Nigeria: The courts calling for a constitutional crisis – Bala Ibrahim
All over the world, in democracy, the judiciary is referred to as the third arm of the government, whose primary role is to interpret laws enacted by the Legislature, and apply such laws to individual cases. It therefore becomes the organ that reviews the lawfulness of such decisions and actions of government officials. That is the constitutional practice everywhere, including Nigeria, the biggest democracy in Africa.
However, for some strange reasons, the judiciary in Nigeria seems to be on a course to create a crisis, that could come in conflict with the confidence conferred on the courts.
Lawyers are in the habit of quoting the maxim that courts have neither the power of the purse nor of the sword, the simple meaning of which is that, unlike the other institutions of government, the courts rarely have the power to raise and spend money, and do not command the institutions of coercion, such as the police and the military. Of course without the force, the courts are naturally weak, and incapable of enforcing their decisions, or following up on the compliance with their orders.
Recently, strange things have been happening from the courts, that make one wonders about the issue of judicial legitimacy in Nigeria. The learned keep giving us, “the less learned, or unlearned”, sermons, to the effect that, an institution is legitimate when it is perceived as having the right or the authority to make decisions, and when its decisions are viewed as worthy of respect or obedience. This is borne out of the believe that judges are impartial, and that their decisions are grounded in law, not some sinister or political interests.
In the days of my late hero, Chief Gani Fawehemi, SAM, SAN, I’ve heard him referred to a judgement as judicial rascality. Now, at the risk of being sentenced to prison for contempt, for asking whether the courts are now trying to get the power of causing confusion in Nigeria, I would stand on the submission of my late hero, to question why, the following judgements cannot come under the classification of judicial rascality.
The latest is what happened on Wednesday, 28th November 2022, where a High Court in Minna, Niger State, issued a warrant of arrest for the Chief of Army Staff, General Faruk Yahaya, for alleged contempt of court.
The state’s chief judge, Justice Halima Abdulmalik, who gave the order, also issued a warrant of arrest for the Commandant Training and Doctrine Command, Minna, Major General Stevenson Olugbenga Olabanji. In the judgement, Abdulmalik stated that the order followed the hearing of a case brought before the court, pursuant to Order 42, Rule 10 of the Niger State High Court Civil Procedure 2018. She ruled thus:
“The order is commuting the Chief of Army Staff, General Faruk Yahaya and the Commandant Training and Doctrine Command Minna, Major General Stevenson Olugbenga Olabanji, to be kept in Minna Correctional Custody for contentions of the order of this court on 12 October 2022.” And that the two suspects should be remanded in custody until they purge themselves of the court contempt.
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This is coming only two days after the High Court in Abuja, had sentenced the Inspector-General of Police (IGP), Usman Alkali Baba, to three months in prison for disobeying a court order. The order was given pursuant to a suit marked FHC/ABJ/CS/637/2009 filed by a former police officer, Patrick Okoli, who claimed he was unlawfully and compulsorily retired from the Nigeria Police Force in June 1992.
The Hausa man would say, “Babbar magana”.
The issue of Okoli happened in 1992 and Alkali Usman Baba joined the police on the 15th of March 1988, six years after. In reacting to the court order, the police responded thus:
“It is instructive to note that the case in point concerns an officer who was dismissed as far back as 1992, a few years after the current IGP joined the Nigeria Police Force, based on available facts gleaned from the reports. The most recent judgement on the matter was given in 2011, which should ordinarily not fall under the direct purview of the current administration of the Force. Thus, the news is strange and astonishing”.
Similarly, on the 28th of October this year, in a ruling delivered by Justice Chizoba Oji of the Federal Capital Territory High Court in Abuja, the Chairman of the Economic and Financial Crimes Commission, EFCC, Abdulrasheed Bawa, was sentenced to Kuje Prison over the contempt of court. Bawa was convicted of contempt of court in relation to the failure of the anti-graft agency to comply with a November 21, 2018 court order directing it to return a Range Rover and the sum of N40 million to the applicant in the suit. The issue happened in 2018 and Bawa became EFCC Chairman on the 16th of February, 2021.
Knowing fully that without the security operatives, the courts don’t have the powers of enforcing the orders, in issuing these arrest warrants, are the courts expecting the directives to be effected by some hunters, or members of an appointed vigilante group? Lawyers say the law is common sense sensibly applied, but methinks in these instances, a different sense is employed by the judges.
In the light of the numerous ominous theories circulating since the infamous security alert issued by America and some foreign countries, the courts are particularly called to caution, in order for them not to allow themselves become a tool for the derailment of democracy.
In 1993, the Association For Better Nigeria, ABN, made use of the court, to scuttle the election that was adjudged to be the freest and fairest in the history of Nigeria.
Ibrahim, APC Director of Publicity, writes from Abuja
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