Judiciary not above criticism – Jiti Ogunye

A human rights lawyer, Mr Jiti Ogunye, shares with AYOOLA OLASUPO his thoughts on the statement by the Supreme Court and developments on the interpretation of the litigation between the Federal Government and some states over the new naira notes

The Supreme Court in a recent statement condemned the way people criticised its judgments, especially in the cases involving Godswill Akpabio and Senator Ahmad Lawan. Some people have said there is nothing wrong with criticising court judgments because judges are not gods. What is your position on this?

My position on criticism of court judgments, specifically Supreme Court judgments, is a long-standing one and that position is that the judgments by all our courts are subject to review and criticism. The judgment by our courts, in particular the Supreme Court of Nigeria, can be commented upon by lawyers and non-lawyers, debated in the public, analysed and people can form opinions on them. No matter the intensity of such public discourse, the law established by that judgment or the issues resolved or settled by that judgment will remain unchanged. Public outcry or opinion does not change the prayers granted by a court of law or amend the orders made by that court. The court having spoken through their judgment should be less worried about what the people say about such judgment because during judgments, they carry out their exercises not in expectation of any public adulation, endorsement or condemnation. If judgments were delivered in expectation of public feelings, they will no longer be judgments so our courts should worry less about such.

But that does not seem to be the case in this instance.

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In the past, we told our colleagues that the judiciary is our court system as well as the third arm of government. The legislature does its work, makes resolutions and passes laws but people criticise that institution. People also insult them by calling them names when they make certain laws. That does not mean they will charge anybody for contempt of the legislature. The executive arm of government enforces the law and does a poor job like the present situation we are in now. People are not only condemning them, they are even cursing them. The judiciary cannot claim it is above criticism. What is not permitted is for people while claiming to be criticising to engage in personal attacks, ridicule or subject them to all sorts of abuse or even allege corrupt practices when no evidence exists. That can undermine that institution of democracy. Because people don’t understand this, the situation can switch into anarchy when people unjustifiably condemn and demonise the judiciary in a way that it becomes weakened. When the executive and legislature are dealing with the people, the judiciary would have been so weakened that it would no longer be in the position to interpret and save the law and be the last hope of the citizenry. So, we also have to be careful. You can easily weaken the court, which is the hallmark of democracy and guarantees that people talk the way they feel. Even if they accuse us of falsehood, let our conscience be our defense. Let our conduct speak for us rather than exercising an awesome power to punish anybody who has committed contempt of court. So, the courts use their power sparingly because if the Supreme Court were to convict anybody for contempt of court, which court would such a person run to for an appeal? They know that as a court, they are the guardian angel of our democracy, which then takes us to the issue of appropriateness of the occasional issuance of statements by the Supreme Court in respect of matters like this. My sincere opinion is that it is not appropriate because it will appear as if the court will then be taking issues with the members of the public, particularly persons and people who write opinion articles.

You said court judgments are subject to public review, how best can people do that subsequently without getting on the nerves of the apex court?

We are in the age of social media, which has amplified peoples’ prejudices, undigested views, refined commentaries, etc. Everybody has now taken the liberty of commenting on the judgment of a court, including those who are not lawyers. We are not saying people who are not lawyers cannot talk but the fact that our justice system is law-based, rule-governed and is technicality-driven will take somebody who is learned about the law to do a fair criticism of the court judgment. This is because what the ordinary person may perceive as justice may be different from what someone who is a lawyer and knows the pitfalls, the technicality of criminal procedure would say as to whether the judgment is consistent with the principles of law or have changed the law on a particular subject.

Could you give us examples?

One of the judgments that was criticised in recent times was delivered on the basis of the appropriate civil procedure that ought to have been used. Any lawyer that knows civil procedure will tell you that if you want the court to declare your right as the owner of a land, you will have to use a procedure that allows you to conduct a trial so that you can call and give evidence. You won’t use a procedure where you merely filed an affidavit and there will be no trial. The truth of the falsehood being alleged can be established by trial where the judge will have the opportunity to listen to witnesses, look at their countenance, their conduct in the court and facial expression to be convinced whether they are telling the truth or not. So, you cannot secure a declaration of land ownership without trial. If you use originating summons where an affidavit is used without trial, your action is likely to be struck out. In the same vein, if you are alleging fraud, it has to be demonstrated and established in the trial where there will be witnesses and documents will have to be tendered whereas, if you are using originating summons, such will not happen. The court is likely to say that the person has used the wrong procedure.

Many people found it discomforting that the apex court overturned the judgments of the Federal High Court and Court of Appeal, especially when many people believe that Lawan did not partake in that main senatorial primary in Yobe State having participated in the party’s presidential primary. How do we reconcile the contradiction between the judgments?

There are three layers of court created by the constitution. We have the High Court, Court of Appeal and the Supreme Court. The first point to note is that the exercise of the constitutional right of appeal and the access to justice saw that the right of appeal will be guaranteed so that the person seeking justice can in good conscience exhaust all the layers and then be satisfied perhaps that they have given it their best shot to get justice. The exercise of that right presupposes that when climbing that ladder, at any of the stages, there could be an alternation of success or victory for either party. A party may lose in the High Court and win at the Court of Appeal and the Supreme Court, and vice versa. While it is true that in our jurisprudence, the Supreme Court gives you consideration to what it called concurrent findings of the two courts below, if the two courts below as a finding of fact see that this is what has happened except there is something special to disturb that findings. This lubricates the will of justice where three heads are better than one. If they have found the fact and it’s consistent at the two levels, the Supreme Court will just deal with the law. While this is a principle of law, the truth of the matter is that the Supreme Court reserves that right, power and the will to determine legal principles to deliver justice according to the law.

