It has been 25 years of highs and lows for the Nigerian judiciary and the country’s democratic journey. In this period, Nigerians have hailed some pronouncements for restoring faith in the country’s rule of law and democracy while flaying decisions that confounded their view of settled principles of moral and legal justice.
As one of the three arms of government alongside the executive and legislature, the judiciary under Section 6(6)(b) of the Nigerian Constitution 1999 is vested with the powers to determine “all matters between persons, or between government or authority and to any persons in Nigeria, and all actions and proceedings relating to it, for the determination of any question as to the civil rights and obligations of that person.”
The various courts of the judiciary have been assigned various responsibilities by the Nigerian Constitution. Some of the courts are the Supreme Court, the Court of Appeal, the Federal High Court, the state high courts, the National Industrial Court, the Sharia Court of Appeal, the Magistrate Court, the Area Court, and the various tribunals such as those for investment and securities, consumer protection, the Code of Conduct, and other regulatory bodies.
After decades of military regimes, Nigeria returned to democracy on May 29, 1999, with the expectations of Nigerians that the judicial arm of government would contribute immensely to safeguarding a just and fair society as impartial arbiters and interpreters of the grundnorm of the land.
Though they still lingered in the subconscious of Nigerians, the infamous rulings of Justices Bassey Ikpeme and Dahiru Saleh that truncated the 1993 presidential election were believed to have been remedied by several pronouncements that followed the return of democracy in 1999.
Landmark pronouncements
Some of the pronouncements that shaped the country’s democracy include the Supreme Court’s decision on April 5, 2002, in the suit between the Attorney General of the Federation vs. the Abia State Attorney General and 35 others, seeking interpretation on the seaward boundary of the littoral (coastal) states of Nigeria as a basis for calculating the revenue accruing to the federation account from natural resources.
The seven-member panel led by Justice Muhammad Uwais made some profound interpretations of the provisions of the 1999 Nigerian Constitution in relation to the Territorial Waters, the Exclusive Economic Zone, and the Continental Shelf of Nigeria.
The apex court held, in relation to Cross Rivers’ claim as a littoral state to the resources adjacent its shores, that the area not exceeding 200 nautical miles from the baseline from which the breadth of the territorial sea of the Nigerian State is measured is part of the territory of the state.
The apex court further ruled that the state was entitled to 13% derivation from all-natural resources derived from the high seas offshore based on the principle of derivation and to render such accounts from 1987 until the date of the judgement.
The panel said, “A declaration that section 44(3) and the proviso to section 162(2) of the 1999 Constitution do not recognise the so-called onshore/offshore dichotomy, which has since been abolished by Act No. 106 of 1992 and presently being unconstitutionally employed by the plaintiff (FG) in the course of determining the revenue allocation due to the 10th Defendant from the Federation Account.”
Removal of the VP
Another important pronouncement of the judiciary is on the removal of a vice president, as decided by the Supreme Court in the Attorney General of the Federation and others versus Alhaji Atiku Abubakar (Vice President of the Federal Republic of Nigeria) and others.
After President Olusegun Obasanjo sought to declare the seat of the vice president vacant for decamping from the Peoples Democratic Party (PDP) to the Action Congress (AC) after their re-election in 2003, the Court of Appeal dismissed the action, and the Supreme Court affirmed the verdict in its judgment.
In its judgement, the apex court’s panel of seven justices led by Justice Sylvester Umar Onu on April 20, 2007 ruled that “Unlike the ministers, the Vice President cannot be removed by the President. The process of removing the president or vice president is provided for in Section 143 of the Constitution. It is through the process of impeachment, which is to be conducted by the National Assembly as set out in that section.
“It is clear from the above provisions of Section 143 of the Constitution that the process leading to the removal of the President or the Vice President is entirely that of the National Assembly.”
Immunity for president, VP, governor, and deputy governor
Another landmark pronouncement of the Court of Appeal, the court with the requisite appellate jurisdiction, was the question of executive immunity in Nigeria. This involved the appeal between the Attorney General of the Federation and others versus Alhaji Atiku Abubakar after the latter challenged the charges against him before the Code of Conduct Tribunal for allegedly contravening the law.
The appellate court held that immunity under Section 308 of the Nigerian Constitution prohibits every civil and criminal proceeding against the president, vice president, governor, and deputy governor, notwithstanding and/or regardless of the court where prosecution takes place, whether it is a court established under 15(1) of the Fifth Schedule to the Constitution with the features of a court and performing the duties of a court.
