Johnson Odion Esezoobo Esq
Nigeria: Truly An Enigma –Johnson Odion Esezoobo Esq
Considering the State of insecurity in the Country, the EndSARS and now the strike action by the Judiciary Staff Union of Nigeria (JUSUN), one is wont to press the claim that Nigeria is truly an enigma.
Sixty one (61) years ago in 1960 Nigeria gained independence from the British Colonial hegemony. Three years later in 1963, it became a Republic. But because it could not manage itself through the law it adopted as means of governance, the Country fell under the weight of military takeover that eventually snowballed into a civil war from 1967 to 1970.
By October 1979, a new Constitution of the American model which marked a break with the British parliamentary system and was pronounced by the highest Court of the land to be authoctonous was adopted. Yet, less than four (4) years later in December 1983 there was another political thunder clap that ushered in another military takeover of Government.
The emergent military regime of General Buhari though, purposeful and visionary got carried away by the enormity of the problem it inherited and was aided by us lawyers into undue high handedness that became its bane. But beneath it all were the lawyers who drafted useless Decree of martial law nature and Judges who upheld them as of a war situation.
Good advocacy and judicial activism should have dictated that a peace time military rule should be construed differently from a war or martial time as is illustrated by Marais Vs G. O. C. And so construed, all military Decrees drafted by lawyers for the soldiers and upheld by the Judges were uncalled for as they were bound to imperil future development of principles of democracy and Rule of law.
A country whose people’s psyche or orientation had been skewed to doing things the military way as unpretentiously evident in Nwosu Vs Imo State Environmental Sanitation Agency  2 N.W.L.R (Pt.135) 688, couldn’t reasonably be expected to switch back easily to embrace democratic norm. The quick and easy resort to litigation in Court even when discussion and negotiations as part of solicitors practice could have been auspicious is evidence of this.
Thus, since military handover of political governance in May 1999, it has not been easy to switch back to the civility that is needed to run a successful democracy. The situation has been accentuated by the peculiar situation in which the so-called democracy was launched and has been midwifed by ex-military heads of State, who once ruled the country by Decrees. It is in the nature of a transition from a full blown Military rule to a special civil democratic rule.
But in all of these, the painful aspect is that from 1960 to date, we have established more Universities with more faculties of law. There has been increased learning in law. We have produced more Professors of law and Senior Advocates of Nigeria (SAN). Many principles of law and sound dicta are churned out by the day. Yet in all of these we are not influencing our society positively. Some have opted to refer to Nigeria as a zoo or jungle inhabited by animals. This is a way of saying that law is not benefiting Nigeria. This is one lesson from the strike action by JUSUN; that for over 60years, Nigeria under law has not been able to make its people and Government responsible and accountable.
I have heard people quote with relish such statements by Nelson Mandela as there are three places meant for a freedom fighter, the prison, the grave or exile and I laugh. If that statement was valid in Pieter Botha’s South, it certainly couldn’t be during Nelson Mandela’s South Africa. And it would have been disappointing if that great man upon becoming President after the struggle had allowed a situation that would still make that statement valid in his time.
That the citizens of Nigeria can be allowed to go on strike at all over matters that are clearly spelt out by the Constitution, that administration of justice can be allowed to come to a standstill for a whole month in a Nigeria under a Nigerian, not a foreigner, such that we can be driven to singing solidarity songs of ancient times, all shows that there is something wrong with us that is yet to be discovered.
Gentlemen of the Bar and the Bench, it is time to get right with our law. We have not lived up to our role as leaders, by our calling, in society. In his letter to the State Governors on the judiciary workers’ industrial over the matter of financial autonomy for the judiciary on which there are subsisting judgements of Courts, Olisa Agbakoba, Esq SAN said he was “…saddened by the avoidable strike action by the Judiciary Staff Union of Nigeria (JUSUN) because of the stress it has caused the judicial system”.
The learned Senior Advocate of Nigeria posits that “A simple way out is for state governors to obey judgments of the court” in view of Sections 81(3) and 121 (3) of the constitution which “…grant financial autonomy to the Federal and State Judiciaries” and “This has been confirmed by courts in the following cases: JUSUN vs National Judiciary Council & Governors –Suit No. FHC/ABJ/CS/667/13; Olisa Agbakoba vs FG, The NJC & National Assembly – Suit No FHC/ABJ/CS/63/2013 and Olisa Agbakoba vs AG, Ekiti State & 2 others – Suit No.NAD/56/2013”.
The Minister of Labour and Employment who promised to “…make a commitment here” said The Executive Order 10 and its application, granting autonomy to the Judiciary which is topmost on your demand will be tackled because it is a constitutional issue. Even Governors owe their office to the constitution. You don’t pick and choose what to obey. However, we must handle this matter with maturity and utmost patriotism.” Senator Ngige urged the striking judicial workers to resume work so that when the judicial officers return from Easter holidays, they would not meet the strike.
