Misbau Alamu LATEEF is a post-doctoral legal researcher and full-time faculty member in the Department of Business Law, Faculty of Law, Obafemi Awolowo University, Ile-Ife, Osun State, Nigeria.
He has been on an invitation to Columbia University, New York, as a short-term Visiting Scholar and participant in the U.S Business Law Academy (UBLA) at the Columbia Law School.
He has attended international conferences and symposia at different times at Harvard, Yale, India, Dubai, amongst others. His scholarly interests center primarily on corporate law and governance, which he teaches.
In this exclusive interview with The West African Pilot’s reporter, Bada Yusuf, he discussed the legal and political implications of the judiciary in the political affairs of Nigeria.
WAP: What can you say about the court interference in political parties’ affair?
First of all, scholars have come up with a term called judicialization of politics, which refers to the excessive interference of the judiciary in political matters. You will find out that in most cases in the UK and even in the US, the court will say no, this is politics, they don’t want to interfere. Having said that, maybe to give a concept to what I want to say, I want to say that what we have seen in the recent time, and this is not in respect to the APC alone or the people, generally, this has been a developed practice in our system, I think we are having too much interference of the judiciary in our politics, and I think it does not mean well for the politics itself and for the judiciary.
This is not to say that when there are disputes, when there are disagreements, and all of that, people should not take a resort at the court, no. But I am saying when it comes to core political matter, for example, determining who is a chairman of a political party or who takes over where the chairman is no longer there. These are fundamental things that are clearly provided for in the constitution of political parties.
Determining who wins an election, you know, the interference of the court should be the last resort, not that the court will now substitute itself with the electorates, it is the electorates that should determine who wins or loses an election but what we are seeing in this country or what we have witnessed in the recent time, is the court, usurping that power of the electorates.
For me, I think in recent times, we have had unnecessary and undue interference of the court in political matters, and is what I said, scholars have come up with a term that they called judicialization of politics. When you tend to make so much judicial intervention or interference in political matters. It doesn’t ball well for both the polity and the judiciary itself. So, it is an unfortunate development that we have seen in this country.
Our politicians, this is now to take the blame to the politicians, it is not the judiciary alone. They, politicians also need to act more maturely, to behave more responsibly. Because, if they behave responsibly, conduct their affairs in a very responsible manner, it will be difficult for their matters to become a subject for judicial intervention. So, it is both ways, but I think we really need to do a lot of maturing in our political system in this country.
WAP: Now, that we know that there is an implication on the judiciary, what can you say about the silence of the judiciary as an institution, not talking about the interference of courts in political affairs?
Unfortunately, you know, the way the judicial system is configured, and this is a global system or standard I will say, they are not generally required to speak or talk for themselves. For example, you will not see the Chief Judge of a state coming out to say something over, maybe a political, even nonpolitical, it is the same in the developed countries.
The reason is simple, they are not supposed to prejudge themselves, because that thing that you want to make a comment upon, may well become a subject of the dispute before you tomorrow. For example, as a judge today, I say, this rape allegation is true, and that criminal must be convicted, if that person comes to me tomorrow or that case comes before me tomorrow, it means I have already concluded my opinion on that case yesterday. So, by the nature of the judicial system, judicial officers, whether through the CJ, at the state or the federal level, they are normally not required to be heard, they may only be seen through their judgment in court and court proceedings.
So, it is difficult for the judiciary to actually defend itself. This is why we have been saying that since they can not do the kind of propaganda that the politicians do, in that they can’t come out to comment, to defend themselves to even explain things, they should be much more meticulous in their judgment and even in their intervention in political matters. Because when the judiciary tends to dabble into political matters such as we have seen in recent times, it gives the people the opportunity to speculate whether some judicial officers even have their own political parties.
The judiciary itself, the only thing it can do, in my view, is to restrain itself and refrain it members and limit their intervention in political matters. They do this a lot in abroad, they will tell you that this is a political matter, we cannot come in. I can give you an example, when the issue of Brexit was first taken before the High Court in England or so, the initial attitude of the court was that, no, this is a political matter, it is for the politicians to go and decide, whether Britain should go out of the EU or not. It was later when the issue started exhibiting some legal controversies that the court intervene. But initially, the court said no, this is a political matter, a political subject, let the politician go and solve it.
This is the kind of attitude that we expect the judiciary in Nigeria to develop. Not that they cannot intervene, no, the law empowers them to intervene but there are provisions of our law that say where this or that happens, you go to court, but, the judiciary should be extremely careful, particularly the attitude of giving ex parte order. An ex parte order is an order that you give when you only have one party without the advantage of listening to the other party. Imagine a court, for example, giving an ex parte order removing the chairman of a national political party or saying someone who is not even the third or fourth in the organogram of a political party to go and be the acting. I mean you will expect a judge to be so meticulous to say okay, I want to see the constitution of that party, where the chairman is no longer available, then who is next and next.
