Opinion: Nigerian judiciary as lost hype of justice

 

By Farooq A. Kperogi

The idea that the “judiciary is the last hope of the common man” is a banal, flyblown cliché that is habitually huckstered in Nigerian judicial circles and uncritically repeated in the Nigerian commentariat. But that’s mere hype. There has never been any moment, at least in my lifetime, when the judiciary was the unalterable guardian of justice for common people.

The judiciary has shown occasional flashes of independence and forthrightness, but it has also been routinely instrumentalized to oppress “the common man,” to protect the self-interest of people in power, and to deodorize the moral stench of the gilded and perfumed but inwardly stinky elite class.

The raft of scandalously unjust and predetermined appeal court judgments against the non-APC governors of Kano, Plateau, and Zamfara states bears the testimonies of a compromised and barefacedly mercenary judiciary and of the fact that what is lost isn’t hope but hype.

I am not one of the people for whom justice is said to have been done only when the opposition wins in court. I am politically unaffiliated and see not a smidgeon of ideological distinction among all the major political parties in Nigeria.

In fact, I stood out from the crowd in thinking that the judiciary’s affirmation of President Bola Ahmed Tinubu’s victory at the polls was justified by evidence and logic. In my September 16, 2023, column titled “PEPT’s Verdict and the Task Before the Supreme Court,” for example, I argued that the legal challenges of PDP’s Atiku Abubakar and LP’s Peter Obi to Tinubu’s win were the weakest I’ve seen in my life.

Even if the judiciary had overturned Tinubu’s victory, neither Atiku nor Obi would have been constitutionally qualified to be declared president because they didn’t win up to 25 percent of votes in 24 states. Atiku won 25 percent or more of votes in 21 states while Obi won 25 percent or more in a mere 16 states plus the FCT.

I wrote: “The centerpiece of the electoral petitions against Tinubu’s victory was that Tinubu should be disqualified from running for the last presidential election because of a whole bunch of things they alleged against him, most of which revolved around questions of his irrefutable moral turpitude. Unfortunately, immorality isn’t always illegality. 

“The petitions were high on emotions, conjectures, moral posturing, grandstanding, logical absurdities (such as insisting that candidates must win 25 percent of the FCT to win a presidential election thereby making Abuja more important than every part of Nigeria, that Tinubu should be disqualified for a voluntary civil forfeiture of drug money in the US more than three decades ago, that Tinubu should be disqualified because of false and ignorant claims that he didn’t graduate from Chicago State University, or for perjuries he committed more than 20 years ago, etc.) than on legally sound, substantive arguments about the election itself.”

APC and LP minions attacked me for this—and, of course, for my defense of the legitimacy of Tinubu’s Chicago State University degree— and said I was paid by Tinubu with whom I’ve never had any association and whose politics and policies I intensely resent. The PDP and LP politicians I used to be on good terms with stopped communicating with me. 

But I don’t live for anyone’s validation and don’t derive my inspiration from the noise of the shrill majority. I’ve transcended that a long, long time ago. So long as I am telling the truth, I don’t care who hates, loves, condemns, or commends me.

I’ve gone to this length to show that I have no partisan loyalty to any person or group. To be sure, there’s nothing wrong with being a partisan; I just am not one. 

When I said the appeal court judgments against non-APC governors seem like premeditated judicial manipulations, I am not saying this from the resources of my emotions—or to get back in the good graces of the anti-Tinubu crowd. No, it’s because the facts point to it.

Take, for instance, the confusion over the contradictory judgment of the court of appeal in the Kano governorship case. It’s evident that the appeal court judges at some point dug deep into their consciences and ruled in favor of justice by vacating the judgment of the lower court that overturned NNPP’s victory. But something later contaminated their consciences, which compelled them to rewrite their judgment.

However, in rewriting their judgment, they neglected to clean up everything they had written. What we see as “contradictions”—or what they call “clerical errors”— are merely surviving remnants of their previously unspoiled consciences. Only someone who doesn’t understand English would call entire meaningful sentences “clerical errors.”

A law dictionary defines a clerical error as “a small mistake made when writing or copying something down, like typing the wrong number or misspelling a word. It’s not a big mistake that affects the outcome of a case. Courts can fix clerical errors even after a judgment has been made. It’s like when you accidentally write the wrong letter in a word and then go back to fix it.”

Quashing a previous judgment and recommending that the appellant be paid 1 million naira can’t be a clerical error. It is exactly what happens when two different judgments are merged into one and the expurgation of some parts of the judgement weren’t done tidily. It’s a classic case of a pre-written judgement gone wrong. 

Recall that in an August 29, 2020, column titled “Aso Rock Cabal’s Judicial Cabal on Election Petitions,” I revealed that “there is a judicial cabal at the Court of Appeals of Nigeria that writes judgments for election petition tribunals” and that “The actual writing of the judgments is usually done by a consortium of justices and legal practitioners…. This subversion of justice by a conclave is a low-risk-high-reward undertaking.  Members of the judicial cabal are routinely compensated with promotion and financial reward.”

Similarly, courts are usually guided by the doctrine of judicial precedent, which the Oxford Dictionary of Law defines as “judgement or decision of a Court used as an authority for reaching the same decision in subsequent cases.” 

When a court dismissed a previous case as incompetent because it was a preelection matter when it was filed by one party but accepts it as the basis for overturning the votes of hundreds of thousands of citizens when it was filed by another party, you don’t need to be smart to know that something is amiss.

As I once pointed out, precedents may be modified, but they are rarely overturned without a compelling reason, certainly not within a few years after they were established. That is what legal scholars call stare decisis, that is, the doctrine that courts should follow earlier judicial decisions.

Even conscientious APC drumbeaters confess in private that they are manipulating the judiciary to take over Kano, Plateau, and Zamfara as indemnity for the 2027 presidential election. They see the states as high-reward but low-risk states to grab.

One APC supporter told me my apprehensions about Kano devolving into sanguinary fury as a result of the brazen theft of NNPP’s victory there—which the Supreme Court will give final imprimatur to— didn’t take into account the fact that Kano explodes only when the trigger is religious. I hope he is right because, as a pacifist, I resent violence and the shedding of blood, particularly for political or religious reasons. But there is also such a thing as foolish optimism. 

In Plateau and Zamfara, the cast of characters in the gubernatorial contests there also all share similar primordial characteristics, so although the events there are being dictated from Abuja, ordinary folks won’t be roused to primeval anger by electoral robbery. That’s the calculation of APC. Again, this strikes me as blind and unrealistic optimism.

More than that, though, justice matters. People’s victories shouldn’t just be arbitrarily stolen through the judiciary because the president is “strategizing” for a second term when the first one has barely taken off.

Variety is the spice of life. Nigeria’s democracy would be unbearably dreary if APC imposes itself on most states of the federation. It is this sort of inordinate power grab that caused PDP to splinter irretrievably—and that ended previous experiments at civilian rule. But the people at the helm of the APC are too inebriated by the temporary political dominance they enjoy to see the big picture.