Shadow Government: Court-invited legal experts divided as judge hears SSS suit against Utomi

A group of legal experts was divided on Thursday at the Federal High Court in Abuja regarding the legitimacy of Pat Utomi’s call for a “shadow government”.

The submissions from the experts invited by Judge James Omotosho came down to a central issue: whether Mr Utomi’s proposition was protected by the right to freedom of expression or whether it conflicted with a strict interpretation of the constitution.

The judge has fixed 29 September to deliver judgement on the suit, which the State Security Service (SSS) filed last month against the shadow government call by Mr Utomi, a political economist and former presidential candidate.

Mr Omotosho invited in June seven senior lawyers from the advocacy and academic lines to participate in Thursday’s hearing of the suit.

The legal experts invited as amici curiae (friends of the court) included Ademola Popoola, a professor of international law and jurisprudence at the Obafemi Awolowo University (OAU), Ile-Ife, Osun State, and Uchefula Ugonna Chukwumaeze, a professor and SAN, who is the Vice Chancellor of Imo State University.

The list also included two former presidents of the Nigerian Bar Association (NBA) who are both SANs – Joseph Daudu and Yakubu Maikyau.

The rest are Joe-Kyari Gadzama, a SAN who practises in Abuja; Dakas C. J. Dakas, a SAN and law professor at the University of Jos, and Miannaya Aja Essien, also a SAN who is based in Port Harcourt, Rivers State.

Mr Omotosho said he chose to invite them due to the novel constitutional issue the suit raised.

On Thursday, the judge heard arguments from the lawyers to the parties – Akinlolu Kehinde, a SAN, for the SSS, and Mike Ozekhome, also a SAN, for Mr Utomi – as well as the legal experts invited by the court.

Four of the amici curiae – Mr Daudu, Ms Essien, Mr Gadzama, and Mr Maikyau – personally attended the proceedings to offer categorical opinions.

Mr Popoola, the OAU law professor, was represented by a senior advocate, Ahmed Raji, while Mr Dakas, was represented by A.A. Usman. Mr Chukwumaeze was absent and had no representation at the proceedings.

Five of the experts who offered their opinions at the hearing were split on the issue, with Mr Daudu, Mr Maikyau and Mr Popoola opposing the shadow government call, and Mr Gadzama alongside Ms Essien throwing their weight behind it.

The SSS sued Mr Utomi, urging the court to declare Mr Utomi’s plan to establish what he and his allies described as a shadow cabinet or a shadow government be declared as an attack on the Nigerian constitution.

The secret police urged the court to determine whether the shadow government proposition, which Mr Utomi and his group said was aimed at scrutinising government actions and offering policy alternatives, constitutes a legitimate exercise of constitutional freedoms or an unlawful attempt to undermine Nigeria’s democratic institutions.

The Nigerian secret police organisation asked the court to bar the proponents of the arrangement from going ahead with it.

Mr Utomi, who has denied any wrongdoing with his call, filed a preliminary objection, urging the court to dismiss the suit for lack of jurisdiction.

SSS vs Utomi

At Thursday’s hearing, SSS’ lawyer, Akinlolu Kehinde, a SAN, maintained that Mr Utomi lacked the locus (legal right) to establish a shadow government not approved of in the Nigerian constitution.

The lawyer, who asked the court to throw out Mr Utomi’s notice of preliminary objection against the suit, submitted that the shadow government proposal is meant to subvert the law.

He said no matter what Mr Utomi’s sentiment and concerns are, no group is allowed to establish any organisation against the authority of the constituted government.

“The right to express one’s freedom is granted, but there is a limitation where the exercise of such right brings tension against the government of the day,” he said.

The plaintiff’s lawyer maintained there was a grave danger in the call for a shadow government. “We know how Boko Haram started, and even IPOB. We must not wait for a crisis to happen before we act,” he added.

Urging the court to take a preemptive step, the senior lawyer said, “We must not allow the cat to get out of the cage before chasing it.”

The defence lawyer, Mike Ozekhome, a SAN, urged the court to dismiss the suit, which he described as an attempt by the SSS to seal the lips of Nigerians from speaking against the present government.

“They are trying to hand my lord strong chains, stronger than those that dehumanised slaves over 500 years ago, to chain Nigerians,” Mr Ozekhome said.

He told the court not to accept such because it has the effect of promoting a totalitarian government. “The court should not allow it so that democracy will not go down the drain.”