So, I expect the judiciary on its own to exercise restraint, if they don’t do that, they may end up not only destroying the politics or political system but also destroying the judicial system itself. Because people will politicize the judiciary and the judicial officers will not command the kind of respect that they deserve. People will see them more or less as politicians too when they tend to give judgment that tend to look partisan or political. That may not be their motive, but the only way to stop that is to restrain themselves from dabbling into core political matters, limit yourself to key legal issues, and all of that.
WAP: Now that it seems the court is acting outside the party’s constitution, what are the political implications of this kind of attitude in Nigeria politics?
Well, the political implication as I said earlier before I say more, let me quickly clarify this, I am not actually saying that the judiciary is acting outside the party’s constitution per se, I am only saying that the approach to interpreting political matter or to adjudicate political matter tend not to conform, well, maybe we are saying the same thing.
WAP: The reason why I said that was because, during one of the suspended National Chairman of the APC, Comrade Adams Oshiomhole, he said that the party provided that anybody that is having issues within the party is given the opportunity to utilize the available internal mechanism.
You are right, I agreed with you. The truth is that excessive intervention or interference of the judiciary, mind you, this is to take the blame back to the politician if the politicians do not take their cases to the court, the court ordinarily would not intervene, you know that?
WAP: Yes.
But when they go like that, that is where I blame the judiciary now. One would expect them to say no, go back to your party, go and resolve your issues, these are core political matters, we will not intervene. They can say that. If a judge truly wants to say that, there are rules, of course, there are even processes and procedures in which the court can do all of those things. He can say, I am examining your papers and in my view, I think there is an internal mechanism within your party that I think you have not explored, go and explore them, go back to your party and go and solve your problem, they do it abroad.
Anyway, the political implication basically is that our polity or political system will continue to be in disarray if the court does not stop this excessive intervention. And of course, the judiciary itself will continue to be enmeshed in what I called embarrassment.
As I talk to you now, people are already seeing the court as another extension of a political party. You know, the kind of judgment and ruling they give these days. For example, some people are actually asking the court to stop maybe a primary or to even stop an election from being held. Yes, somebody may say well, some rules actually allow people to approach the court, fine, but again, if you cannot control how often politicians come to your door as a court, you should be able to control what you do to them, once they enter inside your house as a court, you should be able to sometimes send them back. You should be able to sometimes not indulge in their excessive political judgment.
If a court does not give an unnecessary ex parte order and insist that, look, I want to see all parties before me, I cannot give an ex parte order behind the other party, go and serve them, I want to see everybody, I want to listen to everybody, some judges do that, with due respect to them and I respect those judges. But there are those that any ex parte matter they see before them; they just take it like that. For me, it is a loss, loss for all parties. The politicians are not getting any better from this practice, the judiciary too is not making any headway. It is becoming so dangerous and alarming in our polity.
WAP: Can you quickly comment on the forthcoming election in Edo State, with the way the whole things are, what can you say about it?
Well, it portrays the kind of politics of personal interest that we play in this country. You will see that, at least, the candidate that the APC is putting up now, is the candidate that was actually their opponent in 2016, I mean he was in the PDP. Now, the candidate that the PDP is putting up in 2020 against the APC, is the candidate of the APC in 2016, who won the election against the PDP.
That shows you that our people really have to open their eyes and understand the shenanigans of irresponsible politicians. These people do not really care about governance, they care more about their own self-interest and this is why it is not difficult for them to crisscross from one party to another. No ideology, no principle, no morality, no ethics, and nothing, they are large, and I am not sorry to say that, irresponsible politicians. Although, there are few ones that are responsible, unfortunately, those who dominate the politics are largely the irresponsible ones.
The electorates should, and become more aware and responsible too to understand that they cannot continue to be punched in the chessboard of irresponsible politicians, who just stroll the electorates here and there without little care for governance. We have not been talking about governance, even in Edo, we have only been talking about who is against who. Whose interest is being catered for, whose interest is being hindered?
We are not talking about governance, what is the policy on education? What is the policy on health? What is the policy on agriculture? And so on. These are the issues but unfortunately, these important things are being put into the background while they discuss the interest of the politicians and the political parties.
For me, we are not growing in our democratic culture if you ask me, governance has never been at the forefront. Governance is always the last thing. They talk about their interest first, hopefully, maybe we will get out of this but, it is an unfortunate thing that this is the kind of politics we play in this country. No issues, no governance, they just discuss self-interest of politicians and political parties. PDP and APC don’t have any difference, at least, ideologically.
