By Chidi Anselm Odinkalu
Rights are only worth having if they are occasionally boisterous, often inconvenient and frequently tiresome.” Inigo Bing, The Ten Legal Cases That Made Modern Britain, 169 (2022)
Two years after his inauguration in October 2021 as Chief Judge of the High Court of the Federal Capital Territory (FCT High Court), Husseini Baba Yusuf, decided in November 2023 that it was time to indulge in a sport of institutional mating games with the newly installed Minister of the Federal Capital, Ezenwo Nyesom Wike. By a stroke of coincidence, both men are members of the Body of Benchers, which describes itself as “the legal body of practitioners of the highest distinction in the legal profession.”
To initiate the mating, the Chief Judge relocated to the office of the Minister with the judges of the court where they proudly put their assets on display for the edification of the Minister. At the meeting, he reminded the Minister that “as a judiciary we are part of the government and we expect that we should be able to do things that should make government work….”
The Chief Judge was desperate to let the Minister know how ready he was to consummate this relationship. To ensure that he got fullest Ministerial attentions, the Chief Judge made it known that he had instructed the Administrative Judges in charge of the various judicial divisions of the FCT High Court that all cases involving the Federal Capital Territory “would only be assigned by the Chief Judge.”
The following quarter, when the FCT High Court went into the market for judicial appointments, they allocated one out of the twelve new vacancies on offer to the FCT Minister, to which he promptly deputed his sister-in-law. As the new judges got inaugurated in July 2024, the Minister quickly announced that the judges in the FCT the proud beneficiaries of new housing development. The relationship between the Chief Judge and the Minister had moved from intent to intercourse.
Things were going so well between the two institutional lovers that it was clear neither of them would knowingly allow any interloper to get in the way of their romance. When the #EndBadGovernanceInNigeria organisers threatened to intrude into this by making Abuja and the FCT a major theatre of their protest, it was time for the lovers to prove their commitment to one another.
On 31 July, the day before the scheduled commencement of the protest, most people turned in early in anticipation of the disruptions from what promised to be the mother of all protests. Even judicial business was not left out of the sense of apprehension.
It was in this uncertainty that the Minister of the FCT decided to prove to the world the depth of the intimacy between him and the Chief Judge of the FCT. On 31 July, he initiated proceedings without notice to the defendants (ex parte) asking the court of the Chief Judge to kettle within the confines of the Moshood Abiola Stadium any wannabe protesters who showed up in the FCT.
This was a poorly rationalised decision, suggesting an executive loss of nerve for many reasons.
First, the Moshood Abiola Stadium is at the neck of a funnel into the city from both southern Nigeria and from the international airport. It was not difficult to see that any significant demonstration would constitute an obstruction to in-coming traffic, if not a risk to travelers. One conclusion from the proposal contained in the filing by the FCT Minister was that the FCT administration had decided to pass the most substantial burden of any risks from the protest to travelers into and out of the FCT, effectively making them expendable.
Second, in addition to making certain segments expendable, the FCT Administration simultaneously also chose to indicate in this proposal that they were not amenable to according any bandwidth to the protesters’ discontent. Banishing them to the vicinity of the Moshood Abiola Stadium was designed precisely to signal this.
Third, the kind of order that the Minister sought from the FCT High Court was a profound safety risk to both potential protesters and law enforcement officers, whom it required to enforce the cordon. This kind of policing arrangement had been considered and found unlawful in places with more capable policing, including in England.
Fourth, this was shameless evidence of an irresponsible FCT Administration. A more responsible administration could easily have designated the stadium as a viewing centre for the Olympic Games and invited the excluded youth of the FCT to a different experience of what’s possible when government cares.
Even more curious than the nature of the orders that the Minister sought was the identity of the parties against whom he sought them. Omoyele Sowore, the lead defendant, was in New Jersey in the USA. Another leading defendant was called “Persons Unknown.”
Now, a basic rule of civil proceedings is that cases can only be instituted against natural or legal persons. “Persons Unknown,” like spirits or ghosts, does not have capacity to sue or be sued. This does not ordinarily require any particular depth of legal skill or insight to figure out except, of course, before an FCT High Court caught in the throes of deep judicial passion with the FCT Minister.
In this particular case of the suit against “Persons Unknown,” the FCT Minister retained the services of two Senior Advocates of Nigeria, SANs. Fittingly for a regime whose agents had expended their bigoted propaganda to demonise the Igbo nation over the protest, it seemed appropriate that the judge whom the Chief Judge of the FCT High Court found to assign the case to was known as Chinedu Oriji. From its Igbo language origins, the name roughly translates into “God guides the eating of the yam.”
With little ado, this yam-eating court quickly granted all the orders sought, including “an order restraining the 1st-5th defendants from gathering or parading themselves along any roadway, street, offices and or public premises/property within the FCT between 1st-10th August 2024 or any other day thereafter pending the hearing and determination of” this case. Instead, the Court required all intending protesters from anywhere within the 7,315 km² of the FCT to converge at the Stadium at the entrance into the city where they would be confined by an armed security cordon thrown at the instigation of the FCT Minister and backed by the order from the judge called Oriji.
Even before the Court rose for the day, the order was already in the public domain blaring from all government media. It read uncannily as if the order had been granted even before the case was filed. When the Chief Judge of the FCT High Court promised to “do things that should make government work,” he meant just that.
In this case, however, it was doubtful whether the court was in fact making the government work or exposing it instead to irredeemable odium. A proposition more suited to the mass slaughter of protesters would have been hard to invent. If the protesters had not defied the order in the full majesty of its impracticality, it would have been easy for the government to claim that any number of them trampled to death thereby were unknown. The perpetrators would have been unknown too. That would have been fitting for a protest whose leaders the government had judicially designated as “Persons Unknown.”
All that would have been both foreseeable and yet judicially authored. A court alive to its duties would have spotted this and saved itself and its executive suitors the embarrassment of issuing such an order. The only thing that mattered in this case, however, was how the FCT High Court could prove to the FCT Minister its rampant capacity for heedless intercourse with the executive. In this case, it was spared by the resilience of citizens. Providence, surely, will not always this gladly suffer the excesses of judicial prostitution. The morale of this tale is simple – there must be more dignified ways to eat the judicial yam.
A lawyer and a teacher, Odinkalu can be reached at chidi.odinkalu@tufts.edu
