How did we arrive at this point where the judiciary, or at least some sections of it, consider it a proper exercise of their remit to restrain the police or law enforcement from interrogating, arresting, or detaining a suspect in a criminal matter, or taking the preliminary steps on which a prosecution must be grounded?
I ask this question in light of the ongoing standoff between Yahaya Bello, the fugitive most recently governor of Kogi, and the EFCC, which sought to question him on charges that he bilked the state’s exchequer of some N80 billion in the eight years he held that office.
Yahaya Bello rushed to court to purchase an order restraining the EFCC from performing its constitutional duties, though not before going into hiding. At this writing, he is holed up in parts unknown.
I used the word purchase advisedly, and I use it in all its connotations and denotations, not unmindful of what the writer Humbert Wolfe (1885 – 1940) said of the British journalist of his time.
You cannot hope to bribe or twist, thank God, the British journalist, he noted sardonically, adding:
But seeing what the man will do Unbribed.
There is no occasion to.
There is some redemption in this. If supplicants know what Nigerian journalists, judges, and other meditators in the socio-political process will do unbribed, there would seem to be no occasion to do so. If they know that they can achieve the same outcome without bribing anyone, why take the trouble?
To get away from the rhetoric and get back to the concrete business of the flight from justice and from reckoning of the heedless and power-besotted Yahaya Bello: the court, knowing what he would do if it denied his quest, dutifully assented.
The EFCC appealed but kept the heat on Yahaya Bello. Out of the blues, Yahaya became a convert to and a fervent apostle of the rule of law, especially in practice. So, he headed to the court again in a bid to arraign the EFCC for disobeying the court’s order, convert to the rule of law and its primacy.
There is compound irony here. Yahaya Bello, taking cover behind a court injunction of dubious value, makes it impossible for law enforcement to serve him with court papers. Yahaya Bello removes himself from the reach of the law, and asks the court to commit the EFCC for contempt.
For sheer temerity, it would be hard to beat this, which meets the definition chutzpah.
Chutzpah, remember, is when a person who killed his parents begs the trial judge to be lenient because he is an orphan.
A different court that refused to be suborned has denied Yahaya Bello’s request, and the standoff continues between a resolute EFCC and an inventive fugitive.
I return now, pardon the long digression, to the question I posed at the beginning: How did we arrive at the point where the courts can lend their authority and majesty to block law enforcement from carrying out their legitimate duties, absent a breach of due process duly established, and absent a showing of probable cause?
Its genesis is usually traced to the time of Peter Odili, governor of Rivers State, whose two-term tenure ended in 2007. The EFCC moved to arrest him in the investigation of charges that he diverted a humongous amount of public funds to build and equip a private teaching hospital and medical school.
They say his wife, a judge of the appellate court at the time, played a part in fashioning his response: Seek a perpetual order to restrain the EFCC and the police and any of their agents from arresting him and, it must be supposed, interfering with his enjoyment of his well-earned peace of mind.
The injunction stands to this day. Curiously, it was never appealed. Was that part of the bargain negotiated in the dark and dank recesses of the judiciary? We may never know.
What we know is that the implications are far-reaching. From restraining the police and law enforcement from carrying out their lawful duties, it is but several small steps away from restraining the courts from functioning.
With Odili as precedent, the journey has begun here in earnest. It remains to imagine or contemplate its probable course.
One day, the dispossessed could seek an injunction restraining the Fire Service from combating a conflagration in the luxury estate in the neighbourhood on the ground that it was built with stolen funds.
A litigant could seek an injunction blocking the establishment of new universities because the existing ones are ill-equipped, poorly funded, cater only to the elite, and stand to fall into utter decrepitude if scarce funds were to be used to build to recreate them instead of refurbishing those on the ground.
A case like that could drag on for years, with untold consequences for higher education in general and the educational industries in particular.
It could get worse.
One day, Boko Haram and its affiliates will seek a permanent court injunction restraining the government as well as voluntary agencies from imparting Western education in any guise or disguise in any institution, saying that it corrupts the mind and the body politic. If its forum shopping is halfway diligent, it will find a court willing to grant its prayer.
Being a creation of the law, the best authorities say, the courts positively must obey the injunction restraining the government. If, by act or omission, the ruling is not appealed, it becomes the law of the land and remains as such until and unless it is set aside by a superior court.
The case could go all the way to the Supreme Court and drag on for years, given the interminable delays the judicial system itself condones. And while all this is going on, who can tell what might happen to the education industries?
Obtaining justice at the level of interpersonal relations will also be fraught. It is not hard to imagine the usual people disinterring the musty archives and presenting as a binding precedent a court ruling from the Babandiga era, in which it was implied that a father could not bring a wrongful-death suit against the police when they killed only his litigious self.
That day cannot be long in coming when, finally, the long-suffering United Litigants will petition the courts for an injunction restraining the National Assembly or a State Assembly in perpetuity from enacting laws designed ostensibly to promote good governance in Nigeria, whereas they only advance the good fortunes of the lawmakers and their fellow-travellers.
Leaving nothing to chance, United Litigants will, through the instrumentality of the same petition, seek to have declared null and void and of no consequences whatsoever any law or measure purported to have been enacted by the bodies aforementioned or their proxies.
For good measure, they will ask the courts to commit to prison the President, the governor or any official who purports to sign into law any such measure purporting to issue from any source whatsoever.
The foregoing has sought to explore only a few of the issues that are likely to surface, mutatis mutandis, from the ruling in Odili. The surprise is that they have not yet surfaced.
The possibilities are, of course, endless.
