The law of judicial deck chairs

On August 17, 1980, the 6th Commonwealth Law Conference convened in Lagos, then capital of Nigeria. After the arrival courtesies were dispensed with, it fell upon Shehu Shagari, civilian president of Nigeria then in office for 10 and a half months, to declare the conference open. The keynote speaker was Jeremiah Obafemi Awolowo, Senior Advocate of Nigeria (SAN) and leader of the opposition Unity Party of Nigeria (UPN), who had run President Shagari desperately close in the contest for Nigeria’s presidency only one year before.

That contest ended up being decided by the Supreme Court of Nigeria in a judgment memorably described as being “a compromise between law and political expediency”. At the head of the bench that decided the case was Atanda Fatayi-Williams, at the time the Chief Justice of Nigeria. As famous as this judgment would become, the antecedents arguably proved to be more lasting in their influence on Nigeria’s politics and institutions.

The relevant part of the story begins on August 16, 1979, when the Federal Electoral Commission, (FEDECO) headed by Michael Ani, announced Shehu Shagari of the National Party of Nigeria (NPN) as the winning candidate in the elections to return Nigeria to civil rule. Three of the five presidential candidates in the contest repudiated the result, setting up what would become an epic election dispute. Obafemi was one of the three.

The Electoral Act of 1979 under which the vote took place anticipated that there could be a dispute and conferred on the Supreme Court the jurisdiction for final decision-making on disputes concerning the presidential election. The panel to hear the disputes were to be led by the Chief Justice of Nigeria but the then incumbent, Sir Darnley Alexander, was due to retire on August 24, 1979, a mere eight days after the announcement of the result and well before the Supreme Court was due to begin hearing the presidential election dispute.

Three days before the retirement date of Chief Justice Darnley Alexander, on August 21, 1979, then military Head of State, Olusegun Obasanjo, an army general, requested to meet Atanda Fatayi-Williams, then a Justice of the Supreme Court, at the seat of power in the Dodan Barracks in Lagos. At the meeting, Obasanjo offered Fatayi-Williams the office of Chief Justice in succession to Sir Darnley.

In his memoirs, ‘Faces, Cases, and Places’ published in 1983, Fatayi-Williams claimed that this offer “was totally unexpected, and, for the first time in my life, I was at a loss for words”, adding that Obasanjo “watched my discomfiture with relish and delight”.

Some of his peers on the Supreme Court were not so sure. Fatayi-Williams was admitted to the Bar of the Middle Temple in London in 1948, one year after Chukwunweike Idigbe and three years later than Dr. Egbert Udo Udoma, both of whom were his peers in the Supreme Court. Fatayi-Williams was from Lagos; Idigbe came from the then Mid-West; while Udo Udoma came from the then South Eastern State. Idigbe became a judge in 1961, before being appointed to the Supreme Court in 1964. His service on the Supreme Court was, however, fractured by the Nigerian Civil War.

Udo Udoma, who also became a judge in 1961, had enjoyed a career as a lawyer, minority rights activist, campaigner, politician, and federal legislator before being appointed a judge in 1961. Two years later, in 1963, he became Chief Justice of Uganda with the understanding that upon the end of his tenure in Uganda, he would return to a position on Nigeria’s Supreme Court. This came to pass in 1968 when General Yakubu Gowon appointed him Justice of the Supreme Court. Atanda Fatayi-Williams arrived court in 1969 as a junior to Udo Udoma and, strictly speaking, to Idigbe.

In his memoirs, ‘The Eagle in Flight’, Udo Udoma recalls that upon the retirement of Chief Justice Adetokunbo Ademola in 1972, the then-ruling Supreme Military Council considered five names for appointment to replace him, namely: Professor Taslim Elias, who was then the Attorney-General of the Federation; John Idowu Conrad Taylor, then Chief Justice of Lagos (as the office was then known); Dr. George Baptist Ayodola Coker, Justice of the Supreme Court; Rotimi Frederik Alade Williams, a senior lawyer in private practice; and Udo Udoma himself. Fatayi-Williams was notably not in the running. In the event, the military preferred Taslim Elias, who had served them well as Attorney-General.

When a new military regime relieved Elias of the position in July 1975, they settled on Sir Darnley Alexander, until then a little-known Chief Judge of the South Eastern State, whom Udo Udoma had recommended for that office.
In 1979, the stakes in the appointment of Chief Justice were very high: the presidency of Nigeria could depend on it. Udo Udoma, who lived with medically induced disabilities, writes in his memoirs that: “Justice Fatayi-Williams, then also a Justice of the Supreme Court, registered a solemn protest on the ground that he saw no reason why I (Udo Udoma) should be given such a high post as the Chief Justice of Nigeria despite the fact that I was an amputee. He felt strongly that the SMC under the leadership of a Yoruba man like himself would not be justified to ignore him who then had no handicap. He then contacted several Yoruba men, including Chief S.L. Edu, to contact General Olusegun Obasanjo as Head of State to plead his case.”

Continuing, Udo Udoma records that these “intrigues succeeded and he was preferred to me because, in his representation, he was able to convince General Olusegun Obasanjo that since Alhaji Shehu Shagari as a Hausa-Fulani, was contesting the office of President of Nigeria and had chosen Dr. Ekwueme, an Igbo man, as his running mate as Vice-President, both of whom were likely to win, then the office of Chief Justice of Nigeria ought to be filled by himself, a Yoruba man, especially as Chief Obafemi Awolowo was sure to lose the election.”

Udo Udoma published these lines in 2008, 28 years after Obafemi Awolowo’s keynote to the Commonwealth Law Conference in 1980. In that address, Chief Awolowo alleged that the appointment of Fatayi-Williams to the office of Chief Justice in 1979 came with an implicit bargain concerning the determination of the election petition of that year. He also claimed that days before the Supreme Court announced the decision on 26 September 1979, Chief Justice Atanda Fatayi-Williams leaked the decision of the Court to General Obasanjo who desired to be reassured that he could proceed with the inauguration date of 1 October 1979 as planned.

Nearly all the protagonists involved in this story are no longer alive and their stories are hidden away in books, whose existence most Nigerians do not know about. The only one alive, General Obasanjo, an otherwise prolific author, has not held forth on these issues. The full facts of what transpired may never be known publicly.

In 2008 and in 2019, judges who sat on controversial presidential election petitions in election years enjoyed quick judicial elevation from the parties in whose favour they decided. Also in 2019, a chief justice was sacked ostensibly because he could not be trusted to determine presidential election petitions in a predictable way in the manner that his would-be successor could. What seems clear is that since 1979, judicial appointments and decision-making in election petitions have always enjoyed a relationship underpinned by a whiff of quid pro quo.

Those interested in following the fate of the presidential election petitions whose consideration is ongoing in Abuja, Nigeria’s federal capital, may wish to remember that there are currently only thirteen serving Justices of the Supreme Court, which leaves the court with eight vacancies to be filled by a new government.

Politicians have learned to turn election dispute resolution into auditions for the shifting of judicial deck chairs. First, they rig elections in order to get the opportunity to rig the courts with judges ready to help them to validate rigged elections. That is the legacy of the unspoken antecedents of Awolowo v. Shagari.

A lawyer and a teacher, Odinkalu can be reached at [email protected]