Why Did A Judge Weep In Court? By Okey Ndibe

caption: Okey Ndibe

I am used to reading shocking or bewildering headlines in Nigerian newspapers. So, at first glance, I thought little of it when a friend emailed me a scanned copy of a report in last Tuesday’s edition of the Sun newspaper. Written by Godwin Tsa, the report was titled “Judge weeps in court over allegations of bias.” I had every intention of ignoring the report. Yet, something drew me to it.

After reading it, I was overcome with a deep sense of sadness. And, more than the sadness, I felt a great outrage about the many ways Nigeria’s judiciary has been reduced to a shadow of its once glorious self.

As it turned out, the report was an appalling reminder of the devaluation of virtually all sectors of Nigeria. But first, let me reproduce most of the report for the benefit of those who didn’t get to read it.

It began: “A Judge of the Abuja Division of the National Industrial Court Justice Moren Esowe lost control of her emotions as she wept openly in court over allegations of bias brought against her.
“She was the presiding judge in the suit instituted by Ambassador D.C.B. Nwanna, challenging the moves by the Director-General of the Nigerian Intelligence Agency (NIA), Ambassador Ezekiel Oladeji, to prematurely retire him from service.

“But when the matter was called for further hearing, a tearful Justice Esowe painfully narrated to lawyers, litigants and members of the public in court the facts of a malicious petition against her, accusing her of manifest bias in favor of the claimant because she is from the same ethnic group (Igbo) with him.

“The said petition addressed to the President of the court also alleged that the judge had vowed to recall the claimant from the illegal and unlawful lockout the agency imposed on him. It further accused Justice Esowe of acting in contravention of her oath of office, which, according to the petitioner, was to protect government and its officials.

“Justice Esowe tearfully insisted that she was innocent of the false accusations against her and prayed that God Almighty who is the ultimate judge will vindicate and justify her in [the] fullness of time. Her words: ‘Somebody has written a petition to the president of the Court accusing me of bias against the defendants because I’m from the same ethnic group as the claimant. Since my days as a judge I have never handled a case with so much pressure on me. Today the biggest threat facing those who killed the soul of innocent people is by lying against them.’

“Speaking on the development, counsel to the claimant, Mr. Francis Maduekwe described it as unfortunate and brazen and [an] audacious misdemeanor on the part of the petitioners. He said since the matter started the director-general has shown actions that should be of grave concern to the Federal Government as they constituted impunity and executive recklessness which were at variance with President Goodluck Jonathan’s avowed commitment to the enthronement of due process, the rule of law and respect for the judiciary.

“Ambassador Nwanna returned to the country sometime in April at the end of his foreign assignment as Deputy High Commission to the Court of St. James (London) and reported to work at the headquarters of the agency. But to his surprise, the guards informed him at the gate that the director general had left instructions that he should never be allowed into the premises or any of the installations of the agency.

“The matter became a subject of litigation before the National Industrial Court. However, during the pendency of the case, agents of the defendants served the claimant with a letter purportedly terminating his appointment. The claim before the court is simply for a declaration of the court that the claimant is not yet due from compulsory retirement from service...”

Assuming that this report factually captured what transpired in court, then the events in the whole case must be seen as deeply disturbing. Forget the terrible condition of Nigerian roads, the absence of sound healthcare, and the epileptic nature of electric power – the greatest threat to Nigerians is, in my view, the awful collapse of any sense of the rule of law. And this collapse, I suggest, is a product of many years of national indifference to the erosion of standards of judicial practice. We have all failed to insist on, and work towards, a fiercely independent judiciary.

There are several worrisome aspects of the above report. One: the idea that an Igbo judge should not be allowed to preside over a case in which the claimant is also Igbo is patently absurd. There are manifest dangers in adopting an ethnic test in judicial matters. It amounts to stating that ethnic claims are superior to legal principles and facts, and that judges are not intellectually and morally equipped to rise above clannish considerations.

It’s an open secret that many unworthy men and women have been elevated to positions as judges. Unfortunately, out of self-interest, the governors and presidents whose task it is to nominate candidates for judicial positions often look for mediocre candidates. They seek to fill the judiciary with pliable judges willing to do the bidding of those in power, instead of those with stellar credentials, by which I mean sound legal minds, moral integrity, and utmost respect for the sacredness of the judicial role.

Perhaps, then, the uninspiring quality of Nigeria’s judiciary owes to this deliberate dilution in the caliber of those invited to become judges. Even so, the appellate process is a sensible safeguard against some of the worst excesses and failures of weak judges.

It is a bad day already in Nigeria. But for parties to a case to be allowed to play the ethnic card and disqualify a judge is, quite simply, deplorable. Where do we go from there? No matter the ethnicity of the judge who gets the case file, some ethnic ruse can be invented and deployed against him or her.

It seems to me that the case Mr. Nwanna filed against the NIA is straightforward enough. The ambassador is pleading, simply, that his retirement from service was premature. There are civil service and other official rules that govern retirements. Both the claimant and defendants have the same opportunity to invoke those rules in making their case in court. A judge should be able to examine the submissions and come to a reasoned verdict.

The case is all the more worrisome for the petitioners to accuse the judge, essentially, of disloyalty to the government and its functionaries. If it’s true that the authors of the petition against Justice Esowe suggested that her loyalty ought to lie with the government, then they should be identified and shamed. A judge’s mission is to see to it that the cause of justice is served at all times and in all cases. In the free exercise of their mandate, informed and self-respecting judges frequently rule against (powerful) governments and in favor of (weak) citizens and (vulnerable) groups.

The Nigerian Intelligence Agency ought to be a leader in combating the widening plague of sectarian violence in the country. The agency ought to be invested in shaping a culture where the rule of law and respect for the judiciary are widely embraced. Yet, the reported treatment of Mr. Nwanna – a former deputy high commissioner in London – by the agency’s DG leaves much to be desired. Why would a man be reassigned from his office in London only to be locked out of his office in Abuja? Is that kind of swashbuckling worthy of a serious leader of an intelligence agency? Why was the DG in such indecent haste to retire a man who has gone to court to seek enforcement of his right to unfettered access to his office? And why should the DG of an agency charged with securing Nigeria against serious national and international threats embark on a misadventure by using the ethnic argument to impugn the character of a judge? It all bespeaks a culture of recklessness and intimidation. It’s as if the director-general feels entitled to having things his way. And when he cannot, he must bulldoze any person or institution in the way.

Mr. Nwanna’s lawyer, Francis Maduekwe, made the right call when he accused the agency’s director-general of acting with “impunity.” The agency’s DG should not be permitted to get away with dictating which judge may hear Mr. Nwanna’s case. That’s conduct unbecoming of the leader of a major national security agency.  

That impunity should not stand. The president of the National Industrial Court ought to order a thorough investigation of Justice Esowe’s allegation that she had been subjected to undue pressure over Ambassador Nwanna’s case. What’s the nature of that pressure? And where did the illicit pressure come from? In the end, unless he discovers that Justice Esowe had compromised herself in the case, the court president should order her to proceed with the case.

A clear message ought to be sent here: that no agency or person, however powerful, should meddle with the judiciary. If Justice Esowe can be removed from a case on account of her ethnic identity, then the judiciary’s unflattering image would have reached a new low point. Lawyers, other judges, civil society activists, legislators, and enlightened citizens ought to pay attention to Justice Esowe’s tears. And they should rise in unison to resist this latest threat to the independence of a judiciary that is already bedeviled by too many scandals and acts of executive meddlesomeness.

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(okeyndibe@gmail.com)