The former President of the Nigerian Bar Association, (NBA) Chief OCJ Okocha SAN, has described the judgment of the presidential election tribunal as a bizarre. In this interview with Sunday Independent, DANIEL ABIA writes that the lawyer expresses fear that the judiciary is under siege
What is your candid opinion about the recent judgment of the Presidential Election Petition Tribunal (PEPT), which ruled that President Mohammadu Buhari was ‘eminently’ qualified to contest the 2019 presidential elections even without the required qualification?
Well, the judgment appeared to me to be a bizarre. Let me use that extreme word. It was a bizarre judgment. That is because from the facts which were alleged against the election that brought president Muhammadu Buhari into power for this second term in the election held on 23th of February, I thought that the PDP had a very cogent case. I thought also that Atiku Abubakar who was their presidential candidate had a very cogent case. I thought they had a cogent case. There were issues that related to falsification of even basic qualifications, issues about the qualification of the president himself to contest in the election. And then there were these issues about improper conduct of the election itself and some wrong doings perpetrated by the Independent National Electoral Commission (INEC), and its officials. In some places, there were violence, threats and intimidation of voters. But when a judgment is delivered, you can only say you are not satisfied with it. And when you are not satisfied with it, you can only go on appeal. I am happy to hear that the PDP and the presidential candidate, Atiku Abubakar have appealed against that judgment to the Supreme Court. As you know, that is what is stipulated in the law. If you lose at the election at the Court of Appeal, the last stop is the Supreme Court. I am happy that they have taken the matter there and I do hope that we will hear more concerning legal and the factual allegations that were made by the PDP and its presidential candidate that alleged gross and massive irregularities in the elections.
A lot of drama unfolded before the 2019 general elections like the intimidation of the judges by the federal government’s security agencies and the removal of the former CJN, Justice Walter Onnoghen. Do you think the PEPT judgment was based on the fact of law or as a subject of intimidation?
I am a true believer in what we call absolute principles of justice. There are two main ones. The first one is, hear all sides before you decide. The second one is nobody should be a judge in his own court. Every court or tribunal must be independent and impartial. By so doing, justice will be done. Even in spite of the fact that I have seen evidence of intimidation of judges and judicial officers as far back as 2016 when they started raiding the houses of certain judges by a federal government’s agency, the DSS, some houses of judges were broken into, I had made a speech that the judiciary was under siege. I said that somebody somewhere is trying to intimidate the judiciary. In recent time, the intimidation has also come to visit the Bar Association, the independent association of lawyers who should stand for the rule of law. You have mentioned a funny way the former Chief Justice of Nigeria was bundled out of office. Yes, those things raise suspicion. But I still believe that any judge, any tribunal that dispenses justice as we expected in this election tribunal as constituted by the Court of Appeal under Justice M. Garba, I expected them to do their duty and carry out their function in accordance to their oath of office without fear or favour, affection or ill-will. I am not going to speculate about whether those tribunal justices who constituted that panel were intimidated. If any judge knows that he has been intimidated and cannot carry out the function of his office in accordance with the oath which he subscribed to, then that person should bow out honorably from the judiciary. So, I do not think that I will accept that that was what led to the judgment. Judges are fallible. Even the Supreme Court itself is fallible. But we say they are infallible because they are the final court. Whatever (Supreme Court) they say, that is what we take. Even in recent time, they have even over ruled themselves in respect of certain matters that have been held. I don’t believe that five eminent Justices were intimidated and that is why they adjudged in the case of PDP/Atiku versus APC/Buhari.
Given what transpired at the Appeal tribunal, or the legal process, do you really have that confidence that the Supreme Court will upturn the Appeal Court judgment in favour of PDP or uphold it in favour of the President and the APC? Many believe that the former should be the case!
