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Tag: Justice Kutigi

  • Justice Kutigi and his judicial legacy

    In as much as I candidly appreciate encomiums passed, the various descriptions of life and times by several people of Hon Justice Idris Legbo Kutigi who was laid to rest on Wednesday October 24, 2018, I feel obliged to also give what I consider as an insider account about this erudite jurist who I simply describe as an epitome of judicial etiquette. I said an insider account because I have had the privilege of working as special assistant to the late revered jurist whilst he was the Chief Justice of Nigeria and for which I remain eternally grateful to God and the late Justice Idris Legbo Kutigi, because, but not for that I wouldn’t have been where I am today with all sense of humility.

    Justice Kutigi as he then was exude tough, stern and firm looking posture, but behind this disposition is a man of huge sense of humour. This one only get to discover when you move and relate closely with him. His lordship even laugh and laughs hilariously to a point of inducting one to laugh too. You won’t believe it until when one come aross him cracking jokes and teasing his own biological and non-biological children or close friends.

    He is unarguably one of the most detribalized jurists, a nationalist and patriot in every sense of the word. He relates mostly with respect to the content of a person, he knew nothing with discrimination of whatever nature. Generally, he likes to train and mentor legal minds irrespective of the person’s background, tribe or religion. This is just as he would want to inculcate attitude or culture of hard work, diligence or meticulousness in his lieutenants, children and people around him. He won’t leave for home until he finished all his work for the day, as it was not in his character to leave anything that ought to be done pending. Hence, while working with or for him, one needed to be conscious of choice of words to apply, dot your ‘i’s and cross your’t’s. Upon all, he was exceedingly a role model, a big team player, always wanting to carry everyone along. That was why he never had an axe to grind or been in rancor with any of his brother justice or justices at the Supreme Court bench.

    He exhibited the workaholic stature when he was appointed in 1976 the solicitor General and Permanent Secretary, North-Western State, and became the Attorney General and Commissioner for Justice, Niger State from 1976 to 1977, a position he held concurrently with the offices of the Solicitor – General and Permanent Secretary as well as that of Director of Public prosecution. He was fondly called by his colleagues in the Niger State Executive Council as “Three-in one”.

    Justice Kutigi introduced a number of judicial reforms on becoming the Chief Justice of Nigeria. He, it was who amended the 1979 Fundamental Human Enforcement Procedure Rules that later becomes Fundamental Rights (Enforcement Procedure) Rules 2009. This is largely known in the legal parlance as ‘’Kutigi Revolution’’. He amended and signed into force on November 11, 2009 and immediately made it effective from December 1, 2009.

    The enactment which he did pursuant to Section 46(3) of the 1999 Constitution (as amended) was a bold and radical step to tackle Human Rights abuses by deepening and strengthening canons of democratic practice in the country.

    The Rule is an improvement on what was obtainable under the Fundamental Rights (Enforcement Procedure) Rules 1979, which was marred by defects such as locus standi and unacceptability of public interest litigation. Hitherto, the principal means for enforcing human rights were the prerogative writs of Habeas Corpus, Certiorari, Mandamus and Prohibition. These were often found cumbersome, somewhat technical and lacking in the flexibility necessary for the proactive pursuit of human rights claims. The introduction of the 1979 FREP rules was aimed at bringing greater speed and dynamism to the enforcement of Fundamental rights in Nigeria.

    The FREP Rules 2009 was made in order to streamline and expedite the enforcement of fundamental rights in Nigeria and to provide solutions to myriads of problems associated with the Fundamental Rights (Enforcement Procedure) Rules, 1979 such as the necessity to obtain the leave of court by way of motion ex parte before the commencement of fundamental rights action. The FREP Rules, 2009 also allows lawyers and litigants to file their brief even if the applicant is detained. In other words, it is not necessary that the applicant must be physically present before the Commissioner for Oaths to swear to his statement or affidavit.

    Before the 2009 Rules, the procedure for the enforcement of Fundamental Rights in the High Courts required bringing up the action within a specified period of time from the occurrence of the breach of such rights, but under the 2009 Rules, specifically, Order III Rule I thereof, the limitation of the period of time has been done away with.

