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Bulkachuwa’s Recusal: Victory Or Trap For PDP?

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On Wednesday May 21, 2019, the President of the Court of Appeal, Justice Zainab Bulkachuwa, withdrew as a member of the Presidential Election Petition Tribunal, following petitions filed by the Peoples Democratic Party (PDP), and its presidential candidate, Atiku Abubakar that she was likely to be biased against them.

Atiku and PDP had filed applications on May 16, 2019 alleging that their petition challenging the victory of the All Progressives Congress (APC) and its candidate, President Muhammadu Buhari, in the February 23, 2019 poll, would not be handled impartially by the tribunal due to Justice Bulkachuwa’s ties to top members of the APC.

They noted that while Justice Bulkachuwa’s husband, Adamu, is a senator-elect on the platform of the APC, the party whose victory at the February 23 presidential election they are challenging at the tribunal, her son, Aliyu Abubakar, was a governorship aspirant on the platform of the same party in Gombe State.

They also quoted a statement made by Justice Bulkachuwa at the inaugural sitting of the tribunal on May 8, 2019 as pre-judging their petition. The Court of Appeal President who was presiding over the 5-man panel for the Presidential Election Petition Tribunal Panel was quoted as saying in her speech at the inaugural sitting of the tribunal that, “Elections are held in Nigeria, every four years into elective positions. No matter how well the elections are conducted, there are bound to be complaints.”

The Presidential Election Petition Tribunal’s 5-man Panel sat and heard the bias-applications with Justice Bulkachuwa presiding. On May 21, in a unanimous ruling the tribunal panel dismissed the application

Justice Olabisi Ige, who read the lead ruling of the panel, held that the relationship between Justice Bulkachuwa and her husband, Adamu Bulkachuwa, who is a senator-elect, and her son Aliyu Abubakar, a governorship aspirant, both on the platform of the APC, was not weighty enough to infer that she would be biased in her handling of the proceedings of the panel.

Justice Ige also ruled that no inference of likelihood of bias could be inferred from the speech delivered by Justice Bulkachuwa at the inaugural sitting of the tribunal on May 8 that she had pre-judged the petitioners’ petition. The judge chided the petitioners for inferring the speech in part and not its whole context.

Justice Ige held that, “To the petitioners/applicants, the above remark appears to them that the President of this court and the Presiding Justice of this panel had already pre-judged the presidential election as well-conducted and that this petition is one of the complaints that come up no matter how well the election was conducted.

“I am of the solemn view that no such inference is discernible from the above quoted statement. The entire speech ought to be read as a whole in order to truly discover what the content of the inaugural speech portrayed.

“Concerning the complaints of the petitioners/applicants to the extent that the affinity between the Honourable President of this court will engender a likelihood of bias on the part of the Honourable President of this court if she remains the Presiding Justice, I am of the firm view that enough materials have not been placed before this court to show that the Presiding Justice of this panel is likely to be biased against the petitioners/applicants in the hearing and determination of the petition.

“I am of the view that the fact that the Honourable President of this court is the wife of Honourable Adamu Mohammed Bulkachuwa and the mother of Aliyu Haidir Abubakar are not weighty enough to impute likelihood of bias against the President of the Court of Appeal.

“The two of them are not parties to the petition before us, and have not shown to be listed as witnesses of the 3rd respondent (the APC) in the petition before us. There is no allegation made against the spouse or the son of the Honourable President of this court in the petition of the petitioners/applicants. Their relationship with the Presiding Justice of this panel is not all capable of causing likelihood of bias against any of the parties in the petition.

“I have deeply ruminated over the affidavit evidence filed in support and against the application of the petitioners/applicants and the various submissions of the various learned counsel to the parties in this petition and I am of the view that the petitioners/applicants have not been able to positively establish the need for the Honourable President of this court and the Presiding Justice of this panel to recuse herself from further sitting or participating in the proceedings in this petition. Consequently, the petitioners’ application fails and it is hereby dismissed”, Justice Ige ruled.

All the members of the panel, including Justice Bulkachuwa, agreed with the lead ruling. Despite that, Justice Bulkachuwa said, “I am recusing myself from the panel for personal reasons.”

She, however, said she was satisfied that the matter had been settled “based on the facts and the law” so that “another female judge will no longer have to face what I have faced.” A new presiding Justice, she said would be appointed for the panel, but that the four remaining members of the panel would continue with the hearing of the preliminary applications pending the appointment of the new head of the panel.

