Of Orji Kalu and the echoes of a ‘technical’ supreme court

Last Friday, the Constitutional Court of Malawi in a unanimous judgment dismissed the appeal lodged by the country’s president, Peter Mutharika, and upheld the decision of an earlier Court ruling that annulled the president’s narrow victory last year while ordering a new election, which is slated for the 2^nd of July 2020.

When the lower Court annulled the election last February, it held that the process was marred by “widespread, systemic and grave irregularities”. In its ruling last Friday, the Supreme Court in upholding that judgment held that “the various breaches undermined the duties of the Malawi Electoral Commission and grossly undermined rights of voters”. “None of the voters obtained a majority”, it concluded.

In 2017, while annulling the election that brought incumbent President Uhuru Kenyatta following the controversial elections of 2017, Justice Maraga held that the Kenyan electoral commission which was in charge of the vote, “failed, neglected or refused to conduct the presidential election in a manner consistent with the dictates of the Constitution.” It further found that the commission “committed irregularities and illegalities in the transmission of results which affected the integrity of the poll” in what remains a bold assertion of the independence of the judiciary in the East African nation.

What is very instructive in the above decisions of the apex Court of the two East African nations is the boldness with which the Courts determined the substance of the cases without resort to technicalities that often frustrate the ends of justice in this part of the world. This intervention is however not about the apex Courts of both nation, but ours.

On more than one occasion the Nigerian Supreme Court has found itself in the place of the Kenyan and Malawian Courts, but failed to impress as it were, by subjecting itself to medieval and mundane rules of technicalities that have today enveloped our electoral and sundry adversarial jurisprudence. Some instances would suffice for our purposes here.

In the controversial 2003 and 2007 elections, it was clear to all and sundry that the polls were marred by widespread irregularities, mutilation of ballot papers, incidence of votes cast with un-serialized ballot papers, thuggery and maiming of voters, ballot box snatching and stuffing, warts and all. Things were so bad that President Umaru Musa Yar’Adua, the beneficiary of the 2007 elections confessed to the world that the election that brought him to power was fraught with electoral malfeasance. He would make electoral reform one of the planks of his famous Transformational Agenda.

But how did things pan out at the apex Court? Despite glaring evidence of these irregularities, the apex Court glossed over them, holding that while the elections were undeniably fraught with irregularities, they were however “not substantial enough to warrant a nullification of the polls“. In other words, the apex Court gave a judicial carte blanche for rigging at elections in so far as they were not substantial enough. Whatever substantial means!

It is this same conservative judicial tradition that reared its head in the recent decision of the Court in the 2019 presidential election petition. The thrust of the petition it would be recalled was the qualification of candidate Muhammadu Buhari, incidences of over voting and the mannerism of the collation and transmission of results from the polling units to the different levels of collation. There again, despite glaring evidence of manipulation of the process by the electoral commission through its agents, and candidate Muhammadu Buhari’s questionable certificate,  Nigerians are at home with the approach taken by the apex Court; an approach that is steeped in anachronism in an era of information and technology. Keep in mind that the thrust of the Kenyan Supreme Court’s nullification of the 2017 election, was on irregularities arising from the transmission of the poll results.

Three recent decisions of the apex Court have furthered raised serious questions of its interpretative dexterity and commitment to ideals of substantial Justice at a time when the Court continues to regale counsel that it has long moved away from the era of technical justice, to one of substantial Justice.

Nigerians were startled when the Osun State gubernatorial election petition was sacrificed on the altar of technicalities on grounds chiefly that a member of the panel, Justice Peter Obiora, who wrote the judgment of the trial Tribunal, did not sit with his learned brothers on a particular day of hearing. This was held to be so fundamental so much that in the eyes of the law, it was as though the trial never took place. Despite disagreement by the legal team of the Petitioners, who were the Respondents at the Supreme Court, that the said judge partook in the proceedings, but merely forgot to append his signature on the record of the day’s proceedings, the apex Court did not consider it judicially worthy to summon an affidavit evidence from the judge who was at the centre of the dispute so as to meet the justice of the case. The ugly consequence of this was that, the substantive questions constituted in the petition, and upon which the trial Tribunal upheld the petition of Senator Adeleke and his party, were never interrogated at the apex Court. And as the Constitutional timeframe for litigating the matter at the Tribunal already up, mechanical and technical rules of justice took the day.

Even more recently, the decisions of the Court following the Imo and Bayelsa gubernatorial elections leave much to be desired. In Imo, the Court failed to ascertain whether the candidate it returned had met the Constitutional requirements of section 179(2) on the mandatory geographical spread to warrant a return. It merely accredited disputed results of the Petitioner which on their face left serious questions of authenticity, added the bogus numbers to those earlier announced by the electoral commission, and ordered a return of the candidate of the All Progressive Congress, (APC) Senator Hope Uzodinma. Never mind that he came a distant 4th after the March 9th election. It was the first time in our electoral history when the votes cast at an election exceeded the total number of accredited voters in a classic case of American wonder!

In Bayelsa, the Court jettisoned an interpretation that would have accorded with the principle of franchise and adopted one that foists a stranger on the populace despite clear provisions of the Constitution on which this progressive interpretation could have been erected. And so the examples are legion especially in politically exposed cases, of the Supreme Court’s technical approach to adjudication; one that defeats the place of the law as the handmaid of justice.

The latest decision of the Court last Friday, where it nullified the conviction and sentence of Senator Orji Uzor Kalu and his co-defendant, Ude Udeogu by a Federal High Court in Lagos last December, brings us back to a familiar scene and further gives a taste of what the apex Court have become under the incumbent Chief Justice of Nigeria, Tanko Mohammed, with respect to the learned Jurist. And with the benefit of hindsight, Nigerians could have known having performed woefully at his screening when confronted with the question of the interplay of technicalities in the judicial process at the National Assembly.

