The Nigerian judiciary has in recent times, been in the eye of the storm, as it faces a barrage of criticisms over some judgments by the courts, especially Supreme Court, which came under very close scrutiny. This has generated much ruckus, donnybrook, and rhubarb.
Some of these judgements have drawn the ire of all manners of critics, some genuine; some analytical; some pseudo; and some political. Some critics directed needless crude and caustic umbrage at the very persons of the revered learned Justices of the apex Court, over what they perceived as unfair, or overtly political verdicts. Regrettably, some of those attacks were caustic, bizarre, uncouth, derogatory and went too far. Many crossed the fine dividing line of decency between constructive and scholarly criticism (which is permissible after delivery of judgments); and direct personal attacks on the judexes who delivered the judgments(which is not permissible under any circumstance). The questions are: where, how or when do we draw this thin line between fair critiquing of judgements and going for the jugular of the Judge? Does such a line even exist at all, either legally or otherwise? What remedies are available to judicial officers exposed to severe public censure and even odium and ridicule on account of their judicial acts of deciding cases? Are they simply helpless and powerless? Do such sanctions include committing authors of such vile criticisms to prison for contempt, albeit ex facie curie (outside the court)? Are such authors liable to face disciplinary measures through the NBA Disciplinary Committee (where they are lawyers)? These are the issues this thesis attempts to provide answers to.
MY PERSONAL STAND
Let me state right from the onset and within the confines of this abstract, my own humble position in this rather lengthy dissertation. I believe judicial opinions and judgments can be scrutinised, criticised, and critiqued after delivery thereof. This is a scholarship that opens up new jurisprudential vistas. Critiquing helps deepen and widen the democratic space because court decisions affect the entire society. I do not however subscribe to piercing the veil of the judgments themselves to attack the Judex who delivered the said judgments by questioning their motives, integrity, intellect, assumed political or other filial leanings, or backgrounds, for such judicial decisions. That goes beyond the bounds of decency and crosses lines of intellectual interrogation of such judgements. That also amounts to leaving the message for the messenger; deliberately hitting a player’s leg rather than the ball, in a football match. Such attitude- whether from lawyers or members of the larger society- must be deprecated, denounced and condemned in the strongest words possible. I so do, most respectfully.
REASONS FOR CRITIQUING AND INTERROGATING JUDGEMENTS
The greatest contribution of the judicial mind is usually deciphered, not from the final result of a case, but from the judicial opinion itself. It is the duty of every lawyer, academic, and even members of the society, to analyse, interrogate and critique judicial opinions embedded in judgements after they have been delivered. Learned journals, columns in newspapers, Ph.D thesis and dissertations; the print and electronic media; and lately, the social media, are employed in this. This is the very core of scholarship and legal education. Such literary criticisms are aimed at pointing out the “defects” and the “beauties” of such judgments.
Mr. Swift in his “A Tale of a Tub” tells us that a “true critique is a discoverer and collector of a writer’s fault”. He did not say “fault of the writer which has to do with his person and persona (and is thus not permitted); but the fault of his works” (which is permitted). Indeed such criticisms and interrogations help Judges to perform better. I will, anon, show numerous cases in which Judges have been attacked in their persons across the world, and even in Nigeria; but which I, as a person, lawyer, SAN, and social critic, do not agree with. There are many more reasons for allowing decent, genuine, and well-researched criticisms and interrogations of judgments after delivery.
The Judiciary, like the Legislature and Executive (as created in sections 6,4 and 5, respectively, of the 1999 Constitution, as amended), is subject to the tripartite doctrine of Separation of Powers- a doctrine most eloquently popularised in 1748 by Baron de Montesquieu, a great French philosopher. Their judgments are therefore subject to the same public criticisms as are legislative and executive acts. They must pass through the same crucible, rigour, and accountability as the other two arms. The Judiciary cannot be dressed in the cloak of infallibility. See Motors Ltd v Adesanya (1989) 3 NWLR (pt. 109) 250. The due administration of justice is a serious matter of public interest which involves members of the entire public as ultimate beneficiaries and consumers of the effects of such judgment. Law as the recurring decimal in our individual and collective lives is too serious a matter to be left alone in the hands of only Judges and lawyers (the Bench and the Bar). Oliver Wendell Holmes Jr (“Part of the Law”), in a powerful speech delivered in Boston, Massachusetts, in 1897, put it most poignantly when he said, “the prophecies of what the court will do and nothing more pretentious, are what I mean by the law”. He did not stop there. He further argued that “the law is the witness and external deposit of our moral life. Its history is the history of the moral development of the race. The practice of it in spite of popular jest, tends to make good citizens and good men”. Holmes (also called “The Great Dissenter”; are Associate Justice of the US Supreme Court, Legal historian, and Philospher of The School of Legal Realism), thus advocated judicial restraint. He, it was, who stated that the concept of “clear and present danger” is the only basis for limiting the right of freedom of speech. So, when members of the public critique court judgements fairly and decently, they are merely exercising their right to freedom of expression (section 39 of the 1999 constitution), to hold opinions, and to receive and impart ideas and information without interference. See….. That surely cannot be criminalised.
