Whether or not the facts justified the judge in invoking the power of contempt is not in dispute at this time. For present purposes, that point is conceded. However, having done so, the court thereafter chose to sacrifice its power on the altar of abuse. In the circumstance, regrettably, Mr Abubakar was well within his rights to be slow in complying with “kneel down”. Put differently, there was no order to obey.
“Minor judges have been known to abuse the contempt of court jurisdiction in an attempt to enhance their own dignity.” – David Pannick QC, Judges, 119 (1987)
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Sardar Tejendrasingh lived in England but, by his own admission, was devoid of “respect for this country or its civilization or its courts.” In 1982, as plaintiff in a case for debt recovery at the Cambridge County Court, he chose to address the court sitting down. The court registrar, who took the view that this was contempt of the court, decided in August 1982 to pause proceedings in Mr Tejendrasingh’s case until he was purged of this contempt. One year later, in September 1983, Alan Garfitt, the trial judge, informed Mr Tejendrasingh of the court’s decision to indefinitely suspend hearing of his case unless and until he provided a written undertaking to stand while addressing the court.
Mr Tejendrasingh appealed against this to the Court of Appeal, which affirmed the decision of the trial judge. In its decision in November 1985, the Court of Appeal reasoned: “if a court orders somebody to stand when addressing it or giving evidence, that order is not different from any other order of the court. It is something which has to be obeyed.”
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The nature of orders that courts can give or which suitors in court are obliged to obey in such situations has varied through the ages. In his book on The Lives of the Lord Chancellors and Keepers of the Great Seal of England, John Lord Campbell tells a story from the first quarter of the 17th century of a “Catholic gentleman nearly eighty years old” who was sentenced to “be fined £1000, lose his ears, stand on the pillory at Westminster and Lancaster, and suffer perpetual imprisonment, for merely presenting a respectful petition to the King, praying for inquiry into the conduct of one of the judges of assize, who had condemned to death a neighbour for entertaining a Jesuit.”
Others have been even less lucky. In 1631, Chief Justice Richardson of the Court of Common Bench was on his way out of court after pronouncing a sentence of death upon a suspect on trial for a felony when “the prisoner found himself able to express his dissent from the sentence pronounced upon him by hurling a brickbat at the Chief Justice’s head.” For his contempt, the prisoner was reportedly “immediately hanged in the presence of the court.”
Recent events in Nigeria have extinguished any misapprehensions that these flashes of judicial savagery may have ended with the transition from the Medieval to the early modern period. In the past week, a judge of the Federal High Court, Mohammed Umar, reopened the question as to what kind of orders a judge may be at liberty to give in seeking to uphold his or her judicial authority or dignity.
The circumstance was the trial of publisher and politician, Omoyele Sowore, who is being prosecuted by the State Security Service on the charge of having called Nigeria’s president, Bola Ahmed Tinubu, a criminal. At the resumed trial on Monday, 16 March, contretemps reportedly erupted between the judge and the defence counsel, Marshall Abubakar, over the scheduling of a date for the defence to argue its no-case submission at the end of the prosecution’s case. The defence apparently desired a longer adjournment than the court was willing to grant.
Ordinarily, this should not have been raucous. In the midst of the exchanges over the dates, however, the judge reportedly took exception to the inflection or tone of the counsel and threatened to cite him for contempt. Almost immediately, it appears, the judge thought the better of it or lost his temper “and ordered the lawyer to step forward and kneel down as punishment for what he described as contempt of court.”
In response, Marshall Abubakar is reported to have informed the court that “kneeling before a judge was unknown to Nigerian law and could not be imposed as a lawful punishment.” At this point, other lawyers present in court, fearing the onset of a judicial meltdown, reportedly rose in collective de-escalation. They eventually managed to stay the hand of His Lordship from also asking the lawyer to raise his hands over his head, close his eyes, and expose his buttocks for licks from a judicial Sjambok.
The Nigerian Bar Association (NBA), through its president, Afam Osigwe, a Senior Advocate of Nigeria (SAN), took a serious view of the matter. In a statement issued the following day, the NBA president cautioned that “directing a legal practitioner or indeed any person whatsoever to kneel in court is not a recognised judicial sanction under our laws and does not align with the standards of judicial conduct expected on the Bench.”
At the heart of the objection by the NBA is the guarantee of the right to human dignity in section 34 of Nigeria’s constitution, reinforced by the prohibition of torture, cruel, inhuman or degrading treatment or punishment. The Uganda Law Society (ULS) also weighed in. Their reaction issued through its president, Isaac Ssemakadde, warned that “no judge possesses the legal power to order a legal practitioner to kneel. That directive was not discipline; it was humiliation.”
This episode raises important questions concerning both the limits of judicial power and standards of professional comportment for participants in the judicial and legal process.
For advocates of rule of law, judicial orders are to be obeyed at all times. So, should the lawyer (not) have obeyed the order to kneel down, even if he could then have appealed against it subsequently?
The pivotal question here is when is an order judicial? The exercise of the power to punish for contempt of court or to preserve the authority of the judicial office is not at large. In exercising it, a judge is not precluded from the obligations to observe the basic rules of fair hearing or respect for constitutional guarantees.
In this case, the order to “kneel down” was a sentence issued without the opportunity of a hearing, formal conviction, or even a record. To be quite plain, there was nothing judicial about it. Even if the lawyer was minded to obey and then appeal later, the likelihood is that there would have been no record on the basis of which to appeal for, surely, the judge could not have written: “I hereby convict Mr Abubakar and sentence him to kneel down.”
Whether or not the facts justified the judge in invoking the power of contempt is not in dispute at this time. For present purposes, that point is conceded. However, having done so, the court thereafter chose to sacrifice its power on the altar of abuse. In the circumstance, regrettably, Mr Abubakar was well within his rights to be slow in complying with “kneel down”. Put differently, there was no order to obey.
It is not as if the judge was without options in the circumstance. He could have referred the lawyer to the Legal Practitioner’s Disciplinary Committee or, indeed, tried and convicted him for contempt before deciding what sentence to impose.
Even better he may be been better served if he had read Brian McKenna’s famous lecture at the University of Durham in February 1969.
In the lecture, McKenna, a judge, tells the story of the conclusion of one of his earliest trials as a judge following which “a temperamental Irish lady flung her handbag in my direction after I had sentenced her delinquent brother to a period of training.” In response, he writes, “I gave her the benefit of doubt; I assumed that her target was the Clerk of the Court sitting beneath the throne, no myself.”
Mr Justice Kneel Down may one day discover virtue in judicial forbearance.
Chidi Anselm Odinkalu, a lawyer, teaches at the Fletcher School of Law and Diplomacy and can be reached through [email protected].
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