(By Barr. Chukwuma Chinwo) – I have often heard of the politicization of the judiciary and the judicialization of politics. It has become an unfortunate trend in the politics of Nigeria. It is difficult to expect that the judiciary, the body constitutionally vested with the responsibility of adjudicating between adverse parties, would be spared the resort of the participants for remedy in a system where the fault line is deliberately made much longer and occupies a wider space than the doing of the right things. In that event one ought not to be surprised if the judiciary is found in the political arena or politicians are found in the court of law.
The challenge is when the politicians, like my Governor would often warn, are able to throw their mud on the judiciary – the judges, the clerks and to an extent, the class that both the politicians and the courts hate to love and love to hate – the lawyers, but the judiciary is not able to beam its own virtue or product on the politicians. This has been the big contradiction of the Nigerian judiciary in its engagement with politicians. On one occasion Niki Tobi, while in the Supreme Court was very vehement in declining any relationship between judges and the politicians. In the case of Buhari v INEC.
His Lordship, wary of the politicians and their ways, said that there is: ‘…the need for Nigerian Judges to maintain a very big distance from politics and politicians. Our Constitution forbids any mingling. As judges, we must obey the Constitution. The two professions do not meet and will never meet at all in our democracy in the discharge of their functions. While politics as a profession is fully and totally based on partiality, most of the time, judgeship as a profession is fully and totally based on impartiality, the opposite of partiality. Bias is the trademark of politicians. Non-bias is the trademark of the Judge. That creates a scenario of superlatives in the realm of opposites. Therefore the expressions, “politician” and “Judge” are opposites, so to say in their functional contents as above; though not in their ordinary dictionary meaning.
Tobi further said in the same case: The way politics is played in this country frightens me every dawning day. It is a fight to finish affair. Nobody accepts defeat at the polls. The Judges must be the final bus stop. And when they come to the Judges and the Judges in their professional minds give judgment, they call them all sorts of names. To the party who wins the case, the judiciary is the best place and real common hope of the common man. To the party who loses, the Judiciary is bad. Even when a party loses a case because of serious blunder of counsel, it is the Judge who is blamed. Why? While I know as a matter of fact that in every case, the Judge (becomes an) additional enemy … I must say that the Judge does not regard the person as his enemy. The Judge, who has given judgment in the light of the law, should not be castigated the way it is done in this country. … I should say that no amount of bad name calling will deter Nigerian Judges from performing their constitutional functions of deciding cases between two or more competing parties. Somebody must be trusted in doing the correct thing. Why not the Nigerian Judge?
If every Nigerian Judge reads this opinion of the revered Justice Niki Tobi and takes it to heart, he may not recuse himself from every political case, because, as Tobi, JSC said, somebody must do the job, but he would be most circumspect when politicians come in whatever guise. The politician surely comes in different guises. He may come in the guise of Umar and Co against APC or of Ibeawuchi Alex & Co against PDP. At other times he may come in the guise of a statutory corporation or top civil servant against a Nigerian citizen. However, when the chips are down he can come openly as Muhammadu Buhari, Atiku Abubakar, Rotimi Amaechi or Nyesom Wike to make his claim to whatever, especially political office. In which ever guise he comes, there is always a lawyer to represent him irrespective of the party. When the politician comes he comes with all he has: the sword, the switchblade, truth, falsehood, facts, fictions, open eyes, proverbs and parables, promises, bags and baggage, tickets and luggage, threats and inducement.
What should the Judge do? If he is learned indeed he would hear what Lord Atkin, a famous English Judge once said in the 20th century. In defiance of the forms of action and precedents, in order to do justice in favour of parties before him, Atkin advised: ‘…when these ghosts of the past stand in the path of justice clanking their medieval chains, the proper cause for the judge is to pass through them undeterred’. If one replaces ‘ghosts of the past’ with ‘politicians’, I think Atkin could as well be directing his opinion to Nigerian judges in political matters.
I am concerned for the Judiciary of Rivers State. I have always been. I was just four years at the Bar in 1991 when I began to cry out against the happenings in the Judiciary of Rivers State which I did not see as consistent with the promise of justice. At the time Justice Donald Graham-Douglas was the Chief Judge. I sent my observations to him and pasted it at the Lawyer’s Common Room in the High Court Complex, Port Harcourt. To some it was like Martin Luther’s Theses posted in Wittenberg, Germany on October 31, 1517, in his desire for reform in the Church of Jesus Christ in the 16th Century. It may take such radical tendencies and even more today to rescue the judiciary from the hand of politicians.