    Again, under Clause 3(f) of the Preamble to the 2009 FREP Rules, the court shall in a manner calculated to advance Nigerian democracy, good governance, human rights and culture pursue the speedy and efficient enforcement and realization of human rights.

    Justice Kutigi’s legacy will live on, not only in the tremendous contributions he made to national development but also in the FREP Rules. No narrative of the struggle for judicial activism in the protection of constitutional rights can be authentic or complete without a mention of his prodigious contribution to it.

    The FREP Rules 2009 fundamentally changed the landscape of enforcing constitutional rights in Nigeria. It simplified fundamental rights litigation, made it speedier, and created a separate, inexpensive filing-cost regime for human rights cases, thus ensuring that poverty was, as far as human rights cases go, is not a significant barrier to access to justice. The Rules also direct courts to ensure that international norms of human rights are applied in the resolution of domestic human rights claims. Litigants can now file fundamental rights enforcement actions, irrespective of the amounts claimed, by paying fees that do not exceed about N1000 in total.

    I can recall it was during his tenure in office as the Chief Justice of Nigeria and chairman of the National Judicial Council that the edifice that today stands as secretariat of the National Judicial Council was approved and constructed. Thus, repositioning the council for the task and challenges ahead which is the hallmark of extraordinary vision and uncommon leadership quality of the late jurist.

    Justice Kutigi became the Chief Justice of Nigeria on January 18, 2007 and held sway till December 31, 2009 when he attained mandatory retirement age of 70 years and retired. One can say without fear of contradiction that that period remains one of the most trying periods in the history of our judiciary. It was a period that the judiciary more than ever before took steps to restore public confidence, and the ultimate enthronement of the Rule of Law. It was a period the judiciary witnessed an unprecedented flow of cases that generated a lot of public interest, particularly election petition cases and a number of other equally sensitive constitutional matters.

    Of course, with the dint of hard work and sense of fairness, he alongside other justices of the Supreme Court were able to weather the storm, and equally helped in restoring the public confidence in the Judiciary.

    It seemed that at every turn in his life, by providence he faced a daunting task that ordinarily would have swept some people out of way. The way he was able to tackle such has relatively distinguished him as an outstanding judiciary administrator.  He has to his credit as the first and so far the only CJN who has the rare privilege of swearing in his successor in office as he was retiring on December 30, 2009, in the person of Hon. Justice Aloysius Iyorgyer Katsina-Alu (GCON) of blessed memory. Conventionally, the President and Commander-in-Chief of the Armed Forces of the Federal Republic of Nigeria swears in the Chief Justice, but President Umaru Musa Yar’Adua was not available on this occasion due to ill health.

    In view of the controversy that trailed his action of swearing in his successor, Justice Kutigi justified his initiative or deed as follows. ‘’For the first time in the history of this country, the Chief Justice of Nigeria has sworn-in the in-coming. It is the first time (clapping). That it is the first time is not the fault of anybody. This is because the law has always been there. The swearing-in of the CJN is either done by Mr President or the outgoing or retiring Chief Justice. Now the occasion arises to perform the function which I have just done. I am aware that this has generated a lot of commentaries and controversies from people who were supposed to know.

    ‘’The law is there. There is nothing new. If you look at the Oath Act 2004, you will see the provision there where the CJN, justices of the Supreme Court, President of the Court of Appeal and the justices of the Court of Appeal, among others, are all listed in a column, all of them, according to the Act are to be sworn in by the President or the Chief Justice of Nigeria. Kutigi justifies action.

    ‘’The provision is there and it has always been there. That the outgoing CJN has never done it does not make it wrong. The law is clear. If you also look at the 1999 Constitution, it also makes it clear: that the person who has the responsibility of swearing-in the new CJN is the Chief Justice of Nigeria. What I am saying is that there is nothing new about it. The law is there but for the first time we are just using it today. And, let me say that I will be attaining the age of 70, Insa Allahu, by midnight today’’.

