African Tales in Engineering the Courts by Chidi Odinkalu -Premium Times

African tales in engineering the courts, By Chidi Anselm Odinkalu

By Ololade Bamidele  October 29, 2023

At their summit in Nassau, The Bahamas, in 1985, the Commonwealth Heads of State and Governments (CHOGM), decided to establish an Eminent Persons Group to explore difficult dialogue with the Apartheid regime in South Africa. The EPG was to be led jointly by Australia’s former Prime Minister, Malcolm Fraser and Nigeria’s former military ruler, Olusegun Obasanjo. Emeka Anyaoku, the Nigerian diplomat who would later serve with considerable distinction as Secretary-General of the Commonwealth, headed the secretariat of the EPG.

In 1986, the Group undertook its first insertion into South Africa. In his memoirs, The Inside Story of the Modern Commonwealth, Chief Anyaoku narrates that the mission was underwritten by a bargain with the Apartheid regime that all persons whom it met with would suffer no reprisals. However, in Cape Town, Chief Anyaoku recalls, Trevor Manuel, who was then one decade away from becoming Finance Minister in the post-liberation administration, ended up in a police cell the night after meeting with the delegation.

On the night of Trevor’s arrest, his lawyer called to notify Chief Anyaoku about the fate that had befallen his client. It was approaching mid-night when Chief Anyaoku called Mr. van Heerden, the liaison between the delegation and the South African regime, to accuse them of breaching the understanding at the very heart of the mission. Mr. van Heerden promised to investigate. Less than one hour later, according to Chief Anyaoku, Mr. van Heerden called him back to confirm that Trevor Manuel was indeed detained in a police cell.

In response to Chief Anyaoku’s insistence that Trevor be promptly released, Mr. van Heerden volunteered that he would be granted bail overnight to appear “before Magistrate Court No. 13 the following morning.” According to Chief Anyaoku “Mr. van Heerden then went on to tell me that, once the case was called, it would immediately be adjourned sine die…. I thereafter told him that I would make discreet use of the information he had given me. He interjected that I should please note that his ‘government and security services do not interfere with the judicial processes.’ I said, ‘of course, I know you don’t!’ and we both laughed.”

In a testament to Mr. van Heerden’s powers as a gifted clairvoyant, the court proceedings the following morning went exactly as he had predicted. His gods had engineered the courts.

Apartheid South Africa did not enjoy a monopoly of such gifts of judicial engineering. In November 1992, longtime trade Union leader, Frederick Chiluba, unseated independence ruler, Kenneth Kaunda, to emerge as the first president of a multi-party Zambia. His party was presciently named the Movement for Multi-Party Democracy, MMD.

The year after President Chiluba’s ascent to power, the office of Chief Justice became vacant after the country’s first indigenous Chief Justice, Annel Musenga Silungwe, quit the office at the age of 57. To succeed him, Chiluba appointed Matthew Ngulube. At the time, Zambia’s judges were poorly paid, a legacy from the era of Kaunda’s one-party state. Chief Justice Ngulube quickly became a darling of the international conference circuit, traveling the world and delivering homilies on judicial independence.

As his second five year term of office came to an end, President Chiluba contrived a plan to succeed himself. Armed with a judiciary which he believed to be in his pocket, Chiluba believed he could overcome a constitutionally imposed term limit and run for a third term. Zambians declined his importunation, turfing him out in 2001 in favour of senior lawyer and Chiluba’s own former Vice-President, Levy Mwanawasa.

At the beginning of President Mwanawasa’s tenure, it emerged that Chief Justice Ngulube’s preferred habitation was in Chiluba’s pocket. Once there, he burrowed himself into the favours of the former president, festooning himself with choice goodies, which enabled him to afford an extraordinary mansion on the outskirts of capital city Lusaka, valued at the annual budget of major government departments. He also trousered a reported $168,000 to finance his tastes, including school fees for his children in order to “buy his loyalty”. Decisions in all cases against Chiluba suddenly became fully engineered. When, for instance, the opposition sued Chiluba – suspected to have descended from the Democratic Republic of the Congo (DRC) – over his nationality, the Chief Justice acted more like the president’s counsel than an impartial judge.

Zambia was not the only place where judges preached independence but failed to practice it. In Malawi, government engineered judges with generous awards of sugar distribution quotas.

In Nigeria, the revolutionary decision by the Supreme Court in January 2020 to award the governor’s office in Imo State to a man who had been well beaten to fourth position in the election conducted the previous year, was trailed a fortnight earlier by a grubby “man of god” with a nose for predicting only what the politicians pay him to.

Last year, as Zimbabwe headed towards elections conducted earlier this year, President Emerson Mnangagwa, overcome with unparalleled generosity, doled out $400,000 to each of the country’s judges claiming that it was housing loan in a country in which a luxury home cost about 20% of that sum or less. By coincidence, Priscilla Chigumba, Chairperson of the electoral commission, which was to supervise the vote, just happened to also be a judge. The outcome was foregone.

Around Africa, the encounter with elective government has cratered assumptions about judicial integrity and independence. As a result, few are prepared these days to credit judges with virtues associated with Caesar’s wife. In many cases, judges now openly cavort with politicians and are unashamed about serving the interests of ruling parties, rather than holding them to account. The consequences can be brutal.

In April 2020, Mali’s Constitutional Court overturned the results of more than two dozen parliamentary seats won by the opposition. Its decision to hand these seats over to the ruling party sparked an uprising that led to the government’s overthrow. When the court was busy robbing the opposition of its seats, the Economic Community of West African States (ECOWAS) and the African Union (AU), looked complicitly on. After the uprising had been consummated in a coup, they got their institutional knickers in a proverbial twist, protesting the travails of non-existent democracy.

Judges who refuse to be so readily engineered can suffer intimidation. In Malawi, former president Peter Mutharika launched an unprecedented attack on the judiciary after the Supreme Court upheld a Constitutional Court decision annulling his re-election and ordering re-run after finding the election to have been massively rigged. In what appeared to be an act of political reprisal, the president, himself a former law professor of considerable experience, moved to oust the Chief Justice, Andrew Nyirenda and another senior justice, Edward Twea, by ordering them to take compulsory leave ending in retirement. Tens of thousands of Malawians, led by hundreds of lawyers, protested in support of the judges. On 14 June 2020, the High Court suspended the presidential order, staying the ouster of Nyirenda and Twea. The people of Malawi did the rest seeing off the forgettable tenure of Peter Mutharika in the re-run that ensued.

Some judges may even pay with their lives. Such was the tragic fate of Congolese judge Raphael Yanyi, who presided over the unprecedented trial for corruption trial of Vital Kamerhe, the Chief of staff to the president. On May 26, 2020, Judge Yanyi, who was supposed to be under close protection from a team of six specially trained police officers, died suddenly. The police initially claimed that the judge died of a heart attack “but an autopsy report revealed that he died from knife-like injuries to the head” or what the Justice Minister described as “the blows of sharp points or knife-like objects, which were thrust into his head.” Far from dying of natural causes, it was clear that Judge Yanyi has been murdered.

Wise judges work hard to avoid this fate with benefits. In the past, judicial greatness was calibrated in the currency of jurisprudence. Today, many of Nigeria’s senior judges prefer to measure their success in terms of propinquity to power and impunity with planting their children and intimates on the bench. That is the local currency of judicial engineering.

Chidi Anselm Odinkalu, a lawyer, teaches at the Fletcher School of Law and Diplomacy and can be reached through chidi.odinkalu@tufts.edu.