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An itinerant jurist, an unfinished honeymoon and a judicial transaction ~ by Chidi Odinkalu

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Supreme Courts are places where lawyers and judges regularly encounter one another. On 17 November 2023, one of such encounters occurred, not in the regular halls of Nigeria’s Supreme Court in Abuja but in its Mosque. There, Abdulaziz Waziri, a Justice of Appeal wedded Zaynab Bashir, a Judge of Nigeria’s National Industrial Court. The wedding reception followed thereafter at a well-appointed venue in up-market Maitama, in Abuja.

Justice Waziri has been nothing if not busy this season. For his duty station in this election petition appeal season, Justice Waziri was stationed in Jos, Plateau State, where the Justices of Appeal, in the state from which the President of the Court of Appeal hails, have been busy re-writing the results of the elections, taking seats from one party and generously handing them to another party on the bases of jurisprudence that can most charitably be described as extraordinarily specious.

But let’s not get ahead of ourselves. From Jos, His Lordship went to Abuja for his matrimonial rituals at the Supreme Court. The Location and duration of the ensuing Honeymoon was, advisedly, ensconced in discretion.

A mere 25 days after the wedding, however, the aforesaid Justice Abdulaziz Waziri was listed to deliver the opening keynote at the Law Week of the Nigerian Bar Association in Yola. Rumours that the jollities of a richly earned honeymoon would distract His Lordship from this appearance proved to be admirably unfounded.

Yola is the place where His Lordship honed his skills in the law and where his judicial career began. The arrival in power of the All Progressives Congress (APC) has coincided with a career break-out for His Lordship. In March 2016, Governor Jibrilla Bindow elected on the platform of the APC swore him in as a judge of the High Court of Adamawa State. A mere five years later, in June 2021, he became a Justice of the Court of Appeal following appointment by the party leader, Muhammadu Buhari.

Regular judicial duties and election petition season conspired to keep His Lordship away from home. So, the invitation by the Yola Bar served a healthy purpose. On 12 December, Justice Waziri arrived Yola in person and went swinging with the gusto of a man whose virility had been recently tested and proved.

Speaking to the Yola Bar, Justice Waziri launched into a wanton defence of the jurisprudential proclivities of the Court of Appeal in the Plateau State election petition appeals. He invited participants – in a manner of speaking – to understand why the judges know better than the voters who should rule over them and asked them to show greater understanding for the generosity of the Court of Appeal Bench in overriding the voters of Plateau State and dutifully handing their mandate to persons other than those whom they had chosen.

Urging his listeners to “always stand on the side of the law”, His Lordship panned those belly-aching about the Court of Appeal, saying that the “critics of the judgment were missing the point as the (Peoples’ Democracy) Party – whose victories the Court of Appeal has systematically stolen – had no structure on ground at the point of presenting their candidates.” He claimed that the “structures” of the party had been wiped away by a high court decision and that they did not exist for the purpose of conducting the party congresses that yielded their candidates in the elections of 2023.

These remarks by a relatively junior Justice of Appeal were considered sufficiently weighty to make the headlines across all platforms in the country. As befits the trajectory of a man whose recent life has been rife with consistent coincidence, the beneficiaries of the seats which he has been busy handing out as a Justice of Appeal just happen also to be his appointive benefactors, the APC.

It is impossible to be devoid of fraternal feeling for a man in mid-life crises battling the exertions of an unfinished honeymoon. Any effort to address him must afford him the mitigation that his head may be located elsewhere as an anatomical proposition, and not just a figure of speech. These extenuating circumstances notwithstanding, Justice Waziri’s remarks must detain us.

The traditional view is that judges speak most credibly and authoritatively through their judgments. It is at best unusual and mostly ill-advised for them to resort to the soapbox or its diction to rationalize what they do on the Bench. But we are in extraordinary times in Nigeria. A generation ago, it would have been considered judicial malpractice for a judge to speak in public about whether or not a political party has “structures” going into an election because few would think that to be judicial province.

In this case, the judge did more than just go out of his substantive province. Jos, the capital of Plateau State, where the Justices of Appeal have done their thing, is located in north-central Nigeria. It is a drive of over 520 kilometres from Yola in the north-east, where His Lordship mounted his judicial soap-box.

But it is not altogether unwelcome that His Lordship in this case feels called upon to mount a spirited defence of the detour by the Court of Appeal into the realm of electoral burglary clothed in the ruse of law. His bid for the judicial soap-box relieves one of any of the usual constraints invoked when encountering a judicial figure on the Bench.

The facts are less complicated than his Lordship sought to portray them. Following the state congresses in Plateau State in 2022, one Augustine Timkuk sued to challenge the legality of what transpired. The defendants included the Independent National Electoral Commission (INEC) and the Peoples’ Democratic Party (PDP).

After failing to set aside the congresses and the resulting slate of candidates at the High Court, Mr. Timkuk appealed to the Court of Appeal in appeal number CA/J/300/2022 between Augustine Timkuk v. INEC and 6 Others. Days before the onset of election season in 2023, on 11 February 2023, the Court of Appeal sitting in Jos, Plateau State validated the state congresses and dismissed Mr. Timkuk’s case. There was no appeal against this decision and no judgment existed prior to the election nullifying the party congresses or the slate of candidates from them.

Sitting in a post-election capacity, however, Justice Waziri and his colleagues on a separate panel of the Court of Appeal have acted with injudicious premeditation, ransacking decisions of the self-same court of appeal and inventing justifications for things that endanger the standing of the judicial organ as a deliberative institution constrained as it ought to be by norms of evidence, precedent, logic, and institutional self-restraint. They have done worse than infantilise the people of Plateau State, telling them that they are unfit to choose who represents or governs them. Instead, they assert in words as in their deeds that they as Justices of Appeal know best.

The most charitable one can be about this is to describe it as judicial overreach. Others inclined to be less charitable may see Plateau State as the site of a criminal judicial transaction.

Plateau State, the victim of this perverse transaction is also one of the most chronic atrocities sites in Nigeria, going back to 1994. Official literature abounds to prove that the state does not need much provocation to unhinge. The consequences for elective government as for coexistence are destined to be very corrosive. Justice Waziri knows this and so must his colleagues on the Court of Appeal.

But there are also precedents from nearby in case they wish to be reminded. In April 2020, Mali’s Constitutional Court overturned the results in 31 parliamentary seats won by the opposition. Its decision to hand these seats over to the ruling party sparked an uprising that led first to the dissolution of the Constitutional Court, later followed by the overthrow of the government in a military coup.

Former Nigerian President, Goodluck Jonathan, mediated that situation unsuccessfully. When Justice Waziri considers himself in need to some distraction from his honeymoon and from the peregrinations of an itinerant jurist, he may benefit from paying a visit to Otuoke for a private seminar on how not repeat the Mali crisis in Nigeria.

A lawyer and a teacher, Chidi Anselm Odinkalu can be reached at chidi.odinkalu@tufts.edu.

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