When courts of law become political sex workers, By Chidi Anselm Odinkalu

This Nigerian variant on political questions, inverts the meaning of the doctrine, corrupting it to the point of making it a philosophy of judicial transaction. Not to put too fine a spin on it, the Nigerian doctrine of political questions guarantees unto political harlotry benediction from its judicial co-travelers. It has turned Nigeria’s courts into political sex workers.

Gladys Ukeje was the daughter of Lazarus Ogbonnaya Ukeje, who died in Lagos, the commercial capital of Nigeria, in December 1981. He left behind property but did not make a will. In June 1982, Lagos State granted his wife, Lois, and son, Enyinnaya, the right to administer and share the estate to the exclusion of Gladys. She sued them on February 22, 1982 before the High Court of Lagos. Nearly nine years later, on January 10, 1992, the High Court of Lagos delivered judgment in favour of Gladys. Lois and Enyinnaya appealed to the Court of Appeal and from there to the Supreme Court in Abuja where, in April 2014, the case was finally decided in favour of Gladys. It took her 31 years of litigation and nearly 33 years, after the death of her dad, to get Nigeria’s courts to affirm her right as a woman to inherit in equality with the rest of her family.

Caroline Mgbafor Mojekwu, another widow from South-East Nigeria, spent 38 years of litigation in different courts in the country, from 1959, before she got the Court of Appeal in April 1997 to affirm her right to inherit the property left by her deceased husband, which a male in-law had sought to dis-inherit her of.

The year after the Supreme Court decided the case of Gladys Ukeje, Nigeria conducted a presidential election in which, for the first time in its history, an opposition candidate beat a ruling party through the ballot box. The new president, Muhammadu Buhari, a soldier, and former coup plotter, campaigned on the alluring promise of ending corruption. In the same cycle, Bukola Saraki, whose father, Olusola, was majority leader in the Senate overthrown by Major-General Buhari in 1983, emerged in somewhat controversial circumstances, as the president of the Senate but without the nod of the new president. An uncivil war ensued between Buhari and Saraki, in which the former’s “fight” against corruption became a convenient instrument.

In September 2015, the Economic and Financial Crimes Commission (EFCC) arraigned Bukola Saraki before the Code of Conduct Tribunal on charges connected with asset declaration compliance. His objection to the proceedings failed and he appealed to the Court of Appeal, which equally dismissed his appeal on the penultimate day of October 2015. Five days later, Saraki took his case to the Supreme Court, whose final judgment in the case came down at the beginning of February 2016.

Gladys Ukeje, who spent 31 years in the same courts to get what rightfully belonged to her, would have been impressed by alacrity with which Nigerian courts discovered the facility of speedy dispensation of the law in Saraki’s case. It had taken a mere five months to get from the first instance decision, through the Court of Appeal up to the Supreme Court.

This speed may have been perplexing but then this was a criminal case, and the courts were supposedly doing a commendable job of complying with the constitutional standard of disposing of such cases “within a reasonable time.” Racing through the entire court system in five months was the judicial equivalent of justice on Speed (no pun).

Gladys Ukeje and Cordelia Mgbafor Mojekwu were two women of less than relatively modest means. Anonymous as they were, Nigerian courts – the “lost hope of the common man” – showed no haste or seriousness in attending to them. Having granted them access, the courts strung them along interminably to the point of enabling their impoverishment.

Nigerian courts are nothing if not consistent in this kind of magic. Between August and December 2021, the case concerning the removal of the former Chairman of the Peoples Democratic Party (PDP), Uche Secondus, raced through the High Court of Rivers State and the Court of Appeal, to a final decision before the Supreme Court in a mere four months.

While many senior public officers in Nigeria worried about the COVID-19 pandemic for much of 2020, Dave Umahi, governor of Ebonyi State in South-East Nigeria was inexplicably preoccupied with his political future. At the onset of another wave of the pandemic, in November 2020, he dumped the PDP, on whose platform he was resoundingly elected to a second term in 2019, and joined the ruling All Progressives Congress (APC). One year later, the PDP decided to drag him to court, claiming that by decamping to a party different from the one on whose platform he was elected, Umahi had forfeited his office. Umahi filed his response objecting to the case in November 2021. On March 8, 2022, the Court delivered its judgment. It took all of four months to decide the case, from filing to judgment.

