The reign of pillow talk law

“Our politicians are no longer content with hiring Senior Advocates of Nigeria (SANs), they also have their own judges.” Olusegun Adeniyi, When Judges Imperil Democracy, (January 4, 2018)

When he announced himself to the world on 1 January 1984 as military Head of State and leader of the military coup that had just overthrown Alhaji Shehu Shagari, Nigeria’s then-elected president, Muhammadu Buhari, a major-general, cited as the reason for the coup the fact that the politicians had chosen to “circumvent most of the checks and balances in the constitution”, complaining that “the premium on political power became so exceedingly high that political contestants regarded victory at elections as a matter of life and death struggle and were determined to capture and retain power by all means”.

To unravel how the electoral process was derailed, General Buhari empanelled a judicial commission of inquiry into the Federal Electoral Commission, (FEDECO), as Nigeria’s electoral umpire was then known. Bolarinwa Babalakin, a judge who served with considerable distinction at the highest levels of Nigeria’s courts, chaired the inquiry, which outlasted the Buhari regime and reported in November 1986 to Buhari’s nemesis, Ibrahim Babangida.

In addition to the presidential election, seven governorship contests out of 19 also ended up before the election petition tribunals in 1983. What transpired thereafter in the election petitions received considerable attention in the report of the Babalakin Commission of Inquiry. The report observed that “of all the elections ever held in this country, none put the judiciary as much on trial as the 1983 elections.” The outcomes were a source of considerable “shock and dismay” to the public, many of whom took the view that “the verdicts in a number of instances constituted a rape of democracy perpetrated through the law courts. Allegations of corruption were freely made.” In many cases, tribunals invented unfathomable technicalities to justify the unjustifiable.

Lawyers will claim that the ways of the law are too abstruse for the un-learned. This patronizing defensiveness, however, is no excuse or justification for habituating the public to a diet of judicial scandal. Anyway, the voices of complaint have long ceased to be confined to the presumptively un-learned. Even the most eminent among the learned have since raised the decibels of consternation at the happenings in Nigeria’s law courts.

Looking back at judicial roles in the 2003 and 2007 elections, Obi Nwabueze, Nigeria’s best-known professor of public law and currently the country’s most senior living Senior Advocate of Nigeria (SAN), accused the Supreme Court of playing a “discreditable part” in manufacturing a jurisprudence of electoral impunity, lamenting the failure by the “Court to appreciate that the question of who should rule Nigeria is not one to be decided by a perverse and narrow legalism, by the technicalities of the rules of evidence, practice, and procedure and by considerations of expediency.”

Nigeria’s vocation of the law fashions itself after the idea that the law is what the judges decide. But what this means is that the vocation of judging is an extraordinary public trust that should be reserved only for persons of manifest integrity and learning.

This used to be the case in Nigeria at least as a matter of practice. The quality of the Nigerian judiciary used to be the envy of the Commonwealth and beyond. The country exported judicial expertise around Africa and the Commonwealth.

However, Nigeria’s constitution contains a perilous omission: it does not require appointees to judicial office of a court of record to be persons of integrity. The only mandatory requirement in the constitution is merely that candidates for judicial office should have attained a minimum number of years as lawyers. There are no personal, professional or civic integrity standards. In the absence of such requirements, the judiciary has become a billboard for advertising some of the worst attributes of the Nigerian condition. Judging in Nigeria is now like a family heirloom that children inherit from their parents or a sexually transmitted condition that spouses inseminate one another with.

In hindsight, the situation reported by the Babalakin Commission in 1986 now reads very much like choir practice. Even then, standards existed. When he was nominated to sit on the Supreme Court panel in the Anambra State governorship election petition in 1983, Anthony Aniagolu, then a Justice of the Supreme Court, recused himself. He knew one of the parties in the case too well.

Two decades after the Babalakin report, over 86% of the offices contested in the 2007 elections ended up before the election petition tribunals. It was a development that led the Economist to label Nigeria as a “democracy by court order”.

With elections reduced to a rat race for judicial votes, Nigeria’s judges retrenched citizens from their perch as the source of legitimacy for political power, and the politicians discovered that while it remains useful to rent a lawyer, it is infinitely better to own a judge or more. As a consequence, the effective venue of judicial decision-making relocated from the courtroom to the kitchen table and to pillow talk.

Last week, out-going Senator, Adamu Bulkachuwa, whose wife, Zainab, is the penultimate president of Nigeria’s Court of Appeal, took the opportunity of his valedictory remarks in the upper chamber to thank his “wife, whose freedom and independence [he] encroached upon while (she) was in office, and she has been very tolerant and accepted my encroachment and extended her help to my colleagues”.

The import of Adamu Bulkachuwa’s diction and words was clear. Premium Times remarked in response that “compromise of court decisions is generally believed to be a recurrent happening in Nigeria, but confession to it by actors is rare”.

By 2019, the Court of Appeal had no recollection of the example laid by Anthony Aniagolu in 1983. Zainab Bulkachuwa, then the President of the Court of Appeal, insisted on sitting on the presidential election petition tribunal despite the fact that her husband, the afore-named Adamu, was himself elected to the senate on the same party as the president whose election was in dispute. Her son, Aliyu, had also sought the office of state governor on the platform of the same party.

The Court of Appeal dismissed the application requesting her to recuse herself from the proceedings, claiming that “enough materials have not been placed” before it to show a likelihood of bias on her part. According to the court, “the fact that she is the mother and wife of the APC members is not enough to require that she recuse herself.” This ruling did not pretend to be interested in passing the smell test and the court knew it. In the end, public opinion forced Zainab Bulkachuwa from the proceedings but the damage had been done.

In an interview she granted on her retirement from the judiciary the following year, Zainab Bulkachuwa claimed rather incredulously that “when that issue of the presidential election petition panel came up, I have even forgotten that my husband is a politician.” She had also asserted in another offering that “politics is a no-go area in the house.” Now we know that Chez Bulkachuwa was the place where pillow-talk settled who won and lost elections.

Adamu Bulkachuwa found himself in a unique position of enjoying spousal privilege and parliamentary privilege on the wings of vicarious judicial privilege. A devout Muslim, he appeared to have been inexplicably overwhelmed by an urge to do something that comes naturally only to Christians of the Roman Catholic persuasion: confession. He alone can say whether his confession was penitential or hubristic.

Unlike Adamu Bulkachuwa, however, the National Judicial Council (NJC), which met 48 hours after the confession broke, could see no evil or hear any. Instead, the president of the Nigerian Bar Association (NBA) decided to gratify the eloquent complicity of the NJC with a statement that was both bizarre and gratuitous.

The only statement that has come out of the NJC meeting instead was about the allocation of high judicial appointments. Not for the first time, the list featured some prominent nominees defined by credentialled propinquities, confirming the notion that pillow-talk and kitchen-table are currently the ascendant sources of law in Nigeria, if not supreme. Sadly, this does injustice to the diminishing cast of honest judges in the country. They still exist and the NJC could do more to stand up for them.

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