By Chidi Anselm Odinkalu

Abdul Leigh Balogun became a judge of the High Court of Lagos State in 1976. In a career as a trial judge spanning 17 years and three different decades, the man better known as A.L.A.L Balogun earned a deserved reputation as one of the most knowledgeable trial judges of the Nigerian judiciary. His reputation for fairness was unquestioned. That ultimately saved his judicial career.

On 9 March 1979, Justice Balogun delivered judgment in a land matter originally filed in 1975, the year before he became a judge. His judgment decided the case against the original claimants. The following day, on 10 March, Abdul Balogun showed up at the law office of the counsel to the claimants. It was a Saturday. The claimants, who had lost the case, were in consultation with their lawyers when the judge visited.

During the visit, Justice Balogun invited the claimant’s lawyers to attend court the next working day. On Monday, 12 March 1979, the court proposed to hear submissions from lawyers as it considered the “recall” of its earlier judgment of 10 March to correct errors he had spotted in it.

On the appointed day, the lawyers for the claimants did not attend court. The defendants, who had won the case, were represented and addressed the court through their lawyers. The judge had also invited them.

Thereafter, Justice Balogun delivered a lengthy and well-researched judgment in which he claimed an inherent jurisdiction to correct errors he said he had identified in his original judgment, but his original verdict remained unchanged. So, in two separate judgments over two working days, the claimants lost twice. They had good reason to be irate.

The claimants appealed, asking the appellate courts to nullify both judgments of 9 and 12 March 1979 and order a retrial. When it decided the appeal seven years later on 17 June 1986, the Supreme Court was at pains to point out that the motive of the judge in this case was not bias, but what it called the “laudable aspiration” of perfection. However, the Supreme Court described the conduct of a judge choosing to go to the law office of counsel involved in litigation before him as both “reproachable and irregular”, noting that this caused “erosion of confidence in the judicial process.” The apex court warned that “a trial judge ought to know that he is on trial for any improper conduct during the trial of a case before him and immediately thereafter.”

In the judicial traditions of those days, the idea of extra-judicial mingling or intercourse between litigants or their counsel on the one hand and appellate judges on the other was unheard of. So, the court was content to confine its admonition to trial judges. Today, the ethics of judging in Nigeria appear to know of no such distinctions anymore.

Justice Balogun recovered from this case and went on to have a stellar career on the High Court of Lagos, from where he retired in 1993. He lived for another 20 years thereafter, before he died in August 2013. Six months before his death, in February 2013, the National Judicial Council (NJC) terminated the judicial career of Thomas Naron, a judge of the High Court of Plateau State, because  “there were constant and regular voice calls and exchange of mms and sms (text) messages between Hon. Justice Naron and one of the lead counsel for one of the parties to the suit in the Osun State Gubernatorial Election Tribunal, contrary to the Code of Conduct for Judicial Officers of the Federal Republic of Nigeria.”

In the wake of an unprecedented operation by the State Security Service (SSS) against some senior judges in the country in October 2016, a serving Justice of the Supreme Court, Inyang Okoro, was reported to have informed the then Chief Justice of Nigeria (CJN), Mahmud Mohammed, in February of the same year of a nocturnal visit to his home by the then-Transport Minister and former governor of Rivers State, Rotimi Amaechi.

During the visit, Mr Amaechi reportedly claimed that his party, the All-Progressives Congress (APC), had “mandated him to inform (the judge) that they must win their election appeals in Rivers State, Akwa Ibom and Abia State at all costs.” Mr Amaechi’s media spokespersons publicly denied these claims in colourful language. Despite the best efforts of civil society advocates to ensure a transparent investigation, the allegations appear to have been swept under the proverbial carpet.

The latest public disclosure of extra-judicial dalliance involving senior judges and litigants before them came last week from that most durable phenomenon in contemporary Kano politics, Rabiu Musa Kwankwaso.

In March 2019, the contest for the governor of Kano State pitted the then-incumbent, Abdullahi Gabduje of the APC, against Kwankwaso’s protégé, Abba Kabir Yusuf, of the Peoples’ Democratic Party (PDP). With about 100,000 votes left to harvest, the Independent National Electoral Commission (INEC) declared the contest inconclusive. At that point, Yusuf was ahead with 26,655 votes.

When INEC concluded the supplementary vote, it awarded 45,876 votes to Ganduje and 10,239 votes to Yusuf, enabling it to declare the latter the loser with a margin of just 8,982 votes out of 2,242,396 votes cast. The contest ultimately ended in January 2020 when the Supreme Court affirmed Ganduje as duly elected.

