Like one writhing from the pangs of judicial guilt, in a valedictory about a decade ago marking his retirement from judicial service, Justice Abdullahi Mustapha –one of a few infamous Federal High Court judges who presided over the treason trial of the late MKO Abiola- said that the winner of Nigeria’s freest and fairest election would not have died in detention if he had not refused the conditional bail his court had granted him. In fact, besides being proverbially an ‘after-death-the-doctor’ kind of self-praise, this unsolicited piece of irrelevant obiter dictum, merely reversed the aged-old saying that ‘the witch cried at night and the baby died at dawn’.
Justice Mustapha should have quietly retired and perhaps devote the rest of his life seeking God’s forgiveness for the despicable role he played not only in that deceptive bail offer, but more despicably so in his siding with the Abacha junta to give Abiola a malevolent trial. But he chose to attempt to re-write history, in which script his odious role was cast in the epic of a ‘benevolent judge-hero’ who offered Abiola the gift –but he spurned it.
Justice Mustapha, like the late Justice Bassey Ikpeme –the ill-foretoken female judge of the Federal High Court who granted the dead-at-night judgement which led to the annulment of June 12- was one of those hand-in-glove with the Abacha junta in its desperate efforts to bury the ghost of June 12 by keeping its acclaimed winner under judicial lock and key. If memory serves right, much earlier under the Interim National Government of Ernest Shonekan, the late Uche Chukwumerije who was its Secretary for Information had convinced that Government’s de facto Commander-in-Chief, General Abacha to sign a Decree outlawing the mention of ‘June 12’ in public places. After toppling Shonekan not a few unconscionable politicians, lawyers and judges were prostrate at the foothill of Abacha jackboots offering advice on how to tame the genie of June 12 to create an imperial presidency fo Abacha.
General Babangida, to secure the trust of Nigerians in his rather unending transition programme had promulgated a decree ousting the jurisdiction of courts in any suit seeking to stop the 1993 presidential election. In fact, his second in command, the late Admiral Augustus Aikhomu had made a habit of bragging about the regime’s fidelity with its transition promise, citing this decree as proof of that fidelity. But behind the scenes the government was working with an inglorious politician, Arthur Nzeribe under a dubious ‘Association for Better Nigeria’, ABN, first to de-campaign the election and eventually to use the courts to abort the entire process. Ironically the Judiciary under Babangida which attracted the sympathy of all for operating under the yoke of military decrees and ouster clauses, was only too glad to provide the services of a newly appointed Justice Bassey Ikpeme who ignobly chose to disregard a decree ousting the jurisdiction of courts on the forthcoming elections. It was her order that set the chain of judicial events leading to the annulment.
After the arrest and arraignment of MKO for declaring himself President, Justice Mustapha must have been carefully selected too as the first trial judge who in the course of a long, tortuous trial neither hid his aversion for the June 12 struggle nor his readiness to compromise the judicial process in the service of the military junta in power.
The bail circus
Why would a judge acting independently suddenly be flown by government in a Presidential jet from his Benin base to Abuja on a Saturday to grant bail -on a treason charge- to an accused person who previously was not even allowed a leave of court to have access to his personal physician? This bail which could not wait two more days to the next Monday and which had to be given in a court without clerks or bailiffs, many said, had more to it than met the eye.
What manner of bail was that at the grant of which neither Abiola’s lead Counsel GOK Ajayi was in court, nor was any members of his immediate family, but some curious-looking Abacha foot soldiers (like the late Adedibu, Ranti Famiyibo and Pascal Bafyau) who presented themselves as ‘representing Abiola’s interest’? And Justice Mustapha had no qualms admitting them. Yet this was the same judge who, in the early trial days vehemently opposed the idea of admitting Femi Falana as an ‘amicus curae’ (friend of the court) who merely wanted to assist the interest of justice.
And what manner of bail was that which the whole world would immediately know about, but not the intended beneficiary himself who was in the custody of the government? And to think also that there was already a subsisting court order allowing Abiola the use of radio and newspapers even as a prisoner! Abiola did not know about the bail because all through that period and for the expediency of keeping him ignorant of the bail issue, the right granted to him by law of access to news had been withdrawn. If memory serves right it was around this time newspapers reported that Abiola had sprained his ankle in struggle with security personnel who had wrestled him down to seize his transistor radio and some newspapers.
