Judiciary not set up to stamp every decision of government, says Okutepa

Judiciary not set up to stamp every decision of government, says Okutepa

Saving resources and time spent on election litigations begins with conducting elections that are free, fair and credible. Jibrin S. Okutepa says except the executive is prepared to deal with serial violators of Electoral Act, the situation may be worse in 2027. In this interview with BRIDGET CHIEDU ONOCHIE, he also talks about the role of some senior lawyers in sustaining the alleged corruption in the judiciary.

What in your view should be done to reduce pre- and post-election litigations?

I am not too sure politicians would want to line up to the courts in 2027, particularly when you already feel cheated by the kind of judgments we were getting. If you cannot beat them, you must join them.

It also means that we are likely to get voter apathy; people will no longer waste their time queuing to vote because votes may not count, and the political class has no respect for the sovereignty of the people anymore. That is why when judgment is delivered, politicians go to thank the executive for what they on-interference.”

My understanding of such visits is that they know what they do, otherwise, what business has the President got to do with being congratulated for not interfering with the judgment of the court? Are we being told that they usually interfere? And no word has come from the judiciary that delivered the judgments, while the congratulations go to the executive.

Does that not indicate that there is something the media might discover if they probe?

Have you as a journalist asked politicians what their experiences are? I keep wondering what kind of people we are. We have beautiful laws, but badly operated by bad people. That is why I love what the Attorney General of the Federation said – that if you have bad people operating good law, you will have bad results, but if you have good people operating bad laws, you have good results.

Are the people operating our laws good Nigerians? Or are they Nigerians that have chosen to profit from the iniquities of misconduct in public office? Are we really getting purity of judgment and pure administrative work that are not rooted in selfishness? In other climes, where parties turn in their dispute to courts, there are well-guiding precedents that give you an assurance that when you get to court, it is likely to be consistent in following the past precedents. As a lawyer, and every other lawyer that is prepared to say the truth will tell you that it would be difficult for us to say with a degree of certainty what the state of the law is. There are contradictory judgments here and there and I don’t know what is responsible for this. The suffering of the masses doesn’t seem to matter to us. We pretend to operate under the rule of law, but I do not see Nigeria actually operating under the rule of law. We operate the rule of convenience to those in power. Except the executive is prepared to deal with those that have serially violated the Electoral Act, my fear for 2027 is that it will not be anything different from what we are witnessing today.

Can you relay your experiences as a counsel to one of the litigants in the last elections?

If you have followed my tweets or public utterances, I have maintained that the kind of judgments given in the electoral matters, particularly by the highest court of the land need to be reviewed, if we are not to say goodbye to democracy in Nigeria. My understanding of democracy is that it is a product of the people by the people and for the people. It is not a product of courts even though courts are necessary ingredients in stabilising democracy. So, when decisions of courts appear to be aiding and abetting the destabilisation of democracy in the form that whoever wins election at all cost remains the winner without the judiciary, who has the onerous responsibility of scrutinising the products of election and the work of INEC, then, there is no need for those who have lost election to approach the court.

Except in a few cases, the judgments that came out gave pass marks and a pat on the back to INEC for obvious dereliction of duty and infractions of its own rules and regulations, and even the humongous amount of money spent to acquire BVAS machine and installation of Irev portal. The Irev, which was intended to checkmate unlawful writing of results by politicians. So, the intention was, if there is a dispute as to the accuracy of results that were being collated and announced, you have recourse to results freshly uploaded at the conclusion of elections at the polling units. But when judgments of courts rendered use of Irev redundant, until certain layers that are impossible are followed, one begins to wonder the wisdom in spending money to procure BVAS machines and installing Irev.

Secondly, there is this concept of sui generis (class of its own) that has been so employed generously in a negative form in my estimation. When you say that an election petition is sui generis, it is not a concept that should be used to put roadblocks on the way of justice because it is peculiar on its own. It is neither a civil or criminal case. It is a concept invented to show that an election petition is very peculiar, not only to unlawfully install people who didn’t win elections, it is peculiar because the sovereignty of the people resides in the election petition. That is why, in the good old days, their Lordships were of the view in several cases, both Court of Appeal and the Supreme Court, that when dealing with election petitions, you are not dealing with parties before the court alone, you are dealing with the rights of the people who voted for their representatives. Therefore, you must have patience to listen and examine cases that are being brought by those who feel aggrieved that the rights to lead the people bestowed on them have been taken away by some form of malpractices.

But today, we have so much elevated the concept of sui generis to the level that even rules of courts have become the masters of the courts and the constitutions. Therefore, the rights to fair hearing, the rights donated by the law called Evidence Act for one to call witnesses by Subpoena have been thrown overboard by our courts on the ground that if you don’t file all the witnesses’ statements on oath within 21 days allowed to file the election petition, you cannot file witness statement on oath for subpoenaed witnesses. It got to such a ridiculous level now that they are saying that you should file a witness statement on oath of a subpoenaed witness.

Mark you, a subpoena is a right created by the Evidence Act and it is on an exclusive legislative list. Only the National Assembly can make laws to guide the evidence in court. The National Assembly in making first schedule to the Electoral Act, subjected the schedule to any other written law, and in my understanding when the word “subject to” is used, it is a word of limitations. It, therefore, means that that law is subject to written laws. That means other than those prescribed by the schedule to the Electoral Act. There are various decisions of the Supreme Court which interpreted that schedule to the Electoral Act as rule of court and that where there is a conflict between rule of court and substantive law, the rules of court will have to give way for substantive law so that you can do justice thereby. But suddenly, we have elevated the rules of court as more of a master and subordinating the substantive law as a mere servant to rules of court. And this is the reason the public is worried and rightly so in my view. If we begin to do what we are doing, then in 2027 as some people have pointed out, the best instrument to win election would be AK47, and once you can fix yourself in power and get INEC to declare you, even if by unlawful means, those who complain will have an onerous task of proving it. And I don’t think that such is the essence of the judiciary.