    Barely five years after he left the Supreme Court Bench, Justice Kutigi resurfaced in the public domain once again as ex-President Goodluck Jonathan appointed him in 2014 chairman of the Constitutional Conference. On August 21, 2014, Justice Kutigi noted in his speech while submitting 2014 National Conference Report to ex-President Jonathan ‘’when 494 Nigerians are assembled to address the fears, disappointments, aspirations and hopes which have accumulated over one hundred years, it is only to be expected that the debates would be robust; and indeed the debates were robust. It was only to be expected that tempers would fly; and tempers did fly.

    ‘’We did not try to ignore or bury our differences. We addressed these differences while respecting the dignity of those holding these differences and sought to construct solutions which would become building blocks for a just and stable nation’’, Justice Kutigi stated.

    In his own remark, ex-President Jonathan said, ‘’on behalf of all Nigerians, let me thank you most sincerely for your hard work. Your tireless efforts aimed at coming up with recommendations to chart a path of peaceful coexistence, sustainable development, justice and progress as we march into our second centenary shall not be in vain’’.

    In the valedictory speech he delivered on January 20, 2010, Justice Kutigi said it all, that ‘’it has always been my prayer since l assumed the office of the Chief Justice of Nigeria that I should leave behind a Judiciary better than the one I met. I thank Almighty Allah for our modest contribution. I am positive that the Judiciary of this great country is one and would remain one of the best judiciaries in the world.

    ‘’I cannot end this address without expressing my gratitude to my brother Justices of the Supreme Court for their support, cooperation and understanding during the period I worked with them. We certainly have shared periods of challenges and difficulties together. You would agree with me that there were inconveniences and sacrifices that we have all encountered and made in order to salvage the name and good image of the Judiciary. You have indeed been very supportive. Over the years we have worked as a team to achieve the set goals. As I retire and leave the bench, I wish you my learned brothers, Allah’s guidance and protection’’.

    This reminds one of immortal words of Stephen Grellet, a prominent French-born American Quaker missionary; “I shall pass through this world but once. Any good therefore that I can do or any kindness that I can show to any human being, let me do it now. Let me not defer or neglect it, for I shall not pass this way again’’

    Adieu! Baba. May Allah Have Mercy on your soul and grant you eternal rest in Al-Janat Firdaus.

     

    • Saleh is National Judicial Council (NJC) Executive Secretary
  • Structural contingency and human agency

    Structural contingency and human agency

    As Justice Kutigi’s gavel brought the Jonathan constitutional conference to an abrupt conclusion, little would the eminent and distinguished jurist realise that there is a greater array of forces at play in this matter than the motley assemblage he had just dispersed. There is a touch of historical irony about all this in the sense that in the heat of human contention, a historical actor cannot see himself the way history sees him.

    An otherwise decent and fair-minded jurist, Kutigi was called upon to play the role of a political titan in order to midwife a new order for Nigeria against the run of play and the play of structural contingency. It was a role for which he was signally and historically ill-equipped. But he has wisely refused to play the political messiah, choosing to play along with avuncular relish.

    The witty Nupe man knows one or two things about bucolic wisdom. Those who are going to sell a tiger and those who are hoping to buy it must negotiate from a safe distance. Kutigi has truly and thoroughly enjoyed himself, passing the ball and the bait back to where it belongs. When the history of stumbling nations is written, it shall be said that the famed jurist and his colleagues played their part.

    The cost to the nation may be astronomical and prohibitive, but it is small beer compared to other fruitless chicaneries that have held the nation spellbound in the past. The Babangida Transition programme gulped a whole forty billion naira before it dissolved in a historic fiasco. The Obasanjo  Political Dialogue was equally prohibitive and given the underhand bribery and cajolery that characterized that exercise, nobody is ever going to know the cost. And it is morning yet on creation day.

    The Jonathan Constitutional Conference has ended as a damp squib, unable to touch the major structural disfigurations that afflict and hobble the nation. The major fault lines of the nation have surfaced once again in hideous relief. As this column has repeatedly predicted, nothing will come out of nothing. The conference was nothing but a diversionary ploy conceived as a crude weapon of consensus forgery but ending as a great charade.

