Judges-wig

Not since a Supreme Court justice blew his tops sometime in 2007 over ex-president Olusegun Obasanjo’s meddlesomeness (in either the Rotimi Amaechi governorship qualification case or ex-vice president Atiku Abubakar’s presidential qualification case) have Nigerians seen a judge so angry at officialdom as when Justice Yusuf Haliru of an Abuja High Court blasted the Economic and Financial Crimes Commission (EFCC) for trampling on the constitution.

Last week, Justice Haliru had taken on both the EFCC and the Nigerian Army in the case of the enforcement of the rights of Col. Nicholas Ashinze detained since December. The detained officer, a former aide of Col. Sambo Dasuki (retd.), was first locked up by the EFCC without charge or bail, and then handed over to the army, which also locked him up without charge or bail.

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A furious Justice Haliru had exploded thus: “The EFCC is a creation of the law. The court will not allow it to act as if it is above the law. It is remarkable to note that the motto of the EFCC is that nobody is above the law, yet they are acting as if they are above the law. The EFCC Act is not superior to the constitution of the Federal Republic of Nigeria. The respondents in this matter have not behaved as if we are in a civilised society. They have behaved as if we are in a military dictatorship where they arrest and release persons at will. The respondents —the EFCC and the Army— I must be bold to say, have behaved like illiterates. Why has the 1st respondent kept the applicant without bringing him to court? Why was the applicant, being a serving military officer, who could be easily reached, not granted administrative bail? Or is it that the applicant has been found guilty and already serving his jail term? Nobody should be subjected to the whims and caprices of the EFCC. The essence of the rule of law and constitutional provisions is to ensure a just balance between the ruler and the ruled, between the powerful and the weak. Though the EFCC has the responsibility to investigate financial crime, it must, however, conduct its operations in accordance with the rule of law. The court is empowered to guard against improper use of power by any member of the society or agency, EFCC inclusive.”

It is impossible to render Justice Haliru’s view on the issue, and in the matter of individual rights and justice, better than he has framed it himself. His view is weighty, balanced, succinct, bold and magisterial. If the Col. Ashinze case had not taken place in the context of increasing high-handedness of the Muhammadu Buhari presidency, Justice Haliru would still have been right and measured to declaim upon the matter before him in the manner he did. That the case is heard in the current abysmal atmosphere of creeping executive and bureaucratic excesses makes the eminent judge’s candour even more attractive and indispensable. The judge begins by acknowledging the credo of the EFCC, a credo which by the way, and right from inception, they never had the culture of respecting in their messianic pursuit of the anti-graft war. EFCC assumes that because it offers a great service to society by fighting those who plunder the country, the public should naturally and unquestioningly rally behind them, whether evidence hold up in court or not, and whether adequate investigations have been done or not.

Justice Haliru follows up by reminding the anti-graft agency that the EFCC Act is not superior to the Nigerian Constitution that guarantees the rights of citizens and determines under what conditions those rights can be suspended or forfeited. This point is lost on many Nigerians who, in their patriotic concern for good and ethical governance, often embrace and acquiesce to executive excesses and lawlessness. The eminent judge then descends on both organisations, describing them as behaving like illiterates living and operating in an uncivilised society. Finally, in case some Nigerians forget the role the judiciary plays, just as the Buhari presidency appears to do, the judge reminds everyone that the courts are empowered to guard against excesses and oppression, and to stand between the weak and the strong. That, the judge concludes, is the essence of the rule of law. It is this rule of law that sets the civilised society apart from a barbarian society.

It is, however, unlikely that anytime soon, Nigerians will appreciate Justice Haliru’s umbrage. They are hurting too much to care what happens to the rule of law. Their patrimony has been so alienated by a few rich and powerful people that they can’t care less what measures, civilised or not, decent or brutish, are meted out to the offenders, most of whom had been tried and convicted before ever they were charged in court. The misery and squalor in which they dwell, which are attributed to the actions of a malfeasant few, have triggered such great animus in them that they conclude that the constitution and the laws of the republic need unorthodox, even authoritarian, help to preserve and promote. Left to the public, the EFCC and the army, the suspected offenders are all guilty simply because the EFCC or the government has declared them so. Having been declared guilty, and on account of the grief and misery they are alleged to have brought upon the country, it is considered that they no longer deserve civilised treatment. The same barbarous way in which the corrupt attacked the country’s treasury, say the EFCC and those who support their extraordinary methods, make them deserving of barbarous treatment. But in the opinion of Justice Haliru, such methods would reduce the country to the hideous level of the miscreants.