If Justice Mustapha, -claiming to have acted independently- had thought it necessary to convene his court on a Saturday in order to grant a bail that could not wait till Monday, why was it not equally necessary that the accused should be served the bail papers as expeditiously as the bail itself was arranged? –especially considering the fact that since Abiola was holed up somewhere within Abuja, the bailiffs would not require to be flown in a jet -like their ‘lordship’- to serve Abiola.
The Mustapha bail was a ruse -a carefully choreographed subterfuge never intended to be executed. Abacha’s pariah junta needed some breather from the harangues, especially of an international community punishing for the release of MKO. Creating a make-belief bail grant to Abiola and then alleging he had spurned the offer would kill two birds with a single stone: revitalise the worsted image of the junta and most importantly taking the onus of resolution of the June 12 impasse of Abacha.
In retrospect, when it was expedient for Abacha to prove the Diya coup attempt he merely gave a video tape to NTA showing a contrite Diya begging for clemency. If the bail offer was real and Abiola had truly rejected it Nigerians would have been treated to another epic footage revealing a belligerent Abiola refusing it. In actual fact, it was six days after the bail grant that Abiola’s lawyer, GOK Ajayi, was finally allowed to see his client and during which Abiola was to know for the first time all the hullaballoo about the bail issue.
And the proof of this came after the late FRA Williams took over the case from GOK and his attempt to perfect the bail was vehemently opposed by the prosecution on the flimsy grounds that the bail documents were ‘forged’. In fact, if memory serves right, it was at this point in the absurdly frivolous debate over the quality of the bail documents that Justice Senlong -newly appointed to the case- went a little out of judicial decorum to accuse the government of ‘executive rascality’.
In the hall of Saleh’s infamy
And now long after the ignoble post-retirement orbiter dictum of Justice Mustapha –claiming that Abiola’s refusal of bail was tantamount to a ‘constructive suicide’- came another despicable icing on the cake of familiar judicial infamy.
This time it was -dismissal bombast -or is it the odium juridicum?– of Justice Dahiru Saleh who admitted recently in an interview that it was he -and not General Babangida- who annulled June 12. And now ‘with the rusty curb of old father antic the law’, it seems all too obvious that our judicial system has degenerated so much that a judge can proudly stake claim even to the confessed ignoble deed of a military dictator! Isn’t that wonderful?
Justice Ikpeme granted an order, in disregard of an outer decree – which she should not have- stopping the conduct of the June 12 election; the electoral umpire, Chief Humphrey Nwosu, disregarded Ikpeme’s court order –which he was right in the circumstances to do- and conducted the election; Justice Saleh granted an order –which like Ikpeme’s, was no less in breach of the ouster decree- stopping further announcement of the election results; the same Saleh followed with another declaring the election ‘null and void’ –which was in disregard of the Electoral Commission’s pending appeal against Justice Ikpeme’s injunction which stated it all.
And then Babangida,-relying on or in disregard of-Justice Saleh’s last declaration, announced on behalf of the ruling Military Council–which by the way, was superior to the courts- that the election stood annulled! What was very clear in this spaghetti tangle of one judicial wrong dovetailing into another, was not so much who deserved the trophy for annulling the election, as it was that the election was annulled.
The horde of hunters by which the poor rabbit was environed, and the multiple bangs from the anxious hunters’ guns obviated the search for whose bullet hurt the rabbit the most. What does it matter if we prove that Babangida, Ikpeme or Saleh annulled June 12? Isn’t it sufficient that a confederacy of all of them did it? Besides, to what end should we disprove especially Saleh’s most recent claim to the infamy of being at the head of that confederacy?
The honourable former Chief Justice of Nigeria CJN, Justice Dahiru Musdapher said: “There is no middle ground and no space on the bench for those adjudged to be unworthy arbiters of truth”. The choice, he said, “is simple and our resolve is absolute –plata o plomo (gold or lead)”. But this one judge, Dahiru Saleh, not surprisingly smarting from an ignoble dismissal from the bench, appears content with the ‘plomo -lead’. Since the praxis is between only ‘gold’ and ‘lead’, writing to disprove Saleh’s claim amounts to insisting that he merits the ‘gold’.
The history of Nigeria’s judicial system is replete with courageous judges who stood up to be counted in the task of confronting military dictatorship to install democracy and the rule of law. Justice Saleh, for his anti-democratic role, is proudly seeking space in Nigeria’s judicial hall of infamy. Why begrudge him?
In any case a principle of law says ‘allegari non debut quod probatum non relevat’ –meaning: ‘what is not relevant when proved, ought not to be alleged’.