Sadly, our Judiciary on September 11, 2019 unequivocally told us Atiku isn’t coming. The Judiciary refused to make history thereby proving we are slaves to everything that represents progress everywhere in the world.
I wasn’t shocked that the former Vice President lost on all five grounds of his petition without a single dissent from any of the five man panel of judges. I had before now written in this column that the outcome is predictable.
Now it’s clear that our Judges are not resident in Nigeria with us, for if they were, they would have clearly seen all what we saw, and also observed the disappointments observed by both the domestic and international observers in the February 23, presidential election. They are residents of another planet other than the earth.
Once upon a time we had brave and courageous judiciary that was here with us. Then we had judges who fearlessly decided cases against the rich and the powerful. They acted as checks against the other two arms of government. They were also bold to keep even the military juntas in check. Then we had judges like late Fatai Atanda Williams, Chukwudifu Oputa , Darnley Alexander, Kayode Esho, Ayo Irikefe and Gabriel Sodeinde. These men spoke fearlessly from the bench.
Who is that judge with a nerve that is willing to sacrifice his personal ambition and decide a case against a government that has mastered the act of harassment and intimidation? We don’t have that judge anymore even though the time we live in requires Judges who are incorruptible; who will not succumb to ambition, money and other external pressure to pervert justice. We need judges who are bold .
I will use the story of Justice H. R. Khanna of India to further illustrate how every dark hour creates its own shinning stars. In the darkest time of India’s democracy, at a time when the Constitution itself was under attack, Justice H. R. Khanna held his nerve to ensure that he stood for what’s right, and did not give in to pressure.
That was the emergency period under the Prime Ministership of Indira Gandhi. In order to prevent herself from being disqualified as a Member of Parliament, and to ensure absolute control in her hands, the emergency was proclaimed. The proclamation of emergency was followed by an unprecedented crackdown on any kind of opposition to the government. On various flimsy pretexts, almost all major opposition political leaders were arrested and held without bail or production before Magistrates for indefinite periods.
There was only one weapon still available to the opposition, which was resorted to by them. The writ of Habeas Corpus, which protects an individual from arbitrary arrest and illegal detention, was resorted to by several opposition leaders by filing writ petitions in different High Courts, seeking the Court’s protection against the government. Obviously, the Indira Gandhi’s government was not keen on the Court’s interference in their agenda, so in every case, the Government strongly contested the writ petitions, claiming that the protection of the writ of Habeas Corpus was unavailable during emergency.
This matter was bound to reach the Supreme Court, and sure enough, soon an appeal from High Court’s orders reached the Supreme Court. The advocates of the Supreme Court had been active opponents of the emergency, and feared that the then Chief Justice A. N. Ray, who was promoted as CJI above three senior judges due to his support for the government in the Keshavananda Bharati case [(1973) 4 SCC 225], would constitute a bench of judges favorable to the Government. The legendary advocate C. K. Daphtary convinced the CJI to constitute a bench of the five senior judges of the Court to hear the matter, citing precedent set by Chief Justice A. N. Ray’s mentor, Chief Justice S. R. Das. As a result, a bench comprising the CJI, Justice M. H. Beg, Justice H. R. Khanna, Justice Y. V. Chandrachud and Justice P. N. Bhagwati, the five most senior judges of the Supreme Court, was constituted to hear the Habeas Corpus case [A. D. M. Jabalpur vs Shivkant Shukla AIR 1976 SC 1207] , as it later came to be known.
The Supreme Court Bar was pleased with the composition of the Bench hearing the matter, as it appeared to them that the likes of Justice Khanna, Justice Chandrachud and Justice Bhagwati, who were all known as progressive judges, would not favour the Government in such an important case. Their hopes were raised during the hearing of the case; when at one point the then Attorney General, Niren De, made a shocking submission before the Court. Justice Khanna asked the AG that, supposing a man lost his life owing to preventive detention, would the writ remedy still be unavailable? Attorney General Niren De submitted that yes, even where there was loss of life, writ remedy would still be unavailable during emergency period. His answer shocked the advocates appearing in the case, and they felt surely the Bench would rule against the Government.
However, the Bar failed to take the judges’ personal ambitions into account. The judges clearly remembered the Keshavananda Bharati case, which was not too long ago. The then Chief Justice S. M. Sikri retired after delivering the judgment in that case, and afterwards, the three most senior judges of the Supreme Court, who would normally succeed Chief Justice Sikri as CJI in order of seniority – Justice Shelat, Justice Grover and Justice Hegde – were bypassed in the order of succession and Justice A. N. Ray was appointed as CJI ahead of them, causing the other three to resign. This was done because Justice Shelat, Justice Grover and Justice Hegde had all ruled against the government in Keshavananda Bharati and Justice Ray had ruled in favour of the government. There was no reason to believe the same would not be done after the Habeas Corpus case.
Despite this fact, and knowing that all the other judges on the Bench had already decided in favour of the government, Justice H. R. Khanna felt he must write a dissenting opinion. His conscience would not allow him to rule in favour of the Government, ignoring all Constitutional tenets and values. Despite the fact that his dissenting opinion would not have any effect, he felt that he ought to stand up against the oppressive government, and stand in favour of justice and good conscience.
And it came to pass, that Justice H. R. Khanna was the sole dissenter. Justice Khanna insisted that writ remedies cannot be abolished owing to proclamation of emergency, and citizens must have judicial remedy against arbitrary Government action at all times. The four other judges on the Bench decided otherwise, and thus, shortly afterwards, when Chief Justice A. N. Ray retired, Justice M. H. Beg was appointed as CJI, above Justice H. R. Khanna, who promptly resigned from his post as Supreme Court judge.
We have all heard the judges of our presidential election tribunal without a dissent tell us how easy it is to become a Nigerian president than to be elected Councilor , House of Assembly or National Assembly member . In fact, from their interpretation you do not need any form of qualification to be president. All you need is to be able to read and write, or like Pa Awolowo said, the only qualification required to be Nigeria’s president is that you are an adult and you are not mad. We should make it that simple.
What all this suggests to me is that our constitution is ripe for a total make over and overhaul. We need to expunge the section on qualification from our constitution and we need to do it fast. And also the fraud called card reader should be abolished since it does not have the backing of the law. We should stop fooling ourselves in this country and begin to put our scarce resources into meaningful and more productive use