Should Hon. Justice Bulkachuwa recuse herself from Atiku’s Election Petition?

Background

• It has been reported that the Peoples Democratic Party (PDP) and other groups like Access to Justice (AJ) have urged the President of the Court of Appeal, Hon. Justice Zainab Bulkachuwa, to re-consider her membership of the Court of Appeal Panel* hearing the election Petition filed on behalf of Atiku Abubakar and the PDP against the declared winner of the 2019 presidential elections, President Muhammadu Buhari, and his party, All Progressives Congress (APC) and the Independent National Electoral Commission (INEC).
• Among the reasons given are that her Ladyship is married to a Senator-elect of the Federal Republic of Nigeria, Mr. Adamu Bulkachuwa, from Bauchi North Senatorial District elected under the platform of the APC. Hence, the impartiality of Justice Bulkachuwa cannot be guaranteed.
• Also, it was stated that there is the need to avoid conflicting public perceptions on the Petition and get rid of any form of bias or its likelihood.
• In a letter by the PDP addressed to the President of the Court of Appeal, the PDP seriously faulted the statement made by Justice Bulkachuwa while presiding over the five-man Panel of the Court of Appeal during the opening of the pre-hearing session – “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.” The PDP lamented that the quoted statement “rocked” their confidence in the Panel led by her Ladyship.
• More so, the PDP has recently called on the APC and the Federal Government to come clear on the “allegation” of corruption against Justice Bulkachuwa. The Presidency has since dismissed this allegation of bribery and corruption indictment as unfounded.
• With the development, the critical question therefore is, should Hon. Justice Bulkachuwa recuse herself from the Panel?

3 Reasons the answer is a Yes!

1) Natural Justice:

One of the twin pillars of the principle of natural justice and fair hearing as established in our law is the rule that “No-one should be a judge in his own case.” (Nemo judex in causa sua). This Rule of over centuries ago is strictly applied to any appearance or real likelihood of bias on the part of the judge handling a particular, even if there is actually none. Thus, the position of the law is that justice must not only be done, but must be manifestly and undoubtedly seen to be done. See R v Sussex Justices, ex parte McCarthy, [1924] 1 KB 256, [1923] All ER 233; Kotoye v. CBN [1989] 1 NWLR (Pt. 98) 419.

The beautiful thing about this Rule is that even if the judge in question is excellently professional and eminently qualified, and will deliver a judgment ultimately which no man or spirit can reasonably fault, once there is the appearance or impression of bias, the judge must step aside to let another judge take over. Mind you, only mere “appearance” of bias is enough. It need not be actual bias. That is, the bias need not exist. One of the ways this appearance of bias can show is in a situation where one of the parties to the suit is a family relative of the judge. In the instant case, is there any family relative of Justice Bulkachuwa who is a party to the Petition? No. The complaint is against her husband, Mr. Adamu Bulkachuwa, a Senator-elect under the platform of the APC. He is not a party to the Petition.

However, the writer believes that the agitation against him has merits. To have won an election into the hallowed Red Chamber under the APC means that Mr. Bulkachuwa can be reasonably said to be a top member of the APC (not just a low-level member of the party with no stakes). The closeness of a couple clad under the bond of marriage can never be underestimated. Although Justice Bulkachuwa may very well be above board such that her husband lacks the capacity to influence her judgment in any material respect, yet, how do we verify that? How can members of the PDP and the public accept any decision (especially where unfavourable) emanating from her Ladyship as unbiased? It is this sort of doubt that the law seeks to deal with by stipulating that a judge in such situation should honourably step aside. There is indeed some appearances of bias. Remember, not actual bias. The Nigerian Judiciary is filled with eminent jurists who can comfortably take her position in the Panel. It has been argued by some who are against PDP’s call for recusal that even if her Ladyship steps aside, she still has the capacity to influence the Panel if she so wishes. Well, that is purely an assumption which cannot disturb the principle that requires her to at least step aside in the first place.

2) Public confidence:

This must be taken seriously. Flowing from the above, it is of paramount importance that the Judiciary should take steps to promote public confidence in the Judiciary. My Lady, Justice Bulkachuwa, should therefore recuse herself for this purpose and distance herself from the Panel. The likelihood of bias against her participation in the Panel is not a mere assumption since no one has refuted the claim concerning the political position of her dear husband. Thus, reasonable and right-thinking members of the society will surely have the impression of bias should her Ladyship retain her membership of the Panel. This would be worse if her decision goes against the PDP.

3) Integrity of the Judiciary:

One of the reasons for the principle of Nemo judex in causa sua is the need to preserve the integrity of the judiciary. Our courts must be mindful of ensuring that the integrity of the Judiciary must not only be preserved but must be seen to have been so preserved.

Other Allegations

• Statement at pre-hearing session – The PDP has attacked the statement made by Justice Bulkachuwa at the pre-hearing session to the effect that “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.” Although one can reckon with the deduction subtly drawn, however, this attack is needless. If this is the only reason for PDP’s complaint, of course, that will be insufficient to compel her Ladyship to recuse herself from the Panel. The statement is a pure fact which may not have been the best in view of the sensitivity of the situation. But it is not every cough that proceeds from the lips of a judge that must be taken seriously as to constitute bias and the likes.
• Alleged indictment of Hon. Justice Bulkachuwa by the Presidency – Regrettably, the PDP’s alarm regarding an alleged indictment of Justice Bulkachuwa for bribery and corruption by the Federal Government is a sad one. There is no clear and reasonable basis for this approach by the PDP. It shows high disregard for the President of the Court of Appeal and the Judiciary in general. The Judiciary must not be dragged into the current politics of calumny which is prevalent in the country.

*By the provisions of Section 239 (1) of the 1999 Constitution (as amended), the Court of Appeal has original jurisdiction to determine whether any person has been validly elected into the office of the President or Vice President.

Featured Image Credit: Channelstv.