The courts as shopping malls
By Owei Lakemfa
POLITICIANS in uniform became the sole authority in the country from December 31, 1983. They removed the elected executive and planted themselves in power. They abolished the legislature but retained the judiciary to do their bidding or punish their enemies. For those who did not agree with their policies, there was Decree 2 of 1984 under which people were detained indefinitely without trial.
To disagree with government policies like the Transition Programme was heretical. So when patriots like the legendary Michael Imoudu, Wahab Goodluck and Gani Fawehinmi disagreed with the Structural Adjustment Programme, SAP, and decided to hold a seminar on it, they were detained without trial. Court orders were not obeyed, and even to ask that the regimes obey their own laws, was seen as treasonable acts.
The jurisdiction of the courts was ousted on many matters and the regimes refused to obey court orders or judgements. Those courageous enough to stand up against the military anarchy characterized the refusal to obey court orders as “Executive lawlessness.” Tired of this, in 1987, Alao Aka-Bashorun, a 57-year old lawyer with a 32-year experience at the bar decided to contest for the Nigeria Bar Association, NBA, presidency with a promise to restore some sanity.
Of course, the military continued in its old style and not many thought anything could be done about it. That was until the military government of old Gongola State disobeyed a court order. The Aka-Bashorun leadership mobilized lawyers to boycott the courts and shut them down. A shocked Babangida regime thought it was unfair; it argued that the lawyers strike should have been limited to the courts in the affected state and not nationwide. But the lawyers stuck to guns and told the regime it was at liberty to abolish the judiciary, but until it does so, court orders must be obeyed.
At this time, a young Nigerian, Abubakar Malami was approaching his 21st birthday and clawing through education to achieve his ambition to join the legal profession. From this larva stage, he emerged a lawyer in 1991. Aka-Bashourun, despite his brilliance, sacrifices, fifty years in practice and is one of the best lawyers in our history, was never conferred with the prestigious title of a Senior Advocate of Nigeria, SAN. But young Malami had quite a rapid growth; in sixteen years of practice, he became a SAN, and a leading politician.
Malami was a member of the Peoples Democratic Party, PDP, legal team in the 2003 Election Petition, the legal adviser of the defunct Congress for Progressive Change, CPC, member of the All Progressives Congress, APC, Constitution Sub-Committee in June 2014 and gubernatorial aspirant of the APC. In 2015, he was appointed justice minister and attorney general of the federation.
Perhaps in recognizing the struggles of lawyers like Aka-Bashorun and the depths we have come as a country, Malami declared: “The immediate desire of the office of the Attorney General of the Federation is the enforcement of our laws to confine impunity to the past.” Ironically, it is for impunity, Malami has become better known. He enmeshed his office in a lot of controversies including romancing a fugitive and giving him security protection.
This re-opened the debate whether the office of the attorney general should not be separated from that of the minister of justice so that the former can be professionally run and the latter given to politicians who maybe lawyers. Perhaps the most controversial cases of impunity are those of former national security adviser, retired Colonel Sambo Dasuki and Shiite leader, Ibraheem El-Zakzaky who have been held for four years despite repeated court orders granting them bail.
The first judgement on the cleric was given by Justice Gabriel Kolawole of the Federal High Court, Abuja who dismissed government arguments and warned that: “If the applicant dies in custody which I do not pray for, it could result in many needless deaths.” He ordered that the government should within 45 days release El-Zakzaky and his wife and pay them a fine of N25 million each. Four years later, the couple is still in detention.
Malami who has consistently rejected all court orders on Dasuki and El-Zakzaki was reappointed a minister in July. Not a few expected the Senate which has the constitutional responsibility to screen ministerial nominees, to take him through a drill. Malami went before the Senate and declared in the manner of a magistrate which he used to be, that the: “AGF is meant to protect the public interest and where the individual interests conflicts with the public interest of 180 million Nigerians that are interested in having this country integrated, public interest must naturally prevail…”
Rather than take him up, an obviously impressed Senate asked Malami to take a bow and go. It confirmed him. The House of Representatives also debated the various court orders releasing the EL-Zakzakis and shot down motions by Herman Hembe and Linda Ikpeazu asking the government to release them.
It is quite a spectacle that lawmakers would urge the executive not to obey court orders or be guided by the country’s laws and constitution.
The judiciary joined the onslaught against human and constitutional rights in the country when on July 26, Justice Nkeonye Maha of the Federal High Court, Abuja proscribed the Shiites Islamic Movement of Nigeria, IMN. She designated the IMN activities “as acts of terrorism and illegality.” Ironically, while the government has for four years refused to obey the court orders on El-Zakzaki, it is the IMN that has insisted it does so.
So the movement in fighting that court orders be obeyed, should be a friend of the court. I thought the judicial mantra is: “He who comes to equity, must come with clean hands.” In this case, the hands of the government drip with the blood of the Shiites murdered for demanding the enforcement of court orders, yet it gets a judgement against the victims.
Under Nigeria’s homegrown democracy, court orders and judgements have become like shopping malls where the executive picks and chooses which to obey, which to disobey. Of course, there are reasons or excuses adduced for these including an elastic definition of “Public Interest” and “National Security.” The courts are not allowed to determine these; the executive is too busy for such matters. Rather, like a superior court, it simply overrides the decisions of the courts.
Nigeria is a model democracy in which the minister of justice, standing in the sacred grove of the Senate, and legislators in the hallowed chambers of the House of Representatives would pronounce that the Executive has the right to disobey court orders, and the judiciary concurs. Such harmony of the three arms of government is surely unique and I recommend it to other climes.