Tag: question

Since the suspension of the President of the Court of Appeal (PCA), Justice Ayo Salami, in August 2011 and the crisis that action unleashed, the National Judicial Council (NJC) has vacillated between wary avoidance of confrontation with the executive branch and studious reluctance to defend its independence and integrity. This may be because the judiciary is unlike a trade union or a political party where radicals and hotheads tend to dominate affairs and cultivate fame. The best that sometimes comes out from the judiciary resembling radicalism is what some legal scholars and analysts have nebulously described as judicial activism, a term even the late Justice Kayode Esho once questioned its appropriateness.

After sustaining the illegality of appointing and reappointing Justice Dalhatu Adamu as acting president of the Court of Appeal for a record five times of three months in each instance, much to the discomfiture of the NJC and stakeholders in the judiciary, President Goodluck Jonathan has eventually found a novel way of perpetuating that illegality and making it look and sound like progress and resolution. He has appointed Justice Zainab Bulkachuwa as the acting president of the appellate court. Reports indicate the appointment was based on the recommendation of the NJC. Were the eminent justices intimidated? Did their consciences not prick them? Unlike the serial reappointment of Justice Dalhatu, only one of which was approved by the NJC, Bulkachuwa’s appointment, it seems, followed the letter of the law.

Let us briefly remind ourselves of the genesis of the crisis in the Court of Appeal. After the March 2010 arrest of the Appeal Court’s (Sokoto Division ) verdict in the governorship election dispute between the Democratic Peoples Party (DPP) candidate, Alhaji Maigari Dingyadi, and the Peoples Democratic Party (PDP) candidate, Alhaji Aliyu Magatakarda Wammako, a face-off ensued in which the PCA, Justice Salami, alleged unhealthy influence and unethical behaviour by the then Chief Justice of Nigeria (CJN), Justice Aloysius Katsina-Alu. The Salami allegation unleashed a maelstrom on the judiciary, leading the NJC to recommend to the president the PCA’s suspension. Both the NJC resolution, which was reportedly controversial, and Katsina-Alu’s readiness to cut NJC’s nose to spite its face in turn created more crises and disaffection within the body and armed the executive branch to unconstitutionally meddle in the affairs of the appellate court.

Not only has the Sokoto verdict stayed unprecedentedly arrested since 2010, making a mockery of justice in Nigeria and lowering the country in the esteem of the civilised world, politicians have managed to instigate court-ousted and disaffected governors in the Southwest to petition the manner their defeat in the appellate court arising from the 2007 elections in Osun and Ekiti States came about. It is also recalled that Justice Bulkachuwa, who is now the acting president of the appellate court, was involved in the Sokoto governorship petitions (which sat in Kaduna at the time) when, leading other justices, she gave a defiant denunciation of the shenanigans that accompanied the Wammako victory. Even though she denounced the subterfuge that procured victory that victory in the 2007 governorship election in a brilliant and stirring judgement, and that election probably triggered the main crisis in the appellate court, it is doubtful whether there is anything substantial she can do to reclaim the integrity of the court.

With the appointment of Justice Bulkachuwa, the message is clear. The presidency has somewhat temporarily salved its conscience long tormented by its disloyalty to the constitution. The presidency is not driven by a passion for justice or logic. It is driven solely by politics and by private and distorted expediency. At least, now, it has bought time, and may even have stumbled into some sort of less reprehensible solution, which rotating the presidency of the appellate court in acting capacity offers. All these manoeuvres are doubtless designed to prevent Justice Salami from regaining the court’s presidency, for he is rigid in favour of the law and indifferent to the blandishments of the ruling party or its bullying methods, and is arguably a veritable palladium of judicial rectitude and activism, if we can agree on the meaning of the term. After all, we recall that for more than one year after the Sokoto rerun in 2008, the then PCA, Justice Umaru Abdullahi, refused to constitute the appeal panel to hear the Dingyadi petition. Salami daringly did it soon after he became the PCA.

As embarrassing as the crisis in the appellate court is to everyone, especially a simple majority of the NJC, an overwhelming majority of members of the Court of Appeal, and the rest of the country, there may never be an administrative solution. Ignoring Katsina-Alu, his successor had made a determined attempt to redress the wrong. The Appeal Court, the sick physician, is powerless to cure itself. A vast majority of legal experts and practitioners watch in total helplessness, and tens of millions of Nigerians, minus of course the presidency, are left bewildered. But if there cannot be a solution to the mess in the appellate court, we must at least understand why. I do not think the lack of resolution has anything to do with lack of knowledge; we have enough brilliant minds to chart a way out. I do not think it has anything to do with political, legal or bureaucratic power; we have enough instruments to redeem the law and repair the damage to our image if we choose.

