Nigerian Supreme Court: Cowardice and strategic defection

FCT judges accuse Chief Judge

Last week’s Supreme Court judgment granting all the reliefs sought by sixteen states against the federal government’s currency redesign policy took many by surprise. To some, it shows that the Nigerian judiciary is still alive, strong, and capable of dispassionately mediating disputes between Nigeria’s constituent units and between citizens and an overbearing government. A closer look at judgment, however, especially in comparison with past judgments and the behaviour of the judges of the high court, shows a different reality. It is, as yet the clearest case of what is known in Political Science literature as strategic defection – where judges clearly avoid angering an incumbent who has the powers and will to punish them and only begin to rule against that incumbent when s/he is weak or has become a lame duck.

For the better part of eight years, judges of the highest court have borne the brunt of the Buhari administration. They have been relentlessly harassed, harangued, and shown in the clearest terms possible that they are not beyond punishment by the government. They cowered, kept their heads down, avoiding any confrontation with the government, and largely deferred to the president in most of their rulings.

However, on the eve of the election and the suspect policy of currency redesign and shoddy implementation, Nigeria’s 16 states – whose governors are all members of the ruling All Progressives Congress (APC) and feel unduly targeted by the policy as it would curtail their chances of buying votes during the election, haven stashed huge amount of the old currency for that purpose already – approached the courts to stop the federal government from implementing the policy and to keep the old currency as legal tender for longer. In fact, some state governors urged their people to continue to transact in the old currency and that their candidate, Bola Tinubu, on winning the election, will ensure that the old currency remains legal tender.

Seeing that the president is now a lame duck, the Supreme Court controversially assumed jurisdiction over the case and on February 8, two days before the scheduled deadline for the phase-out of the old currency, ordered a pause on the policy while scheduling its final ruling for February 22 – just days before the presidential election.

However, the president, in his characteristic manner, ignored the order of the court and gave the nod for the policy to begin on February 10. On February 22, the court was duly informed of the president’s disobedience of its orders. But rather than rule on the matter, it only heard arguments and rescheduled its ruling to March 3, 2023 – a week after the elections have been held and the winner is known.

On March 3, the court gave its ruling. But most uncharacteristically, it found its mojo back, lashing at the president and the federal government for disobeying its orders and granting all the reliefs sought by the state – extending the lifespan of the old currency till December 31, 2023.

It is no coincidence that the judges not only waited until after the election but also ensured that they know the incoming president and that their judgment would not go against him. It is another confirmation of one of the hypotheses of the strategic defection paradigm that “all else equal, judges will concentrate their defection in cases that are considered most important to the incoming government” (See Gretchen Helmke 2002).

For context it is important to know the full extent of the emasculation of the Nigerian judiciary starting from 2015. On coming to power, President Buhari declared he will wage his usual war on corruption. However, haven failed in successful prosecution of most corruption cases in 2015, Buhari in February 2016 in Addis Ababa declared that the judiciary was responsible for the failure of his administration’s war on corruption and that he may have to focus on that arm of the government first and cleanse it before he could record any success. “On the fight against corruption vis-à-vis the judiciary, Nigerians will be right to say that is my main headache for now,” he told a crowd of Nigerians living in the Eastern African country.

It did not take long before he came for them. On October 8, 2016, the Department of State Security, in total disregard of all extant rules and procedures for the disciplining of erring judges, invaded the houses of three justices of the Supreme Court – Walter Onnoghen, Sylvester Ngwuta and John Okoro – as well as two judges of the federal High Court – Adeniyi Ademola and Nnamdi Dimgba – in the dead of the night, ostensibly based on tip-offs for judicial misconduct. But while the real reasons for the invasion of the houses of the Supreme Court justices was not immediately clear, it was later discovered that Justice Ademola and Dimgba drew the ire of the DSS for ordering the release of suspects in the custody of the outfit, an order that they failed to comply with anyway.

While many lawyers and analysts were busy hailing the government’s actions, high-ranking members of the APC were singing a different tune, revealing perhaps their real intent. Shortly, after the arrest of the judges, the national chairman of the APC openly criticised the arrested judges for not granting judgments in favour of the party on the election case in Rivers state. “I still find the judgment on the Rivers state governorship election totally astonishing. There is something fundamentally wrong in the judiciary,” Oyegun was quoted as saying. However, Oyegun later revealed his real intentions and desire further when he openly confessed that: “We have lost very important resource-rich states to the PDP. No matter how crude oil prices have fallen, it is still the most important revenue earner for the country.” Similarly, many of his party members – prominent among which is the Lagos publicity secretary, Joe Igbokwe, have been openly abusing the Supreme Court and labeling its justices as ‘corrupt’ and ‘fraudulent’ with some calling on the President to probe the Supreme Court for daring to deliver judgments against the party’s candidates.

While Onnoghen was never charged and later emerged as Chief Justice of the federation to the consternation of the president, Justice Ngwuta was charged to the Code of Conduct Tribunal for false declaration of assets. Of course, the trumped-up charges were dismissed in 2018. And for Justice Okoro who was never charged, it took a whole of three years after the invasion of his house – a period during which he was besmirched and suffered media lynching – for the DSS to clear him of any wrongdoing or misconduct and return to him the $38, 000 taken away from his residence, among other items.

Of course, we know how Justice Onnoghen ended: He was illegally and unconstitutionally removed from office on the eve of the 2019 elections and a pliant judge was appointed in his place.

When the presidential election petition of 2019 reached the court in 2019, the courts were not only very careful not to offend the president, they bent over backward to accommodate the president. Most astonishingly, both judges at the court of appeal and the Supreme Court were not just content to dismiss the cases for lack of proof, but they actively turned defendants of the president in the case on perjury.

The judges have ensured they stayed out of the president’s way and never incurred his wrath until now, when he’s clearly a lame duck and on his way out. So much for courage!!!

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