In the case of Lawan and Bashir Machina’s case, was the Supreme Court judgment not against the provision of the Electoral Act because it has been argued that Lawan did not participate in the senatorial primary but in the presidential primary?

The allegation is that he didn’t participate in the senatorial primary, the court stated that the procedure in which that person is challenging the case came by way of originating summons because he is alleging fraud. That was what the court said. You are alleging fraud, why are you coming by way of originating summons? The rules of the court are stronger because they are made under the respective laws of the court. We have the Federal High Court law, and the laws establishing the deeds of the state under which rules ought to have been made. I am saying that except there is evidence establishing that that decision was actuated by corrupt practices like bribery and corruption, it is not appropriate in my view to just make assumptions that it is because this person is the sitting Senate President and more powerful than the challenger that was why they favoured him. That decision is against the decision of the two courts below and that is why the court is there anyway. There is no obligation on the part of the Supreme Court to follow the two courts below.

Lawyers have backed the Supreme Court, insisting that the apex court should be treated with respect, but some commentators also said respect should be earned, as they noted that the judiciary should be seen as unbiased and dispensing justice and not just judgments. What do you think?

Judges should be upright. They should do justice according to the law and be corruption-free. They should also work in tandem with their judicial code of conduct. Yes, these are the things people commonly say. Those advising the judiciary are entitled to their right to freedom of speech. However, it depends on the way one characterises such exercise of the right of freedom of speech. The judiciary does not need such backing from lawyers. What they need is to do justice according to the law and be fair to all.

Some of the judgments of the Supreme Court are viewed as having some form of political undertone, like the Imo State governorship election that installed Hope Uzodimma and now the cases of Akpabio and Lawan. What is the way forward for the court to be seen as fair?

Well, the courts are a very tough terrain when it comes to political issues, especially elections or primaries of political parties. The basic solution is for the courts not to be troubled with political cases and that is why we must emphasise free and fair elections. There are too many political cases that are inundating our courts and they are doing damage to our courts. In taking them, our courts continue to suffer reputational damage. There is equality of all before the law. People file cases that are important to their lives every day whether they are taken to the police or their land is being taken. Such cases have been in the court for years and for them to go to the Appeal and Supreme courts, it may take them nine or even 13 to 14 years, but for political cases because they are timed by the constitution and Electoral Act, when an election is challenged, it takes a maximum of six months before it gets to the Supreme Court. We should conduct free and fair elections either at the primaries or general elections such that winners and losers can shake hands. Losers can be convinced that they have been defeated fair and clear and to take courage and those who have won will be magnanimous in their victory. We should conduct free and fair elections so that we will not need to bother and burden the judiciary, put pressure on them and subject them to a situation whereby the integrity of the court will be subjected to pressure and test. Their integrity is supposed to beheld constant.

When the cases keep coming, how can the courts withstand the pressure and ensure that cases are determined fairly?

The system of adjudication in elections has effects on political cases because political cases can be divided into election petition proper and pre-election matters. For election matters, right from the tribunal, the way it is structured is that you don’t have one judge deciding the matter but three justices. The number itself is an arrangement, an antidote or guarantee against corrupt determination of justice. The issue now is if you want to corrupt them, are you going to corrupt all of them?

In one of your tweets, you described the CBN deadline for old naira swap as heartless and tactless, and you urged the CBN to extend the deadline by six months. But the bank feels part of its aim to curb vote-buying may be defeated if it extends the deadline till after elections. What do you make of that?

I think they will still extend it. What is going on is executive rascality. Judiciary rascality is a term that lawyers understand to mean when an appellate court is sitting over a matter and a lower court also attempts to sit over the same matter. I borrowed that term to talk about executive rascality. When the executive arm of government is defying the court and logic, indeed it is an agent of destabilisation. Looking at the recent crisis, when it started people were saying it was a good policy but right now many banks have been attacked across the country.

Now that the Supreme Court has adjourned hearing till February 22, what are the implications, because the CBN already said the old notes had become invalid?

The wheel of justice grinds slowly but surely. Supreme Courts are confined to the game before them. If the parties before them do not raise it with evidence it will then appear as if they do not know what is going on. They should bow to the order of the Supreme Court not to flagrantly disobey the way it is being done by the CBN and the executive.

Some filling stations and banks have refused to collect the old notes contrary to the Supreme Court’s order that parties should maintain the status quo. What do you think people do at this point?

You are aware that even state governments have issued statements that it is illegal to reject old naira notes because their duty is to protect lives and property. The situation will cause commotion and confusion when people have the old notes and they are being rejected. That’s why I said these are agents of destabilisation. They are undemocratic elements. The suspicion is that these guys are promoting civil disobedience and are attempting a subversion of democratic governance because you can’t be a government and through your actions you are as well promoting chaos. In the fullness of time, Nigerians will realise what their true mission is. Certainly, this has gone beyond monetary issue. When the CBN Governor, Godwin Emefiele and Buhari’s pictures will not be on the new notes, then what is the usefulness of this arrogance of power, rigidity and stubbornness? For me this has gone beyond the money issue. Why should they be punishing people like this?