By Chidi Anselm Odinkalu
“Democracy is a journey and the quality of the ride depends on what we collectively put into it. If we shut our ears and our eyes, the ship of state could derail….” – Dennis Odife, Without Money and Without Price: A Brief Autobiography, p.196 (2016)
In court around 1 July, 2022, the Chief Judge of Akwa Ibom State in South-South Nigeria, Ekaette Obot, repeatedly threatened to jail my good friend, Inibehe Effiong, for his diligence in representing an unknown client against two powerful men – the governor who appointed her into office and a Senator without whose influence she probably may also not have been in office.
Four weeks later, on 27 July, she fulfilled her wish committing him to jail for one month at a whim before proceeding on vacation. The judge did this notwithstanding that there was pending before her “a motion….to disqualify and recuse himself (herself) from the case on grounds of bias or likelihood of bias.” At no point did the judge tell Inibehe what his crime was nor did she give him an opportunity to defend himself as he is entitled to.
The president of the Nigerian Bar Association (NBA) has gone on record to say that the course of conduct chosen by the judge against Inibehe “not only runs afoul of known practice and procedure in such cases but is also unconstitutional.” Other lawyers have described her conduct as judicial malpractice.
Madam Chief Judge may enjoy her momentary schadenfreude, but Africa’s history suggests those who abuse the rule of law – whether they be executive, parliamentary or judicial officers – in the way she has chosen to do almost invariably live to reap whirlwind in more ways than one. A few illustrations may will drive home the point.
As French West Africa prepared for De Gaulle’s self-rule referendum in 1957, Ernest Boka was one of the most promising stars in the region’s politics. In his native Côte d’Ivoire, Boka was eclipsed in popularity only by Felix Hophouët-Boigny, the wealthy Baoulé Chief who was the first black person to be appointed Minister in France. Born in 1928, 23 years younger than Hophouët, Boka was a bright lawyer who appeared destined for greatness. At just 28 in 1957, he became Chief of Staff to the Governor-General, before rising from 1958 to 1959 to ministerial portfolios, first in education and then public service. As Independence approached in 1960, Boka was one of the leaders of Houphouët-Boigny’s Parti Démocratique de la Côte d’Ivoire (PDCI), who strong-armed other platforms from the contest, enabling Houphouët to emerge unopposed as Côte d’Ivoire’s President.
As Boka’s reward, Houphouët appointed him Côte d’Ivoire’s first Supreme Court President in 1960, where he initially proved to be a trusted believer. But Boka was always a man of the people with socialist sympathies. At 35, in March 1963, Ernest Boka resigned as Supreme Court President. Shortly thereafter, in August 1963, he was among hundreds rounded up under the direction of Houphouët-Boigny for allegedly plotting to kill the President with Juju. A special security court sentenced 19 to life terms and condemned another six to death.
But Ernest Boka did not live long enough to stand trial. His lifeless body was found hanging from the ceiling of his cell in Abidjan bearing marks consistent with torture. In response to strong rumours that Boka’s death was not suicide, Houphouët-Boigny himself called foreign diplomats and correspondents to a briefing in April 1964 at his presidential palace for what turned out to be a trial of a dead man. At the briefing, Houphouët announced that Ernest Boka had confessed to an attempt to use Juju to assassinate the President. As evidence, Houphouët-Boigny, a practising Catholic, produced two suitcases containing an assortment of magic potions, dried remains of dead animals and a collection of puny coffins reportedly seized from Ernest Boka’s family house.
About the time Ernest Boka was being liquidated in Côte d’Ivoire, a lowly court clerk and interpreter was working his way into reckoning in Spain’s African plantation in Equatorial Guinea. Francisco Macias Nguema was famous for allowing financial inducements to dictate the content of his translations. As one of few locals with facility in Spanish, the colonialists came to hang on his every word, mistaking him for a man of influence. In one year between 1966 and 1967, Macias rose from assistant interpreter to Mayor, then Minister for Public works before becoming Deputy President of the Governing Council. When the gong sounded for Independence in 1968, he was well placed to be installed as Equatorial Guinea’s first President on 12 October 1968.
