Of President Buhari and his unending assault on the Nigerian Judiciary

It surely needs no telling that in a democratic society, the rule of law should at all times be preferred to the rule of men - even when fighting corruption and other vices. Afterall, two wrongs can never make a right! Consequently, whilst corruption must be fought with all available arsenal of the state, it only behoves reason that such fight must be within the established legal framework and respect for the rule of law. As rightly opined by Aristotle, the “rule of law is preferable to that of an individual.”[1] It follows, therefore, that where one who wields the institutional power of the state with the accompanying machinery is allowed to lead only in accordance with his dictates, anarchy is inevitable.  

Perhaps, it was this thought that motivated Lord Bracton, while writing in the thirteenth century to opine that the “king himself ought not to be subject to man, but subject to God and to the law, because the law makes him king.”[2] In Bracton's opinion, even the king must respect the law for the king could not have existed without the law!

In addition, in capturing the whole essence of the rule of law and pointing out the ill in allowing the rule of man to prevail, Professor A.V. Dicey aptly observed thus:  “…the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness, of prerogative, or even of wide discretionary authority on the part of the government. Englishmen are ruled by the law, and by the law alone; a man may with us be punished for a breach of the law, but he can be punished for nothing else.”

Coming home to Nigeria, the point needs not be overemphasized that the rule of law must at all times be allowed to prevail over the rule of man. The result of anything to the contrary will be gravely detrimental, not only to the course of justice, but also to Nigeria's nascent democracy, which all citizens ought to guide jealously.

It is against the foregoing background that the present writer struggles to understand how the Federal Republic of Nigeria, under a democratic dispensation and the leadership of President Buhari, got to the point where judges -the judiciary- ‘the last hope of the common man’ are not only stripped of their dignity but also indiscriminately sacrificed on the altar of President Buhari's purported ‘cleansing of the judicial system’ and executive lawlessness.

Or how else would one justify invasion of the home of a sitting Judge of the Federal High Court who became the object of President Buhari executive lawlessness as a result of the discharge of his judicial functions, without fear or favour? Wherein lies the independence of the judiciary where the Presidency chooses to humiliate the judiciary through the instrument of the state all in the name of purportedly fighting corruption and a frantic effort to impose its 'chosen one' as the next Chief Justice of Nigeria (CJN) as opposed to accepting the nomination of the most qualified Justice of the Supreme Court of Nigeria as the next CJN?[3] [4]

Hence, it is with great shock and utter disappointment that the present writer read from different dailies that certain operatives from the Department of Security Services (DSS) invaded the homes of certain judges, including the Hon. Justice Onnoghen who has been pencilled as next Chief Justice of Nigeria(CJN) and second in rank to the incumbent CJN, who is due to retire by November, having reached the retirement age of 70. Equally disturbing is the invasion of the home of Hon. Justice (Dr.) Nnamdi Dimgba who became the object of President Buhari executive lawlessness because of his vocal criticism of DSS for violating rights of persons detained at its facility.

President Buhari, the DSS and other security operatives need not be told that it is elementary principle under Nigerian Constitution that everyone is presumed innocent until proved guilty; equally important is that the burden of proof in criminal cases lies on the prosecution, who is expected to prove its cases beyond a reasonable doubt. This much is evident from a cursory read of Section 36(5) of the Nigerian Constitution and Section 135 of the Evidence Act 2011.

Where any member of the judiciary is ‘suspected’ of any unbecoming conduct, particularly as it pertains to corruption, such case should be reported to the "appropriate quarters" and allowed to be dealt with in accordance with the laid down laws, rules and/or regulations. More importantly, President Buhari must understand that he is not above the Constitution and is under a duty to abide by its tenets.

Finally, the present writer makes bold to say that the duty of protecting the sanctity of the Nigerian Constitution should be of great concern to legal practitioners (who, as ministers in the temple of justice, owe a duty,[5] if not to the Bar but ultimately to the Bench to ensure that the judiciary continues to maintain its independence) and non-legal practitioners alike. It is time we spoke against this incessant assault on the judiciary and save our democracy from its sloppy fall. For as Prof. Wole Soyinka asserted in his book, The Man Died:

The man dies in him who keeps silence in the face of oppression!

* Note: note that this publication (represents only the personal views of the writer) and is provided to highlight issues as well as for general information purposes only; it does not constitute legal advice. Whilst reasonable steps were taken to ensure the accuracy of information contained in this publication, the author does not accept any responsibility for any loss or damage that may arise from reliance on information contained in this publication.

References

[1]See Politics III, 16 (trans. Jowett ed. Davis) cited in Aihe & Oluyede, Cases and Materials on Constitutional Law in Nigeria, Oxford University Press 1979, pp. 22-23. Cases and Materials on Constitutional Law in Nigeria, University Press Plc, Ibadan(Second Edition, 2003), p.57

[2] See Aihe & Oluyede, Cases and Materials on Constitutional Law in Nigeria, Oxford University Press 1979, pp. 22-23; Cases and Materials on Constitutional Law in Nigeria, University Press Plc, Ibadan(Second Edition, 2003), p.57

[3] See Dailypost, Seun Opejobi, October 7, 2016, “NJC to recommend Justice Onnoghen to Buhari as new CJN,” available at https://dailypost.ng/2016/10/07/njc-recommend-justice-onnoghen-buhari-new-cjn/ and accessed on 8 October 2016.

[4] See Vanguard, October 8, 2016, “Two Supreme court judges, 5 others arrested over alleged corruption,” available at https://www.vanguardngr.com/2016/10/two-supreme-court-judges-5-others-arrested-alleged-corruption/ and accessed on 8 October 2016.

[5] Rule 1 of the Rules of Professional Conduct for Legal Practitioners (RPC) 2007 requires all legal practitioners in Nigeria to uphold the rule of law, promote and foster the cause of justice.