    The confreres need to ask themselves why the nation is still roiling in monumental crisis with the ongoing armed critique of the state and nation by the Boko Haram insurgents assuming a national complexion, with electoral abracadabra in the air in Osun State and with a gale of impeachments turning many state assemblies into  a theatre of warfare. Surely, it takes more than additional state creations to address the issues.

    As this column has noted, Jonathan, before the conference, had two major political jokers in his possession. He could have used the conference to engineer a historic stalemate and chaos which would eventuate in a state of emergency warranting the continuation of his tenure. But judging from the way and manner the northern delegates steamrolled his core constituencies and their nominal allies forcing them into precipitate retreat each time they tried to advance, it should be obvious to the president that he has formidable adversaries who are past masters of attrition.

    Yet there is a paradoxical complicity of opposing forces in all this which speaks volumes for the impossible contradictions that beset Nigeria. While the old north wants the old structural status quo to continue, irrespective of the damage to the political fabric of the nation, the Niger Delta emergent hegemonists want the new political status quo to continue irrespective of the monumental costs of presidential incompetence to the nation. Since this is not about genuinely moving the nation forward but about maintaining privileges and advantages, there can be no meeting of mind.

    With their eye on the main centre as an avenue for primitive accumulation and an excellent weapon for launching punitive expeditions against the rest of the nation, neither Jonathan and his cohorts nor the northern power Mafiosi are interested in a radical restructuring of the nation which will lead to new fiscal equations. The major problem between the two factions is who gets what and when.

    While the northern power merchants insist that the north has been shut out of the power loop for too long and that Jonathan should leave very soon or at most at the next election, Jonathan’s supporters are insisting that he must stay put irrespective of actual performance in office because the north had in the past held on to power for too long.

    With nothing to play for, the usually visionary and proactive Yoruba traditional powerbrokers have been reduced to political contractors and wizards of the Australian season of political pools betting. These things cannot be settled at a conference. They can only be resolved by elite pacting or an outright showdown which can only encourage extra-constitutional forces always waiting in the wings.

    This is why one must feel very sorry for the few patriots who went to the conference thinking that it was a genuine call for the structural re-engineering of the nation. They have failed to factor in the role of structural contingency in human agency. Some changes are simply impossible in certain circumstances.

    Now that the conference has come and gone without making a dent on Nigeria’s numerous ailments, Jonathan has only one major joker left, which is the electoral subjugation of the nation by hook or crook without minding whose ox is gored. Even before the conference terminated in an abrupt and undignified manner, this strategy appears to have been operationalised and is already gathering fearful momentum.

    Anyone in doubt about the arrival of Jonathan’s juggernaut only have to reflect on the events of the last few weeks: the complete militarization of the election in Ekiti State in a way that suggests that the people behind this heist harbour no illusion about justice and fair play; the electoral larceny being cooked up in Osun; and, of course, the gale of impeachments which seeks to alter the political equation in states considered unfriendly or even hostile to Jonathan.

    Such has been the psychotic daring behind these political offensives and their sheer disregard for the cultural and political sensitivities of the nation that one cannot but conclude that Jonathan is determined to be the last president of Nigeria as we know it. Given the ongoing political rebellion in the north of the country and the growing economic distemper in the land, any other violent uprising of a cultural or ethnic nature may tip the country in the wrong direction.

    Jonathan may yet get his wish in any of the areas where the government is currently fishing for trouble. Nasarawa is already astir. Al-Makura is not a”Baba Mangoro” who is completely disconnected from the populace. Given the active cultural volcano in the state which simmering just below the surface and the capacity of the Ombaatse cult for maximum mayhem, one would have thought that Jonathan and his handlers would be more discerning in their choice of confrontation.

    This must now bring us to the central thesis of this intervention which is the play of forces between human agency and structural contingency. Perhaps in the end, nothing can beat this column’s description of Jonathan as a boy-emperor handed a toy rigged with explosives. Given Jonathan’s baffling lack of elementary state wisdom and his serial breach of the complex cultural sensitivities and contending political realities of the nation, one must marvel at the ironic mockery of national fate and the convergence between human agency and structural contingency which have made a Jonathan presidency an inevitability at this critical and very crucial period in Nigeria’s history.

