By Chibueze C. Okorie Esq.
Sometime in the month of June 2023, and within days of his Presidency, Bola Ahmaed Tinubu was reported to have said that Nigeria\s financial system is rotten. That was part of an attempt to justify the suspension of Godwin Emefiele from office as the Governor of the Central Bank of Nigeria. Many Nigerians honestly believe that our country has a surfeit of rotten systems. That is most probably why the country is not working, especially for the ordinary people. Nigeria’s justice system is one of such. That Nigeria’s justice system is rotten is an open secret. The public confidence in the primary symbol of that justice system, the judiciary, has been abysmally low in recent times. Of course, Nigeria’s justice system encompasses more than just the judiciary but for good cause the judiciary defines the nature and the ethos of that system. Significantly, the most notable person of popular consequence in Nigeria today to openly avow and show any confidence in our Judiciary in circumstances in which doing the opposite would have been the ordinary and easier thing to do is Mr. Peter Obi, the Presidential candidate of the Labour Party in the 2023 General elections. Most people believe that the relative stability and calm that Nigeria has enjoyed since after the declaration of those election results has been largely due to that oft repeated soft-spoken but firm avowal of confidence in the judiciary by Mr. Peter Obi. For the ordinary Nigerian, that is a most remarkable and incredible credo in favour of a broken system. Unfortunately, for the mass of our people the statement that “the judiciary is the last hope of the common man” is in real terms as good as a wooden lie; one of those promissory notes of the Nigerian Constitution that bounces most of the times when it is presented for payment by the common man. Like I said above, confidence in our judiciary and justice system has been so abysmally low that it was difficult to imagine that something so abysmally low could get any lower. But, shockingly, it did.
Last month, precisely on Saturday the 10th day of June 2023, at the valedictory session of the 9th Senate, before his “distinguished” colleagues, and in full view of the media, Senator Adamu Bulkachuwa, the Senator representing the Bauchi North Senatorial District made categorical statements to the effect that his wife Zainab Bulkachuwa a former judicial officer and immediate Past President of Nigeria’s Court of Appeal had upon his behest favoured his colleagues in the Senate using her position as a judge. He had expressly said that he had infringed on his wife’s freedom and independence while she served as a judicial officer. Beyond semantics, the message was very clear. No amount of painting can retract from that confession, explain it away or wish it away. It is now part of the public records of our country’s history. It was a national shame and a colossal – no, abysmal – disgrace. I emphasize “abysmal”, because the appropriate metaphor to describe that event must not have or suggest height so that it can be properly descriptive of vileness. Indeed, there are no words low enough to describe the depths of disgrace that incident represents.
Do I believe him? Yes, I do. Why would I disbelieve a man who unequivocally declares in public within the company of his colleagues and friends that he got his wife to dispense favours to them using the pedestal of her office to help them, clearly suggesting that the attitude of his beneficiaries should be one of gratitude? To argue against that public declaration is absolutely counter-intuitive and indeed perverse. The Senator clearly knew where he was and what he was doing. We do not need a court to tell us that a wife in Nigeria is in multifarious ways, and unfortunately so, subject to her husband’s bidding such that evidence that “her husband said so or told her to do so” is enough to reduce her culpability for wrong doing. In our very traditional and patriarchal society, a wife is a person under authority. That existential fact has been given judicial notice – if we ever needed one – only recently in far away London in the recent celebrated case of R. V. OBINNA OBETA, IKE EKWEREMADU & BEATRICE EKWEREMADU. In his sentencing remarks on the 5th day of May 2023, the judge Mr. Justice Johnson of the Central Criminal Courtstated inter alia that“I am satisfied that you, Beatrice Ekweremadu, performed limited functions under the directions of your husband. I accept the submissions of Mr. Mohindru KC that your family was patriarchal and you were deferential to your husband. Your role was primarily to adopt the cousin lie. There was, as far as you are concerned, some limited planning and pre-meditation. You committed the offence in the expectation of a material advantage, namely securing a human kidney for your daughter. Your case falls at the cusp of lower and medium culpability.” You would search very hard to find anyone in patriarchal Nigeria who would argue the opposite and still be regarded as practical or as a person of common sense.