He questioned why the plaintiff should be afraid of an initiative launched virtually, which aimed to serve as a credible opposition to the current administration. “It focuses only on scrutinising government actions, policies, and proffering solutions in sectors such as law, education, etc., and they are saying it is to overthrow the government.”

The defence lawyer said the shadow government is only made up of like-minded individuals and an ombudsman. He said the proposed structure lacked “a legislature, executive, ministers, or judiciary like Nigeria or the United States.”

Mr Ozekhome added that there are everyday crimes like kidnapping, banditry, terrorism, which the country should focus on as criminal offences.

Since the plaintiff is only afraid of the term “shadow government” without evidence, he said the suit is a waste of time. “They are trying to criminalise an ordinary shadow government”.

Concluding his submission, he said, “No Nigerian has proved to the plaintiff that he is confused, so there is no evidence that the group will cause a crisis.”

Positions of the amici curiae

Opposing the shadow government call on Thursday, Mr Daudu, the former NBA president, with two other amici curiae, stressed what they considered to be the negative implication of the name of the proposed body.

Mr Daudu said the issue with the shadow government is not about what they have done, but more about the nomenclature.

“It is about what the people think when such a government is mentioned. Such a name might create an inimical situation where people bypass the National Assembly and bring down the activities of the legitimate government from the comfort of their bedrooms. It is strange and fraught with endless crisis, my lord, it is unconstitutional,” he said.

On the fundamental rights elements of the issue, he said, “No right is being shackled.” He said Mr Utomi has his right to criticise, “but when he gathers people whom the Constitution does not know the process involved, it becomes excessive and inappropriate if the fundamental rights he seeks to enforce are not tied to legal, lawful, and constitutional issues.”

Similarly, Mr Popoola, another antagonist of the call, said an individual does not have the right to form a shadow government.

Represented by Mr Raji, the OAU law professor traced the origin of the term “shadow government” to 1910 when the phrase first attracted scholarly attention. He said it was normalised around 1920 and became popular around 1960.

Mr Raji said that based on Mr Popoola’s research, a shadow government is an established faction of a parliamentary system and not permitted in a country like Nigeria. “Even if it were allowed, it would be by a political party, not a person.”

He said human rights are not absolute. “You cannot hide under a shadow government, which is not recognised by the 1999 Constitution, to confuse the public. Utomi is a fantastic Nigerian. He can do this on his own, not as a group.”

Likewise, Mr Maikyau said allowing the “shadow government” to stay could incite the citizens. He said citizens’ actions “must be kept within the ambit of the law.”

He added that section 45 of the Nigerian constitution places a limit on rights. Rights are not absolute, the former NBA president said.

He commended the SSS for not taking the law into its own hands and opting to bring the matter to court.

He said the shadow government has existed since 2008, towards 2002, about 15 years without registration until 2023. Yet, its activities are not supported by the authorities.

READ ALSO: Shadow Government: Judge invites seven legal experts for SSS’ suit against Pat Utomi

However, Mr Gadzama, who backed the shadow government call, said the SSS’ suit against it was unwarranted.

Weighing in on the constitutionality of the issue, Mr Gadzama said constitutional breaches could either be speculative or actually constitutional.

The SAN explained that a speculative breach occurs when the government alleges there is a breach of the Constitution where there is none.

He said granting the plaintiff’s request “will stifle the enthusiasm of the people in the exercise of their rights and expression.”

He added that if the issue were criminal, the SSS would have acted.

He argued that nomenclature should not be a problem. “The dictionary meaning of a government could mean an association or organisation. Government does not only mean Nigeria, UK, or USA. We are practising people-oriented democracy, and we must always derive our powers from the people. We should always listen to them,” he said.

He noted that groups such as Boko Haram openly say they have taken control, “but there is no evidence that the shadow government has taken any control.”

He also said section 40 allows peaceful assembly and that they are not known to the ruling government does not mean they have done anything wrong.”

Similarly, Ms Essien argued that the name adopted by a group is immaterial. She said what matters is the action.

“If I tell you that I am a cat, does it mean I am a cat? Even if I roar and continue to say I am a lion, it does not remove the fact that I am human,” the SAN said.

She said the character and characteristics of a thing are what make it what it is, not what it claims to be. Therefore, the use of those expressions does not make them wrong.

She urged the court to look at the law and assess the actual activities of the shadow government before taking a decision.

After listening to all the arguments, Mr Omotosho fixed 29 September for judgement