Financial autonomy for the state judiciary, legislature
Furthermore, the Supreme Court was called upon to determine the question of the financial independence of the state judiciary and legislature. The judgement followed then-President Muhammadu Buhari’s signing of Executive Order 10 in June 2020.
A seven-member panel led by Justice Muhammed Dattijo held that the order violated the provisions of the 1999 Constitution, which stipulates the functions and powers of the heads of each arm of the government.
“This country is still a federation, and the 1999 Constitution it operates is a federal one. The Constitution provides a clear delineation of powers between the states and the federal government. The President has overstepped the limit of his constitutional powers by issuing Executive Order 10,” he said.
Despite the order, the judiciary at the federal level has continued to enjoy increased direct funding, although observers believe its funding decisions ought not to be determined by the executive.
Post-election petitions’ verdicts
The judiciary has dispensed with thousands of post-election petitions since the return of democracy in 1999. For instance, the 2007 elections were the most litigated, with 1,282 petitions, according to records from the Independent National Electoral Commission (INEC), with the 2023 elections following with 1,196.
The presidential election petition pronouncements of the Supreme Court in Buhari vs. Yar’Adua in 2007; Atiku vs. Buhari in 2019; Atiku vs. Tinubu in 2023; and Obi vs. Tinubu in 2023 are considered controversial after ending outside popular expectations, while the pre-election pronouncements that returned Godswill Akpabio and Ahmed Lawan as senators from Akwa Ibom and Yobe states, respectively, are among the most shocking verdicts of the apex court.
Similarly, the judiciary has had to wade in on several occasions in the internal crises of political parties with decisions that have altered the entire electoral process. Some of these cases led to the emergence of Rotimi Amaechi, Bello Matawalle, and Hope Uzodinma as governors of Rivers, Zamfara, and Imo states, respectively.
Controversies and corruption allegations
The judiciary has been bedevilled with numerous controversies that cast it in a bad light. For instance, the refusal of the elevation to the Supreme Court from the Court of Appeal between the then Chief Justice of Nigeria, Alloysius Katsina-Alu, and Ayo Isa Salami is one such controversy in 2011.
Another controversial issue was the Department of State Services’ raid of the homes of judges on allegations of corruption in October 2016, which was a breach of the National Judicial Council Act.
While that matter was yet to settle, the eventual removal of then-CJN Walter Onnoghen and his replacement with Justice Ibrahim Tanko Muhammad on January 25, 2019 on the premise that the Code of Conduct Tribunal convicted him over false asset declaration also brought the third arm of government into disrepute.
In recent times, allegations of corruption and nepotism have continued to trail the affairs of the judiciary, such that a coalition of civil society organisations asked CJN Olukayode Ariwoola to address the issues.
But the CJN said in October 2023 that such attacks do not affect the judicial officers’ interest in delivering justice according to the constitution.
“Several vitriolic attacks are regularly heaped on the judiciary; it is, however, crystal clear that public opinion, no matter how serious or weighty it might be, cannot override or supersede the constitution of the country that we apply in deciding each case,” he said.
But the CJN was quick to add that “Nevertheless, your lordships still owe your conscience and the generality of the Nigerian masses, particularly those who are looking up to you, the great responsibility of good moral rectitude and acceptable conduct to uphold and consolidate the trust reposed in you.”
Experts divided on performance
The general consensus of experts on the judiciary’s steps in the democratic journey of Nigeria is that there are gaps that still require reforms, among them the prosecution of corruption cases. The judiciary has attempted to plug the weakness on their part with the establishment of the Corruption and Financial Crime Cases Trial Monitoring Committee (COTRIMCO) by Justice Onnoghen in May 2018. But experts believed this had not translated to a faster and higher conclusion in corruption cases.
However, some experts believed that most of the cases dismissed by the courts were due to poor prosecution resulting from filing charges without sufficient evidence.
Reacting to the contribution of the judiciary to Nigeria’s democracy so far, Ben Anachebe (SAN) said the judiciary has largely failed to deliver justice, while the blame games are diversionary and intended to massage its ego.
However, Dayo Akinlaja (SAN) said the judiciary has done well when situated in the Nigerian context with its constraints.
“Of course, it is stating the obvious that there is ample room for improvement,” he added.
Similarly, E.M.D. Umukoro, Esq., said the judiciary has done well overall in stabilising the country’s democracy, as they have always decided the presidential election petitions in the interest of peace and stability in the country.
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