My concern here as a Rivers-centric person is that the situation is becoming embarrassing for the judiciary of Rivers State. There is no doubt that, being the third busiest judiciary in Nigeria after Lagos and Abuja, the judiciary of Rivers State cannot rightly be expected to be less busy or not to be involved in controversial cases. No judge should with his open eyes court and enter into controversy but no judge worth his onion or tomatoes would shy away from doing his duty only because the matter is controversial or would result in controversy. After all, the entire work of a judge is about controversy and there are only very few judges in very few occasions who would conclude a matter without making a new enemy. Jesus Christ said ‘woe unto you when (evil) men praise you and say good things about you for so they said of the false prophets before you. When persons who are in breach of the law, the constitution and the facts in a case are happy with the judge, he is in danger of hell fire!
But my Ikwerre people have a proverb which I paraphrase that if every time an arrow is shot it hits a particular tree, the question would arise if the arrow was made because of the tree. I am getting worried for what the judiciary in Rivers State is turning to when it comes to controversial political cases whether of official or non-official nature. It was in Port Harcourt that an ex parte order was issued in 1992 that turned the Nigeria Bar Association to a pariah body for six years. It was in Port Harcourt that decisions were being thrown around which made Rivers State a lawless or ‘courtless’ State for one year. It was in Rivers State that orders were made which made APC an angry bull dog which could neither bark nor bite when it was most needed. It had to sell its ‘birthright’ to AAC and its candidate known as Awara. It was in Rivers State that an order was made stopping Nigerian Labour Congress from striking but which the next day became a huge joke as the efforts of the Attorney-General appeared to be all smoke and no fire. It goes on.
We remember the Chidi Lloyd and Ojukaye Amachree’s murder cases. Orders, orders and no determination! Now one young Judge, Justice Okogbule Gbasam, whom I had advised to beware of the ides and guiles of politicians in a WhatsApp Platform we both belonged to, is in the eye of the storm. What goes around, which went round to APC, comes around. It has come around to PDP. My knowledge of the Law these days is beginning to be like that old pig in George Orwell’s Animal Farm who kept asking a younger colleague to remind him of the original seven laws of the Farm and the later day version. The ways of politicians are past finding out and the ways of a judge in a political case may be like that of a man with a maid.
We all tuned to the radio in the evening of Monday August 23, 2021 to hear that Justice Okogbule Gbasam, based on an interim application, had restrained Chief Uche Secondus, not only from parading himself as National Chairman of People’s Democratic Party but also as a member of the party he has been part of from the beginning! He also ordered (whether or not there has been any attempt at personal service, I know not) that Secondus should be served by substituted means by pasting processes on his gate at No. 1 William Jumbo Street, Port Harcourt. I used to think that the national office of the party and official residence of the National Chairman were in Abuja. I did not know that the Chief has relocated.
I have been reading in a social media platform where they regularly ask ‘Can it be that cheap?’ This order set me thinking. My first port of worry is for the very crucial office of the Governor of my State. So it is possible that I can go to a Court and obtain an order restraining the Governor of Rivers State from parading himself not just as Governor of Rivers State but also as a citizen of Nigeria? Fiam! Law thrives on precedent upon precedent. Before anyone would think Justice Gbasam is on a new path, he should remember that we have had precedents. A judge, Justice Bassey Ikpeme made an order restraining Humphrey Nwosu’s National Electoral Commission from continuing to announce the result of June 12, 1993 general election. A judge, Stanley Nnaji, ordered the vacation from office of Governor Chris Ngige. Justice Ikpeme and Nnaji and one Wilson Egbo Egbo are, however, not good companies for any judge to be in. I reject them for Justice Gbasam in Jesus’ name. And all the people say, ‘Amen’.
I am disturbed for Justice Gbasam and other young judges in Rivers State. Justice Gbasam is a brilliant Judge who should not be accused of any motive other than the desire to do justice according to law. Any judge can make mistakes but I commend to each Judge the famous dictum of Justice Jessel, Master of the Rolls: I may be wrong, I often am, but I am not in doubt. Whenever a judge is involved in any political case in Nigeria he should be in doubt and take one step forward and two steps backward. Beware of the ides of August in political cases! Redeeming the time for the days are evil.
Barr. Chinwo teaches law at the Rivers State Univerity, Nkpolu-Oroworukwo, Port Harcourt.