Contempt: Punishment Vs Enforcement

By ADEBISI ONANUGA

Recent contempt rulings against Economic and Financial Crimes Commission (EFCC) Chairman Abdulrasheed Bawa, Inspector-General of Police (IGP) Usman Alkali and Chief of Army Staff (COAS) Lt.-Gen. Faruk Yahaya have sparked public interest in the practicability of the judiciary’s power to make orders against the country’s chief law enforcement officers whose constitutional duty it is to enforce such orders. ADEBISI ONANUGA examines the issue and its potential effects on the rule of law and administration of justice.

The judicial arm of government, in the last three weeks, sparked public interest in the rule of law by applying full contempt sanctions against the heads of the executive’s law enforcement and anti-corruption agencies – the Nigerian Police Force and the Economic and Financial Crimes Commission (EFCC). The judiciary also exercised its power of conviction against one of the most important arms of the country’s military.

The courts, two in Abuja and one in Niger State, made high profile decisions against Economic and Financial Crimes Commission (EFCC) Chairman Abdulrasheed Bawa, Inspector-General of Police (IGP) Usman Alkali and Chief of Army Staff (COAS) Lt.-Gen. Faruk Yahaya.

The courts drew their power from, among others, Section 287 of the Constitution which commands that the decisions of all courts shall be enforced in any part of the Federation by all concerned authorities and persons.

The matter of COAS

Last Thursday, Justice Halima Abdulmalik of a Minna High Court, Niger State issued a warrant for the arrest of Lt Gen Yahaya, for alleged contempt.

The court also issued a warrant of arrest against the Commandant of the Training and Doctrine Command ((TRADOC), Minna, Olugbenga Olabanji, over the same offence in suit a marked NSHC/225/2019.

The applicants in the suit are one Adamu Makama and 42 others while the Governor of Niger State and seven others are the defendants.

Mohammed Liman, counsel to the plaintiffs/applicants, applied that the defendants be sent to the Correctional Centre for disobeying an October 12, 2022 order.

Ruling on the application, Justice Abdulmalik granted the prayers of the applicants. The judge added that the COAS and TRADOC remain in the custody of the Niger State Correctional Centre until they purge themselves of the contempt. He adjourned till December 8 for continuation of hearing.

IGP’s case

Similarly, Justice Mobolaji Olajuwon of a Federal High Court, Abuja last Tuesday sentenced the IGP Baba to three months in prison for disobeying a court order.

Justice Olajuwon issued the ruling following a suit filed by a former police officer, Patrick Okoli. Okoli through his lawyer, Arinze Egbo, claimed he was unlawfully and compulsorily retired from the police force.

Justice Olajuwon, who warned Baba against non-compliance with the earlier court judgment, said the IG shall be liable to another three months jail-term if he fails to purge himself of the contempt.

Okoli, in a suit marked: FHC/ABJ/CS/637/2009, amongst other prayers, urged the court to order his reinstatement, claiming that he was unlawfully retired in 1992, by the Police Council, presently known as Police Service Commission (PSC), while serving in Bauchi State Command as a Chief Superintendent of Police (CSP).

He said his compulsory retirement, under Decree 17 of 1984, was illegal. Another judge, Justice Donatus Okorowo had in a judgment on October 21, 2011, issued an order of mandamus compelling the then IGP to do his duty according to law and to comply with the orders of the PSC, as contained in their letter of May 5, 2009, directing him to reinstate Okoli into the Police Force and to present for the recommendation of the commission, the I-G’s recommendation for the promotion of the applicant from 2013 to date, among others.

Following non-compliance with the judgment, Okoli’s counsel, Egbo, filed Forms 48 and 49 supported by affidavit before Justice Olajuwon, praying the court to convict and sentence the IG for failing to obey Justice Okorowo judgment.

Granting the application, the court ruled that the police chief be committed to prison and detained in custody for three months or until he has obeyed the October 21, 2011 order.