Those who find this impressive have not yet experienced any court within the precincts of Abia State. On February 25, Muhammadu Buhari assented to the new Electoral Act, 2022, but took objection to Section 84(12) in the new Act, asking the National Assembly to re-consider it. Two weeks later, on March 9, the National Assembly declined Buhari’s request. On March 18, Justice Evelyn Anyadike of the Federal High Court in Umuahia, capital of Abia State, announced a judgment granting Buhari’s request and ordering the Attorney-General of the Federation “to forthwith delete the said Subsection 12 of Section 84 from the body of the Electoral Act, 2022.”

Even before the court order could have been served on him, Attorney-General of the Federation, Abubakar Malami, a Senior Advocate of Nigeria (SAN) and supposed defendant in the suit, exultantly announced that “[t]he judgment of the court will be recognised by the government printers in printing the Electoral Act. The Act will be gazetted factoring the effect of the judgment into consideration and deleting the constitutionally offensive provision accordingly.”

In the three weeks since the Act was signed into law, the claim had been filed, served, responded to, briefs had been exchanged and argued and judgment considered, written, and delivered and executed. It does her injustice to describe this Justice Evelyn Anyadike as a marvel of judicial miracle and wonder.

Gladys Ukeje and Cordelia Mgbafor Mojekwu were two women of less than relatively modest means. Anonymous as they were, Nigerian courts – the “lost hope of the common man” – showed no haste or seriousness in attending to them. Having granted them access, the courts strung them along interminably to the point of enabling their impoverishment.

The courts are now the place where the politicians go to launder their dirty business, with full guarantee of judicial absolution. It hardly occurs to those who run them that if they required the politicians to join the queue of judicial delay which they visit habitually on citizens, they could more easily reduce the overload of cases, govern their dockets, compel the politicians to take the legal system seriously and restore the credibility of Nigeria’s judges and courts.

By contrast Saraki, Secondus, and Umahi are among the movers and shakers of Nigeria. Their cases concerned the settlement of partisan disputes among powerful men. In their favour, Nigeria’s Chief Justice confessed at the end of 2021 that he had created a special category of “political cases” and, presumably, a high speed judicial track for them.

Lawyers who do public or constitutional law, as well as political scientists, will be familiar with the doctrine of “political questions” in judicial adjudication. It is a doctrine of avoidance by which courts are reluctant to embrace cases that offer “the potentiality of embarrassment from multifarious pronouncements by various departments on one question.” These are precisely the cases that the Nigerian courts not merely take but prioritise.

These courts can only do that at the expense of ordinary citizens, whose cases gather dust in the dockets of inattention. This Nigerian variant on political questions, inverts the meaning of the doctrine, corrupting it to the point of making it a philosophy of judicial transaction. Not to put too fine a spin on it, the Nigerian doctrine of political questions guarantees unto political harlotry benediction from its judicial co-travelers. It has turned Nigeria’s courts into political sex workers.

The consequences are stark. Disputes involving ordinary citizens who pack no political or financial punch vegetate interminably in the courts. Politicians are unwilling to invest in reforming the judicial or legal process. They know they can always shunt the queue of its dysfunctions and, if everything fails, they can finagle their political way through judicial harlotry. In return, candidates importune the politicians for judicial appointment in the knowledge that they do so for explicit or implicit quid pro quo.

Nigeria’s courts are, therefore, brimming with party political cases that have no place in court, except because of the license granted by Nigeria’s unique inversion of the political questions doctrine. The ruling APC alone has over 208 court cases pending, in connection with its lack of internal democracy. At this rate, the courts can ill afford to do much else.

The courts are now the place where the politicians go to launder their dirty business, with full guarantee of judicial absolution. It hardly occurs to those who run them that if they required the politicians to join the queue of judicial delay which they visit habitually on citizens, they could more easily reduce the overload of cases, govern their dockets, compel the politicians to take the legal system seriously and restore the credibility of Nigeria’s judges and courts.

Chidi Anselm Odinkalu, a lawyer and teacher, can be reached at chidi.odinkalu@tufts.edu.