Why must Bulkachuwa recuse herself?

The calls for Court of Appeal President Justice Zainab Bulkachuwa to recuse herself from the Presidential Election Petition Tribunal are not tenable, argues Segun Ayobolu.

All eyes will most certainly be on the President of the Court of Appeal and Chairman of the Presidential Election Petitions Tribunal, Justice Zainab Bulkachuwa, as the jurist decides in due course whether or not to recuse herself from participating in deciding on Alhaji Atiku Abubakar’s legal challenge of President Muhammadu Buhari’s victory in the February 23, 2019, presidential election. In a petition to the tribunal after the inaugural sitting of the panel, Both Atiku and his party, the Peoples Democratic Party (PDP) had asked Justice Bulkachuwa to withdraw as a member of the five-man panel because of what they perceive as a likelihood of serious bias on her part as a result of the reported relationship between some of her family members and the All Progressives Congress (APC) whose presidential victory they seek to upturn in court.

In the petition addressed to Bulkachuwa, the petitioners’ lawyers stated specifically that “My Lord, it is no more a secret that your dear husband, Adamu Mohammed Bulkachuwa, contested February 23, 2019, election for the position of a Senator in Bauchi North Senatorial District and won same on the platform of the APC. This information is not just in the public domain but has dominated both public and private discussions to the extent that it has become a sore source, not just to members of our party, but to the generality of Nigerians because of your very unique and critical position as the President of the Court of Appeal, which is saddled with the sacred responsibility of hearing petitions arising from the presidential election”.

Continuing, the petitioners stated that “This fear was palpable enough just with you as the President of the Court of Appeal but has now been worsened and compounded by the discovery that you have decided to appoint yourself as the Chairman of the panel to hear the petition”. It was also alleged that Bulkachuwa’s son, Aliyu Haidar Abubakar is a card-carrying member of the APC who not only campaigned for President Muhammadu Buhari’s re-election but also contested the party’s governorship primaries in Gombe State.  Through the activities of these family members, according to the petitioners, the Court of Appeal President has “direct intimacy” with the APC.

If a jurist is presumed to become “directly intimate” with the affairs of a political party as a result of the partisan activities of his or her family members, how many judicial officers across the country will be required not just to recuse themselves from particular cases but to excuse themselves from judicial practice entirely?

Those who argue that there is no reason for Justice Bulkjachuwa to recuse herself from this case as demanded by the PDP contend that it is unfair to punish the jurist for the supposed partisan beliefs and affiliations of her family members especially when no scintilla of proof has been provided to suggest that this also represents her own political position or stance. In any case, there is no law, for instance, that precludes judicial officers from voting in elections even if most in Nigeria may refrain from doing so despite the secrecy of the vote casting process.

Judicial officers who decide to do so will necessarily be exercising their right to make a political choice between contending candidates and parties which involves a certain degree of partisanship. The important thing is that the partisan and ideological belief or orientation of a judicial officer must not be allowed to colour his or her judgment or determine their positions in the pursuit of their sacred tasks in the temple of justice.

Justice Bulkachuwa herself appears acutely aware of the responsibility of the judicial officer in this regard when she declared in her speech at the inaugural sitting of the panel that “The Court of Appeal will work in accordance and within the dictates of the constitution, the law and international best practices, to dispense justice to all, without fear or favour, affection or ill will”. She further said that “Justice demands that judges who will sit in the panel of a tribunal be divested from all forms of bias”. For those opposed to her membership of the panel, the only way Bulkachuwa can show non-bias is to withdraw from the case. Others argue that the critical thing is for her to be conscious of the need to rise above partisanship unethical bias in all her decisions by abiding by the highest professional and ethical standards.

Were the case for Justice Bulkachuwa to recuse herself from this case be pursued to its logical conclusion, the jurist would indeed have to excuse herself from all duties and responsibilities of her office that relate to the presidential election. For, were she to withdraw as Chairman, for example, she would still be the one to determine who would replace her in that capacity on the panel. From a pool of scores of judges to choose from at the Court of Appeal, she would still have to exercise some discretionary powers. Could she not be accused of bias and partisan considerations in the exercise of such powers? In any case, as President of the Court of the Appeal, she was the one who appointed the other members of the Presidential Election Petition Tribunal. Should they also be asked to withdraw as a result of that fact?

