Activism and agenda setting in the judiciary By Nasiru Suwald

Last week was a uniquely challenging time for the media, what with a plethora of breaking news everywhere, from financial scandals, to the now usual bout of bombing sessions at Sunday mass, not to mention its eventual transmutation into the perennial ethnic and religious conflict in Kaduna. However, in the midst of this odious cocktail, one story stole the limelight—the purported declaration of the concept of Islamic banking as illegal, within the provisions of the Banks and Other Financial Institution Act, by Justice Gabriel Kolawole of the Federal High Court, Abuja Division.

According to media reports, the judge was very angry with both the Governor of the Central Bank of Nigeria, and the Attorney General of the Federation. To the former, he accused him of straying outside the province of his powers with respect to issuing license to an Islamic bank without recourse to his supervising minister and the requisite approval of the Head of State, while the latter courted the displeasure of the jurist for standing-by while an illegality is being perpetuated.

According to the judge: “There is no provision in the CBN Act and the Banks and Other Financial Institutions Act (BOFIA) that empowers the CBN Governor, Sanusi Lamido Sanusi to issue license for non-interest financial institution to operate under Principles of Islamic Jurisprudence without approval of the Head of State through the finance minister. Unlike the other specialized banks, the Ja’iz International Bank PLC can only be established with the intervention of the National Assembly by amending BOFIA Act.”

However, upon all the impressive judicial admonishing, it was the next statement of the judge, sitting on the bench, which virtually rendered his postulation a nullity. Hear him: “This is hereby struck out for lack of locus standi, but the AGF should take steps to remedy the situation, and further ensure that the CBN carries out its duties within the provisions of the law establishing it.”

Actually, it was an Abuja based legal practitioner who instituted the action, seeking relief for a declaratory verdict on the legality and constitutionality of the Central Bank of Nigeria’s issuance of licenses for the operation of non-interest banking within our national jurisdiction. But the judge, in his wisdom, held that the plaintiff was neither a depositor nor a customer of the special facility bank, in fact, and by inference, the holding of the judge was that Mr. Godwin Agboji was a disinterested interloper, who cannot prove of any harm which is likely to occur to him, should the operations of the banks be left to subsist as a legal activity.

Generally and by dictates of the traditional norms of our procedural laws, whenever an individual institutes an action seeking for a relief, it is expected that the first issue to be determined is his connection with the matter, either as a party in dispute or an individual likely to suffer harm, should the status quo in the situation persist to his or her peril. Unfortunately, in this instance, the person of the litigant was not in any danger of deprivations, nor is such legal deformity likely to occur to him in future, should the private institution be allowed to continue its activity.

After establishing the lack of locus for the plaintiff, the basic expectation is to declare the trial closed, despite the fact that positions of the law have not been argued to conclusion. To make further statements on the reliefs sought, amounts to pure petulant judicial activism, which panders to hidden motives and personal agendas of a judge who had already made up his mind even before the trial. Such a charge would easily disqualify a potential juror in climes that conduct trials with a jury, while condemning a judge from presiding over the matter seeking impartial judicial arbitration.

Since a proper trial was not exhausted, his statements rather than being a position of the court, was a mere obita dicta, which charged the central bank governor for overreaching the bounds of his powers under the Banks and Other Financial Institutions Act. Thus, such position amounts to assumptive inference, since a trial was never conducted to conclusion, which would have had the evidence of the central bank governor in-subordinating his superior officers. In fact a similar inferential conjuncture could also conclude that Mallam Sanusi Lamido Sanusi was probably acting with the approval of president through his supervising minister, for had he not done so, the minister of finance could have queried him, while reversing the illegality of the license issued.

It is a very dangerous precedent under our extant Nigerian jurisprudence, which sets a binding holding of the court based on mere inferences and conjunctures. In fact, even where it is a pronouncement on the less legally weighty and none judgmental postulation of an obita dictum, it is still a pronouncement of an impartial arbiter of the temple of justice, which has as a basic minimum strict adherence to dictates of legal procedure.

On the position of straying from the provision of Banks and Other Financial Institution Act, by virtue of operating Ja’iz Bank Plc as an Islamic bank, nothing could be far from reality, as nothing in its advertisement, introduction, operation and management that portrays such. Rather, it is a purely non-interest special bank, offering unique products to its customers, just like other conventional banks in Nigeria that have been offering similar facilities throughout the 1990’s. Perhaps, taking from such warped interpretation of Nigerian legal norms, if barring those who subscribe to accepting usury from its transactions amounts to discrimination by such banks, then the conventional banking format of forcing others to get involved with the profiteering financial instrument is also a limitation on their fundamental rights as citizens.

Regarding the often vilified Advisory Council of Experts which sets the operational parameters of a non-interest bank, as breaching section 14 (3) of the 1999 constitution, this is purely a literal and subjective interpretation, for appointments into certain special agencies require some form of “positive discrimination”, a critical example is membership of National Hajj Commission barring a Christian or membership of the Christian Pilgrims Board voiding a Muslims from its administrative leadership because eligibility requires only persons of same faith to govern such agencies.

Indeed, while Justice Gabriel Kolawole finds the two policy officials offending the provisions of the Banks and Other Financial Institutions Act, on the non-interest bank project, one must also say it is on the same premise that he can be faulted of error as inserting himself, for while it is duty of judges to make arbitration of disputes, issuance of judicial verdicts or decrees and interpretation of the law, the Constitution of the Federal Republic of Nigeria 1999 is very clear on who has the duty of advising the government on all legal matters of state and it is certainly not a judge but the person of the Attorney General of the Federation and Minister of Justice.


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