proposed Electoral Act Amendment Bill becomes Law, it is instructive that one of the innovations in the proposed legislation is the holding of primary elections and possible determination of disputes arising from it, before the main election.  This, no doubt, was to address the situation where unpopular candidates/political parties are forced on the electorates through judicial fiat, as was seen recently in Bayelsa and Zamfara States.

In the context of this intervention, however, what this means, (irrespective of the resolution of the controversy over the mode of primary election to be adopted by parties), is that the second half of 2022 will witness an upsurge in political cases owing to the zero-sum nature of intra-party politics in Nigeria. Unfortunately, the experiences of our recent past, do not inspire hope that the Bar and the Bench would conduct themselves like the proverbial wife of Ceasar.

The election season has been described in some quarters, as a ‘micro economy’ for the primary stakeholders in the administration of justice: lawyers and judges. Usually, during this period caution and professional ethics is thrown to the winds as unscrupulous lawyers and judges fall over themselves to file all manner of frivolous suits and deliver all sorts of bizarre judgments respectively, all of which aggregate to further smear the judiciary’s brittle integrity, as was recently seen in Anambra and the PDP leadership crisis.

What does this mean for the leadership of the Bar and the Bench in 2022? The Chief Justice of Nigeria, Mr. Justice Tanko Mohammed recently bemoaned the menace of black market injunctions usually procured under the guise of urgency/emergency. Elsewhere,  in a bid to checkmate this practice, the Chief Judge of the Federal High Court, Justice John Terhemba Tsoho had issued circulars directing judges not to grant an ex parte order, or entertain any political case where the cause of action does not germinate within their jurisdiction.  Yet, in spite of this clear directive, we witnessed the festering of the menace of forum shopping in that Court. With the proposed Electoral Act Amendment Bill now conferring exclusive jurisdiction on the Court over pre-election cases, it will be interesting to see how lawyers relate with this Court whose jurisdiction remains the subject of much jurisprudential controversy in our law reports.

I must quickly confess that the blame does not completely lay at the door of the Bench. So much of it is precipitated by lawyers who approach these courts with applications, the facts of which oftentimes appear to have been manufactured, and thereby bamboozle the Courts into granting illegal ex parte, and sometimes substantive orders. To this extent, I think the job of the leadership of the Bar and the Bench is cut for them. Therefore, the NJC and the NBA through its Disciplinary Committees must be firm in demanding total compliance with ethical standards in the handling of cases that are bound to arise from the election season before us. Rule 1, of the Rules of Professional Conduct, mandates lawyers to uphold and observe the rule of law, promote and foster the cause of justice and maintain a high standard of professional conduct. It goes without saying that these standards are non-negotiable and it is high time, the Bar began to take its enforcement even more seriously.

It is instructive that two (2) off-season gubernatorial elections are due to hold in Ekiti and Osun States at about the same time this year. The implication for the judiciary in those states is not farfetched.  At the very least, one hopes that what recently happened over the Anambra gubernatorial election, is not re-enacted in those states.

Overall, the outlook for the judiciary in 2022 is not, particularly one to cheer about. This is because the election season would once again throw spanners in the work of other civil and criminal cases that have a direct bearing on the economy of the nation and the liberty of citizens due to their time-bound nature. At the recent Annual General Conference of the NBA, the President of the National Industrial Court, Justice James Kanyip reeled out a chilling narrative of the backlog of cases in that Court alone. For a Court of limited jurisdiction, one can only imagine what would be the case in the State, and Federal High Courts with wider jurisdiction. Unfortunately, that would continue even in 2023 when the election petition tribunals for the 2023 general election would have been constituted.

Taken as a whole, there is no question that the eyes of the Nation would be on the legal profession as our democracy prepares for another stress test in 2023. Recent decisions of the Supreme Court in some political cases such as Odey v Alaga; and Uzodinma v Ihedioha have left much to be desired. Another opportunity however beckons for the judiciary to redeem itself. One possible way it can do this is by increasing the substantial justice quotient in the judgments it would deliver in the (political) cases that would eventually come before it.

In her Keynote Address at the Annual Law Dinner of the Lagos Branch of the Nigerian Bar Association,  Mrs. IbukunAwosika reiterated the critical role of the legal profession (Bench and Bar) in the Nigerian project. As we enter another critical period in what would be our nation’s history that admonition couldn’t have come at a better time.

A lawyer and public commentator, Raymond can be reached via [email protected]