But IGP Baba challenged the ruling. He filed a motion praying a Federal High Court, sitting in Abuja, to set aside the contempt proceeding and committal order. The IGP, in the motion filed before the Court last Thursday highlighted grounds why the orders against him should be set aside.

The police boss, according to a statement by Police Public Relations Officer at the Headquarters, Abuja, CSP Olumuyiwa Adejobi, noted that Baba had not been appointed into office as IGP when the case was instituted and the said reinstatement order in question granted.

Court sets aside EFCC chair, Bawa’s conviction

The Federal Capital Territory (FCT) High Court in Abuja, on November 10, nullified its earlier order jailing EFCC Chairman Mr. Bawa, for contempt.

Justice Chizoba Oji had on October 28 convicted Bawa for contempt of court and ordered IGP Baba to arrest the EFCC boss with a view to incarcerating him at Kuje prison in Abuja.

But ruling on Bawa’s application, the judge set aside her decision.

Justice Oji said she was satisfied that the EFCC Chairman did not disregard the court’s orders, asking him to release seized assets belonging to Rufus Ojuawo, a retired air vice marshal.

The judge held that evidence before her showed Mr Bawa had complied with the court’s order, directing the EFCC to return a Range Rover Sport vehicle valued at N40 million, which it confiscated from Mr Ojuawo, a former Director of Operations at the Nigerian Air Force.

Ms Oji said: “I hereby set aside the entire contempt proceedings in Suit No. FCT/HC/CR/184/2016 between the Federal Republic of Nigeria v AVM Rufus Adeniyi Ojuawo.

“That I further set aside the conviction of the applicant, the Executive Chairman, Economic and Financial Crimes Commission, for contempt unconditionally.”

The EFCC had in a statement explained that it had released the Range Rover car to the applicant on June 22, 2022, and was in the process of releasing the remaining N40 million.

Also faulting Mr Bawa’s conviction, the commission had said that he was not served with Forms 48 and 49 required to commence contempt proceedings.

Disregard of court orders

A cardinal principle of judicial independence is that judges and magistrates must be free to exercise judicial power without fear or favour.

But the three decisions have awakened interest following public perception that the executive has a penchant for disregard of court orders.

In February this year, the Socio-Economic Rights and Accountability Project, SERAP, alleged that since inauguration in 2015, the President Muhammadu Buhari administration has disobeyed many court judgments.

During the public presentation of the report, SERAP’s Deputy Director, Kolawole Oludare highlighted some of the court judgments which his organisation had secured against the Federal Government but which no action has been taken to implement.

“The first of such judgments is the judgment by Justice Hadiza Shagari delivered on July 5, 2017 ordering the Federal Government to tell Nigerians about the stolen asset it allegedly recovered, with details of the amounts recovered.

“The second judgment, by Justice Mohammed Idris, on February 26, 2016 ordered the Federal Government to publish details on the spending of stolen funds recovered by successive governments since the return of democracy in 1999.

“The third judgment by Justice Oluremi Oguntoyinbo on November, 26, 2019 ordered the Federal Government to challenge the legality of states’ pension laws permitting former governors now serving as ministers and members of the National Assembly to collect such pensions, and to recover pensions already collected by them.

The fourth judgment, by Justice Mohammed Idris on May 28, 2018, ordered the Federal Government to prosecute senior lawmakers suspected of padding and stealing N481 billion from the 2016 budget; and to widely publish the report of investigations into the alleged padding of the 2016 budget.

“The fifth judgment by Justice Chuka Obiozor on July 4, 2019 ordered the Federal Government to publish the names of companies and contractors who collected public funds since 1999 but failed to execute any electricity projects. These judgments and many others by the courts have remained unchallenged till date and the Federal Government has refused to obey them.”

Justice sector stakeholders say such disregard and disobedience to court orders violate the constitution, constitute a threat to the entrenchment of the rule of law and have dire implications for the sustenance of democracy in the country.