The problem, I think, is the lack of character in high office. When you observe a country drifting, it is because men of character have not assumed office. When you see a community, family or an organisation embracing expediency, do-or-die tactics, or Machiavellianism, it is because their leadership are unscrupulous, unprincipled, and even sometimes diabolical. The appellate court crisis endures because there are no people of character in critical and sensitive positions in the judiciary and in the presidency to make the difference – people who have a passion for the country, for justice, for humanity, and who have a great and lofty vision for the future. President Jonathan talks endlessly about patriotism, the rule of law, fairness, equity and justice. The Appeal Court crisis was the perfect opportunity to put his money where his mouth was when he assumed the presidency. He chose not to. More than that, he in fact muddied the waters further, encouraged himself in the unreasoned choices advanced by sycophants and court jesters, and engendered a situation that may undermine his legacy for life. It requires an unfathomable depth of understanding and character to appreciate these consequences.

Up till now, Salami’s predecessor, Justice Umaru Abdullahi, has not offered persuasive reason for not constituting the appeal panel in 2009 to hear the case arising from the Sokoto governorship rerun. Justice Dahiru Musdapher, on becoming the CJN, resolved to get Salami reinstated. We may never know what transpired when he and Salami presented themselves before Katsina-Alu, except to appreciate that it was his word against Salami’s when both gentlemen gave their versions of the then CJN’s attempt to influence the Sokoto governorship petition verdict. But Musdapher failed to achieve Salami’s reinstatement because even he recognised the behemoth he had to move to get the job done. He knew the president was ready to fight to sustain the injustice against Salami, and anyone who wanted a different outcome had to be prepared to fight to the death. If, as Salami suggested, Musdapher could not and did not fight Katsina-Alu, would it not be expecting too much to nudge him into an even bigger and messier fight with the president, especially a president not deterred by constitutional niceties and patriotic zeal, and the full weight of executive wrath?

When Justice Mariam Aloma-Mukhtar assumed office as the CJN, her genuine words and honest body language indicated she wanted to resolve the Salami stalemate. But with the recommendation by the NJC to the president to appoint Justice Bulkachuwa as acting president of the appellate court, that resolve seems to have collapsed. There does not seem to be any elbow room left for her or anyone else to manoeuvre. She and her fellow justices in the NJC and Federal Judicial Service Commission will have to stomach the continuing indignity of being treated shabbily by an imposing and excessive presidency. Katsina-Alu’s unprincipled and undignified actions played into the hands of the executive; now the consequences will linger far longer than the acquiescent justices in the NJC projected. Would to God a Ribadu had been CJN.

Now, how would a man of character resolve the logjam? Isn’t Palladium asking for too much, nay, the impossible? Indeed, what could Bulkachuwa do when neither Musdapher nor Aloma-Mukhtar could land even one limp blow on the presidency’s gloating face? First, I think a man of character could do so much, in fact limitless much. Second, I think Palladium is not asking for too much. It is when choices like these face a man in high office, and he makes the right call, that history is made. It is not Palladium’s fault that Jonathan and the justices that have yielded to his assault have no sense of history, not to talk of sense of a country’s great future. In any case there are two options. One is for Bulkachuwa to have declined the appointment based on the principle of not profiting from a moral and historical wrong. If she had taken this option, would there not have been countless others angling for the post and jumping at it if offered? There would of course be; though if in theory they all had a sense of history and all of them declined the nauseous offer, the president could not hope to keep the ineffective Justice Dalhatu for much longer without precipitating a major crisis capable of consuming even the presidency itself. Moreover, if Justice Bulkachuwa declined the offer and others accepted, it would be impossible for any apostate to conduct himself in clear conscience.

The second option is to accept the offer and hope that one’s meagre principles would suffice to give some fair amount of decent leadership to a distressed and reluctant, if not disoriented, Appeal Court. Since somebody has to take the position anyway, it is argued, better it should be taken by someone who can to some extent still call his soul his own. To decline the position and let it be taken by an arrantly acquiescent justice is to further push the beleaguered appellate court into the abyss. I suggest there is no one who would not tremble just considering how shorn of choices our country’s parched moral landscape has made us. It is indeed a reflection of our troubles that the Supreme Court did not have unanimity over this crisis, nor did the appellate court, nor did the NJC, nor most importantly did the presidency. As the judicial subterfuge to enthrone favoured judges in Kogi and Adamawa States a few years back showed, we are in far deeper trouble than we imagine.

I get very angry when we tamely excuse our failings, when we use extenuating circumstances to condone our lack of character, when we suggest joining a bad gang to activate reform from within that soulless bunch, when we use our perennial impecuniosity to justify our crass behaviour, and when because of our religious, ethnic and class preferences we colour arguments, deny truth and logic and pervert the cause of justice and fair play. I have no patience for Jonathan’s fancy footwork on the Court of Appeal crisis; and I am not amused by the depth of infamy the justices have made us to plumb, nor of the consequences their betrayal will bring upon us and future generations.