Also speaking, the President of JUSUN, Comrade Marwan Mustafa, said they were guided by the Constitution of the country in their action, stressing that democracy has to thrive on the Rule of Law. Marwan Mustafa said, “The Federal Republic of Nigeria is a Federation and is guided by a Constitution. However, we observed that the particular provision of the constitution that grants financial autonomy to the judiciary has never been obeyed as much as it should be, particularly Section 21(2) and Section 81(3). “Having agitated for so long for the needful to be done and it is not done, we went to court and got a judgment before 2014. We are patient. We are not lawless people because we work in a sector where the rule of Law guides our operation. But to our amazement since we went to strike in 2015, the government seems not to hear us until now”.
The judiciary is a victim of its apathetic attitude to issues of administration of justice in Nigeria. Its position on the matter is captured in the dictum of in Abaye Vs Ofili (1986) 1. S.C. 231 wherein it relegated itself by claiming to ‘weak and having only judgments’. This same attitude was amplified in the case of Nwosu VS Imo State Environmental Sanitation Agency (1990) 2 N.W.L.R (Pt. 135) 688 at 727 thus:- “Similarly, as in military regimes, decrees of the Federal Military Government clearly ousts the court’s jurisdiction, there is no dancing round the issue to found jurisdiction tht has been taken away. Lawyers trained and groomed under the notion of civil liberty frown on ouster provisions in any act of parliament; so do the judges of similar background. But it must be remembered that Armed Forces Ruling Council is not a parliament, neither does it pretend to be one. We have lived with their Decrees (where by Supreme Military Council or Armed Forces Ruling Council, in fact nomenclature is not relevant) for long now that their should be no doubt as to the meaning of their ouster provisions. Their Decrees, they always emphasise for avoidance of doubt, are supreme even to the constitution. It is for that purpose that legal practice will attract more confidence if administrative avenues are pursued rather than journey of discovery inherent in court action in such matter”.
Admittedly that was during military rule. But to the extent that the judiciary is not expected to change colour with the environment like the chameleon, military regime couldn’t be a justification for compromising the law and by that social values necessary for protecting the society.
What arose out of the above, is that the judiciary failed to strengthen the institutions of State over personalities that manned them. We all witnessed the military rule. Politicians of today we’re either players in the impunity that characterised it or are products of it. It is not surprising that the Governors have assumed imperial position in Government taking advantage of the judicial self relegation to a position of irrelevance in the scheme of things. And unless it re-asserts itself things can never be the same again.
By the same attitude the judiciary did not see itself as owing a duty to protect the ideals of the constitution such as hearing citizen’s case within a reasonable time. For example, in the pathetic case of the 44 Lecturers of Ilorin, appellants brought a motion for accelerated hearing of their case after having spent years at the trial and Appeal Courts. The Supreme Court declined the motion and said that the case was just… years old. A judiciary that considered itself as owing a duty in the governance of the country ordinarily should be anxious to deal with a case involving a dismissal of a whole lot of 44 Lecturers by one man in the Vice Chancellor. Note that 44 Lecturers’ means the lives and destiny of about 176 persons excluding other dependents, assuming that the 44 were males with a wife and two children each. Thus, turning back 44 lecturers was turning down the livelihood of over 176 persons; this is quite apart from the loss of human capital to the University as well as loss of learning to the students.
Because the judiciary has not assisted in strengthening institutions, it has unwittingly suckled the executive to a position of the Judge and the law giver such that it is as the executive wants it. And so, it was easy for Buhari to use the very institution meant for the safeguard of the values of the constitution to decapitate other institutions and their functionaries. That was why it was easy for Buhari using Umar’s CCT to humiliate the judiciary by the brazen and lawless manner Walter Onnogene was removed as CJN. And Tanko Muhammad offered himself to be sworn as CJN; a betrayal of the notion of a noble profession. In contrast to that brazen impunity is what we witnessed in the case of Donald Trump when all the institutions served as such to preserve the ideal of their Constitution rather than the selfish interest of the President. That shows the lip service that we pay to our Constitution.
That 61 years after independence and 42 years after adoption of the American model Constitution, we are still struggling to get it right such that we are confused and do not know what to do to curtail the executive even in the face of outright violation of the Constitution shows that Nigeria is indeed an enigma. We cannot adopt the American system and refuse to model ourselves to the system and expect to get it right. No, it will not work unless we re-orientate ourselves. And we can start again now.
Johnson Odion Esezoobo Can Be Reached Via- +234 803 320 0595