Judiciary turns blind eye to Police’ disobedience of orders

Some stakeholders blame the judiciary for the situation, saying it ought to do more to assert its independence by engaging in judicial activism.

Former Chairman, Nigerian Bar Association (NBA) Ikorodu Branch, Bayo Akinlade, referenced the case where a magistrate “was reportedly recently re-assigned for giving an order against a Commissioner.”

According to him, such occurrence shakes public trust on the Judiciary.

According to him, the judiciary has lost its power and respect. He blamed it on the appointment process which he argued has been politicised and weakened the institution of the third arm of government.

He also blamed the judiciary saying that “the police, for instance, disobey court orders frequently yet the judiciary continues to indulge them. The executive arm of government disobeys the court frequently yet the judiciary would cower before the Executive Arm and make orders in their favour and so on.”

Akinlade urged judges to “rise up, reconsider their oaths above all else and do their jobs as a calling of divine importance.

“We need to start seeing and hearing from the judiciary. We need judicial activism to restore confidence in the justice delivery sector.”

Lawyers react

Other lawyers considered whether the courts can punish Chief Security Officers for the offence of their predecessors in office. Wahab Shittu (SAN), Dr Fassy Yusuf, Convener Access to Justice (A2J) Joseph Otteh and Chairman, Nigerian Bar Association Section on Public Interest and Development Law (NBA-SPIDEL), Dr Monday Ubani weigh in on the matter.

‘Punish for contempt with caution’

Shittu said the rule of law is the foundation of any ordered society, and equality before the law ought to be the norm rather than the exception.

According to him, “the integrity and authority of the court is sacred. Everyone ought to come on board. Anyone or authority who treats the court with disdain ought to be sanctioned. Our courts are not expected to be held in contempt.

“The only caveat is that the power to punish for contempt ought to be deployed with caution. For anyone including high profile public functionaries to be held guilty of contempt, our courts ought to ensure that due process is observed.

“The relevant questions are. Will you say that a case of contempt in facie- curie or ex- facie curie has actually arisen? Will you say proper procedure has been followed in the contempt proceedings? Will you say the person involved actually held the court in contempt having regards to the circumstances and actual notice of the relevant court orders? Will you say the order to punish for contempt was malafide i.e. in good faith?”

Shittu expressed conviction that while it is desirable to assert the authority and integrity of our courts and punish for contempt, care must be taken not to abuse the power of contempt to bring the administration of justice into ridicule particularly in cases where events giving rise to the contempt proceedings are not reasonably within the contemplation or notice of the affected persons or public officers.

How orders can be enforced

Dr. Yusuf said the committal orders given by the court and the contempt proceedings on the EFCC chairman, the COAS and the IGP are enforceable.

He described the orders as “a welcome development in our legal development. It goes to show we still have some activism in the judiciary and that no matter whose ox is gored, the law will take its course.

“The final point is that obedience to orders or laws, to me, should be the first thing that any government should try to enforce. That, no matter the situation, the law must take its full course.”

He noted that the orders “can be enforced if this country believes in the rule of law and the sanctity of law and no matter how mighty you are, the law is mightier than you do.

He said the other way is for the executive, championed by the Attorney-General (AGF) of the Federation and the Presidency to ensure that the orders and the committals are complied with.

Yusuf argued that those affected should not be goaded and they should not be forced into influencing the law. He said they should on their own abide with the orders and committals.

He suggested that they can excuse themselves from their jobs and report at the various custodial centres and from there the law will take its course or they can immediately apply for stay of executions and this will be after filing their appeals.

“For us to say that the orders are difficult to enforce is begging the issue and also giving credence to the fact that we are still in a banana republic. The orders are not in any way difficult to enforce. It is just that the government may or is not ready to enforce the orders. As I said the AGF should be able to advise the President to ensure compliance or enforcement”, he said.

‘Court orders must held sacrosanct’

“In that regard, the sanctity and obedience of our court will to a large extent, ensure the development of our democratic jurisprudence, law and order and the society will be better for it. I am of the opinion that obedience to court orders are sacrosanct and it should be held as such”, he said..