In the wake of last week’s feckless embrace by Kabir Abba Yusuf of his former nemesis, Abdullahi Ganduje, a heartbroken Kwankwaso disclosed that in the struggle for what they believed to be their mandate in 2019, he went with Abba Yusuf “to the homes of all the Supreme Court judges in Nigeria to beg them…. in their villages and towns.”

Muhammad Dattijo, who memorably retired from the Supreme Court in 2023 and was on the Court in 2019, promptly issued a rebuttal challenging Kwankwaso’s claim and denying ever having met him or Abba Yusuf. He has also rightly challenged Kwankwaso to disclose the names of the Justices of the Supreme Court whom he claims to have met. The Supreme Court chooses to maintain eloquent silence on this matter.

Judges, according to the United Nations Basic Principles on the Independence of the Judiciary, “shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason.”

In June 2023, Senator Adamu Bulkachuwa confessed on the floor of Nigeria’s Senate that indeed, some important cases may have been decided in the bedroom that he shared with his wife, Zainab, who was President of the Court of Appeal for over six years until 2020. It would be surprising if this species of concupiscent jurisprudence were exclusively brewed chez Bulkachuwa.

There was a time when this would have attracted consequences in Nigeria. But after a few news headlines, Adamu Bulkachuwa’s disclosures were buried in the sepulchre of the NJC’s complicit silence.

Forty years ago, the Supreme Court found that Justice Balogun’s quest for perfection mitigated his transgression. The erosion of public confidence in the judiciary, which the Supreme Court was conscious to safeguard against, has become a self-fulfilling prophecy. Today, a predominant species of judicial vagabondage pursues perfidy.

The NJC’s own Judicial Code of Conduct indeed requires that “(a) Judge shall avoid developing excessively close relationships with frequent litigants – such as government ministers or their officials, municipal officials, and police prosecutors in any Court where the Judge often sits.”

In November 2023, the Chief Judge of the Federal High Court, John Tsoho, turned up in the office of the Minister of the Federal Capital Territory (FCT), Nyesom Wike, to heartily congratulate the minister for his “bias” for judges and beg him to allocate choice land in Abuja to them. Apparently, no one informed the Chief Judge that his posture was injudiciously intimate or that Mr Wike was exactly what the Judicial Code of Conduct described as both a Minister and a “frequent litigant” before his court.

The norms of acceptable judicial conduct have been re-made. Yet many live in denial of the reality that, increasingly, cases before many courts in Nigeria are no longer decided in the courtrooms but in worshipful processions to the homes of the people we call “My Lord”.

A lawyer and a teacher, Odinkalu can be reached at chidi.odinkalu@tufts.edu

By Chidi Anselm Odinkalu

If you wanna live – treat me good
If you wanna live, live
I beg you, treat me good

I’m like a walking razor
Don’t you watch my size
I’m dangerous…,

I’m like a walking razor
Don’t you watch my size
I’m dangerous, dangerous

-Peter Tosh, Steppin’ Razor (1977)

Winston Hubert McIntosh, the Jamaican martial arts exponent better known by his stage name Peter Tosh, was one of the trio who, together with Robert Nesta (Bob) Marley and Neville Livingstone (Bunny Wailer), founded the legendary Reggae band, the Wailers, in 1963. By 1974, the group was all but dissipated. First Bob Marley and then Peter Tosh launched off into what would become epochal solo careers.

Their respective paths as solo artists telegraphed the ideological conflicts that ultimately sundered the Wailers. While Bob Marley’s music offered a medley of reconciliation, romance and regroup, Peter Tosh was muscular in protesting the injustices of his environment. His solo debut in 1976, which came out under the title “Legalize it”, was way ahead of its time in making the political and clinical case for the legalization of Marijuana.

The following year, in 1977, Peter Tosh’s second album, which came out under the title “Equal Rights”, was to become the anthem of an international movement for social justice whose birth coincided with the launch of the album. One of the tracks in this album was “Steppin’ Razor”, a perspicacious dirge of self-assertion which was to define his identity in life as well as his legacy upon his untimely killing ten years later in 1987.

Musicians, of course, have an entitlement to artistic licence in framing themselves in the public imagination, which is not necessarily available to other vocations. Forsaking the rules that control their own vocation, it now seems that some judges in Nigeria may prefer, like Peter Tosh, to exercise both artistic licence and faux testicularity in judicially inventing themselves as Mr Justice Steppin’ Razor.

