Justice Kudirat Kekere-Ekun, who assumes office as the second female Chief Justice of Nigeria (CJN) and the 23rd, comes with broad experience that cuts across the judicial strata.
She joined the Bench as a Senior Magistrate Grade II in the Lagos State Judiciary in December 1989, where she served for seven years before she was appointed a Judge of the High Court of Lagos State in July 1996.
She sat for eight years and was elevated to the Court of Appeal on September 22, 2004.
For nine years, she served in five divisions of the Court of Appeal, some as presiding justice, until her elevation to the Supreme Court on June 8, 2013.
Her swearing-in yesterday as the CJN takes her to the pinnacle of her career.
A Senior Advocate of Nigeria (SAN), Seun Ajayi, believes she is well-placed to make a difference.
“She’s coming in with over three decades of experience, and I believe she will add value to the Bench and the legal profession.”
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What SANs said about her
The judiciary will no doubt witness significant reforms under Justice Kekere-Ekun, who received her legal education in Nigeria and overseas and has seen how it is done in other jurisdictions.
Born in Lagos on May 7, 1958, she obtained her LL.B in 1980 from the University of Lagos and LL.M from the London School of Economics and Political Science in November 1983.
A Senior Advocate of Nigeria (SAN), Wahab Shittu, said about her: “Justice Kekere-Ekun is generally acknowledged as a serious-minded, disciplined, focused, honest, integrity-driven and highly respected judicial officer.
“His lordship rarely intervenes in the conduct of judicial proceedings and betrays no emotions but is highly focused on the theory of justice.
“Generally adjudged incorruptible and decent, His lordship commands the respect of the rank and file on account of carriage, dignity and professional honour.
“His lordship is respected for knowledge, learning and character. His lordship always brings to the conduct of proceedings calmness, simplicity, candour and commitment to professional standards and high discipline.
“His lordship is both a delight and treasure in carriage and disposition within and outside courtroom proceedings.”
Another SAN, Toyin Bashorun, said of her: “She is easily my favourite female Justice in the Supreme Court, apart from former Justice Amina Augie, who taught me the Law of Evidence at the Nigerian Law School.
“I met My Lord (Kekere-Ekun) very early in my life as her late dad was my late grandaunt’s landlord at Abiona Close in Surulere. She was then a young lawyer whom I admired a lot.
“I have always known her to be focused and hardworking, hence my great admiration of her.
“She handles the law proficiently like a sculptor and quite precisely too.
“Only recently in the case of Yusuf Abdul Kareem vs. FRN (2022), my Lord in her lead judgement reached a swift and precise decision, which allowed an accused person who had been wrongly incarcerated for over 10 years to be set free immediately without wasting more time.
“Even though she is a Lady of talents and candour, Madam Justice will never hesitate to reprimand any counsel (big, mighty or small) who is out of line, either on the Bench or outside the courtroom.
“She has been a woman of integrity for as long as I can remember.
“Nigeria is blessed to have this erudite jurist at her apex court at this time in her history.”
What do her verdicts say about her?
From her verdicts, it is difficult to pin her on the activist or conservative class of judges. Some, though, may view her as more of an activist than a conservative.
In the case of Yusuf Abdul Kareem vs. FRN (2022), she held that an accused person who had been wrongly incarcerated for over 10 years ought to be set free without further delay. A more conservative judge may have given the state the benefit of more time to continue with the trial.
Justice Kekere-Ekun is not afraid to render what may be considered unpopular verdicts.
It was she who wrote the lead judgment in which the ban on hijab by Lagos State was declared discriminatory against Muslim students.
The Lagos State Government had banned the hijab, arguing that it was not part of the approved school uniform for students.
Muslim students filed a suit on May 27, 2015, asking the court to declare the ban as a violation of their rights to freedom of thought, religion and education.
Justice Modupe Onyeabor of an Ikeja High Court on October 17, 2014, dismissed the suit, holding that the prohibition was not discriminatory.
Dissatisfied, the students urged the appellate court to set aside the judgment and protect their constitutional rights.
A five-man special appellate court panel, presided by Justice A.B. Gumel, on July 21, 2016, overruled the high court and held that the use of hijab was not discriminatory.
The Lagos State Government in February 2017 approached the Supreme Court to challenge the verdict but met a brick wall in Justice Kekere-Ekun, who affirmed the Court of Appeal judgment despite the surrounding controversy.
The Imo governorship judgment
Justice Kekere-Ekun wrote the judgment that confirmed Hope Uzodinma winner of the March 9, 2019 governorship election in Imo State.
It was controversial as not a few Nigerians wondered how someone who came fourth could replace the person who came first in an election in which Emeka Ihedioha of the Peoples Democratic Party (PDP) was declared winner.
But, in the unanimous judgment of the seven-member panel, Justice Kekere-Ekun held that results in 388 polling units were unlawfully excluded during result collation.
According to her, when the excluded results were added, it meant that Uzodinma polled a majority of the lawful votes cast and ought to have been declared the winner by the Independent National Electoral Commission (INEC).
The Supreme Court, therefore, voided Ihedioha’s declaration and ordered that the Certificate of Return wrongly issued to him be immediately withdrawn and a fresh one issued to Uzodinma.
“It is thereby ordered that the appellant’s votes from 388 polling units unlawfully excluded from the appellant vote declared shall be added and that the first respondent, Emeka Ihedioha, was not duly elected by a majority of lawful votes cast at the said election,” Justice Kekere-Ekun held, with her colleagues concurring.
