The Supreme Court held a 40 year tradition of empanelling the 7 most senior Justices to hear appeals relating to elections to the office of President. This was to prevent a situation where judges were handpicked to give a pre-determined decision.
In matters like these with high public interest and political tension on electoral disputes, Justice is not only to be done but care is usually taken to make it seem by all that Justice was done; hence, Nigeria’s CJNs always empanel the 7 most senior Judges at the SC to preside.
The idea is always to leave no room for accusations of bias on the part of Judges by following the established protocol of picking Judges by seniority to preside on such cases – those who will complain eventually will but the saner majority will understand the process.
In Awolowo v Shagari (1979) the then CJN Atanda Fatai-Williams set this tradition when he empanelled himself alongside the most senior Judges – Mohammed Bello, Andrew Obaseki, Kayode Eso, Ayo Irikefe, Chike Idigbe and Mohammed Uwais.
In Waziri Ibrahim v Shagari (1983) CJN George Sowemimo empanelled alongside himself – Ayo Irikefe, Mohammed Bello, Andrew Obaseki, Kayode Eso, Augustine Nnamani and Mohammed Uwais.
As history will remember, Buhari then did a coup that gave Nigeria 16 years of military rule till 1999 when Olu Falae challenged Obasanjo but abandoned the case after the Tribunal judgement – the matter didn’t get to the SC.
In 2003 however, Buhari went all the way against Obasanjo. CJN Mohammed Uwais empaneled alongside himself – Idris Kutigi, Anthony Iguh, Aloysius Katsina-Alu, Umaru Kalgo, Samson Uwaifo and Dennis Edozie.
Ojukwu also challenged that election and so the panel to hear his own appeal was slightly different but again, the next most senior Judges were chosen to seat on it alongside CJN Uwais – Uthman Mohammed, Sylvester Onu, Umaru Kalgo, Akintola Ejiwunmi, Niki Tobi and Dennis Edozie.
In Buhari v Yaradua (2007), CJN Kutigi empaneled alongside himself – Aloysius Katsina-Alu, Aloma Mukhtar, Dahiru Musdapher, Walter Onnoghen, George Oguntade and Niki Tobi
However this year had one exception as Onnoghen was the 9th most senior justice.
It is ironic that this panel came closest to overturning an election with a 4-3 split that had Onnoghen leading the dissent.
In Buhari v Jonathan (2011) CJN Dahiru Musdapher empanelled alongside himself – Mahmoud Mohammed, Walter Onnoghen, John Fabiyi, Olufunmilola Adekeye, Bode Rhodes-Vivour and Sylvester Ngwuta.
Bearing in mind that very close to the general elections, CJN Walter Onnoghen was illegally removed to pave way for CJN Ibrahim Tanko Yusuf, if precedent stood, the panel would be – Ibrahim Tanko, Rhodes-Vivour, Mary Odili, Sylvester Ngwuta, Kayode Ariwoola, Musa Mohammed and Kumai Akaahs.
Instead the CJN Ibrahim Tanko handpicked and empanelled alongside himself Rhodes-Vivour, Amiru Sanusi, Uwani Abaji, Ejembi Eko, John Inyang Okoro and Kayode Ariwoola.
Demola Olarewaju in his recent tweet said:
“Even if one were to be blind to the signs of a thoroughly and fraudulently compromised electoral system, a flawed PEPT judgement and the obvious overconfidence of Buhari, the CJN jettisoning the norm and picking Judges randomly to seat on a sensitive matter is too obvious.
The PDP House of Reps caucus had warned about this, CUPP had been shouting about it and some of us have been waiting to give the Supreme Court the benefit of the doubt – my major hope at this point is that we would have at least a dissent founded on electoral Justice.”
“Kayode Eso’s dissent in the 1979 case became the damning verdict that eventually upset the political order that then was – our hope is that at least one of the Judges would find courage to make a mark for judicial history. The entire process ab initio was rigged against PDP.
If Buhari was being nothing less or more than a Democrat when he rejected the outcome of the judicial processes everytime he lost, we also would be like him, especially moreso as the process is clearly opaque and Judges handpicked to achieve the verdict of the ruling party.”
He concluded by saying:
“To keep hope alive though, anything can happen and even the best laid plans sometimes go wrong. For the sake of Nigeria and the exit of the present calamitous drivers of our national conveyance – we will continue to hope and make our case solidly in the court of public opinion.”
Once the manner of his ascension to the office is taken into consideration, and it cannot be avoided, how does anyone escape a feeling of a likelihood of bias? How does anyone say before hand that something isn’t in the offing?
It’s a sad day when Justices of the Supreme Court are set up this way – where fodder is given to the public to question their integrity long before their judgments are given. It’s a truly sad day.