Of New CJN, Non-Performers, and Subversive Lawmakers 

Honourable Justice Olatokunbo Kekere-Ekun, JSC: Making the Women Proud

Presently, the only silver lining in the cloud for many of us in the administration of justice sector, particularly the women and following the #EndBadGovernance (#EBG) Protest, is the excitement of welcoming the Second Female Chief Justice of Nigeria, Honourable Justice Kudirat Motonmori Olatokunbo Kekere-Ekun, JSC, CFR (the first Female to occupy that position, is Honourable Justice Aloma Mariam Mukhtar, GCON, July 2012 – November 2014), not just because history is being made again by a Female, but because #GoodGovernance needs to be injected into the Judiciary, it’s much battered reputation and confidence of the public in the Judiciary being the last hope of the common man, restored – and Justice Kekere-Ekun is  up to the task; she’s a Performer. 

Personally, I have only appeared before Her Lordship in one matter, when she was at the Court of Appeal, Port Harcourt Division, but, as Editor of this esteemed Publication, ThisDay Lawyer for almost eight years, we can testify to the fact that Justice Kekere-Ekun is hardworking, thorough and firm, as she appears to have delivered the highest number of lead judgements (sound judgements, I might add) that we have reported in the past eight years. 

Honourable Justice Kekere-Ekun who was elevated to the Supreme Court in 2013, has been recommended by the NJC to President Bola Tinubu, to be the next Chief Justice in accordance with Section 231(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended in 2023)(the Constitution). The President, in turn, forwards her name to the Senate for confirmation. By virtue of Section 231(4) of the Constitution, as the position of CJN becomes vacant on August 22, 2024, the President is mandated to appoint the most senior JSC to perform the functions of the CJN until the substantive CJN is appointed – Justice Kekere-Ekun is the most senior. Considering the fact that it has been clear to everyone since 2022 that the position of CJN would become vacant on August 22, I see no reason for there to be any delay in completing the process of CJN appointment timeously, so that by August 22, 2024 as one CJN is retiring, the new one is being sworn in, instead of needlessly leaving the issue to fester for up to 90 days beyond the date of appointment of the acting CJN (see Section 231(5) of the Constitution). 

In October, 2023, the UK appointed the first Lady Chief Justice of England and Wales, Baroness Sue Carr, and come September 1, 2024, the new South African female Chief Justice, The Honourable Mandisa Maya, will assume the position. We also look forward to having our own Nigerian Female CJN!

#GoodGovernance vs Non-Performers

In the spirit of #GoodGovernance, one would have imagined that, by now, the Federal Government of Nigeria (FGN) would have rushed to pick two of the juiciest low hanging fruits, to show that it has heard the cry of Nigerians and one of their #EndBadGovernance prayers – to get rid of non-performers – swiftly replacing the bad leadership of NNPCL and those related to Sports, since it is not in the nature of most Nigerians to resign, even in the face of shame arising from non-performance/failure. 

Is it fair that, despite the fact that Nigerians are going through an extremely difficult time, they should also be queuing up for fuel incessantly? For the past two years, Nigeria has gone from one fuel crisis to the other; it was also during the era of the present leadership that bad dirty fuel was imported in early 2022 or so, and many vehicles were damaged as a result; is this not enough to show that those in charge of that fuel supply area, are incompetent? Ditto for those in charge of Nigeria’s oil production output, and ensuring that our Refineries are rehabilitated – they are equally as inept or corrupt, or both. 

As for Sports Sector, need I discuss Nigeria’s shameful outing at the 2024 Paris Olympics? Nigeria went with 88 athletes, no medal! Botswana took 11 athletes, and won two medals, one gold, one silver. With a N12 billion budget, Nigeria was unable to purchase one bicycle for the competition, so much so, that we shamelessly had to borrow a bicycle from Germany for the Nigerian contestant to ride for the cycling competition! If there’s a word worse than shame, disgrace and humiliating, that’s what would be used to describe Nigeria’s 2024 Olympics outing (similar to that of 2020). Yet, in both Oil and Sports sectors, Nigerians haven’t heard of any heads rolling.

It is time to hold President Tinubu to the warning he gave at the November 2023 Cabinet Retreat for Ministers. He said: “If you are performing, nothing to fear. If you miss the objective, we review. If you don’t perform, you leave us….Don’t  be a clog in the wheel of Nigeria’s progress”. I submit that those running the affairs of the two aforementioned sectors, that is, NNPCL etc and Sports, are ‘clogs in the wheel of Nigeria’s progress’. Not only have they missed the objective, they are non-performers. There is really no justification, for keeping them in their jobs. Nigerians are waiting for the President to keep to his word, and do the needful. Walking the talk, particularly at this time, will inspire confidence in Nigerians and show the people that the President has heard their cry. After all, the welfare of the people is of the utmost importance, more so than keeping non-performers in their jobs. Thankfully, at least, the price of food stuff seems have come down.

Is Patriotism Singing the National Anthem and Reciting the Pledge?

This brings me to the issue of patriotism, something that all Nigerians, including public/government officials, should embrace; it goes beyond Nigerians singing the National Anthem and reciting the Pledge. 