She added: “I agree with the learned counsel for the appellants that the lower courts misconstrued their case. The issue in contention was whether the results for 318 polling units were unlawfully excluded from the collated results.
“The documents were tendered to prove the exclusion as pleaded by the appellants and not whether the election held in the polling units, in which case, the polling agents would have been called.
“The majority judgment of the lower court, affirming the judgment of the governorship election tribunal, is hereby set aside.
“It is hereby declared that votes due to the appellants, that is, Senator Hope Uzodinma and the All Progressives Congress, from the 388 polling units, were wrongly excluded from the scores ascribed to the appellants.
“It is hereby ordered that the appellants’ votes from the 388 polling units, unlawfully excluded from the appellants’ scores declare, shall be added to the results earlier declared by the third respondent (INEC).
“It is hereby declared that the first respondent, Right Honourable Emeka Ihedioha, was not duly elected by a majority of lawful votes cast at the said election. His return as the elected governor of Imo State is hereby declared null and void and is accordingly set aside.
“It is hereby declared that the first appellant, Senator Hope Uzodinma, polled the majority lawful votes cast at the governorship election held in Imo State on 9th March 2019 and satisfied the mandatory constitutional threshold and spread across the state.”
Justice Kekere-Ekun was heavily criticised in some quarters, with some saying the Supreme Court occasioned a miscarriage of justice.
The PDP unsuccessfully tried to have the judgment reversed. It was even rumoured that Justice Kekere-Ekun was denied U.S visa as a consequence, although this could not be independently verified.
But there were those who said the verdict was unassailable.
A legal expert, Kenneth Ikonne, described it as a “painful but legally correct verdict” and that Ihedioha’s legal team made a “fatal” error.
He recalled that results from more than 350 polling units, signed by INEC presiding officers, which gave Uzodinma an unassailable lead, were rejected by ward collation officers, who had no power in law to cancel or reject them.
Ikonne said the law was settled that neither collation officers nor a returning officer has the power in law to exclude a polling unit result duly signed by the presiding officer, except the tribunal.
“The backbreaking and fatal error made by Ihedioha’s legal team was in not filing a cross-petition fiercely challenging the integrity of the suspect polling unit results upon which Uzodinma was relying and praying the election tribunal to formally nullify the said results.
“Without a cross-petition, none of the grounds under section 138 (1) of the Electoral Act for questioning the elections conducted in those polling units in which Uzodinma ‘won’ could have been competently raised by Governor Ihedioha in his defence to Uzodinma’s petition.
“This was the ratio decidendi of the old Court of Appeal decision in IDRIS V. A.N.P.P. (2008)8 NWLR(PT.1088) Page 1.”
Citing several legal authorities, Ikonne said without a cross-petition praying for the nullification of those results, the law forbade Ihedioha as respondent from raising the issue of the alleged serial corrupt practices and irregularities marring the results, in a mere statement of defence.
“Ihedioha, being a respondent, could only have competently raised them via a cross-petition, being a new issue not nominated by Uzodinma, the petitioner.
“Tragically, Ihedioha’s legal team forgot to include the pivotal cross-petition.
“And in the absence of a cross-petition, the Supreme Court was right in law, painfully though it may seem, to rely on the presumption of regularity and correctness enshrined by both the Electoral Act and Evidence Act in favour of the said results, and to reckon with them and add them up to the final result, since Ihedioha’s legal team had woefully failed to effectively attack the results and rebut that presumption.
“For the Supreme Court, this was the legally correct conclusion to come to, having found that INEC had no power in law to exclude polling units results duly affirmed by the various polling units presiding officers!”
Sustenance of Supreme Court’s policy thrust
The Supreme Court came under criticism for focusing too much on technical justices.
One of such critics was Itse Sagay (SAN), eminent Professor of Law, who once accused the Supreme Court of “doing injustice”.
He was reacting to a Supreme Court judgment in 2019 in which the APC was excluded from fielding candidates in Rivers during the general elections.
He also slammed the case of Zamfara, in which the Supreme Court nullified APC’s victory in the election and transferred it to the PDP due to alleged irregularities in APC’s primaries.
To Sagay, the verdicts were a travesty of justice.
Sagay said the Supreme Court is “specially endowed with the power and authority to do justice and to ignore law when it is technical and would create injustice, and to avoid at all cost a mechanical approach to the interpretation of the law”.
The Supreme Court seems to have learnt as it did so in the recent judgment granting full financial autonomy to the local governments.
It went beyond the strict interpretation of the letters of the law to invalidate the state/LG joint account system due to its continuous breach.
“In this case, since paying them through states has not worked, the justice of this case demands that the local government allocations from the Federation account should henceforth be paid directly to the LG councils,” the Supreme Court held.
It is expected that under Justice Kekere-Ekun, the Supreme will remain a policy court while working to reduce its workload.
A former Nigerian Bar Association (NBA) president Dr Olisa Agbakoba (SAN), said: “We are witnessing yet another ritual of handing over of the Judicial baton with the swearing-in of Justice Kekere-Ekun. But it’s not about swearing in!!
“It’s about whether we will see radical reforms finally. The last great reform CJN was the late Dahiru Musdapher! I was his consultant on Speed of Justice.
“Unfortunately CJN Musdapher only had six months in office. He set up a high powered 29 person committee that produced a transformational report.
“The late CJN led a team to the then president of the senate, David Mark, to present far-reaching reforms to the constitutional structure of the Judiciary.
