Should the judiciary, on the basis of an alleged bias that is neither actual nor apparent but merely contrived, disqualify an upright man who has served admirably in the temple of justice for over forty years? Should a judge who has served meritoriously on the Bench for twenty-five years be subjected to caustic and malicious persecution on phantom allegations of unsubstantiated bias?
Nigerian politicians now seem to have a new stock-in-trade: the politically-motivated smearing of judges with the aim of ‘forum-shopping’. Forum-shopping is that expression known in legal circles as referring to a litigant’s attempt to determine (or, at least, have influence on) the choice of the particular court or judge that will adjudge his case. Every sane legal system discourages, and in some cases, punishes forum-shopping.
Observers have watched with great concern and alarm, the recent trend in Nigeria by which politicians attempt to effectively ‘forum-shop’ by disqualifying certain judges on the basis of politically-motivated smears and contrived or outlandish conjectures. Of course, if a judge has demonstrably substantial interest in a matter, he should not sit in judgement over this. But to seek out to smear and, by so doing, effectively disqualify judges on the basis of the affiliation of their relatives with certain political parties, or on the basis of their assumed loyalty to tribal sentiments, or on the basis of their perceived loyalty to political leaders from their states of origin, borders on the ridiculous, reeks of desperation, and should not only be discouraged but condemned in the strongest terms possible.
I am motivated to put pen to paper on this matter because of the appalling opinions and sentiments that have been expressed regarding the selection of the Supreme Court panel put together to hear the appeal emanating from the Court of Appeal’s decision on the Osun State election petition brought by the candidate of the Peoples Democratic Party in that election, Senator Ademola Adeleke. The most vitriolic smears have been directed at Justice Olabode Rhodes-Vivour (CFR), the impeccable justice of the Supreme Court, who has a pristine record as a brilliant, capable, and fair-minded judge. Every unbiased legal practitioner in Nigeria worth his salt would readily attest to Justice Rhodes-Vivour’s sagacity, brilliance, and earned reputation for courage and forthrightness. It is thus sad and disheartening that unfounded aspersions are now being cast on this widely-admired jurist.
While one should rightly feel concerned for the eminent jurist, the greater concern should be reserved for the implications of these conducts on the health and integrity of our systems and institutions. We all must rise as a people to denounce and abort the efforts of politicians who attack judges for political gains for the following reasons, among others:
a. Such attacks will further erode confidence in our institutions in general and in the legal system in particular;
b. Such gradual erosion of confidence will have long term and far-reaching devastating effects on the cohesion of the nation, the effectiveness of our institutions and, indeed, the survival of our democracy;
c. Politically-motivated attacks on judges and the resulting erosion of confidence in the judiciary will allow political disputes of a legal character to fester and remain unresolved. This could be dangerous in a country as diverse and as susceptible to violent eruptions as ours; and
d. Our judiciary will be starved of the best of legal minds who will not want to be subjected to such unwarranted mudslinging and embarrassing falsehoods.
Of course, allegations of bias should be taken seriously. The fundamental principle underlying the concept of judicial bias is that a man may not be a judge in his own case. To this end, there are two recognised types of bias: actual bias and apparent bias. There will be actual bias where the judge is a party to the litigation or has a financial or other interests in its outcome. The interest does not have to be pecuniary or proprietary but can involve the promotion of a cause. Apparent bias may be alleged where the judge’s conduct or behaviour, interests or allegiances give rise to a suspicion that he is not impartial.
In the case of Justice Olabode Rhodes-Vivour (CFR), the bias alleged so far by innuendoes on social media is neither actual nor apparent. At best, it may be described as contrived and, at worst, as phantom. The 68-year-old justice of the Supreme Court who started his career in the Lagos State Ministry of Justice and was appointed a judge in the Lagos State Judiciary in 1994 has, throughout his illustrious career, exhibited exceptional devotion to duties and established an unimpeachable reputation for candour, both of which have stood him in good stead, so much that his nominations and subsequent appointment to the Court of Appeal and later to the Supreme Court were greeted with widespread acceptance in legal circles. There has never been a proven allegation of impropriety against this eminent judge and his staunchest detractors have been unable to credibly fault the legal and logical validity of his judgements and opinions.
Where does this leave us? Should the judiciary, on the basis of an alleged bias that is neither actual nor apparent but merely contrived, disqualify an upright man who has served admirably in the temple of justice for over forty years? Should a judge who has served meritoriously on the Bench for twenty-five years be subjected to caustic and malicious persecution on phantom allegations of unsubstantiated bias? And, if we are now going to recognise unsubstantiated and contrived bias as a new nebulous class of actionable bias, is it not a concern that we will soon run out judges to hear and determine disputes because any litigant would then be able to, out of thin air, contrive bias against any judge?
Is that where we are headed? Is that where we should be heading?
Akingbolade Akinbobola writes from Ondo, Ondo State.