This is the crux of the matter.  Section 285(6) of the 1999 Constitution (as amended) provides that “An election tribunal shall deliver its judgment in writing within 180 days from the date of the filing of the petition”. A similar restriction is placed by Section 285 (7) that: “An appeal from a decision of the election tribunal or court shall be heard and disposed of within 60 days from the date of the delivery of judgment”. These provisions of the Constitution are also adopted verbatim by Section 134(2) and (3) of the Electoral Act 2010.

The 180 days for Presidential Election Petition Tribunal Panel to determine and deliver judgement in the petition filed by the PDP and Atiku challenging Buhari’s re-election began to count a day the presidential election result was announced by INEC.

INEC Chairman Professor Mahmood Yakubu, formally declared Buhari “winner and returned elected” at exactly 4:39am Nigerian time on February 26, 2019. The 180 days which began to read then now remain 90 days (by Sunday May 26, 2019) to go.

Justice Bulkachuwa began to preside over the Presidential Election Petition Tribunal Panel on May 8, 2019. The PDP and Atiku’s petition shall be at the risk of dismissal either by the new panel or at the Supreme Court if the new panel carries on from where Justice Bulkachuwa stopped. The panel has to start d’novo as it’s the standard practice in all legal jurisdiction.

One of the reasons a seven-man panel led by the former Chief Justice of Nigeria, Justice Mahmud Mohammed to affirm Governor Nyeson Wike’s election in the Supreme Court judgement in Nyeson  Wike Vs Dakuku Peterside appeal on January 27, 2016 was the failure of the new tribunal panel start hearing the petition d’novo when it was constituted.

Justice Kudirat Kekere-Ekun, who delivered lead judgement held that the tribunal denied Wike and his party, the right to fair hearing by allowing a wrong panel to deliver ruling on an application they filed, challenging the competence of the petition.

‘’It was wrong for Justice Suleiman Ambrosa, the later chairman of the tribunal, to have gone ahead to deliver ruling on some interlocutory applications earlier heard and reserved for ruling by the former tribunal chairman, Muazu Pindig’’, Justice  Kekere-Ekun held.

Why Lawyers hail Bulkachuwa’s decision

Lawyers have earlier argued that it is only up to Justice Bulkachuwa to decide whether to recuse herself or not, otherwise there is no law mandating her to recuse herself simply because her husband and son belong to a party whose members are in legal dispute with another party’s members, just as the legal dispute is before her.

However, all the lawyers representing the various parties to the petition – the PDP and Atiku, INEC, APC and Buhari’s lawyer, Chief Wole Olanipekun (SAN), said the decision had saved the judiciary from an embarrassment.

The petitioners’ lawyer, Livy Uzoukwu (SAN), said his team filed the application in their interest to protect the right of their clients, adding that the application was “never personal,” adding that it was carefully done “to respect the institution.”

All the respondents’ through their lawyers –Yunus Usman (SAN) for INEC, Olanipekun for Buhari, and Lateef Fagbemi (SAN) for the APC, had earlier opposed the petitioners’ application. But in what appeared to be candid advice, the lawyer representing the APC, Fagbemi, urged Bulkachuwa to “leave the matter” for the sake of her name and her retirement from the bench that is only barely a year away.

He said, “As it is fast becoming the norm and regrettably so, this is another havoc wreaked on the finest Nigerian jury. This is not the first time this is happening. Just recently, Justice Oyewole, whose immortal contribution was acknowledged by the counsel for the applicants a while ago, was written against not to be allowed to sit on the appeal panel on the Osun State governorship election petitions tribunal.

“Nebulous as ‘likelihood of bias’ is, it has its own boundaries. The exhortation in all the authorities that have been cited, recognises that each case will have to be dealt with on its own merit. The matter before the court has nothing to do with the governorship or National Assembly elections. Whatever the constitution of a political party is, it is the constitution of the country that is supreme, and nowhere in the Nigerian constitution is the President allowed to remove a governor or a member of the National Assembly.

“My conclusion, with respect, is that the application is blackmail. On the facts and the law, the application is most unmeritorious. But, with respect, next year, your lordship, the President of the Court of Appeal, will be bowing out gloriously by God’s grace.

“Your name, either the one you acquired before you got married, or the one you acquired after you got married, none is for you alone. You hold them in trust and you have been blessed – being the first female President of the Court of Appeal in Nigeria. My lord, your youthful look may confuse one. You are old enough to be my mother. My lord, you standing in as my parent, I will say, ‘Mum, leave the matter’’.

