Imo and Bayelsa conundrums: Where are the Lawyers?(1)

“The bedrock of our democracy is the rule of law and that means we have to have an independent judiciary, judges who can make decisions independent of the political winds that are blowing.” – Caroline Kennedy

In my last writeup on the issue, I addressed largely the indiscretion of politicians in decisions made by the judiciary. In this piece, however, I intend to evaluate the role of lawyers in the conundrum as well as in the administration of justice and the rule of law in recent times. I must confess that, in the last few weeks, I have had sleepless nights on the events followingthe judgments on the Imo and Bayelsa governorship elections by the apex court. I have had to ask myself how we, Nigerian lawyers, have unabashedly created an enabling environment for the desecrationof the rule of law and its appurtenances.

The recent attacks on the judiciary did not happen overnight. We have, either by actual acts or inertia, fertilized the field for the pullulation of all that is untoward. Two recent events connected with the decisions call for sober reflection. The first is the manner in which matters that are sub judice are being commented upon, particularly recklessly by lawyers, and the second is the attack on the residence of one of thejustices of the Supreme Court, Mary Odili, JSC, that presided over one of the cases.The two events, from my recollection of the mechanism of justice, are aberrations on the rule of law. How else does one explain this precarious disregard for the rule of law and the externalisation of judicial functions?

We must understand the meaning of rule of law, its role in a civilised society and the effect of its absence. We must come to terms with the importance of the sanctity of the judicial arm of government and decide on the desirability of a subdued judiciary. We, the people, must decide whether we are willing to be the tools employed in the subjugation of our democratic institutions. We must know that we, by our recent conduct, are eschewing good governance and paving the road to perdition.

When it came to my attention that certain persons identifying as “protesters” visited the residence of Hon. Justice Odili, JSC, to “protest” the judgment of the Supreme Court in theBayelsa governorship appeal, it shook me to my root. The Supreme Court is the apex court in Nigeria. It is so constitutionally positioned to enable a judicial review where the litigant is dissatisfied with the decision of the Court of Appeal. Even the Court of Appeal entertains matters by review of the decisions of the court of first instance (the governorship tribunal). Therefore, the litigants must have passed through two levels before approaching the Supreme Court. The object of this appellate procedure is to do justice.However, the appellate process cannot be endless. As the Supreme Court rightfully held in several cases, there must be an end to litigation. Hence the Latin maxim, interest reipublicae ut sit finis. In Nigeria, except in certain matters, which terminate at the Court of Appeal, the Supreme Court is the terminus. This finality of determination is conferred on the Supreme Court by Section 235 of the Constitution of the Federal Republic of Nigeria, 1999 (as altered). Being the final destination for all litigations, it is also generally said that the Supreme Court cannot be wrong and, whatever it decides is the law. However, the persons conferred with this power of finality (the Supreme Court justices) are human beings and not beyond errors. Where there are errors (apart from certain recognised exceptions), they are errors we must live with. Apt in this regard are the words of a former Justice of the United States Supreme Court, Mr. Justice Robert H. Jackson, in Brown v. Allen 344U. S. 443 (1953) thus: “We are not final because we are infallible, but we are infallible only because we are final.”

This was rightly re-echoed by the legend, His Lordship, Hon. Justice Chukwudifu Oputa of the Supreme Court of Nigeria, in Adegoke Motors Ltd v. Adesanya [1989] NWLR (Pt. 109) 250.

However, where in our own estimation we believe (rightly or wrongly) that the Supreme Court erred in its judgment, must we resort to harassment (verbal and physical) of the judges? In both Imo and Bayelsa, both PDP and APC, respectively, verbally pummeled the Supreme Court because, on each respective occasion, the Supreme Court’s judgments did not go their way. On January 14, 2020, when the Supreme Court’s judgment nullified the election of the PDP gubernatorial candidate and pronounced APC’s gubernatorial candidate as the winner in Imo, the PDP echelon did not hold back in cating all manner of aspersions on the Supreme Court. The attack was unbridled. It did not stop there; media reported some sort of protests against the judgment. In the face of these attacks on the Supreme Court, the APC national chairman, Mr. Adams Oshiomhole, was quick to castigate the PDP hierarchy. He, Mr. Oshiomhole, commended the courage of the Supreme Court and described PDP’s attack on the apex court as the “height ofrecklessness” (see <https://guardian.ng/politics/oshiomhole-condemns-pdp-expresses-confidence-in-supreme-court/>). Ironically, barely weeks later, upon the delivery of the Bayelsa judgment, the same Mr. Oshiomhole, who had just praised the courage of the Supreme Court, led the charge in showering the court with his own specially made vituperations. Talk of matter of convenience! The most disturbing aspect of the entire incident was the fact that immediately following Mr. Oshiomhole’s volte-face attack on the Supreme Court and a declaration of ‘no swearing in’ in Bayelsa State, the state erupted in violence and the next day, a group of thugs, in the most unscrupulous manner, laid siege to the house of Justice Odili. How the APC chairman intends to insulate himself from this untoward invasion of His Lordship’s house is beyond me. It is simply a case of the child dying a day after the witch’s cry. Even if Mr. Oshiomhole did not procure or counsel these thugs, it is only consistent with common sense to believe that his verbal attack on the Supreme Court and confident pronouncement that no person would be sworn in as governor in Bayelsa State were the motivations for the thugs’ physical invasion of the justice’s residence. One would have expected Mr. Oshiomhole to take the route of caution rather than his uncharitable resort to unbridled utterances as earlier on counselled in my piece last week. As President TheodoreRoosevelt of the United States noted during a statement approving the court-martial action of General Smith for Smith’s careless order during the Philippine-American war: “Loose and violent talk by an officer of high rank is always likely to excite wrongdoing by those among his subordinates whose wills are weak or whose passions are strong.”

I only need to add that leaders cannot afford unbridled utterances. I must also add that this disrespect for the judiciary is always a matter of convenience. As we saw in the reactions that followed the Supreme Court’s decisions in the Imo and Bayelsa governorship matters, respectively, a court can be the darling of some people today and become the object of derision by the same people tomorrow. What matters to those people is the direction in which the judicial wind blows. They are anti-oscillation and would prefer that the judicial wind blows in only one direction. These elements turn a blind eye to the primary function of the courts. After the said attacks, my expectation from the members of the legal profession was outright condemnation collectively and individually. Alas, This has not been the case! I only read a few comments from some of our colleagues, the National HumanRights Commission, Pan-African Lawyers Union and, finally, our almighty Nigerian Bar Association. To those that have reacted by way of condemnation of the attacks, I salute you. However, where are the lawyers representing the parties in all the matters?