IT’S not often that a decision by the
Supreme Court of Nigeria generates so much interest among Nigerians. But
the court’s decision in Code of Conduct Tribunal (CCT)
v Dr Bukola Saraki, which allowed a stay of proceedings before the CCT
despite the provisions of sections 306 and 396 of the Administration of
Criminal Justice Act (ACJ), 2015, has caused something of a storm.
Saraki, who is the Senate President, is facing 13 counts of false
assets declaration before the CCT. The wide media coverage the case has
received has focused public attention on legal questions usually covered
in the courtroom or the classroom rather than by the newsroom.
The general consensus, as championed by renowned human rights lawyer
Femi Falana SAN, seems to be that the decision represents a significant
setback for the effective and fair administration of justice in the
country, and President Muhammadu Buhari administration’s approach to the
‘campaign against corruption.’
Falana and other senior lawyers with whom I agree, have contended
that the ACJ Act has (by virtue of sections 306 and 396) abolished stay
of proceedings and interlocutory appeals by merging all preliminary
objections with the substantive case in any criminal case instituted in a
federal court in the country;
that the revolutionary intervention of the law was occasioned by the
unending trial of politically exposed persons in corruption cases; that
as a creation of the law, the Supreme Court is bound by the law; and
that the Supreme Court should take advantage of the substantive appeal
in the Saraki’s case to review its position given the potential impact
on the administration of justice in the country.
The purpose of the ACJ Act can best be determined from section 1:
“The purpose of this Act is to ensure that the system of administration
of criminal justice in Nigeria promotes efficient management of criminal
justice institutions, speedy dispensation of justice, protection of the
society from crime…” Likewise, section 2 provides that all courts
“shall ensure compliance with the provisions of this Act for the
realisation of its purposes.” The use of “all courts” here clearly
includes the Supreme Court.
The combined effect of sections 306 and 396 is to carry out the
purpose of the Act. However, J.B. Daudu, former president of the
Nigerian Bar Association (NBA), and counsel to Saraki has threatened
contempt proceedings against Falana and other senior lawyers for
allegedly ‘scandalising the court’. Mr Daudu is basically saying that
criticising the Supreme Court’s decision is contemptuous, scandalous and
subversive.
This suggestion, coming from a former president of the NBA and
Chairman of the Legal Practitioners Disciplinary Committee, is deeply
disturbing for the legal profession, as it is one of the few objectively
useful roles of lawyers to exact intellectual accountability from the
Supreme Court and to probe and comment on its decisions.
Mr Daudu’s view implies that once the Supreme Court has delivered a
decision, all are bound not merely to accept it as constituting an
authoritative statement of the law of the land, but also immediately to
accord it intellectual obeisance, and to undertake not to dissent
publicly from that decision no matter how implausible or even improper
it may seem.
Yet, lawyers, as recent history has shown, have an important role to
play in exposing corruption, in beaming the light of publicity into the
dark corners of society, in showing up the inadequacies of the law, and
so on. There is a clear case of public interest in the due
administration of justice, and no one would plausibly question that the
proper administration of justice requires a transparent and accountable
justice system.
Contempt of court is not aimed at upholding the dignity of a court or
a judge, but at enabling the administration of justice to operate
without undue obstruction or interference. It’s therefore difficult to
see how by Falana and other senior lawyers simply making a case for an
effective implementation of the ACJ Act, they would be obstructing the
administration of justice by.
Lord Atkin’s famous opinion in Ambard v. Attorney-General for
Trinidad and Tobago [1936] AC 322, is apposite: “But whether the
authority and position of an individual judge, or the due administration
of justice, is concerned, No wrong is committed by any member of the
public who exercises the ordinary right of criticising, in good faith,
in private or public, the public act done in the seat of justice.
The path of criticism is a public way: the wrong headed are permitted
to err therein…Justice is not a cloistered virtue: she must be allowed
to suffer the scrutiny and respect, even though outspoken, the comments
of ordinary men.” Lord Atkin’s statement has been echoed in many cases.
Indeed, if a lawyer, a member of the public, or even a politician
genuinely believes that the Supreme Court has strayed from the path of
constitutional and legal rectitude, then not only is it the right of
that person publicly to say so, but it becomes their solemn duty so to
do, particularly if one is a lawyer pledged to uphold the law.
Contrary to what we have been told, what Falana and other senior
lawyers have done is not a breach of some standard of professional
ethics: it is the highest discharge of one’s professional duty. CCT v
Saraki is a matter of undisputed public concern and interest, and
comments by Falana and other senior lawyers amount to honest criticism
on a matter of public importance. Nowhere have they imputed improper
motive to the Supreme Court and have not in any way acted maliciously.
Nigerian lawyers, particularly senior lawyers, shouldn’t have to
adapt themselves enthusiastically to whatever the Supreme Court might
come to say, even if that which is said today is precisely the opposite
of what was said yesterday. And Supreme Court’s decisions shouldn’t be
considered only in the most flattering of terms, or accepted as
uncritically as if they had been handed down graven on tablets of stone
at Mount Sinai.
It’s normal for lawyers and others to ask questions whether the
Supreme Court’s decisions follow a legal pattern: that is, do the
Court’s decisions conform to legal precedent, ordinary norms of legal
reasoning, and established constitutional and legal principles. Such
frank debate about the Supreme Court’s decisions not only acts as a
check on our courts, but also contributes to informed and vocal public
scrutiny, which in turn can promote accessibility and effectiveness of
the judiciary.
Even judges have been known to comment upon the decisions by their
colleagues. For example, in delivering his dissenting judgment in
Canadian case of R. v. Wray [1971] S.C.R. 272, 304, Spence J. suggested
that the decision reached by the majority would bring the
administration of justice into disrepute. The majority judgment of
Ritchie J. in another Canadian case, Lavell [1974] S.C.R. 1349, (1974)
38 D.L.R. (3d) 481 was criticised for being “incomprehensible and,
therefore, utterly unpersuasive.”
Therefore, lawyers shouldn’t be reluctant to offer public criticism
of the judiciary, as informed, sustained criticism rooted firmly in
Nigerian reality, can contribute to judicial accountability. As famous
British Judge Lord Denning MR once eloquently put it in R v Commissioner
of Police (1968) 2 OB 150: “Let me say at once that we will never use
this jurisdiction and power of contempt as a means to uphold our own
dignity.
That must rest on surer foundations. Nor will we use it to suppress
those who speak against us. We do not fear criticism, nor do we resent
it. For there is something far more important at stake. It is no less
than freedom of speech itself. It is the right of every man, in
Parliament or out of it, in the Press or over the broadcast, to make
fair comment, even outspoken comment, on matters of public interest.
Those who comment can deal faithfully with all that is done in a court
of justice.
They can say that we are mistaken, and our decisions erroneous,
whether they are subject to appeal or not. Silence is not an option when
things are ill done.” It is to be hoped that senior lawyers would learn
one or two things from Lord Denning’s wisdom, and that Mr Daudu, on
this basis, will withdraw his threat of contempt proceedings against
Falana and other senior lawyers.
Olaniyan is Legal Adviser at Amnesty International’s
International Secretariat, London, and author of ‘Corruption and Human
Rights Law in Africa.’
By Kolawole Olaniyan
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