I don’t know how you have come to that conclusion. Did you take opinion poll concerning that? People can say what they like. Supreme Court, as I said, is a court constituted with the most senior justices in this country. It is the final court, the Apex Court. If they will now turn out to become a court constituted by justices that are intimidated and are afraid to do justice in accordance to their oath of office, then it is a sad day for us. But I want to give the benefit of the doubt to the justices at the Court of Appeal who held and determined the case as they determined it. And I also want to give the benefit of the doubt to the Justices at the Supreme Court who will hear the final appeal. I do not subscribe to speculations because they don’t help us. If there is any concrete evidence that the Court of the Appeal Justices were intimidated and they did the judgment that they did, too bad for us as a country. So, I do not want to agree that they were intimidated. Supreme Court is where we should all take our complaints to just like every other court. There must be confidence in the system, otherwise people will resort to self-help and anarchy will set in. If Atiku and PDP did not believe in the Supreme Court and its ability to do justice to this matter, they wouldn’t have appealed. They would have resorted to jungle justice by taking the law into their hands. Even in America, election petition was held when Al Gore contested against George Bush jnr. The matter went from the Florida court to the Supreme Court of America. The Supreme Court by a divided decision, five justices supported what the Court in Florida decided while four supported what the Court had done. That was how George Bush jnr won that case and Al Gore accepted the outcome of the judgment. He said we believe in our court system, if that is what the court has decided, so be it. That is the machinery put in place for the resolution of cases. If we don’t believe in our court, then it is bad for us. Let us wait for the final judgment from the Supreme Court. For me, that will set precedence so that tomorrow everybody will know that this is what the Supreme Court said and this is now the state of the law. We will now be in a better position to advise our clients and those who are interested in such case.
Many Nigerians are of the view that the PEPT judgment was a distance away from the merit of the case but based mainly on technicalities. Can you educate us more on what constitute technicalities in a case?
I do not know those technicalities that a lot of people are pointing to. As far as I am concerned, technicalities and substantial issues….Let me put it this way, technicalities and substantial issues in any case are parts of the reasons for a court deciding a matter. What we have said and what the principles laid down by the Supreme Court is that justice should not be sacrificed on the altar of technicalities. You decide a case on the substance of it. But we know that sometimes technicalities are themselves substantial. If there is a mode set down for you to bring a case to the court and you don’t follow that mode, then you have not followed due process of the law. So, the technicality there is also a substantial issue which can lead to the denial of your right or interest that you are seeking to protect by going to court. So, whether there were technicalities or substantial issues that emanated from that judgment are the things now before the Supreme Court and the Supreme Court will decide. Let me take the issue of violence at election and who perpetrated the violence, for instance. The Court of Appeal said they didn’t call certain witnesses. The law is that if you have a case, you must call the witnesses who saw or who were physically present (at the scene) to be able to observe what happened. While some may look at this as technicality, I say it is a substantial issue because our criminal jurisprudence and indeed the jurisprudence of our court is that if there is an allegation that has a criminal content, that allegation must be proved beyond every reasonable doubt. This was established a long time ago in the case of C.C. Onoh v Jim Nwobodo. Some people may say it is technicality but it is substantial because that is what the law stipulates in the Evidence Act. There is neither distinction nor difference in what substantial justice and technicality is even when issue of technical content is considered. But for this particular case, whether there was technicality or substantial issue that is now in the Supreme Court. The Apex Court will tell us what it should be.
Nigerians were taken aback when an acclaimed copy of the President’s result was presented with an embossed old picture of his, the court appeared not to have paid adequate attention to that. Is that what the technicality is all about?
Mr. Daniel, I was not a judge of that case. I was not on that panel. I am not going to be on the panel of the Supreme Court either. When a matter is in court, it is inappropriate to begin to make value judgment and comments towards that direction. Let the court decide. The issue is, did he (President Buhari) have a proper certificate to qualify to contest for the office of the president? That is the issue and the Supreme Court will decide that. I have not seen his certificate. Whether it was his former photograph or his current photograph that is there, I have not seen it. Don’t forget that we have provision in law that entitled anybody to produce a document which is supposed to stand in place of his original document. We call them certified true copy (CTC). The certification must be done by somebody who is in custody of the original or had seen the original and can compare that original with what is cerified. Again, these are matters which are not open to speculations. People are talking about it in beer parlour and on the streets, yes, Nigerians are entitled to talk about it and express their views. But for the purposes of a matter in court, it is always the best for the court to be allowed to determine that matter.
