Is the Supreme Court Impartial Page 1 of 4

Is the Supreme Court Impartial?

By

I. S. Moses

Ever since the advent of Democracy there has been this widespread belief that the Supreme Court has been delivering landmark judgments that are well reasoned and devoid of any bias. The apex court has been praised by all and sundry as the guardian of democracy and due process and the bulwark against totalitarianism and arbitrariness in government. This impression gained credence shortly after the so-called Resource Control Suit AG Abia State & 36 Others V The Federal Government and their interpretation of the Constitution in the case on the tenure of local government councils. These judgments earned the Supreme Court boundless encomium from the Nigerian public. This sentiment was again amplified in the Law Column of the Tuesday April1 2003 edition of THISDAY Newspaper by Mohammed Tawfik Ladan (Law Personality) when he said ".... the current supreme court bench is the finest, the best in the history of the supreme court...... There has never been a single case that went before them when they ruled on sentiment."

As widespread and acceptable this belief may be, a closer and analytical look at some judgments of the Supreme Court would leave one with the inescapable feeling that "perhaps, it is probably possible that the Supreme Court may have decided some cases on sentiment". This is the sneaky feeling I have after analyzing the voting patterns in the judgment of the supreme courts in two cases i.e. AG (Federation) V AG Abia State and 36 others (Resource control suit) and the case of Mohammed Abacha vs The State (Bail Application).

These are two cases that had ethnic undertones and sections of the country were pitted against one another where the victory of one section of the country would mean a loss or defeat for another part. The position the justices of the Supreme Court took in these cases was a pure reflection of their ethnic background and sentiments.

In other cases that are not so ethnically or regionally separatist or volatile, the Supreme Court may be trusted to come up with balanced and unbiased judgments but in ethnically and sentimentally charged cases, a study of these two cases will reveal that the justices will vote according to their "ethnic, tribal, regional or religious conscience".

Ag (Fed) V AG Abia (And 36 Ors). (Resource Control Suit)

The late Chief Bola Ige as federal Attorney-General on behalf of the Federal Government instituted this suit. The suit was brought before the Supreme Court to interpret the constitution in order to determine basically whether the littoral states were entitled to 13% (as enshrined in the constitution) of revenue accruing to the Federal Government from the Petroleum extracted off-shore in the continental shelf. Although all the states of the Federation were joined as parties to the suit it was clear from the onset that the real targets of the Federal Government action were the littoral States (those States bounding the sea) i.e. Rivers, Bayelsa, Delta, Akwa Ibom and states. These were the states whose economic fortunes would be adversely affected by the success of the Federal Government action. Akwa Ibom, which has most of its oil off shore, would be especially hit.

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The suit generated a lot of controversy. Akwa Ibom State organized demonstrations to pressure the federal government to abandon the suit. The littoral states saw it as a ploy by the Federal to deprive them of the benefit of their natural resources by introducing the on shore\offshore dichotomy while non littoral state saw it as a legitimate way of stopping a few Nigerians from enjoying the proceeds of the off shore oil which they believe belongs to all Nigerians. The stage was now set for a show down. It was the littoral state versus the rest of . Victory for the littoral states would mean defeat for the rest of Nigerian who would not get the anticipated increased revenue. Victory for the rest of Nigeria would mean a great set back for the littoral states who will suffer a loss of revenue from the 13% derivation accruing from off shore oil.

In this dicey situation with the nation polarized along regional lines, how did the Supreme Court fare?

All the justices from the non littoral states whose state do not stand to benefit from offshore oil revenue held that the states were not entitled to 13% of monies derived from offshore oil. The only dissenting judgment was from Honourable Justice Adolphus Karibe Whyte - from the littoral state of Rivers. He was of the opinion that littoral states (including his own Rivers state) were entitled to 13% offshore revenue. Is it a mere coincidence that the justices in this case gave judgments and opinions that were in consonance and a reflection of the aspiration and view points of their ethnic groups and states of origin? Were they giving unbiased judgement or adjudicating according to their ethnic conscience? In the light of the above, would the judgement have been the same if a majority of the justices were from the littoral states that stand to benefit from a reverse judgement?

Like I said it is just a sneaky feeling that something somewhere is just not right at the Supreme Court.

The Mohammed Abacha Case

This case was an offshoot of the prosecution of Mohammed Abacha, son of the Late Head of State, General Abacha for complicity in the murder of Kudirat Abiola- wife of M.K.O Abiola. M.k.O Abiola was the acclaimed winner of the June 12 1997 election. For insisting on his Mandate, Mko Abiola was locked up by General Abacha. His wife Kudirat who was leading a campaign to get Abiola released and sworn in as president was assassinated in Lagos. Abiola himself later died in detention. The Yoruba ethnic group was very embittered by these incidents.

With the enthronement of democracy and the coming to power of General (himself a Yoruba and a victim of Abacha's strong arm tactics) the way was now open to right the wrongs of the past. Mohammed Abacha along with other henchman of the Abacha era were arrested and arraigned at the Lagos High Court for the Murder of Kudirat Abiola.

The evidence against Mohammed Abacha at the trial, which the prosecution opined proved his complicity in the murder, was as follows: a. That he was in the office of Major Hamza Al Mustapha, Chief Security officer to General Abacha when he was handing weapons to the assassins sergeant Rogers and his gang to go for the operation. b That his driver in Lagos provided his (Mohammed's) vehicle, which the assassins used for the operation on his instruction. c. That he gave the assassins the sum of ten thousand dollars to escape from Nigeria to avoid detection and arrest after killing Kudirat Abiola .