The senior lawyer stated further that courts of law have inherent powers to enforce their orders and this is whether or not they have physical control of the machinery of enforcement. “Judiciaries in many other democracies – who, by the way do not also exercise command control over their police and military forces – do not face these dilemmas in this century.

Should the Nigerian Judiciary decide to, and are convicted of the need to do so, and when it puts its hands to the plough, it can make everyone, rich and poor, strong and weak, fall in line, and make all persons and authorities respect and enforce its orders and judgments. That indeed, is what the Constitution says.”

Shittu remarked that the Judiciary has, for far too long, allowed itself to remain at the receiving end of the pervading culture and practice of impunity, built around the dominance of power.

“As though the Judiciary was powerless to confront those who kept on undermining and denigrating its authority. Our courts have not lived up to their mission as checks and restraints against the arbitrary exercise of power and it is perhaps this complacent inertia over such a long time that is raising these sorts of questions at a time like this, when such questions should long have been settled”, he argued.

Courts not lived up to their mission against arbitrary exercise of power

Otteh stated that courts of law have inherent powers to enforce their orders” and this is whether or not they have physical control of the machinery of enforcement. Judiciaries in many other democracies – which, by the way do not also exercise command control over their police and military forces – do not face these dilemmas in this century.”

He said should the judiciary decide to, and is convinced of the need to do so, and when it puts its hands to the plough, it can make everyone, rich and poor, strong and weak, fall in line, and make all persons and authorities respect and enforce its orders and judgments. That indeed, is what the Constitution says.

Otteh contended that the Judiciary has, for far too long, allowed itself to remain at the receiving end of the pervading culture and practice of impunity, built around the dominance of power. As though the Judiciary was powerless to confront those who kept on undermining and denigrating its authority.

“Our courts have not lived up to their mission as checks and restraints against the arbitrary exercise of power and it is perhaps this complacent inertia over such a long time that is raising these sorts of questions at a time like this, when such questions should long have been settled”, he argued.

Judiciary timid in enforcing orders?

Ubani praised Justices of the various courts for the proactive and progressive steps they have taken against contemnors having realised the enormous powers bestowed upon them by our extant laws.

He recalled that the NBA-SPIDEL had a conference recently in Abuja in which the theme “The Consequences of Undermining the Judiciary” was the focal point of discussion. He said speakers including the Chief Justice of Nigeria, Justice Olukayode Ariwoola, Justice Inyang Okoro of the Supreme Court, Justice B.B. Kanyip, President of the Industrial Court, Chief Mike Ozekhome (SAN), Femi Falana (SAN) and others were of the consensus that the judiciary were undermining themselves by displaying timidity in enforcing their orders. They were accused of indulging contemnors most times by: (a) granting them audience during hearing even when they are in contempt of court orders and(b) displaying timidity in pronouncing them guilty of contempt of the courts’ orders when contempt proceedings are initiated against them.

Thumbs up for judges

Ubani said now that the judges have woken up from their sleep, it is big thumbs up for them.

Public officers especially here in Africa will want to rubbish every institution including the judiciary but that can be deterred only if the judiciary can show that they can bark and bite.

The EFCC chairman who was convicted recently was said to have quickly complied with the orders of the court they were snubbing before then, because he detests bearing the name ex-convict. The present IGP has filed the motion to set aside his conviction arguing that they have started to comply with the court orders.

What the courts must do now

Ubani advised that the court below should divest itself of jurisdiction as it has become functus officio over that matter. The IG should go on appeal. While on appeal, the appeal court should insist on full compliance before the conviction can be set aside.

He said this development is a golden opportunity for the courts in Nigeria to restore its dignity, respect and integrity.

According to him, a toothless judiciary is the most dangerous institution anywhere in the world.

It is our firm desire to see that the hope of the common man is restored on our judicial system in the country. Compliance to court orders remain the main fulcrum that will boost that restoration.