Omehia, Supreme Court and Wike’s wisdom
The opposition APC in Rivers State waded and issued a ludicrous statement in which it upbraided the governor for not approaching the Supreme Court if he disagreed with their judgment. But in what capacity could the governor have done so? They (APC) ought to know that Omehia is now forever estopped from re-approaching the court unless he wishes to invite an extraordinary backlash for abuse of court, having previously filed for a review which earned him a dismissal and a presumptuous reprimand. On that occasion, indeed, the justices told him to appeal to God, and in an uncannily self-fulfilling declaration, added that they had a right to be wrong! That Supreme Court judgment of October 25, 2007 terminated the tenure of office of former Governor Omehia after five months, and appointed Chibuike Rotimi Amaechi who did not contest the April 14, 2007 election, in his stead. Again, this point bears repeating: Chibuike Rotimi Amaechi did not contest the election he was adjudged to have won!
Shorn of all polemics, this is the stick-out fact that has continued to outrage lawyers and legal scholars all over, and one to which supporters have struggled to find a parallel anywhere in the civilised world. Chief Justice John Roberts who sided with the minority in the recent U.S. case of Obergefell v Hodges (2015) chided those who celebrated the gay rights judgment thus: “By all means, celebrate… But do not celebrate the constitution. It had nothing to do with it.” This comment speaks to the judgment that appointed Amaechi governor, it had nothing to do with our constitution, in fact, it was in fundamental breach of it!
Next to weigh in with the naysayers was Mr. Olisa Agbakoba (SAN) whose intervention was a bit of a surprise because he is usually more considered in his views. But he couldn’t have been more wrong this time. But while he held sway, former Governor Amaechi perpetuated the inconceivable interpretation that Omehia was never governor between May 29 and October 25, 2007. And took every step to obliterate every insignia or representation of former Governor Omehia’s time in office, including physically destroying the ex-governor’s portraits in Government House, denied him every privilege due to him and excluded him from the list of beneficiaries in the 2012 Law on the pensions and benefits of former governors.
This is the unjustifiable manifestation of one man’s acts that Governor Wike’s action has put an end to. As the governor rightly pointed out during the ceremony to formally restore Omehia’s privileges, government should never be personalised and personal animosity should have no room in it.
There is an undeniable parallel between Omehia’s case and those of former governors Chris Ngige, Segun Oni and Oserheimen Osunbor of Anambra (Agbakoba’s own State), Ekiti and Edo states respectively. These gentlemen enjoy the recognition and privileges they are due as former chief executives of their states. Even though their terms in office were voided and cut short by the courts/tribunals, it would be a fictional world in which to contend that they were never governors when their actions and imprimatur in office clearly tell a different story.
In the case of former governor Ngige, for example, where legislators in the Anambra State House of Assembly had brought a suit seeking to nullify all actions taken by Ngige while in office, the Supreme Court ruled that all his actions including the proclamation of the House of Assembly were valid in law. Clearly then, all of Omehia’s actions in office as governor were similarly valid and lawful. So, if the actions of a man while in office were valid and lawful, is it not futile or even preposterous to seek to deny the identity of the causer of such actions?
Chief Ernest Shonekan’s case is no less instructive. His appointment as Head of the Interim National Government in 1993 was ruled illegal and subsequently toppled shortly after by Gen. Abacha. But till date, his portrait adorns the State House and he is accorded every privilege due a former Head of State or President including attendance at National Council of State meetings.
I have never hidden my disagreement with the judgment that appointed Amaechi governor, and have always held the judiciary vicariously responsible for the unruly horse that former Governor Amaechi became. Why wouldn’t a man who was told he had passed an exam he never sat for grow a rabid sense of entitlement including the right to play God? And I should add that I am in eminent company in my disagreement. Prof. Ben Nwabueze (SAN), Nigeria’s pre-eminent constitutional law authority famously labelled the judgment “pernicious”. And the late Chief Gani Fawehinmi (SAN) noted at the time that the judgment was “lacking in both law and common sense”.
This is just as well. It has never failed to amaze me when otherwise loud lawyers suddenly become mealy-mouthed when discussing the judgment of a court in the name of judicial deference. A decision of court needs to be respected, I have to stress, but not at any price. Certainly, not at the price of informed criticism in pursuit of freedom of expression.
As the erudite Justice Kayode Eso warned in Adigun v Governor of Oyo State (No. 2), “The Judgment of a court should not be treated with sacred sanctity once it gets to the right critical forum…” This is an unassuming admission that the courts, even the highest courts, do get it wrong, a point very eloquently stated by the very wise Justice Oputa regarding the Supreme Court in Adegoke Motors v Adesanya (1985) thus: “We are final not because we are infallible, rather we are infallible because we are final. Justices of this court are human beings capable of erring. It will be short-sighted arrogance not to accept this obvious truth”. Chief Justice Roberts while dissenting in the U.S. case, self-deprecatingly asked his brother Justices, “Who do we think we are?” Flesh and blood, Your Honor!
These admonitions point the way going forward. Criticising the judgment of a court, especially that of the final court against which no appeal can lie, is part of the elaborate right of every citizen to freedom of expression protected under Section 39 of the constitution. While caution or restraint is urged with respect to on-going litigation in accordance with the principle of sub judice, no such restraint is necessary or even desirable in a free society in regard to matters finally pronounced upon, otherwise the right secured under Section 39 would be unduly fettered.
In all of this, there’s not the faintest hint of anyone being on the cusp of the court’s sanction by way of contempt as our overly pliant legal and lay public would have feared. Indeed, I shudder to contemplate the bedlam that would have ensued within our recondite legal circles if anyone dared to openly call our Supreme Court justices “lawless” or termed their judgments “shameless”. We do not take such liberties here yet and I would doubt that our judges have the skin for that level of insouciance.
Howbeit, while I do not call for a run on our Supreme Court any time we disagree with their decision, I yet look forward to the day when we will march with placards against their decision, as we see in other jurisdictions; not as a rude act of thumping our noses at the court, but as an expression of our disagreement in pursuance of our fundamental right to freely express ourselves in an open society.
Governor Wike’s action is a corollary of this fundamental right to express his disagreement with a flawed interpretation by a former governor.
• Bob, a lawyer, writes from Port Harcourt, Rivers State.