By Sesugh Akume
One other beautiful thing about public interest litigation is whichever direction the judgement goes, the litigant nay the public never really loses, there’s always a win; that is why it is called impact litigation, or strategic litigation. It’s always about the impact whether immediate or long-term. It’s about disrupting the status quo which is never left the same after such endeavours.
Some time in 2019, I was in court to seek its interpretation of the Benue Local Government Law 2007 (Sesugh Akume v Governor of Benue State MHC/12/2019) which institutionalises the appointment of unelected local government heads by the governor, and to this end there is no election calendar in the Benue Electoral Law. Elections are to be held at the whims and caprices, and convenience of the governor. A textbook example of the rule of man as against the rule of law! This, even though the Constitution is emphatic about the existence of ‘democratically elected’ local government councils, and the Supreme Court has said appointed local government councils are illegal, unlawful, undemocratic, and unconstitutional. Yet, in its judgement the court didn’t agree with me that the said sections contradict the Constitution and must go.
The Honourable Mr Justice W I Kpochi of the Benue State High Court entered judgement that in the first place, I lacked the locus standi (the right to sue) in this matter as I didn’t demonstrate how this aberration affected me alone, or more than anyone else. This outright miscarriage of justice (which is before the Court of Appeal) explains why I wanted us to apply for another judge to hear the next suit which was assigned to this very same judge, but my lawyer, Moses Lubem Ukpo, Esq., thought otherwise.
In this suit, (Sesugh Akume v Governor of Benue State MHC/293/2020) as expected, the court on 17 March 2021 (in 1 of 2 suits determined that day) refused to be moved that the section on the Local Government Law which empowers the governor to suspend/remove local government chairmen on mere allegations of wrongdoing, without fair hearing is unconstitutional. Even though fair hearing is a fundamental right guaranteed by the Constitution, and even though the Supreme Court had previously nullified such obnoxious laws and resolved against the removal of local government chairmen by governors. It also avoided answering direct questions brought before it for interpretation, and entered judgement in favour of the government, as expected. This judgement too will be appealed.
An unexpected twist was when this time, his lordship did not agree with the respondents that I lacked the locus standi to approach the court. He not only agreed with us that being a public interest matter, anybody could approach the court for interpretation and indeed should be allowed to do so! He supported this position with numerous authorities beyond what we brought before him, or could ever have! The reason I had reluctantly agreed with Mr Ukpo was that I wanted the judge to repeat the error of determining that I lacked the locus standi so I would drag him to the National Judicial Council (NJC) for disciplinary action. The role of the trial judge is to interpret the law not to rewrite it. The law on locus standi has been settled by the Supreme Court, any judge who, therefore, deliberately opposes the law as is to suit his inclinations deserves to face the music. This is one conversion of a judge to the right path to never take for granted. An unintended consequence.
Last year during the COVID-19 lockdown, Benue conducted local government elections. One would wonder why. The judgement in that earlier suit referenced earlier was adjourned 3 times. It was within this time that local government elections nobody knew when they would hold hurriedly took place. A reason given in the judgement was that local government elections had already taken place and the suit overtaken by events. It stands to reason that hadn’t there been a lawsuit to challenge the status quo and exert pressure on the system, no local government elections would’ve been held. Another unexpected consequence.
In the second matter decided that day (Sesugh Akume v Government of Benue State MHC/294/2020), the Honourable Mr Justice A I Ityonyion, in a rather strange and unprecedented judgement determined that I lacked the locus standi to seek redress in a situation where the Benue accountant-general, and chairman of Logo Local Government denied freedom of information (FOI) requests I made to them respectively. As both judges were reading their judgements that morning, one was affirming my locus standi in a public interest matter, another denying it. A curious thing about this matter is, the FOI Act 2011 states categorically that a person need not demonstrate any interest in a matter before they can apply for any information. And the application is to be granted in 7 days, and if it is to be denied, the section of the law relied on to deny it is to be stated in the letter of denial. In other words, locus standi doesn’t apply to FOI, and it is settled. Second, how does it make sense that my application was denied for no reason and I don’t have sufficient interest in the matter? What nature of matter then can I ever have sufficient interest?
An unexpected consequence is the ridicule his lordship has opened the judiciary to by this perverse judgement. It is expected that the court should know the law. It’s becoming clearer that many times this may not be the case with our courts. Or the courts know but don’t care, or they both don’t know and don’t care! His lordship allowed himself to be misled, maybe because the lead counsel on the other side was a Senior Advocate of Nigeria (SAN). Maybe to deepen the perception that state courts are at the fingertips of governors whom they are out to please. Sometimes they prefer even the most basic and straightforward cases to be won on appeal. But this ought not be as both the perception and reality should be that justice is done whether the heavens fall. It would be a betrayal of trust to relate what one of the judges told my lawyer because he was off the record and meant it to be confidential.
We can only hope that in this matter too the appellate courts will determine to the benefit of the people, compelling all public institutions at the state and local government levels to open up their books to public scrutiny and be accountable to the people, as it is at the federal level, at least in principle.
Sesugh Akume, public policy analyst, wrote from Abuja. He tweets @sesugh_akume and is reached via firstname.lastname@example.org