Because we have become a cynical nation, I don’t know how many people believed what the CJN Justice Ibrahim Tanko Mohammad said at the special session to mark the beginning of 2019/2020 legal year when he said that the Supreme Court under his watch is totally independent and does not pander to anybody’s whims and caprices because if there is any deity to be feared, it is almighty God.
I personally believe the CJN but the uphill task is that he inherited a flawed judiciary, a judiciary under siege, a judiciary cowed by executive interference and a judiciary where some judges constitute themselves as businessmen auctioning justice to only the rich and powerful.
Given the circumstances and controversy under which he emerged as CJN ,I know he is doing his best to ensure that our judiciary regains its glory as that great institution that is not subservient to anybody , especially the new powerful who believe that the binding judgment of courts can only be obeyed in breach. The future of Nigeria and its democracy is in the hands of Justice Tanko and his colleagues at the Supreme Court. Whatever pronouncement the Supreme Court makes becomes case law. If they make a bad pronouncement the people will respond with outrage the same way a bad law made by the legislature will be castigated. What then is the usefulness of a judgment that is derided and scorned by the people? This is why our judges must fear no man but almighty God, for after the judgment of man is God’s judgment.
Someone called my attention to the fact that you win or lose a case in the Appeal Court or Supreme Court by the composition of the panel of judges. This shouldn’t be a worry where integrity counts and if we have judges prepared to speak fearlessly from the bench. When India was faced with similar circumstances as we face today, the justices spoke truth to power. Today India is better for it and her democracy is growing from strength to strength. It took Kenya a near genocide for the Supreme Court of Kenya to realize that without justice there will be no peace. The Supreme Court of Kenya nullified the manipulated and rigged presidential election that returned Uhuru Kenyatta . Heaven didn’t fall and the country is growing in peace and prosperity. The Supreme Court of Kenya restored the confidence of the people in the judiciary. As I was writing this opinion, the news came that the UK Supreme Court just ruled as unlawful the decision of Prime Minister Boris Johnson to prorogue the British parliament for five weeks. Boris in reaction said he proudly disagreed with the decision of the judges but that he will respect it. That’s the rule of law as the bastion of democracy at work. When judges are fearless, courageous and upright, the rich will tremble before the law just like the poor will do.
In a few days, the nerve of the CJN will be tested in the composition of the panel of judges that will hear the appeal filed by Alhaji Atiku Abubakar against the September 11 judgment of the Presidential Election Petition Tribunal. The first ground of appeal has to do with the documents relating to the educational qualifications of President Muhammadu Buhari as tendered by him and admitted by the court as exhibits. Citing the relevant provisions of the electoral act, they contend that the documents were neither pleaded by President Buhari nor frontloaded as legally required and as such could not have been deemed as properly admitted by the court.
On this ground, Atiku argues that the Court of Appeal erred in law when it relied on the phrase “overall interest of justice” to admit the documents and relied on it. On another ground, there are errors raised against the judgment of the presidential election petition court involving the interpretation of the INEC form in section 76 of the electoral act 2010 as amended. The court had held that the form referred to in the section has to do with that used in the conduct of elections and not the form (CF001) which every candidate must fill. Here the PEPT also held that a candidate is not required by the constitution and the electoral act to attach his certificates to the form before he can be adjudged to possess the requisite qualification to contest. But Atiku in his appeal argues that the court erred in law as the said form CF001 clearly provides a column for schools attended and educational qualifications with dates. Furthermore, in their submission they contend that the form also contains a clear provision written “attach evidence of all educational qualifications”.
The Supreme Court has also been invited to review the conclusion of the presidential election petition court where it held that the petitioners did not plead that President Muhammadu Buhari’s failure to attach his certificates amount to lack of qualification to contest the election.
Referring to paragraphs 388-405 of the petition, Atiku and the PDP argue that they had pleaded and proved the allegation that President Buhari gave false information of a fundamental nature to INEC. Atiku and the PDP also submit that the Court of Appeal’s conclusion was speculative when it inferred that President Buhari presented his certificate to the army for documentation based on his army form 199a.
Their argument here is that, Justice Garba’s court did not rely on evidence led but by assumptions and presumptions that President Buhari possesses the certificates he claims. The PDP and Atiku/Obi also described the lower court’s position that President Buhari was “eminently qualified” as gratuitous and unsolicited. The appellants (PDP and Atiku/Obi) also submit that the court of appeal made a case for President Buhari in which none of his lawyers made, when it referred to a newspaper publication to validate his qualification. The Supreme Court has also been invited to review the position of the Appeal Court that the petitioners dumped their exhibits on the issue of unlawfulness of votes without calling their makers to testify. Atiku and the PDP have argued that the exhibits tendered before the lower court were certified true copies of electoral documents, and being public documents there was no need to call the makers. It is now left for the CJN to compose the panel that will determine the appeal from among the justices of the Supreme Court. Tradition is that such panel is often chosen in order of seniority or from each of the geopolitical zones with the CJN at the head. The Supreme Court Justices in their order of seniority are: Justices Ibrahim Tanko Muhammad, Bode Rhodes-Vivour, Mary Odili, Nwali Sylvester Ngwuta, Olukayode Ariwoola, Musa Datijo Muhammad, Kumai Bayang Akaahs, Kudirat Motomori Olatokunbo, Chima Centus Nweze, John Inyang Okoro. Often and by tradition except in rare circumstances the seven man panel of justices is chosen by their order of seniority and shall be headed by the CJN except he decides to recuse himself as was the case by Darnley Alexander in the case of Awolowo v Shagari. Will the CJN abide by the age long tradition of constituting a panel of most senior Supreme Court Judges or depart from this by infusing into the panel the old and the new?
Already there are insinuations that the recent screening of list of new judges for elevation was being done with an ulterior motive to inject one or two of them into the panel of seven. The judges listed for promotion include Justices Garba Mohammed , Abdu Aboki and C. Oseji, some of whom were the judges that presided over the presidential election petition at the Appeal Tribunal. Justice Garba led the Appeal judgment and made some of the controversial decisions now subject of appeal.
I doubt if the CJN will be insensitive to draft these Appeal Court Judges who already decided on the case into the Supreme Court panel of Judges. To do that is to taint the final verdict ab-initio. The CJN should as much as possible avoid any controversy as he composes the seven-man panel of judges. He needs the wisdom of Solomon to resist the pressure he faces and must have the nerve and courage to help the Judiciary regain its place as a great institution.