As he settled in to deliver the judgment of the Edo State Governorship Election Petition Tribunal on 2 April, presiding judge, Wilfred Kpochi, felt obliged to get one ritual out of the way. Glancing left and right, he asked each of his two colleagues on the three-person tribunal to confirm that the judgment he was about to deliver was unanimous. Justice Kpochi only proceeded after each, one to his left and the other to his right, nodded their affirmation.
The judge had good reason for this preliminary ritual. About 48 hours before it was due, a leaked document purporting to be the judgment of the tribunal went into circulation. Ahead of the judgment day, both leading parties in the electoral contest, which had inexorably mutated into a judicial one – the Peoples Democratic Party (PDP) and the All Progressives Congress (APC) – felt compelled to issue duelling statements denouncing the leak and blaming the other for it. The APC claimed that “the PDP leaked a fake judgment, knowing they would lose”, while the PDP “accused the APC of using the leaked fake document to gauge public reaction.”
The leaked document suggested that the tribunal would deliver a split verdict, with one of the three judges dissenting from the majority of two who were supposed to decide against the petition of the PDP and its candidate, Asue Ighodalo. When, therefore, the presiding judge asked his colleagues to affirm that the judgment was unanimous, he sought to telegraph that tales of the leak of their judgment were unfounded or, in any case, had mis-described the decision of the tribunal. Instead of a split decision suggested by the leak, this was a unanimous court.
This was far from the first time that the decision of an election petition tribunal in Nigeria would be foreshadowed by suggestions or allegations of a leak ahead of its delivery.
At the onset of presidentialism in Nigeria in 1979, the contest between Shehu Shagari of the National Party of Nigeria (NPN) and Obafemi Awolowo of the Unity Party of Nigeria (UPN) ended up before the presidential election tribunal. On 20 August 1979, Obafemi Awolowo filed his petition against the declaration of Shehu Shagari as the winner of the election. The following day, military ruler, General Olusegun Obasanjo, invited Atanda Fatayi Williams to the Dodan Barracks (as the seat of government then in Lagos was called) and offered him the office of the Chief Justice of Nigeria (CJN).
Fatayi Williams’ first task was to adjudicate Chief Awolowo’s petition. The military had committed to handing over power on 1 October, a mere 40 days later. General Obasanjo, who was overseeing arrangements for a high profile handover to an elected successor, was anxious to know that the Supreme Court would not torpedo his plans. It was credibly suspected that he received the necessary assurances from his hand-picked CJN well ahead of the judgment.
In March 2008, Action Congress (AC), the party then led by Bola Ahmed Tinubu, vigorously alleged that the outcome of the presidential election petition challenging the announcement of Umaru Musa Yar’Adua of the PDP as the winner of the 2007 presidential election, had leaked. Lai Mohammed, the spokesperson of the party at the time, denounced the leak, proclaiming that the judgment would “not stand the test of time.”
15 years later, as the Presidential Election Petition Tribunal issued a 48-hour notice of the delivery of its judgment on 4 September 2023, Bola Ahmed Tinubu, the candidate of the APC, whose announcement on 1 March as the winner of the presidential election was under challenge, departed for New Delhi, India, to attend the G-20 Summit. He arrived India on 5 September, the day before the judgment, guaranteeing that he was going to be outside the country when the tribunal delivered its judgment. Many people believed that Tinubu traveled to India with the confidence of a man who had been assured ahead of schedule of the outcome that the tribunal would announce the day after he landed in India.
Whether these allegations were true in any specific case is a subject for another day. Far from diminishing over the years, however, credible suspicions of breach of the deliberative confidentiality of judicial decision-making in election disputes and political cases in Nigeria have grown. They enjoy high credulity with the public, an indication of a deep-seated deficit of credibility that now clearly afflicts the business of what judges do in political and electoral disputes in Nigeria.
At the valedictory session of the 9th Senate in June 2023, Adamu Bulkachuwa, the senator for Bauchi North, confirmed suspicions of unconscionably intimate dalliances between judges and politicians when he appreciated his colleagues “whom (sic) have come to me and sought for my help when my wife was the President of the Court of Appeal.” Senator Bulkachuwa did not forget to thank his wife “whose freedom and independence I encroached upon while she was in office…. She has been very tolerant and accepted my encroachment and extended her help to my colleagues.” His wife, Zainab, was president of the Court of Appeal from 2014 to 2020.
For insisting on calling attention to this kind of criminal acccessorisation of judges, Nyesom Wike, the minister of the Federal Capital Territory who is also a member of Nigeria’s Body of Benchers (BoB), invited the grandees of the BoB who visited him in his office at the end of last month to dispense with basic niceties of process and “punish” me. His 36 minute-long harangue to the old men and women of the BoB, who were his guests, was occasionally punctuated with enthusiastic applause belying the average age of the group, as well as the kind of undisguised ridicule which they had to endure for both themselves and the institutions of the judicial process in Nigeria. Such cravenness from the leadership of the self-described “body of practitioners of the highest distinction in the legal profession in Nigeria”, bodes ill for judicial credibility and independence.
As Mr Wike was busy advertising his undisguised contempt for them and telling the leaders of Nigeria’s legal profession that they were no better than deodorised sex workers with an inflated price-tag, an advocate who had spent his life campaigning against that tendency took a characteristically unpretentious leave.
Raised in Agbor, Delta State, by a father who was a high school teacher from Imo State, Joseph Otteh was one of the first two colleagues whom I engaged in the legal directorate of the Civil Liberties Organisation (CLO) in Lagos in 1991. He brought tremendous integrity, intellect, and industry to the role, and had remarkable reserves of empathy.
In 1999, Joe founded the group Access to Justice “to work towards rebuilding the institutional credibility of the Nigerian legal and justice system, restoring public faith in its institutions.” He approached that task with both courage and single-mindedness, doing a lot of good along the way.
Joe epitomised the lawyer as a gentleman and professional of civic virtue. On 28 March, he succumbed reportedly to complications from diabetes, leaving behind an aged mother, wife and three children.
30 years ago, in 1995, Joe authored a defining study of the customary court system in the 17 states of southern Nigeria under the title, The Fading Lights of Justice. As an advocate, Joseph Otteh did his utmost to ensure that those lights were kept aflame. That title could only have come from a man who was well ahead of his time and had the acuity to see the future. The Heavens will be enriched by the acquisition of this incredible angel.
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Chidi Anselm Odinkalu, a lawyer, teaches at the Fletcher School of Law and Diplomacy.