What is your opinion on the independent of the judiciary under this dispensation?
Well, I have cause to worry about the independent of the judiciary. As I said earlier, in 2016 when the DSS under President Buhari bared its fangs and began a systematic intimidation of the judiciary. There was also a systematic intimidation of the Bar. As you know, some lawyers have been arraigned for various offences and most of them are outspoken lawyers who are always on top of it when they feel that government is not observing the rule of law. Among them is also the President of the Nigerian Bar Association who is being embarrassed just as the Association is being embarrassed by allegations that the EFCC has taken to court. We feel that these are matters that indicate that some people somewhere are not happy with the way the judiciary is asserting its independence. The judiciary has helped us to interpret what should be the constitutional provisions and other legal provisions in our laws. Whether they are right or wrong, they should be allowed to function independently. This thing about judicial autonomy, we are saying also relates to the financial autonomy of the courts. It is very important to us as lawyers, very important to the Nigerian Bar Association. Our motto is: “Promoting The Rule Of Law.” Allow the court to function and ultimately, the judges themselves will understand that nobody is shackling them and nobody is tying their hands. There are these suspicions in my mind. But as a practicing lawyer, I will continue to speak my mind by defending my own interest and the interest of my clients. This is so because at the end of the day, I will still take their matters to the court for the resolution of their disputes.
Recently, the Rivers State Governor made a statement that is alleged to be very worrisome in the PDP family by almost being the first person to congratulate the President on his victory at the tribunal, does that worry you also as a PDP man?
Now let me tell you. Yes, I am a strong supporter of PDP. I am a card carrying member of the PDP. Yes, I am a strong supporter of Governor Nyesom Ezenwo Wike. Let me note this, and this is for the public and all of you in the press to note. Governor Nyesom Wike is a private individual just as he is a governor of Rivers State and a member of the PDP. If he congratulated the President for winning his case at the Court of Appeal of the presidential election tribunal, I believe that he was exercising his right to free speech. He did not tell us he was speaking for the PDP. He didn’t tell us he was speaking for Atiku Abubakar. He did not tell us he was speaking for us who did not feel satisfied with the result of that election that returned President Mohammadu Buhari as the winner of that election for second term. I feel that we should leave that matter because it is not controversial. I was at that church service that day. The governor said that the President is not his friend. He said the President is not doing well. He said the President should try to unite Nigeria. That means that under him (Buhari), Nigeria has become much more divided just as Nigerians are divided. I have no value judgment to make when the governor said he has congratulated Buhari. He is a citizen of this country. I remember vividly when President Buhari returned from his extended medical trip in London; Governor Wike was one of those who went to the airport to welcome him. Buhari is the President of Nigeria. The Governor and the president, former Presidents or Heads of state or present chief justices of Nigeria or former are all members of the national council of state. They must of necessity interact. Look at America, the democracy that we copied from, President (Donald) Trump goes to states governed by democrats as governors, states governed by Republican as governors. He visits countries of the world that do not hold the same views with him on global issues. That does not mean that we should not say something nice to each other. If the President celebrates his birthday and the governor wishes him happy birthday, no big deal. If Governor Wike celebrates the birthday of his child and President Buhari extends felicitations to him, no big deal. The governor spoke for himself. We are PDP members. There are some PDP governors, as the governor had said, who visit Buhari at night. The statement does not cause any crisis in the party. I have not heard that that statement has caused serious concern. Even as lawyers, after a case and we go to enjoy ourselves, we are at liberty to buy drinks for one another even to a lawyer you have a case with. That does not mean that we cannot exchange banters, but we will still have to go to the Appeal on the matter. We can argue a case as forcefully as we can, when we finish, we still remain as learned friends and colleagues. And that is how it should be. So, I can tell you that there is nothing wrong in what the governor said.
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