    To perform this conceptual shifting of gears is to leave Jonathan momentarily out of the equation and see whether we can come up with some startling insights about the state of the Nigerian state.  Structural contingency is the constellation of social, political and historical forces at any point in the life of any political society.  Human agency is the capacity of humanity to determine their destiny through both collective and individual exertion.

    It is obvious from this that nobody can act in a vacuum. As it has been famously observed by Karl Marx, men make history but not under the circumstances of their choice. In other words, human agency is conditioned and in the last instance determined by structural contingency. It is only in extreme cases of extraordinary collective heroism that certain societies manage to transcend the material basis of existence to leapfrog into a new dawn.

    If we pursue this line of thought, we may come to the startling conclusion about the grim and chilling inevitability of a Jonathan presidency at this particular point in our history which is a judicious reflection of the balance of force between agency and structural contingency. Of course, it can be argued that Jonathan had been imposed on the nation by General Obasanjo. But that is only to confirm that we were powerless in resisting the imposition in the first instance.

    Going further back, it can also be said that even Obasanjo himself is a product of our powerlessness, having been imposed on the nation by a political mafia of northern generals to watch their back and protect their interests. By this arrangement, the electors choose the winning candidate while the electorate rubberstamp the decision in “elections”.

    The only time in history when the Nigerian multitude tried to act as both electors and electorate it ended in a historic melee with the electors stepping in to vaporize and abolish both the electorate and the putative winner. That was the June 12 1993 presidential election which threw up Abiola as winner and eventual martyr of the Nigerian military state.

    The beauty of it all is that there seems to be some logic in sheer illogicality and a fundamental order to disorder. Even when it appears to be stuck in a permanent groove, there are variables to structural contingency and some variations to human agency even when it appears to be rooted in powerlessness and paralysis of the will. In the Nigerian case, there may well be a divine instrumentality to national dysfunction.

    The northern power masters put Obasanjo there to protect their interest but Obasanjo had other ideas and swiftly went after them. Obasanjo put Jonathan there probably as a clueless rookie to be manipulated at will. But it should be obvious that Jonathan is anything but anybody’s monkey marionette. In act of filial gratitude, he has gone after the political jugular of both Obasanjo and the northern feudal barons, even as he fine tunes how to decimate the dominant progressive tendency in the South West.

    It is a war of all against all which showcases an inchoate and incoherent state formation that has proved incapable of an organic transformation from a national ruling class to a nationalist ruling class almost sixty years after independence. Unfortunately and given the structural contingency, the current opposition cannot fill this vacuum as long as it remains disarticulated from forces of civil society and other potent mass organisations. It is a loyal opposition; a national coalition rather than a nationalist formation.

    We are faced with a classic political and historic conundrum. While it appears virtually impossible to move the country forward given the current structural constraints and as the failed Jonathan Constitutional Conference has shown, there is absolutely nothing stopping the country from further regressing. Yet any further regression either at the economic, political or religious level risks putting the continued existence of the nation in grave doubt and jeopardy.

    All of this, including the dramatic ascension of Jonathan and its deleterious effect on our collective existence, may represent the final working out of some deep historical and political contradictions. Like a captive audience in a horror movie, let us ask ourselves what we happen to be doing in the cinema house in the first instance.

  • Confab Chairman Kutigi loses wife

    …Plenary adjourns till Monday

    Proceedings at the National Conference have been adjourned till Monday next week.

    The development followed the death of the wife of the Chairman, Justice Idris Kutigi, Maryam.

    She was aged 70 years.

    The Vice Chairman of the Conference, Prof Bolaji Akinyemi, made the announcement on resumption of plenary on Wednesday morning.

    According to him, the deceased had been in hospital for a while which did not deter the Chairman, a former Chief Justice of Nigeria (CJN) from his obligations at the National Conference.

    Delegates were informed that prayers would be offered for the repose of the deceased at the National Mosque after which she would be interred.

     

     

  • FG extends national confab by one month

    The Federal Government has granted one month extension for the ongoing national confab, its chairman, Justice Idris Kutigi, said on Thursday.