At a time when President Buhari intriguingly declared the judiciary his main headache, at a time when the EFCC was running rampant on the rule of law and promoting the belief, without necessarily saying so, that the entire judiciary was corrupt, at a time when only a few people in the country subscribed to the need to defend institutions and not succumb to mass hysteria, at a time when virtually all lawyers and judges were quaking in their boots lest the EFCC train their guns on them, it was courageous in the extreme for Justice Haliru to explode a depth bomb beneath the EFCC and the army. Both oganisations, not to talk of the Department of State Service (DSS), apparently inspired by the presidency’s indifference to the judiciary and the rule of law, were increasingly becoming arbitrary and authoritarian. The two organisations view any attack on them as an attack on the state. And they equate any attack on their methods with defending corruption and the corrupt. Even in the murkier days of Goodluck Jonathan, such a horrendous equation was not directly and flagrantly voiced or espoused.

Justice Haliru has courageously done the judiciary a world of service. The EFCC and the army needed taming. His trenchant dismissal of the two organisations’ methods — not their functions, as he was careful to point out — reminds everyone the risk the country runs when an agency begins to trample on the rights of those who have not been tried, let alone convicted, and the rights of those who by deliberate and injurious propaganda have been virtually pronounced guilty and undeserving of civilised treatment and protection of the constitution. The judge carpeted both organisations because he was smart enough to see through their ploys. When the EFCC feels the pressure of the courts and the rule of law, it releases its captives to security organisations with a more robust and sinister contempt for the law, such as the army and the DSS which believe that without them and the sacrifice they make, the republic would be doomed. This was what the EFCC did with Col. Dasuki (retd.), whom they passed on to the DSS, and Col. Ashinze, whom they handed over to the army, two powerful organisations that now act as appellate jailors.

Until Justice Haliru seized the bull by the horns, judges were in a panic to avoid the waspish tongue of the EFCC; and because of the bind Ricky Tarfa, a lawyer and senior advocate, found himself, lawyers tiptoed around the anti-graft agency and spoke in whispers near its officers. In fact, for many months until now, it was perhaps only the Chief Justice of Nigeria (CJN), Mahmud Mohammed, who stood up to the presidency and the rampaging anti-graft agencies, warning of the danger of wholesale condemnation of the judiciary. He acknowledged that like other institutions, there were some undesirable elements in the judiciary deserving to be exposed and punished. But he also said he was appalled by the undiscriminating manner the judiciary was being harassed, intimidated and denounced.

How, in their enthusiasm to clean up the country, President Buhari and the anti-graft agencies became inured to the dangers of provoking incalculable damage to the judiciary and even instigating public loss of faith in that vital institution is hard to explain. The first task of a president is to protect the three arms of government in line with the oath he took to defend the constitution, promote their independence despite any shortcoming or misgiving, and recognise that democracy could not survive without the stabilising and restraining influences of the tripod. Justice Haliru clearly articulated this point, and the CJN voiced his concern as well under his breath. It is indisputable that corruption endangers everything, but like every surgeon knows, how a disease is extirpated also matters. This is why chemotherapy kills healthy and cancerous cells together, and is therefore not too effective a therapy; but surgery in the hands of a skilled surgeon helps to remove bad cells and leaves healthy ones. What the fight against corruption calls for is a president and his anti-graft agencies operating as skilled surgeons, with especially a visionary president quite capable of finding the titre value of his policies in his crusades against entrenched interests and dangerous habits. If they cannot offer that expert and discriminating service, they have no business occupying the positions they have been voted or appointed into.

It is humbling that rather than reinforce who the country is and what great and noble values and principles it stands for, its leaders have wilted before its first real existential challenge since the civil war. Like his predecessors, especially Chief Obasanjo and Dr Jonathan, President Buhari has ignored the fact that a man is defined not just by what cause he fights, but more importantly by how he fights. And when the man triumphs, it is important to see whether he will exhibit nobility or manifest coarse triumphalism. Should President Buhari continue in his present course of fighting brutally by hitting below the belt and biting in the clinches on the excuse that the mill of justice grinds too slowly for his liking, he will not only have defined his presidency, he will have defined Nigeria and made her a laughing stock around the civilised world, far worse than the corruption he speaks loathingly about. Chief Obasanjo couldn’t define who Nigeria was; nor did Dr Jonathan. This was why both presidents could not do lofty things nor achieve far-reaching and futuristic milestones. Can President Buhari define Nigeria? Can he describe the country’s values which no provocation would make her abandon? Does he see Nigeria better than all other countries, a position he would give his life, now in its twilight years, to pursue; a position he would not allow to be mitigated by tribe, religion, partisanship or class?

Justice Haliru’s explosive message should encourage those who work in the temple of justice to defend their great institution. They will of course need to weed out from their midst those who subvert the cause of justice, and must neither defend nor protect those who take money to pervert the cause of justice. But they will also have to stand up to the predators who desecrate the temple of justice, whether they occupy executive, legislative or appointive offices. For it is clear that many of those who deprecate the judiciary today are at bottom haters of democracy using the pretext of a few corrupt judges and lawyers as casus belli to compel the courts to do their bidding. By all means, let the judiciary do internal cleansing and support the prosecution of errant lawyers and judges; but more poignantly, let its paragons fiercely defend their independence and resist the mindless plots to subordinate the judiciary to the executive.

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