THE MILITARIZATION OF OUR JUDICIARY

By Ballason Gloria Mabeiam

The year was 580BC.The period was set in ancient Greece where the concept of monarchy, tyranny and oligarchy had worn the people out. The idea that an individual or a few would decide the fate of a majority was no longer gaining currency; in fact, it had suffered recession, depression and all the ‘sions’ that should lead it to the grave. Sparta in its rejection of private wealth as a determinant for caste placement thought to divide power between four bodies- the Spartan kings (monarchs),the Gerousia (Elders), the Ephors (citizens’ representatives who supervised kings) and the Paella (Assembly of Spartans).
Lycurgus, a man reputed for his legendary law enactment, set to create reforms that would ensure the Helot revolt did not recur. His reforms were around three areas- equality among citizens, military fitness and austerity. He also delineated powers to the elders and the assembly. In the years and epoch that followed, Lycurgus’ foundation created a basis for which the mass of free persons could unleash the power that allows them solve their problems. It became a system where people have an equal share to power.
Then came the year 1787, a year in which leaders of the United States gathered to write the Constitution- a set of principles that told how the nation would be governed.

The leaders of the States wanted a strong and fair national government but they also wanted to protect individual freedoms and prevent the government from abusing its power. They believed the idea could be attained by having three separate branches of government – the executive, the legislative and the judicial. This separation was described in the first three articles of the Constitution of the United States of America, a model that would later be replicated by other countries.

The third tier, the judiciary, was designed as a balancing axle for other arms of government. Montesquieu in his wisdom propounded the concept of separation of powers. He thought it wise that the judiciary should be independent so that in decision making, it would be preserved in its own space-far away from improper influence and partisan interest. This is the path that developed countries and forward looking democracies have continued to toe.
Today in Nigeria, the constitutional path has been blurred. Although Section 231 of the Constitution provides for the appointment of the Chief Justice of Nigeria and justices of the Supreme Court; there appears to be a conspiracy to tinker with the provision. For the avoidance of doubt, the relevant section reads:
(1)The appointment of a person to the office of Chief Justice of Nigeria shall be made by the President on the recommendation of the National Judicial Council subject to confirmation of such appointment by the Senate.
(2) The appointment of a person to the office of a justice of the Supreme Court shall be made by the President on the recommendation of the National Judicial Council subject to confirmation of such appointment by the Senate.
(3) A person shall not be qualified to hold the office of Chief Justice of Nigeria or of a Justice of the Supreme Court, unless he is qualified to practice as a legal practitioner in Nigeria and has been so qualified for a period of not less than 15years.
(4) If the office of Chief Justice of Nigeria is vacant or if the person holding the office is for any reason unable to perform the functions of the office, then until the person has been appointed to and has assumed the functions of that office or until the person holding the office has resumed those functions, the President shall appoint the most senior justice of the Supreme court to perform those functions.
(5) Except on the recommendation of the National Judicial Council, an appointment pursuant to the provision of sub section (4) of this section shall seize to have effect after the expiration of three months from the date of such appointment, and the President shall not re-appoint a person whose appointment has lapsed.
On October 6, 2016, the National Judicial Council recommended Justice Walter Onnoghen as acting Chief Justice of Nigeria. His appointment in an acting capacity when the National Judicial Council saw no reason to stop his recommendation as substantive Chief Justice was askance. There was then mumbles in judicial circles about this rather curious act of the President. But just so the President could be left to enjoy his presidential prerogative of pulling levers as he pleases, at least before the end of the 3 months period in which the acting Chief Justice may function; President Buhari was allowed to act within the parameters of his prerogative. It now appears that our judiciary may be subject to a militarized procedure in which the decision is by a presidential fiat and not the Constitution.
Few days to the expiration of the three months tenure for which in finality Justice Onnoghen would lose the opportunity of being appointed as substantive Chief Justice, there is a growing protest over the failure of the President to forward his name to the senate for confirmation. The protest has come in all shades- allegation of ethnic/religious bias, interference with the independence of the Judiciary and critique on the high handedness of the Buhari administration.

Indeed, Col Abubakar Dangiwa Umar (rtd), a former military administrator of Kaduna State, has recently called on the presidency to address the fears that it does not want a southerner as CJN.

In his words “ In a few days now, the tenure of acting appointment of Justice Onnoghen will expire …and the Presidency has not provided any cogent and plausible or believable reason for its failure to forward the name of Justice Onnoghen to the Senate. He has left Nigerians guessing and speculating about the reasons”
The Nigeria Bar Association has equally urged the Presidency to do the needful. Niger-Deltans are crying foul. Former Aviation Minister, Femi-Fani Kayode is decrying the incident just as in many other quarters. The question that begs for answer is why we strain our system and push it to the brink knowing that as a nation, we have more than enough on our plate.
Why does an institution as serious and critical to the life of a nation have to be to be so maneuvered as to make it capable of distorting the destiny of our nation? Why does this administration treat the judiciary as malleable clay and stretch it like a rubber band whose elastic limit it longs to see? Clearly, the Buhari-led government is failing to re-purpose the Nigerian space in such a manner as to engender a more nationalist feel to our being and to issues. Politicians are working as miners underground to undermine the foundation of our corporate existence, saboteurs are cashing into the suspended law and order situation to make brisk mischief; this is unfortunate especially with the fault lines that already exist in our country.
As I round up my thoughts, I ask of this administration the question: What values is it trading off as it makes its decision? Is it responsive to the core issues that make for our future or reckless about the things that matter? The answers to that question is important because without the judiciary being independent and insulated from the whims and caprices of politics, neither people nor our rights, values or our nation can be protected in this arrangement. And if we are exposed to these elements, we may as well deem our end determined.

Ballason Gloria Mabeiam is a lawyer, Civil Rights activist and CEO House of Justice

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