Despite not having read the full judgment of their Lordships, the summary as reported in the media gives one a sense of the reason for the decision, or ratio decidendi in legal speak. And the reason is as simplistic as they come.

I have argued strenuously in diverse fora that we must improve the quality of adjudication and judicial thinking if the law must serve any social purpose in our society. The resort to easy answers to serious Jurisprudential questions does not in my humble opinion help the system. It makes nonsense of the role of the law in a society and leaves it backward as is currently the Nigerian story.

As the material facts of that case are now well known in the public domain, I do not intend to reproduce it here. It is only sufficient to submit that the reasoning of the court is far from one that engenders confidence in the system and questions the attitude of the judiciary to the anti corruption war.

The resort to elementary arguments of conflict between the Administration of Criminal Justice Act and the Constitution to nullify the entire trial is with respect unfounded. The Court has only stoked conflict where there was none and the consequences are dire for our jurisprudence and perception of our criminal justice system in the comity of nations. If anything, the provision of section 396(7) of the ACJA was a complimentary enactment to achieve the greater end of justice. All their Lordships could have done was to train its mind on the mischief sought to be cured by the provision and to uphold same as an exception from the general position touted in Section 253 of the Constitution.

What is more, the court has severally upheld the mischief and purposive canons of interpretation in several decisions and the Orji Uzor Kalu case presented it with another opportunity, which begs the question why it failed to, particularly in the circumstances of the case where the language of the Constitution suffers from inelegance and ambiguity. A coterminous reading of sections 253 of the Constitution and 396(7) of the ACJA could have easily evinced the intentions of the legislature since it is presumed that parliament do not intend to create a confusion by legislation.

While I concede that the Constitution is Supreme; an elementary law by the way, the task before the Court was not so much a Kelsian question of hierarchy of norms, as it was of a jurisprudential inquiry into the intention of parliament to meet the justice of the case at hand. Thus having proceeded on a wrong premise, the court was bound to reach a conclusion that is most confounding even though many lawyers argue that it is sound in Law.

It might well be, but what is the place of the law, when it has become only the practitioners tool without serving any societal purpose? American Classical thinker, Roscoe Pound argues that the ultimate goal of the law is that it be used as a vehicle of social engineering. And this is true in so far as justice remains a social value which must be applied to achieve paramount objectives of the society.

Lawyers and jurists agree that the Supreme Court of any nation being also a policy Court, is the most appropriate forum where the law is to be applied to serve its paramount objective: the good of society. The justices of the Court are therefore often expected to favour interpretations that accord both with law, and the policy focus of the jurisdiction where it sits.

In the case of Nigeria where corruption by political office holders, past and present, has brought about arrested development of the nation, the decisions of the Supreme Court are not expected to be unduly steeped in undue legalese and technicalities that frustrate the collegiate aspirations of Nigerians of a corruption free society. When corrupt politicians rely on loopholes in legislation to get away with their larceny, then serious questions must be asked of the judiciary in such a society.

Where does this latest decision of the court leave us and the anti corruption war? It is anybody’s guess. All the cases where section 396(7) of the ACJA was relied upon to afford a closure in the past are automatically rendered a nullity.

In a report by The Punch Newspapers of 10^th May, 2020 at least 50 of such cases are automatically impacted.  All of these cases would have to go back to trial afresh with attendant costs to the nation and serious challenges for their effective prosecution arising from possible death of witnesses or reluctance to testify, compromise of documentary evidence, memory loss, warts and all.

When one factors the fact that the Orji Uzor Kalu trial spent a whopping 12 years at the Federal High Court, then a clearer picture of the consequences of this judgment would be formed. While at that, keep in mind that all of that could have been saved by a magical phrase often deployed in adjudication namely: when Justice M.B. Idris sat to conclude the trial at the Federal High Court after elevation to the Court of Appeal, he was in the eyes of the law, sitting as a Federal High Court judge.

As I conclude this piece, a juxtaposition of the approach taken by the Malawian and Kenyan Courts in the cases reviewed in the opening paragraphs, with those taken by our own Supreme Court in similar cases leaves the irresistible conclusion that the Nigerian Supreme Court might just be the missing link in our efforts at achieving a corruption free society particularly where politically exposed persons are involved.  The undue preference for conservative interpretation of the law shorn of judicial creativity to correct the diverse social anomaly that has plagued us as a nation particularly, corruption and electoral malpractices, has left behind  unintended consequences that have tasked public confidence in the judiciary.

While the did in the Orji Uzor Kalu case can no longer be remedied, it is perhaps an opportune moment to remind the Court of the admonition one of one of the greatest justices to have bestrode our judicial firmament– the inimitable Chukwudifu Akunne Oputa (of blessed memory). In the words of the judicial colossus, “The Supreme Court should always be alive to the Idea that as society is organic, even so should law be. Anything organic is subject to the law of life which is either grow or die. We are either ascending the steps of life, or descending into the precipice of death. For this reason, our Supreme Court cannot afford to be conservative, static and backward loooking. For in a society labouring under the heavy shackles of poverty, corruption, ignorance, indigence and want, there is really little, if anything to conserve. The only alternative open to the Supreme Court therefore is a realistic and level headed progressiveness“.

I close by submitting that the above admonition has become the urgency of now, if our apex Court is to join the comity of other states whose jurisprudence has long been secreted within the Benthamian philosophy of the greatest good of the greatest number in deserving cases.

Nkannebe Raymond, a legal practitioner and public affairs commentator, writes from Lagos. He tweets @RayNkah. Comments to [email protected].