The Senator’s wife, Zainab Bulkachuwa former President of the Court of appeal now in retirement, subsequently put up a short statement denying that she used her office as a judge for any purpose outside the intendment of the law and that she decided her cases on the basis of what was before her without regard to any other improper considerations. She stated that “my decisions were always based on the facts, the law and in accordance with my conscience and oath of office”. Do I believe her? No, I don’t. We live in a “low trust society”, borrowing Chimamanda Ngozi Adichie’s phraseology, and given our experience in this society it would be seriously counter-intuitive to believe the retired Justice without more. I cannot reasonably believe her husband and believe her too at the same time in the same respect. Both of them assert two diametrically opposed positions. She is the one who is in a more difficult position, considering the high judicial office she held in this society. In the circumstance, it would take more than a bare denial of wrong doing to wash this one off.
There has been a great hue and cry following this incident. Calls for investigation, prosecution and all manner of suggestions that a searchlight be beamed on the whole incident have ensued including the – I think ridiculous – suggestion that the National Judicial Council should investigate the matter. Do I think anything will come out of it? No, I don’t. Nothing will come out of it. This is so, not merely because this is Nigeria where accountability and responsibility is counter-culture, but more so because the position of the law itself expressly makes such an inquiry or investigation impossible and currently fruitless. Section 3 of The Legislative Houses (Powers and Privileges) Act provides for the immunity of members of a legislative house to ensure their absolute freedom of speech in these terms;
No civil or criminal proceedings may be instituted against any member of a Legislative House –
(a) in respect of words spoken before that House or a committee thereof; or
(b) in respect of words written in a report to that House or to any committee thereof or in any petition, bill, resolution, motion or question brought or introduced by him therein.
In my opinion, that is an absolute immunity; unqualified in any respect. As expressed, the words of that provision mean that no court can properly entertain any civil or criminal proceedings that has what a member of the legislature said or wrote before the House as its cause of action not to talk of going ahead to find them criminally or civilly liable for any words they say or write in the stated circumstances within the Legislative House and in exercise of their duties. It may be argued that this immunity does not include immunity from investigation or questioning and that the security agencies may invite the Senator for interrogation. But then, to what end and purpose? What can it be used for? Whatever they get is effectively useless. And that is, if they get anything at all. Let us imagine that the Police or DSS get the Senator in for questioning, he has an option to refuse to speak and he cannot be compelled to say anything. The Section 35(2) of the constitution effectively protects the right against self-incrimination. Then assuming he talks, what end would that serve? None. That is because you cannot take him to court to get him held civilly liable or criminally responsible for what he has said or in connection therewith.
I believe Senator Adanu Bulkachuwa as a Nigerian legislator knows that position of the law. I am not so naïve to assume (and I would describe anyone who does so assume as naïve) that a class so conscious of its privileges and even claims a significant portion of our commonwealth as its entitlement would be ignorant of ordinary privileges given to it by law. Of course, the original intent of that immunity is to enable the frank and open discussion of matters by legislators without any fear of liability, and this for the ultimate good of the commonwealth. But like all things official in Nigeria, the common good is appropriated for the preservation of the oligarchy.
The call by some commentators for the National Judicial Council to take any actions in respect of this particular incident is misplaced and far-fetched. The National Judicial Council established under Section 153(1)(i) of the Constitution with its composition and powers set out in Part 1 of the third Schedule to the Constitution has no powers whatsoever over retired judicial officers. They certainly have no jurisdiction over Senators whether sitting or former and would not have the powers to compel the attendance of that class of persons with respect of this matter.
So seeing that this particular incident is one for which the principal characters can neither be questioned, investigated nor can any remedies be recovered against them, what reflections about our justice system does it inspire? What lessons can we learn as a society so that going forward this negative incident can provide an impetus for positive change? I shall deal with those issues in the following part of this piece.
Chibueze C. Okorie is a Legal Practitioner based in Port Harcourt. He is an author and also teaches Philosophy of Law at the Seat of Wisdom Seminary, Umuahia, an affiliate of the Pontifical Urbanian University, Rome. He can be reached via his email address chibuezeokorie@gmail.com
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