In August 2023, for instance, Flora Azinge, a senior judge of the High Court of Delta State presiding over election petitions in Kano, north-west Nigeria, complained publicly for the second time in open court that “a senior member of the bar offered one of her staff a sum of 10 million Naira bribes for onward delivery to the panel.” On an earlier occasion, she claimed that an unnamed senior lawyer had asked her to provide him with her account for the transmission of a seasonal gift.

Preferring instead to flex her credentials as Madam Justice Steppin’ Razor, the judge was reported as having threatened that she “would no longer take any attempt to bribe judges, saying that attempts to pervert the cause of justice through the back door is not tenable in her court.” She did not say what she would be prepared to do or how many importunations it would take for her to do them.

In the court hall where the judge voiced these claims, there were lawyers present, but none had the courage or presence of mind to remind her that she had powers to deal summarily with the complaints that she raised or that by choosing not to exercise those and instead burying them in anonymous allegations, she was actively involved in bringing her judicial office into disrepute.

This past week, Polycarp Nwite, a judge, sitting in the Federal High Court in the Federal Capital Territory, Abuja, also chose to join the ranks of the judicial Steppin’ Razor, announcing that he is “dangerous”. This was in the adjourned hearing of the application for bail in the trial of former Attorney-General of the Federation, Abubakar Malami, his wife, and his son on charges of money laundering and aggravated pillage of Nigeria’s patrimony.

After granting the application of the accused for bail, the judge is reported to have launched into what can at best be described as a performance-enhanced monologue, suggesting that he had been importuned by some senior lawyers to compromise the case or to “go easy” on the accused: “When I am handling any case, please don’t approach me. When you are doing your case, you can get the best lawyers in this country to do your case, but don’t attempt to approach me for any help. I am not the type of judge. I know what God has done for me by giving me this job, and I have vowed to do it to the best of my ability. I have sworn before Almighty God and man that I am going to do my duty without fear or favour.” He added, with a touch of hyper-ventilation, that “any attempt to try this will be vehemently resisted.”

His audition for the position of Mr Justice Steppin’ Razor this time was a tad more pathetic than the earlier example. In one stroke, the judge undermined his claim that he is not the type of judge who can be influenced and made his promise of vehement resistance to such sound desperately shameful.

To understand why, it is relevant to recall that Nigeria’s Constitution makes it a human right that all courts must be “independent and impartial.” The Judicial Code of Conduct requires all judges to “preserve transparently, the integrity and respect for the independence of the Judiciary.” According to the United Nations Basic Principles on the Independence of the Judiciary, judges “shall decide matters before them impartially, based on facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason.”

It amounts to a perversion of the cause of justice to seek to influence a judge in the performance of his or her judicial functions. There are many options for dealing with this. One, the affected judge can report the matter to the police or to the Attorney-General for investigation and prosecution. Two, the affected judge is also endowed with powers to punish it summarily as an act of criminal contempt for which the guilty person may be sent to prison. Three, if the perpetrator is a lawyer, a public servant, or other regulated professional, the judge may additionally refer the conduct for disciplinary process before the mechanisms of professional sanction. Four, the judge could use his or her judicial bully pulpit for naming and shaming by inviting the perpetrator to allocute to, or admit the facts in open court and simply reprimand thereafter.

Our latest “Mr Justice Steppin’ Razor” is so endowed with courage that he managed in this case to not consider any of these options worthy of his exertions. Instead, he bloviated, threatened, and auditioned for the role of Steppin’ Razor, and became so dissipated by the colossal effort required that he could not even manage to name the person or persons to whom his threat or resistance was addressed.

On the whole, this shameful show was a squalid advertisement of judicial malpractice. A judge who finds himself or herself in a position to make the kind of public declamations that our latest Mr. Justice Steppin’ Razor made in court has two options: to disclose the identity of the perpetrators and subject them to sanction or to recuse himself or herself from further participation in the case.

However, in this present case of Malami et fils, the judge was unwilling or unable to muster either. Instead, he chose to threaten consequences for a future contingency whose occurrence, on the evidence of the current one, we are unlikely to ever hear of. The only thing the judge managed to accomplish in this case, therefore, was to publicly advertise his availability to be nobbled. Peter Tosh, the original Mr Steppin’ Razor, will suffer no fear that his title is about to be taken away. The most recent judicial candidate failed the audition hopelessly; it was not even close.

A lawyer and a teacher, Odinkalu can be reached at chidi.odinkalu@tufts.edu