By Tobi Soniyi
It is in the interest of the All Progressives Congress to support the call for the President of the Court of Appeal, Justice Zainab Bulkachuwa to recuse herself as a member of the Appeal Court panel, hearing the petition challenging President Muhammadu Buhari’s election, argues Tobi Soniyi.
The controversy over whether the President of the Court of Appeal, Justice Zainab Bulkachuwa should preside or be a member of the panel that would hear and determine the petition filed by the Peoples Democratic Party and its presidential candidate, Atiku Abubakar challenging the re-election of President Muhammadu Buhari continues to rage.
Under the constitution, the Court of Appeal has the original jurisdiction, to the exclusion of any other court in Nigeria, to hear and determine any question, as to whether any person has been validly elected to the office of President or Vice-President under this Constitution.
Justice Zainab Bulkachuwa’s husband, Adamu Bulkachuwa, contested and won the Bauchi North Senatorial District election on the platform of the All Progressives Congress (APC) during the February 23, 2019 poll.
Not just that, the PDP and Atiku recently told the tribunal that Bulkachuwa’s son, Aliyu Haidar Abubakar, also campaigned for President Buhari ahead of the February 23, presidential election. They further alleged that her son was not only a card-carrying member of the All Progressives Congress, but also contested the party’s governorship primary election in Gombe State, last year.
The question therefore is: should the president of the court of appeal recuse herself because he is married to a member of the APC? On the facts, and in a saner clime, this issue may not arise.
First, Justice Bulkachuwa is only one of the five justices who will hear the petition. At best, she will write a minority judgment if she wants to help her husband’s party and in case other panel members find otherwise.
Besides, it is usually the practice for the president of the court to lead, when cases or appeals that matter are to be determined. It would amount to Justice Bulkachuwa shying away from her responsibility if she is missing in that panel.
Justice Umar Abdullahi, who handed over to Justice Ayo Salami presided when Muhammadu Buhari challenged the election of Olusegun Obasanjo. Justice Salami would have done same. No president of the court of appeal would want to be missing when the biggest case of the year is being determined.
However, these are strange times. Until, the day of the Court of Appeal held a valedictory service to celebrate their retirement from the bench nobody knew who their wives are. The likelihood that they would be biased because their wives were members of a political party did not arise.
But Justice Bulkachuwa’s case is different. Everyone already knows who the husband is. This makes her decision to include herself in a panel constituted by her suspicious. She already has the privilege to select members of the panel.
When people appointed into offices by the APC administration and those sympathetic to the party argue that there is nothing wrong with Justice Bulkachuwa being a member of the panel, they indirectly strengthen the suspicion that Bulkachuwa is in the panel for a purpose.
Yet, her Lordship May have no ulterior motive. As pointed out earlier, just like her predecessors, she just wants to be part of history. She just wants to discharge her duty as a justice of the court of appeal.
Some of the arguments raised by those, who insist she should continue sitting are absurd and ludicrous. They cited the instances where Mrs. Peter Odili of the Supreme Court, who is married to a PDP stalwart and former governor of Rivers State.
With due respect, there are no bases to compare that case with the instant case. Those raising the argument conveniently forget that Justice Odili was appointed member of the panel by whoever was the Chief Justice of Nigeria then. She did not appoint herself as a member of the panel.
If the CJN, who made her a member of the panel, believed her membership would raise biases, he would not have appointed her. In this case, Justice Bulkachuwa is the appointing authority. So, she could simply have chosen not to include herself in the panel, because of her marriage.
Again, the opposition in the cases in which Justice Odili sat did not object to her Lordship membership of the panels. So, the issue of her stepping down did not arise. In all other cases referred to there was no objection. Here, PDP has objected to Justice Bulkachuwa’s membership of the panel.
Rule 12.1 of the Code of Conduct for Judicial Officers states: “A Judicial Officer should disqualify himself in a proceeding in which his impartiality may genuinely and reasonably be questioned.”
Anyone who can rise above political party partisanship should have no difficulty coming to a conclusion that the impartiality of Justice Bulkachuwa is being genuinely questioned. This does not mean she would be biased. What the law requires is a likelihood of bias.
The Supreme Court has had opportunity to decide on cases where issue of bias was raised.
In the case of WOMILOJU v ANIBIRE (2010) 10 NWLR (Pt. 1203) 545 at 566, the Supreme Court, per Muhammad, JSC held that “the test for determining a real likelihood of bias is that the court does not look at the mind of whoever sits in judicial capacity. It does not look to see if there was real likelihood that the judge would or did in fact favour one side at the expense of the other. It rather, looks at the impression which will be given to the other people. The likelihood of bias, nevertheless, must be real, not surprise, caricature or a game of chance.”
If the PDP will go home thinking that we would have won the case if Justice Bulkachuwa isn’t a member of the panel, the threshold laid down by the Supreme Court would have been reached.
There have been instances where a judge who thinks his impartiality might be questioned raised the issue by himself and asked the litigants if they object to his hearing the case, it enable him recuse himself.
There is no need to make a simple case difficult. The more Justice Bulkachuwa insists on remaining on the panel, the more some will think that she has an interest she was pursuing by her membership of the panel.
She could save herself, the APC, the PDP, her husband and even the nation the trouble by simply walking away. The question is what injury will she suffer if she continues to lead the panel? There is yet another angle. Presidential election petitions and indeed all election petitions must be heard within stipulated time.
The court of appeal by insisting Atiku and PDP should file a formal application asking Justice Bulkachuwa to recuse herself so that it can be argued is unwittingly making it difficult for the petitioners to have enough time to argue their case.
It is like putting a stumbling block on the petitioners’ way. There is a simpler way to do this: let Justice Bulkachuwa recuse herself. End of story. Other members of the panel should have no problem asking her Lordship to step down.
Since President Muhammadu Buhari claimed he won the election squarely, there is no cause for alarm. The absence of Justice Bulkachuwa from the panel would not diminish the president’s success at the polls if that is true. Allowing her to remain may result in a tainted victory.