A school of thought believes that until Justice Bulkachuwa violates her sacred oath of office as Chairman of the Presidential Elections Petition Tribunal by allowing crass partisanship to becloud her judgement and this is proven to be so, it would be unfair to ask that she recuse herself from this case. For, once she does this, she would most likely have been irreparably scarred as being unable to perform the duties of her office without rising above the fray of sentiments and partisanship. If on the other hand, she offers a judicial decision that sacrifices justice on the altar of partisanship, there is thankfully the National Judicial Council (NJC) to which recourse can be made and sanctions sought for what would obviously be gross professional misconduct.

The petitioners claim that the Court of Appeal President would never be able to convince any reasonable person that she never discussed the petition with her husband during the duration of the trial should she fail to recuse herself from the case. Even if it is assumed that she does discuss the case with her husband, will she then come and impose whatever arises from such discussions either on the proceedings or on other members of the panel? This sounds almost childish. This is not a one-man panel. There are four other members of the Tribunal. Are these members just a rubber stamp of whatever the Chairman wants?

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It is unlikely that Justice Balkuchuwa will desire to end her judicial career prematurely and disgracefully by allowing brazen partisanship to taint her judgement, especially in such a high profile presidential election petition case that no doubt attracts great interest and attention within and beyond the legal profession and even beyond the borders of Nigeria. Even if she were so minded, would the other members of the panel be also willing to put their careers on the line in a similar fashion? Let us even assume that to be the case, is the Court of Appeal the terminal point for the presidential appeal? Is there no further opportunity for appeal to the Supreme Court if any party is dissatisfied with the decision of the Presidential Election Petition Tribunal? Would the Court of Appeal Tribunal be willing to give a judgement so tainted with partisanship and so contemptuous of justice that it will most likely be torn to shreds at the apex court and make its members an object of scorn and derision? It is unlikely.

Justice Bulkachuwa’s husband may as well as be an APC Senator-elect and her son a gubernatorial aspirant on the platform of the party; none is a party before her in this case. She has not been proven to be a card-carrying member or even a sympathizer of the APC beyond vague insinuations and speculations that have no bases in empirical fact. The petitioner’s claim that at the inaugural sitting of the tribunal, Bulkachuwa made the following statement that shook their confidence in her impartiality: “Elections are held in Nigeria every four years into elective positions. No matter how well the election is conducted, there are bound to be complaints…”. Unfortunately, they do not provide the entire context within which the alleged statement was situated for us to make an objective appraisal.

Even then the statement is certainly not false. Every presidential election outcome since 1999 has been contested with the exception of that of 2015 in which President Goodluck Jonathan graciously conceded defeat. The winners tend to see the election as being largely well conducted and the losers invariably tend to see the same elections as being substantially flawed. The judiciary is always called upon to be the arbiter. It is difficult to see the partisanship in this statement.

True, Rule 12.1 of the Code of Conduct for Nigerian Judicial Officers states unequivocally that “A Judicial Officer should disqualify himself in a proceeding in which his impartiality may genuinely and reasonably be questioned”. But in a complex, plural society like Nigeria where ethnic, religious, regional and other primordial sentiments run deep, this seemingly straightforward requirement may assume unanticipated complexities. In the case between Buhari and late President Umaru Yar’Adua in the aftermath of the 2007 presidential election, for instance, Justice Umaru Abdullahi could easily have recused himself for being not only from Katsina State like Buhari but also being the General’s classmate at Provincial Secondary School, Katsina. Yet, he played a key role in the Court of Appeal verdict that upheld Yar’Adua’s victory.

Of course, the decision on whether to eventually recuse herself or not is entirely that of Justice Bulkachuwa. But beyond whatever course she chooses is the need for members of the Nigerian political class to begin to ensure that the intensity of their competition for political power is not allowed to undermine public trust and confidence in our critical political institutions and their key functionaries. For instance, in the run-up to the last general elections, there was widespread clamour that a National Commissioner of the Independent National Electoral Commissioner (INEC), Mrs Amina Zakari, be removed because of her alleged blood relationship with President Buhari, a report later debunked by her family.

It was alleged that the president and his party were plotting to rig the election through Mrs. Zakari’s strategic position at the commission even when it is so obvious that, given both the organisational structure of the electoral body as well as the complex nature of the electoral process, it is simply impossible for any single person to successfully rig elections in contemporary Nigeria. In the same vein, it is difficult to see how Justice Bukachuwa can singly determine the outcome of Atiku’s election petition no matter how influential she may be perceived to be.