    Details later…

  • Good choice

    Good choice

    The confab could not have a better chairman than Justice Kutigi

    For an alleged National Conference whose intentions have been mired in doubt even before it is inaugurated, the Federal Government’s announcement that it has appointed a former Chief Justice of Nigeria (CJN), Justice Idris Legbo Kutigi, as chairman, is a most welcome development.

    Even in a pantheon of eminent jurists distinguished by their scholarship, commitment and integrity, Justice Kutigi stands out. His tenure as CJN between January 2007 and December 30, 2009 was built on a 15-year stint as a Justice of the Supreme Court, and was devoid of controversy or scandal. His personal life, within and outside public office, has been characterised by the modesty and decorum that is so sadly lacking in much of the Nigerian elite.

    President Goodluck Jonathan is to be commended for the choice of Justice Kutigi. If there is one individual whose very presence can bring a much-needed credibility to bear upon the forthcoming conference, he is that person. The selection of such an indisputably honest personality as chairman of the National Conference is critical to countering the dubious intentions and bad faith in which it is steeped.

    Justice Kutigi has the onerous task of coordinating an unwieldy mass of nearly 500 delegates who will be participating with a variety of objectives and purposes, some of which are not as altruistic as they may seem. A significant proportion of the delegates are politicians of the old school who have forgotten nothing and learnt nothing. To make matters even more difficult, the conference is taking place against the background of an increasingly horrific militant insurgency in north-eastern Nigeria which has polarised the country’s ethnic, political and religious groupings like never before. In addition, there is also the poisonous atmosphere generated by the highly-charged politics of the run-up to the 2015 general elections.

    The National Conference chairman would do well to learn from the experiences of his predecessors like Justice Nikki Tobi, who was Chairman of the National Political Reform Conference (NPRC) set up by former President Olusegun Obasanjo in 2005. Like the National Conference, it was beset by widespread doubts over its legitimacy and its effectiveness, not to mention the less-than-honourable objectives of those who established it. The NPRC was characterised by quarrelling instead of debate; it featured rhetoric rather than reason; compromise was overtaken by manipulation. In the end, it was no surprise that the whole contraption was rejected by everyone, including those who had ostensibly promoted it.

    If the National Conference is to avoid this fate, Justice Kutigi will have to lead by his own distinguished example of intellection and sobriety. Many of the delegates are seasoned politicians, veterans of the dark arts of horse-trading, double-speak and bombast. They will do their best to make the conference serve their own narrow ends; it is crucial that they are denied the opportunity to achieve this ignoble aim. One way to do this is to establish comprehensive procedures governing general comportment and behaviour, and prescribing the sanctions that will be imposed for any infraction.

    Justice Kutigi must ensure that the various committees which will be set up to look at various topics are made to focus squarely on their tasks and on the terms of reference guiding the conference itself. He must not allow the conference to be derailed by particular issues, no matter how controversial they may seem. In this regard, he must be especially careful about perennial hot-button issues like resource control, rotational presidency and tenure. If the delegates use such subjects to turn the National Conference into a shouting-match, very little will be achieved.

    As chairman, Justice Kutigi will have to display a finely-tuned combination of rigidity and flexibility. He must be the former when confronted with those who may wish to manipulate the conference to serve selfish desires or primordial yearnings, and he must be the latter when compromise appears to be the best option.

    The next three months will be crucial to the life of this nation. For the duration of that period, Justice Kutigi is likely to become Nigeria’s most important person. It will certainly not be easy for him. Every word he utters will be scrutinised; every gesture he makes will be studied. He will be taken to task for the things he said, and criticised for those he did not. He will be blamed for the excesses of delegates, but will face criticism when he tries to rein in those excesses.

    However, such is his towering stature as a jurist of unimpeachable integrity that there is widespread confidence in his ability to ride the coming storm and ensure that the country is presented with an outcome that will contribute significantly to its never-ending search for justice, equity and development. We have our reservations on the conference, but we can only hope that something good will come out of Nazareth this time around, with a distinguished jurist in control.