Joseph Otteh
Introduction
On Friday October 29, 2021, armed operatives from different law enforcement and security agencies stormed the official residence of Supreme Court Justice, Hon. Justice Mary Peter-Odili CFR, to execute a search warrant issued by an FCT Chief Magistrate. The Supreme Court has described the incident as a “dehumanising treatment”. Law enforcement and security agencies, whose operatives participated in the incident have denied that they were part of it, while the Inspector General of Police has reportedly set up an investigation. On discovering that the search warrant signed was used for the search of a Supreme Court Justice, the Magistrate who signed the warrant reportedly revoked it unilaterally.
Reacting to the incident, the Supreme Court, through its Director of Information, Dr Festus Akande, warned that the Judiciary should not be misconstrued by any institution of Government as the “weeping child among the other arms of Government”. This response is probably the strongest remonstration against actions of a Government targeted at the Judiciary, there has been. The Judiciary further said that, it has had “a full dosage of this fusillade of unwarranted and unprovoked attacks on our judicial officers and even facilities across the country, and we say it loudly now that enough is enough”.
Is this Another Straw in the Wind?
This case has familiar resonance with the past, and anyone familiar with the shenanigans of this Government, can pick the signals of what is likely cooking from afar. Nigeria’s President has hardly hidden his politics on the Judiciary. His desire has been to “reform” the Judiciary, and he has often spoken about how the Judiciary has frustrated him again and again, both before and after he became President. Mr President’s reform mantra however, simply provides a peg on which to hang motives that are both parochial and possibly bigoted, but clearly less than altruistic – and it is to forge a new Supreme Court whose loyalty he can count on.
We see this in the way the Presidency recently arm-twisted judicial authorities into recommending Justices favoured by it, for appointment into the Supreme Court. It should, of course, be remembered that the Presidency withheld its approval of four recommended Justices of the Court for about a year – apparently not for any legitimate cause – but so that judicial authorities would “do the right thing”; he only made the appointments just as soon as he thought the “right” people were added to the list, and recommended to the President for appointment. This was in spite of the fact that, over a long period at that time, the Supreme Court was being crushed by the weight of its workload given its lean workforce.
With this regime, it seems reasonably obvious that no barrel is too deep to be scraped once the line has been drawn, and that is why we must ponder, with some trepidation, what the “search” of Justice Mary Peter-Odili’s house represents. And, we wonder, because the parallels with past incidents concerning “marked” Supreme Court Justices are strikingly familiar. Not too long ago, following “whistleblowing” by an “activist”, former Chief Justice, Walter Onnoghen, was ignominiously removed from office, in the most imponderably blatant way.
It may be that this search is a prelude to something more ominous, and, were it not, one would have expected that the body language of the Presidency would be different. The Presidency has, not unsurprisingly, been mute over the harassment of a senior Justice of the Supreme Court. So, we may not have heard the last of the matter.
A Long Road to Perdition
How did we get here? Not even in the despotic haughtiness of military rule was the Supreme Court so disparaged. Why are Supreme Court Justices – and in fact, the entire Judiciary – at the receiving end of repetitively disrespectful and sometimes ruthless behaviour from the Executive? This, after all, is a constitutional democracy, and the branches of Government are independent and ought to enjoy some form of co-equal respect from each other.
It is hardly possible to separate what is happening to the Nigerian Judiciary from the state in which the Judiciary is at the moment, and some may, in fact, interpret this and other events of the last few years, as prophesies foretold. But, we did not arrive here overnight.
Over the course of many years, a once highly-rated Judiciary across the Continent (and notwithstanding the adulatory forms of expression and clichés we apply in composing our protocols for our Judges every time), gradually lost its sparkle, stature and authority. And, then failed to do much to rebuild and reinvent itself. In the absence of hard political power or the authority of its “soft” power, the Judiciary simply became a vulnerable target of predatory Executive power, of the sort this administration is well skilled at.
A weak Judiciary will likely avoid confrontation with Government, and in doing so, shy away from enforcing the rule of law or individual rights, if acting so will place the courts in the crosshairs of Government. In other words, a weak Judiciary will largely be unable to enforce constitutional limits on governmental power, and, even where it barks, will not bite.
Judiciary’s Indulgence of Impunity has a Role to Play?
But, there are also social and governance costs of being impassive. The rule of law will always be in danger as long as courts are not spirited in its defence, and while labels – whether “conservative” “moderate” or “liberal” – can count on occasion, they ought to be of no importance when it comes to safeguarding the rights of citizens.
A weak Judiciary too, will not likely receive much political support from civil society if it runs into confrontation with the Executive, because of trust deficits in society’s perception of the judicial institution. Where a Judiciary will not enforce citizens’ rights, alongside its authority when Government flouts its orders and judgements, and is ever so ready to accommodate impunity in order not to appear confrontational, it loses its moral capital, and is perceived more as an appendage of Government than a bulwark of liberty. And, civil society will legitimately ask: if the Judiciary will not be there for them in times of trouble, why should they be there for the Judiciary in times of its distress?
Other Constitutional Judiciaries Rising to the Occasion
A Judiciary must be ever so ready to fight for the rule of law no matter how bruising that struggle is, and Judiciaries of constitutional democracies have known that there will be times when their strength, independence and authority are tested. Indian courts have a storied history of resisting efforts by government to control it, whether it be in terms of appointing Judges, or allocating budgets to courts, or enforcing mandatory orders against government. The Indian Judiciary enjoys considerable global respect, today.
In Pakistan, some will also recall the fight the Pakistani Supreme Court had to put up, under the erstwhile government of President Pervez Musharaff. Former Chief Justice, Iftikhar Chaudhry had implemented reforms to improve the efficiency of the Judiciary, which gave new impetus to public interest litigation through a Human Right Cell established in the Supreme Court. Consequently, the Supreme Court dealt with several matters of public interest and human rights violations, including issues that directly affected the ordinary person. This made the Supreme Court popular among the masses and the liberal intelligentsia, as the court began to take on more complicated issues pertaining to rights and liberties which the Musharraf government saw as a threat, culminating in the dismissal of the Chief Justice Chaudhry by President Musharraf.
Not surprisingly, the dismissal proved a catalyst in galvanising Lawyers, civil activists and people at large, into a broad-based social and political movement to oust Musharraf and restore democratic governance. The fight was won, Iftikhar Chaudhry was restored to office, and the rule of law prevailed. The Nigerian Judiciary must be ready, at whatever cost, to stand up and defend its independence.
Conclusion
The key note of this piece, is that the harassment of Justice Mary Peter-Odili has been facilitated by the Judiciary’s own regressive state, and the perception, rightly or wrongly, that it is unable to stand up to the Executive. In the media statement it issued following the operation, the Supreme Court stated that: “The Nigerian judiciary cannot only bark, but can also bite”! The problem is, the Judiciary cannot retaliate to the actions of the Executive by ordering a tit for tat, and the only way it can “bite” is by holding this Government accountable for its actions, something it nearly hardly does. But, how can it do so in its present state? So much painstaking effort is needed to rebuild the Judiciary and place it in a position of strength to undertake its constitutional role, and ward off efforts to intimidate its Judges or infiltrate its space. Will the Judiciary see this as yet another wake-up call?
Joseph Otteh, Lawyer; Founder of Access to Justice