However, such critiquing must be fair, reasonable, responsible and must pass through the acid test of bona fides, rigorous and intellectual interrogation. It must not be anchored on sheer vulgar, abusive, and offensive vituperations; rude expletives; or disrespectful name-calling. It must shun revilement and chastisement. There is, perhaps, a more serious reason why courts should be kept on their judicial toes to deliver justice-driven, rather than technicality-dependent judgments. Court decisions impact business, economy, and foreign direct investment. No responsible foreign investor will put his hard-earned money in a climate of unfair judgments or prolonged disputes. This was perhaps why Lord Atkins once told us that “Justice is not a cloistered virtue. She must be allowed to suffer the scrutiny and respectful, even though outspoken comments of the ordinary men” (Ambard vs AG of Trinidad and Tobago (1936) AC 322)
SITUATIONS IN WHICH NIGERIAN COURTS HAD CRITICISED THEMSELVES
There is a sense in which courts are, in the words of George Alger, “peculiarly the subject of criticism of experts.” These “experts” are no more than lawyers and fellow Judges. In the former case, according to him, “lawyers who appeal from a lower court to a higher court are engaged in criticizing a Judge who was responsible for an unsatisfactory decision. The appeal Judges are paid by the state to act as critics of their brethren in the courts below”.
WHEN NIGERIAN COURTS CRITICISE THEMSELVES
A graphic illustration of courts criticising themselves, using the internal mechanism of appeals, is the Supreme Court case of MENAKAYA vs. MENAKAYA (2001) 16 NWLR (pt 738) 203. In the lead judgment of the apex court (delivered by Mohammed, JSC, as he then was), it minced no words, when it held that: “it is a misdirection for a trial Judge to give judgment on an issue on which there is no evidence adduced whatsoever . . . It is plain, therefore, that judgment of Ononiba J, having been written without any evidence supporting the decision is void. Equally the majority judgment of the Court of Appeal which affirmed a void decision is also a nullity.” The contributory judgment of Ogundare, JSC, was even more breathtaking. He moaned:“I find myself having painfully to observe that there are other portions and passages of the judgment which are clearly inappropriate in a judgment intended as a sober and sublime reflection. Admittedly, allowance must be made for the peculiar sense of narrative of individual Judges. Some make theirs rhapsodically on purpose, as was obviously demonstrated in the case in question. But even so, I think it will be of much profit if journeys in light-hearted digressions are not made a prominent feature in any judgment, particularly of a superior court, even to the extent that the real issues are missed or misunderstood. That was the position in the present case.”
SELF-CRITICISM BY THE SUPREME COURT ITSELF IN HOPE UZODINMA V EMEKA IHEDIOHA (2020) PELR 86967 (SC)
In March 2020, the Supreme Court refused the request of Chief Emeka Ihedioha, former Governor of Imo State, to set aside its earlier judgment which had declared Chief Hope Uzodinma of the APC Governor of Imo state. Ihedioha’s team of lawyers had argued that Uzodinma deceived the Supreme Court with his self-tabulated result from 388 polling units, which made the number of voters in Imo state outnumber the accredited voters for the election (which was 368).
The apex court led by the then CJN, Tanko Mohammed, held that it lacked powers to sit on appeal over its own judgment delivered on merit and in accordance with the dictates of the law.
However, in his dissenting opinion, Justice Centus Nweze, JSC also had been added to the seven-member panel to replace retired Amiru Sanusi, JSC; the CJN, Tanko Mohammed; Olukayode Ariwoola (now CJN); late Sylvester Ngwuta; Kudirat Kekere-Ekun; Amina Augie; and Uwani Abba-Aji, JJSC; refused to set aside the earlier judgment of the Supreme Court which had upheld the declaration of Uzodinma as Governor of Imo State. He criticised his own apex Court by declaring, in poetic words, “the decision of the Supreme Court in the instant matter will continue to haunt our electoral jurisprudence for a long time to come”.
Justice Nweze added that without evidence of meeting other constitutional provisions, the court misled itself into declaring Mr. Uzodinma as Governor.
The Jurist argued that Mr. Uzodinma and his party misled the court to accept the alleged excluded result in 388 polling units without indicating the votes polled by other political parties.
He also faulted the results from the said polling units without indicating the number of accredited voters in the polling units. Mr. Nweze recalled how Mr Uzodinma, during the election tribunal, admitted that he hijacked the result sheets from the electoral umpire officials and completed the results sheets by himself. He said such results could not be valid without indicating the number of accredited voters.
“This court has a duty of redeeming its image, it is against its background that the finality of the court cannot extinguish the right of any person.”
“I am of the view that this application should succeed. I hereby make an order reapproving the decision of the court made by January 14th and that the certificate of return issued on the appellant returned to INEC.”
“I also make an order restoring the respondent as the winner of the March 9, 2019 governorship election.” Mr Nweze in his minority ruling which was, however, overruled by the majority decision.
Mr George Alger (criticising the Courts), therefore opines that “in view of this machinery through which the courts are subjected to the animadversion of professional critics, it would be a hardy and very foolish man who would assert that criticism of the court should not be indulged in by laymen. But while the general right to criticize is not disputed, there has been evident in recent years, and generally in political campaigns, a somewhat vague attempt to draw an imaginary or real line between the types of criticism which are permissible and those which are not and which constitute what are called ‘Attacks upon the Courts’”.
It is, with respect, these “attacks” precisely that we shall presently undertake, regardless of how they are perceived – gratuitous or not – especially within our local context or milieu.
•Prof Ozekhome, SAN, CON, OFR, FCIArb, Ph.D is a constitutional lawyer and human rights activist.