The Temperament Of A Judge By Olusegun Adeniyi
Addressing newly appointed judges in Wollongong, Australia at their national orientation on 13th October 1996, the then Chief Justice of Australia, Sir Gerard Bennan spoke about what was expected of the men and women who were being elevated to the bench. “A trial – including a criminal trial – is not the occasion for diminishing the dignity of any person in the courtroom. It is an occasion for the dispassionate finding of facts and application of law,” Bennan told the gathering. “At the end of the trial – even a trial in which an accused has been convicted and sentenced – the participants in the trial should be able to leave the courtroom with their dignity unaffronted.”
That speech by Bennan, ‘The Role of a Judge’, is reproduced in the United Nations Office of Drugs and Crime (UNODC) publication, ‘Judicial Ethics Training Manual for the Nigerian Judiciary’. Foreword to the document was written by the late Justice Timothy Oyeyipo who served as Chief Judge of Kwara State for 21 years (from 1984 to 2005) before his appointment as administrator for the National Judicial Institute where the training manual was prepared. Although most of our Judges have gone through the training sessions, it is obvious that not all have imbibed the lessons. Nor have they acquainted themselves with Rule 5 of the ‘Revised code of conduct for judicial officers of the Federal Republic of Nigeria’. The National Judicial Council (NJC) Rule provides that whereas a Judge, like any other citizen, is entitled to freedom of expression; “but in exercising such rights, a Judge shall always conduct himself in such manner as to preserve the dignity of the judicial office and the impartiality and independence of the judiciary.”
The foregoing is important against the background that democracy in Nigeria is now anchored on “what can be regarded as an electoral college”, according to a former All Progressives Congress (APC) national vice chairman, Salihu Lukman. As he put it, citizens can vote but winners are decided in the courtroom by conclaves of Judges. Yet, as I once wrote on this page, we cannot continue with a situation in which neither those who cast ballots nor those who count them matter due to the antics of politicians who have perfected the art of using courts to shortchange the people’s will.
It is because Judges now determine who wins elections in our country that has encouraged all manner of electoral petitions from politicians, including those who may not have participated in the process beyond filing papers. But it would be unfair to blame our Judges for the aberration, since they only deal with cases brought before them, though there are ways in which they are increasingly becoming the problem. Last week, the Kano State election petition tribunal nullified the election of Governor Abba Kabir Yusuf of the New Nigeria Peoples Party (NNPP) and declared Nasir Yusuf Gawuna of the APC as the rightful winner. However, in his consenting judgment, Justice Benson Anya sent a curious message to “bandits in politics who want to take power by force.”
As the Yoruba would say, ‘Olopa e wo ni tie pe?’. I have expressed my inability to properly translate Yoruba into English but here is the point: The duty of a police officer is to arrest but when he tells the accused, ‘You will not get out of this’, then that is beyond the call of duty. That is precisely the problem with the Kano State gubernatorial petition judgement. The (in)famous line: “I use this opportunity to condemn the gang of Red Cap wearers who, like a violent and terrorist cult, chased us out of Kano and put us in fear of our lives. We believe that only Allah is the giver of power. Those who believe in Allah must bow to his will and submit to the authority of Governmental power. Resort to anarchy, violence and killing can never be a source of lawful power. Threatening to put Honourable Judges in danger of their life as done in Kano by some disgruntled bandits parading as politicians is hereby condemned.”
I am aware of the background to the tribunal ruling in Kano, especially the threat of violence if the verdict did not go a certain way. But where others would ‘set up a probe panel’ to investigate the trending video, the governor acted with dispatch by sacking his errant commissioner. He also affirmed his belief in democracy and the rule of law. So, there was no justification for name calling or stigmatizing people who were not in court. Besides, if power comes only from the Divine, as we are often told in our very religious country and the Judge has affirmed, why do we bother to vote? And then, we have another line in the judgment that reeks of pre-determined bias: “Instead of some Kano politicians to be allowed to use banditry and violence to abort democracy in Kano State, justice will be used to stop them from destroying democracy in Kano and upward, we do not want anarchy and terrorism as being promoted in Kano State and as threatened by them.”
The concern being expressed by many Nigerians is that the latest case in Kano is becoming a pattern. In January this year, the Chairman of the Osun State Governorship Election Petition Tribunal, Terste Kume, mocked Governor Ademola Adeleke of the Peoples Democratic Party (PDP) while delivering the majority judgement which declared the then incumbent Adegboyega Oyetola of the APC as the rightful winner of the gubernatorial election held last year. Adeleke, according to the Tribunal Chairman, “cannot ‘go lo lo lo lo’ and ‘Buga won’ as the duly elected Governor of Osun State in the election conducted on 16h day of July 2022. See Kizz Daniel’s song BUGA.” Aside from the inelegance of a Judge going so lo(w) in a crucial judgment, the bias was evident. It is noteworthy, of course, that the Court of Appeal would later quash the judgment and the Supreme Court subsequently affirmed that Adeleke was indeed validly elected.
Meanwhile, let me express my sympathy with our Judges. The President of the Court of Appeal, Justice Monica Dongban-Mensen, said on Monday that as of 31st August, the appellate court has 39,526 pending cases. With 98 panels constituted to hear a total of 1,209 election petition cases across the country, it is obvious that the Judges are being overworked in a nation where politicians don’t lose elections (they either ‘win’ or are ‘rigged out’). According to Dongban-Mensem, “the entire Nigerian judicial system is inundated with electoral litigation and adjudication almost all year round,” noting that of the 28 states where governorship elections held this year, only Kwara, Niger, Yobe, and Katsina did not result in litigation. “It is a matter of concern that many judges of the trial court have been engaged for six months in the exclusive management of electoral cases.” On top of that, we still saddle our Supreme Court with ‘Isi Ewu’ (pepper soup) cases such as“an incident of arson where 12 goats were set ablaze,” according to Justice Amina Augie at a valedictory session held in her honour, following her retirement last week.
These are some of the issues we must deal with. For now, let me return to the speech with which I started this intervention. Justice Bannon referenced a journal paper, ‘Why Write Judgment?’ by Sir Frank Kitto, a retired legendary Justice of the High Court of Australia and Chancellor of The University of New England, who died two years earlier in 1994. It is a reminder to the Judges of their difficult assignment and the sacrifices it entails. Kitto wrote: “Every Judge worthy of the name recognises that he must take each man’s censure; but neither in preparing a judgment nor in retrospect may it weigh with him that the harvest he gleans is praise or blame, approval or scorn. He will reply to neither; he will defend himself not at all.”
While we need to confront the myriad of challenges hampering justice administration in Nigeria, we must also appreciate the fact that Judges are human. And to that extent, I join in condemning attempts to denigrate them. Threats of violence as displayed by the sacked Kano State Commissioner should also have no place in a democracy. But the role of the courts as interpreter of the law, resolver of disputes and defender of the Constitution requires that Judges abide by their oath. If this democracy is to survive, their impartiality must be imperative. And those who appear before them, as well as the wider public, must have confidence that cases—including those pertaining to elections—will be decided fairly and only in accordance with the law.