But Macias was unwell and given to outbursts of paranoia and violence fueled by dependence on tropical hallucinogens. Six months after being installed as President, in March 1969, he personally bludgeoned his foreign minister to death before having opposition leader, Bonifacio Ondo Edu, abducted from exile in neighbouring Gabon and executed. A reign of terror ensued during which Equatorial Guinea’s small population of professionals, including lawyers and judges were either killed or exiled. Rules were dismantled. With no judges, regime enemies were tried and executed by youth militias organized and administered by Macias’ nephew, Teodoro Obiang Nguema M’ba N’Zogo, an army Lieutenant-Colonel.
On 3 August 1979, Teodoro Obiang toppled his uncle and had him put on trial for mass atrocities, including genocide and embezzlement. As there were no judges left in the country nor lawyers to defend accused persons, the trial was conducted in a cinema hall by militias of precisely the same sort whom Macias used as president to liquidate his enemies, both real and imagined. Macias’ fate was predictable. On 29 September, 1979, the militia found him guilty and sentenced him to death. Hours after his predicted condemnation, an elite military unit flown in specially from Morocco executed him by firing squad at the Black Beach Prison in Malabo.
Two years after the death of Macias, on Christmas Eve in 1981, the government of Dr. Hastings Kamuzu Banda abducted Malawi’s exiled, first Attorney-General and Justice Minister, Orton Chirwa, and his wife, Vera, from Zambia and returned them to Lilongwe. Orton Chirwa was the founding President of the Malawi Congress Party (MCP), which led Malawi to Independence in 1964. He was also Malawi’s first lawyer.
As minister in the transitional government in 1962, Orton took issue with the presumption of innocence and burdens of proof in criminal trials, arguing for their replacement with traditional African norms and institutions. As Attorney-General, he pushed for these reforms but was turfed out of Cabinet in September 1964 in a power tussle with Banda, his successor as MCP President, before they were promulgated. Following the collapse of the Chilobwe Murder trials in 1969, Banda scrapped criminal trials by regular courts, transferring jurisdiction over crimes to so-called Traditional Courts, comprising a traditional chief as chair, with three citizen assessors and one lawyer. The traditional court system was appointed by Banda, who was both President and Justice Minister. They also reported to him.
In an ironic twist of fate, Orton would be arraigned for treason in 1983 before the kind of traditional courts he had advocated for as Attorney-General. His trial was a charade. The court denied him and his wife – herself also Malawi’s first female lawyer – legal defence or the right to call witnesses. Initially sentenced to death on conviction, Banda commuted this to life imprisonment. Orton spent the remainder of his life in solitary confinement at the Zomba Prison in Malawi, where in December 1992, he died at the age of 73.
As Nigeria’s military ruler from 1985 to 1993, Ibrahim Babangida eviscerated the courts, mostly precluding them by military decree from jurisdiction over whatever his regime did. In 1991, he issued a special decree making legal proceedings against his regime a felony punishable with up to two years’ imprisonment. Out of power in 2001, a successor regime asked him to appear before a Commission of Inquiry to defend his record.
Rather than do that, the man who made going to court a crime hired a coterie of highly prized lawyers to go to court and question the powers of an elected civilian administration to ask him to account. The case ended up before a Supreme Court presided over by judges, some of whose judicial careers Babangida had advanced. The result was jurisprudence that set back the powers of the Federal Government and the safety and security of Nigeria.
Africa’s history has firm lessons for powerful men and women who want to get ahead by retarding legal process through abuse of the sacred trust of upholding the rule of law. The biggest argument for defending and preserving the rule of law is self-interest – those who degrade it often end up in need of it, usually to save them against their own temporary collaborators.
Karma has a brutal sense of humour.
One thing is assured: Inibehe Effiong is a courageous, vigorous and brilliant advocate who is destined to become a phenomenon in Nigeria’s legal profession. Ekaette Obot will live long enough to see that destiny fully realized. That is the least we can pray for.
A lawyer and a teacher, Odinkalu can be reached at chidi.odinkalu@tufts.edu
