By Uche Chris
Thursday, June 23, 2022, would go down in history as the day the Supreme Court of Nigeria faced its own judgment. Chief Malcom Omirhobo, a human right activist, appeared in the hallowed chamber of justice, dressed as a traditional worshipper, rather than the prescribed legal paraphernalia.
Chief Omirhobo, who sauntered into the courtroom bare-footed, wore his lawyer’s wig and black gown with a white shirt, but, instead of a black trouser and suit, he wore a red wrapper with a mini-calabash-amulet dangling on his neck.
The lawyer, who also wore amulets on his wrist and ankle, sat comfortably in a row of chairs reserved for legal practitioners while proceedings of the apex court lasted.
On a normal day, this action would have been sacrilegious, and bound to attract severe censure and sanction from the apex court. However, on this day, the Justices hurriedly adjourned, and scurried, tail in-between their legs, to their offices.
But why this comic drama? On June 17, 2022, the Supreme Court decided in a case that intensifies the debate on the politics of religion in the country. It was an appeal by Lagos state against the judgment of the Court of Appeal over-turning the decision of a Lagos High Court banning the use of hijab in its school system.
Hijab is a Muslim head gear worn by women to cover their head and upper part of the body.
The apex court, in its lead majority verdict written by Justice Kudirat Kekere-Ekun, a Lagosian and Muslim, but read by Justice Tijani Abubakar, dismissed as lacking in merit, the appeal Lagos state government lodged against the Court of Appeal decision of July, 22, 2016.
The Supreme Court said it found no reason to reinstate the October 17, 2014 judgement by Justice Grace Onyeabo of the High Court of Lagos State, which upheld the ban on Hijab. The judgement followed an appeal marked SC/910/2016, which Lagos state, through its Attorney-General, filed against Miss Ayisat Abdulkareem.
Before this case, there were similar issues in the Law School, Kwara state and Baptist school, and UI International school, which exacerbated the already tenuous religious relations in those states and institutions.
It was this decision by the court on June 17, that brought Chief Omirhobo to the court looking like a legal masquerade. Addressing the media, he said that Section 45 of the Constitution that delegate the rights in Chapter 4 generally, which includes the right to freedom of religion, entitles him to practice his religion without fear or hindrance and the Supreme Court by its decision on Hijab empowers him to appear in the religious attire of his faith at the court.
Obviously, the pun was on the court which literally cut its nose to spite the face. It is inconceivable that given the sensitivity of religion in the country, the Supreme Court would so ignorantly inflame such passion by giving one religion an advantage over others under the cloak of human rights.
Having tied its own hands with such bizarre and absurd decision, the Justices lacked the legal and moral authority to reprimand Chief Omirhobo, who obviously was in breach of the Legal Practitioners’ code on dressing by appearing before the Court improperly dressed.
Time there was when the Nigerian Supreme Court used to rank among the best in the Commonwealth, with Justices being seconded to head Supreme Courts in Africa and other Commonwealth countries, such as Uganda, Tanzania, The Gambia etc. Justices, like Danley Alexander, Udo Udoma, Kayode Esho, Chukwudifu Oputa, Teslim Elias, Atanda Fatai-Williams, Karibi Whyte – the list is rich and endless – were part of this rich tradition of legal minds, many of who functioned under military governments.
But such time now seems gone forever. The rot and politicisation of the Nigerian state has eventually caught up with the Supreme Court, which had tried in the past to retain its neutrality in the political and ethno-religious dog fight.
The truth is that no group can win or prevail in the political contest for power in a badly fragmented and socially diverse society without a foothold in the Supreme Court, because it is the ultimate arbiter in all political disputes with consequential power over the other two arms of government.
It was Justice Oputa who once said that the Supreme Court is not final because it is infallible, but supreme because it is final. The law, they say, is an ass. Indeed, it is not the law that is an ass but those who interprete it, because a perfect Law can be murdered by an imperfect man, which all justices are.
And the justices have shown how imperfect they are. But if that is their only failing, then they would have been justified, because we all are. But the judgment displayed bigotry, crass ignorance, and social indifference.
Recent decisions by the Supreme Court, such as the Imo governorship election, which saw a candidate that came fourth become governor, only leave a sour taste in the mouth. The controversial petition by the Justices against the Chief Justice of Nigeria, CJN, is proof enough that the centre can no longer hold.
For Long, the court had departed from its enviable tradition of philosopher-jurists, who interpreted the law broadly and holistically, to mere legal technicians, who decided important cases purely on technical grounds, and refrained from looking into the merit of complaints, which had caused no little damage to our jurisprudence.
Law is not just about its technicality or legal application, but has both social and moral dimensions, and no society can thrive solely on the technical application of law. The Justices should appraise themselves of their U.S. colleagues, who last week upturned the Roe v. Wade law, a 50 precedent. It is a human rights law that was legally or technically right, but morally and socially obnoxious, and had brought the American society into great peril.
Why is abortion or same sex marriage illegal in Nigeria, as the U.S. Supreme Court ruled last week? It is because our moral and social sensitivities (religion if you like) are assaulted by them. Every right has a limit and unless rights are aligned with the greater interest of society, we will all one day self destruct.
In the book, The Men in Black, How the Supreme Court is destroying America, Mark Levin, says that these revered persons are “Men, not gods. The biggest myth about judges is that they are somehow imbued with greater insight, wisdom, and visions than the rest of us; that for some reasons God has endowed them with superior judgment about justice, and fairness.
“But the truth is that judges are men and women like us with human imperfections and frailties. Some have been brilliant, principled, and moral. Others have been ignorant, mentally impaired, venal and even racist and bigots… In many ways, although they are unelected, yet the Justices are more powerful than the legislators and even the president..”
The Supreme Court decision gives impetus to those who argue that there is religious agenda by Islam against other religions, because Islam is not the only religion in Nigeria and making exceptions of it by allowing hijab in schools, contrary to the constitution of Nigeria, as a secular state, and the rights of other groups, is discriminatory, which the judgment seeks to remedy for Muslims.