The judiciary was not set up in our constitution to rubber stamp every decision of the government. That is why the adjudicatory power has been donated to an impartial arbiter called judiciary, which has its domain in Section 6 of the constitution. The same constitution has said that the country shall only be governed by the manner prescribed by the constitution. Therefore, if there is evidence that somebody has come to power, not in accordance with a manner prescribed by the constitution, then, the court must be patient to listen to the matter because the manner prescribed for governance in Nigeria through the constitution is that the country shall be a democratic government by which the sovereignty belongs to the people, not few cabals who have the power to procure thugs to install themselves in power, or few people who have the wherewithal to change the results from the polling units and inflate the votes for themselves. Nigerian politicians know what they do. Forget about all that you hear about the court affirming or not affirming, we all know what they do; they know they didn’t win election but have found partnership in impossible principles of law that have created an opportunity to inflict wickedness on Nigerian people.

So, I am at home with the public and Nigerian courts cannot pretend not to know the feeling of the Nigerian public. They go to Nigerian markets and they listen to Nigerian news. That is why they take judicial notice of who addresses what in their judgments. And once people perceive that there is an injustice, you will begin to see insecurity here and there. Most of the insecurity situations you see, in my understanding, are products of injustice in our society.

Allegations of corruption in the judiciary have persisted, why is it that nobody has been apprehended or punished?

Ask yourself who has the capacity to arrest those who are perceived to have committed this wrong? The power of arrest is vested in the executive, the judiciary does not arrest. No member of the public can go and start arresting any person perceived to have committed misconduct.

When there is a collusion between husband and wife for instance, will the husband be able to say, ‘let me arrest my wife? Most of the public seems to have concluded that there is collusion, and the collusion is a product of many factors, starting from what I call ‘recruitment process.’ If you scratch my back and put me on the bench and you have a matter before me, shouldn’t I pay back? Until we begin to take some critical look at our recruitment process to the bench, reform the process and look for those who know than those who know who, and those who have strength of character than those who are connected but are lily livered, those who can look at the power that be and say that their allegiance is to the law and not occupant of the office, the more you will continue to have a dwindling perceptions of integrity of our judicial process in the eyes of the public. The perception is high and only those who have the responsibility of giving effect and nipping that dwindling perception of low image in the bud, have the instrument and responsibility of arresting and investigating. And once the complaints are there but are not investigated by those who are perceived to be doing what is wrong, we cannot hope to get purity of justice in our society soon. And I think that the legal profession is the eyes of the public, it must come to terms with the fact that the public is beginning to think that it is the problem of Nigeria.

The legal profession is the only profession trained to resolve and decide disputes between the other arms of government, individuals and government. So, when we fail in our adjudicatory processes and begin to consider, what ought not to be considered in our adjudication, then, the purity of justice is diluted, the perception of the public will become so low and the respect that the nobility of the profession ought to accord that arm of government will go do down. Once it goes down and people believe that you cannot get justice from court, the next thing you are going to have is anarchy; then we are going gradually to a state of nature where might becomes right, life becomes brutish, short and nasty, and the place of industry will not be there. I think that if there is no place for industry, where development cannot be guaranteed, where people cannot get justice quickly in courts and where the perception of the public is that if you have a case with a big man or those in power, you just forget it, then, the international community will become scared of that society.

As we see today, apart from electoral matters that have been gaining prominence in our courts, other regular matters involving a humongous amount of money, involving commerce and industry, are suffering in the dockets of our courts. So, a lot of people no longer have faith to take their disputes to court. For me, we cannot dismiss with the wave of hand, the perception of the public and it will be in the interest of the judiciary not to dismiss it because the more you attempt to dismiss what appears to be obvious, the more your integrity is put on the line. The ultimate consumer of courts in Nigeria is the public and if the public feels unsafe to go to court and wrong doers are not adequately punished but are rewarded, the more they will continue to do wrongs in our democratic process. As a legal practitioner, I fear what the outcome of the 2027 election would be.

In all these problems, what are the roles of senior advocates like yourself?

Well, I don’t know what their roles are because like I said and written, the legal profession comprising the bar and the bench, senior and junior ones, should be careful not to destroy itself. When you go to a tribunal and see some processes filed by senior lawyers, even installment processes filed to defeat viable petitions, you will begin to wonder whether those senior lawyers who claim to be doing their jobs are doing so. When you look at what goes on in other climes where lawyers adhere to the ethics of the profession, and are seen as the leaders of the society, some processes filed by senior lawyers in some cases in our courts would have led to the automatic withdrawal of licenses of those lawyers. But who will bell the cat in Nigeria? Here, wrongful conduct appears to be the license. There are those specialised in stalling proceedings, and they look for them for that purpose. Look at what happened to Donald Trump’s lawyers in America, will that happen in Nigeria? If Trump would have been a Nigerian President, he would have won the second term in office but have you ever seen any President of Nigeria right from the time we started democracy in 1979 till 1999 being removed. That aspect of our law must be tinkered with now so that no person should be allowed to assume office in Nigeria until the election petitions are decided because the moment a governor or President assumes power, and given that the judiciary has been reduced to a weeping houseboy in the hands of the executive and the legislator. They lack independence in the strict sense of the word. There are tendencies for judgments to maintain the status quo that is being complained about. If we are serious, then, we should decide election petitions and regulate transparency. How many of those who are declared winners hired lawyers from their pockets? It is only the ‘losers’ that have been put in political and electoral penury that have been made to face the unhygienic life of filing and fighting electoral petitions.

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