A crosssection of some lawyers who spoke with LEADERSHIP on the legality of Atiku and PDP’s demand for Justice Bulkachuwa to recuse herself because of her family tie with APC barely two weeks before the Appeal President opted out of the panel collectively  said it’s up to her discretion disqualify herself or not.

According to the Presidential Advisory Committee on Anti-corruption (PACAC) Chairman, Professor Itse Sagay (SAN), ‘’ there is no connection, no relationship that can be found in judges code of conduct or in law. Justice Bulkachuwa’s husband is a senator-elect, he is entirely in his own business, he is not the one in the court. It is not that Justice Bulkachuwa’s relation is a party in the suit before her. That his husband who was a former member of the PDP before is now in APC is not enough ground to recuse herself in a matter involving members of either party.

‘’This smacks desperation, absolute display of political hooliganism and mischief the PDP began to exhibit since it lost presidential election. It is as if they have lost everything including their senses, there is nothing they have not been attacking. They see in everything good belonging to the other side as the cause of their travails or loss in the election.

‘’They must be ignored, judiciary must ignore them because even if you bring a substitute, PDP will still find something wrong in the person.

‘’This tells how bad PDP’s case is, when you feel you have a bad case, that is the kind of madness you will descend to if you are as well desperate. Since I was born, I’ve never witnessed this level of expressions of bitterness and desperation by set of a people. If it is truly it is all about service to Nigeria, why will they have to go this extremity with expression of bitterness over their loss in an election. They must be ignored, Prof Sagay said.

A Nigerian professor of public law and president of the Center for Socio-Legal Studies, Professor Yemi Akinseye-George (SAN) said, ‘’This is a very sensitive issue which I cannot just dabble into by making comments. The matter is already before the court and it is only the judge that can evaluate it properly and do what is right.

‘’I know Justice Bulkachuwa very well, she’s person of high repute and integrity. She is highly uncompromising and am confident she will do what is right based on the facts brought before her by the PDP, which I am not familiar with’’, Akinseye-George said.

Emeka Ngige (SAN) said, ‘’Issue of bias or likelihood of bias is a constitutional matter anchored on the right to fair hearing. Hon Justice Bulkachuwa’s position is an invidious one having regard to the office which she occupies and the expectation that she should be beyond reproach. She is unfortunately vulnerable to attacks because her spouse is a practicing politician.

‘’I believe there ought to be a holistic review by NJC on issue of judicial officers whose spouses are politicians participating, handling or presiding over political cases. Senator-elect Adamu Bulkachuwa did not just become a politician overnight. He was a PDP member in the House of Reps from 1999-2003, and later became a senator under ANPP while his spouse Hon Justice Zainab Bulkachuwa was elevated from her position as a Chief Judge in 1998 to the position of Justice of Court of Appeal. While sitting as a justice of the appellate court she participated and presided over many high profile political cases and there was no protest by PDP that her spouse is a politician. One of the notable cases which she presided in 2008 or thereabout was the case of Usman Abubakar (Young Alhaji) Vs Senator David Mark. In that particular case the election of Senator David Mark was affirmed by the court of appeal and PDP hailed the judgment in complimentary terms; they did not raise any objection as to the political affiliation of her spouse. Today the table appeared to have changed, she’s now being pressured to recuse herself because of her spouse’s membership of APC. So you can see the double standards by the political class.

‘’Be that as it may, the issue of judicial officers with politically active spouses calls for the intervention of the NJC. I believe time has come for NJC to issue some holistic guidelines for judicial officers married to politicians. The Nigeria Bar Association (NBA) ought to be in the forefront for the articulation of these guidelines but unfortunately the association has lost focus and is now in coma otherwise it ought to have recommended some draft guidelines to NJC. I sincerely believe that judicial officers married to politicians should be insulated from political cases particularly election petitions and appeals arising therefrom. These judicial officers can’t be blamed simply because they are married to politician spouses but public interest requires that they do not get involved in these political cases.

‘’So the issue must be comprehensively reviewed by the appropriate authorities or bodies. I will not say  PDP has no right to raise the objection  against the PCA and neither will I blame the President of the Court of Appeal for presiding over the presidential election petition case when she is married to a politically exposed person’ Ngige said. It’s not unusual for serving presidents of court of appeal to preside over such high profile election cases. It’s my hope she will dispassionately treat the issues raised in the PDP letter and come to a reasonable and fair decision. May God guide her aright in taking a decision on the issue.

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