How patriotic are some of our so-called leaders and Government Officials themselves? Living lavish lifestyles instead of opting for salary and allowance cuts, seeing as the country is going through difficulty and Nigerians are living in penury. The Liberian President, Joseph Boakai, slashed his salary by 40%, in an effort to cut government expenditure. Last year, the Zambian President, Hakainde Hichilema ordered that luxury vehicles purchased for government officials be sold; he also rejected the proposal to buy vehicles worth $1.8 million for his entourage. That is patriotism, not singing national anthem. Look at Dubai 30 years ago, and look at Dubai today – the UAE is now considered to be one of the most developed countries in Western Asia. They used the same type of resources Nigeria has, to develop their Emirate. Look at South Korea 60 years ago – a rural agrarian economy with no mineral resources, a country that Nigeria was said to have rendered financial assistance to all those decades ago; today, it has transformed into a First World country. What about Singapore and LKY? Yet, Nigeria, over 60 years post-independence still remains an underdeveloped third world country, the poverty capital of the world. The difference between their leaders and ours, is that their leaders have ‘a love for country’ – patriotism, which they have shown, not by singing national anthem, but by developing their countries and giving their people a good standard of living; ours love themselves.

Though I haven’t read the now-aborted controversial Counter Subversion Bill 2024 (CSB) sponsored by the Speaker of the House of Representatives (HOR), Rt Hon. Tajudeen Abbas, I have seen the highlights; it allegedly purported to slap a N5 million fine or 5-10 years imprisonment or both, on anyone who refuses to sing the National Anthem or recite the Pledge! What a harebrained law, particularly in a democracy! Has Nigeria become a Military or Police State like North Korea, where the people gather round in public places to worship the State and their leader? Are such silly provisions, what is required at this critical point in time in Nigeria’s trajectory? 

Freedom of Expression and the Right to Remain Silent

How would that ludicrous provision about not singing the National Anthem, even be applied? If people attend functions and they don’t sing the National Anthem, will there be Anthem Police to check mouths and arrest those who fail to sing? I thought Section 39(1) of the Constitution guaranteed the right to freedom of expression, which would include the right to speak or not to speak. See the case of Aviomoh v C.O.P & Anor (2021) LPELR-55203 (SC) per Abdu Aboki, JSC. 

By virtue of Section 35(2) of the Constitution, even a person who is arrested or detained has a right to remain silent, let alone one who hasn’t committed any crime, but doesn’t want to sing or recite some lines. In Igagbele v State (2006) LPELR-1441(SC) per Walter Samuel Nkanu Onnoghen, JSC (later CJN), the Supreme Court held inter alia that “….the citizen’s right to remain silent, even when arraigned for a criminal offence, is an inviolable one”. One wonders what type of lawmakers Nigeria has, seeking to enact laws that do not meet the basic threshold of constitutionality. Even though Section 45 of the Constitution can restrict or derogate from some fundamental rights, including the right to freedom of expression and peaceful assembly, the right to remain silent is sacrosanct, and not one of the rights that can be derogated from. So, if I don’t feel like singing the National Anthem, no law can force me to. The Constitution allows me to keep my mouth shut!

This kind of unserious, self-serving ridiculous lawmaking, makes one wonder whether some members of the three arms of government, even understand their duties. Their most important assignment, is the security and welfare of the people (Section 14(2)(b) of the Constitution). For one, making Nigerians queue for fuel incessantly, shows a total lack of concern for the people’s welfare on the part of the Executive; and instead of the HOR to exercise its oversight functions to call NNPCL to order, it is instead, trying to enact useless draconian laws. 

#FightAgainstCorruption

Aside from the fact that Section 15(5) of the Constitution mandates the State to abolish all corrupt practices and abuse of power, Government has another golden opportunity to show its commitment to #GoodGovernance, by ramping up its fight against corruption. Nigerians are asking whether Yahaya Bello, former Governor of Kogi State is above the law. Why has he not been arrested and arraigned, despite the humongous N80 billion charges that have been filed against him? Some say that the cowardly former Governor is hiding in Kogi State House. 

For the avoidance of doubt, the Constitution’s Section 308 immunity against suit and legal process clause, only extends to the persons of the incumbent President, Vice President, Governors and Deputy Governors – it does not extend to those who no longer occupy these positions. Furthermore, nothing in the said Section 308 makes their residences or official archives, inviolable. That inviolability of offices and residences, only applies to Diplomats. Section 1(1) of the Diplomatic Immunities and  Privileges Act 1962 provides inter alia for the immunity from suit and legal process, and the inviolability of residences and official archives of foreign envoys and foreign consular officers. Kogi State House certainly doesn’t belong to this category. See the case of African Reinsurance Corporation v J.D.P. Construction (Nig) Ltd (2007) LPELR-216(SC).

Conclusion 

The #EndBadGovernance Protesters have threatened to intentionally resume on October 1, 2024, which is Nigeria’s 64th Independence Day. Instead of relying on people that have some leverage on the public, like traditional and religious leaders to convince Protesters not to take to the streets again, Government should seize the opportunity during the intervening six weeks period between now and Independence Day, and show good faith by picking some of the available low hanging fruits like the ones I have outlined above and acting on them. Perhaps, if the people observe some genuine efforts by Government to display their patriotism by taking steps to deliver #GoodGovernance, then not only will there not be a need for another protest, Government will gain the confidence of the people.