This case like the Resource Control suit, generated a lot of controversy and pitted the North against the South (especially the Yoruba). The Northerners were of the opinion that the president, General Olusegun Obasanjo was on revenge mission by visiting the sins of General Abacha on his son, Mohammed. They saw it as a pure case of vendetta and witch hunting. They therefore started a campaign led by Alhaji Kaloma (Abacha's minister for solid mineral) to free Mohammed from what they

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saw as unjust incarceration and persecution. Emissaries were sent to Aso rock to plead with the president to release Mohammed Abacha. Demonstrations were organized in Northern Nigeria (especially Kano) to convince the Government to release Mohammed. "Free Mohammed Abacha." Posters were pasted all over Northern Nigeria. The president was even stoned where he visited Kano all on account of Mohammed Abacha.

The South (especially the Yoruba) on the other hand was in full support of the prosecution. The Yoruba who saw themselves as the greatest victims of the Abacha regime during which a lot of their prominent citizens were either hounded into exile or killed wanted the case tried to a conclusion - i.e. the conviction and possible execution of Mohammed Abacha.

In the midst of all this controversy Mohammed Abacha brought an application for the enforcement of his fundamental human rights. He contended that the Attorney-General has not adduced enough evidence to establish a prima facie case against him, which he should be called upon to answer i.e. that the above evidence does not prove his guilt. He therefore prayed that he be released unconditionally from custody. The application was rejected at both the High Court and Court of Appeal, which held that a prima facie case has been made and declined to order his release form detention.

Mohammed Abacha thereafter took his case to the Supreme Court - our Apex court. Again how did the court fare in an ethnical and regionally controversial case?

These were five presiding justices. Four were from Northern Nigeria and one was a Yoruba from Southern Nigeria. The judges are as follows: a. Mohammed Lawal Uwais, Hausa Fulani from , b. Idris Legbo Kutigi, Nupe from c. Sylvester Umaru Onu, Idoma from Benue State d. Aloysius Katsina Alu, Tiv from Benue State e. Olufemi Ejiwumi, Yoruba.

All the judges from Northern Nigeria were all of the opinion that in spite of the overwhelming evidence earlier mentioned Mohammed had no case to answer and therefore ordered his unconditional release from detention.

This judgment was in tune with the feelings and desires of Northern Nigeria and the "Northern Justices" gave effect to it. Femi Ejiwumi, a Yoruba was the Mega phone of the Yoruba viewpoint. In his dissenting opinion he called the judgment " a tyranny of the majority."A majority of who?"- If I may ask. I suppose a majority of Northern Judges. He was of the opinion like his Yoruba people that the evidence against Mohammed Abacha was sufficient and he should have been called upon to defend himself and not be released from detention.

Once again the vital questions. Was it a mere coincidence that Northern judges were espousing Northern opinions and giving effect to Northern desires in their judgement while a Yoruba judge was grumbling about Northern tyrants masquerading as judges because the judgement did not favour his people or gave effect to the desire of his ethnic group?

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Would the judgement have been the same if we had a majority of Yoruba or non-Northern judges presiding over the case?

Mohammed Tawfik Ladan in his interview was of the opinion that the sharia Controversy be tested in the Supreme Court. I don't think this is wise. Going by the trend in the earlier analyzed cases we are likely going to have Moslem Judges giving a pro-Sharia judgment while non-Moslem judges will give anti-sharia judgement. Which ever of these two groups has the majority will carry the day. Such a judgment will be vehemently rejected and resisted by the losing side and be labeled either a "Moslem judgement" or "Christian judgement" as the case may be. This to my mind would amount to rousing the religious dragon in Nigeria that would spit a massive fire that may consume the country. So let's let sleeping dogs lie.

My opinion based on the earlier analyzed cases is that the Supreme Court is too tainted and not pure enough to adjudicate on ethnically or religiously controversial issues. Each judge is likely to give a judgement that furthers his ethnic, regional, or religious interest. In other tepid matters like the case on the tenure of local government councils where no ethnic group or region stands to gain any advantage over others the Supreme Court may be counted upon to do justice.

Though the judgement in the two cases analyzed are not conclusive evidence of bias in the Supreme Court they are strong indications the Supreme Court is not as altruistic as it has been made out to be and there may indeed be some truth to the allegations of bias in the court. Only the future conduct of the Honourable justices in controversial cases will prove or disprove this suspicion.

It is incumbent on the judges of the court which is the final arbiter in our judicial systems to dispel all traces of bias and ethnicity because justice must not only be done but it must be manifestly seen to be done. This is the only way that the citizens will have the confidence to bring their matters to court for adjudication. Once that confidence is lost and particular judges are identified other as Moslem judge, Christian judge, South South Judge or Yoruba, Hausa, Tiv or Bachama judge etc. then the court is finished and whether judgement is given by the court will be interpreted in that ethnic, regional or religious prism. The result will be that people will lose faith in the judicial system. They will no longer bring their grievance to court for adjudication but will instead result to self-help, which is the precursor to anarchy. I hope it does not come to that. God bless Nigeria.

June 2003

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