Atiku Abubakar vs. Muhammadu Buhari: A Call for the Recusal of Hon. Justice Bulkachuwa | By Itsede Kingsley Okhai

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It was reported last week that the PDP and some other groups have urged the President of the Court of Appeal, Hon. Justice Zainab Bulkachuwa, to re-consider her membership of the Presidential Election Petition Tribunal hearing the election Petition filed on behalf of Atiku Abubakar and the PDP against President Muhammadu Buhari, and his party, APC and the INEC.
Some of the reasons for the call by PDP are:

1. The Hon. Justice 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.

2. That while presiding over the five-man Panel of the Tribunal during the opening of the pre-hearing session, the Hon. Justice said, “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 Lordship.

3. That the Federal Government earlier raised issues bothering on corruption against Justice Bulkachuwa which the Presidency has suddenly denied. PDP has claimed that such shady moves by the Presidency doesn’t augur well for justice and fairness in their case.

Given this development, below are reasons Hon. Justice Bulkachuwa must recuse herself from the Presidential Election Petition Tribunal:

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.

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 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 panel 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.

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. 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 Lordship retain her membership of the Panel. This would be worse if her decision goes against the PDP.

3. APC constant defence of her Lordship:

The fact APC has risen to the defence of her Lordship is a sad pointer to likelihood of bias. If the party is confident of its case, there is no need to oppose this noble legal request of her recusal and make any representation showing her presence in the panel is important.

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 she steps aside, she still has the capacity to influence the Tribunal if she so wishes. But…

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 she steps aside, she still has the capacity to influence the Tribunal if she so wishes. But that is purely an assumption which cannot disturb the principle that requires her to at least step aside in the first place.

4. 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.

5. Hon. Justice Bulkachuwa has nothing to lose:

Unless her Lordship has something to gain by presiding over or remaining a member of the Panel, there is no need to insist she must remain a member, particular as a party to the suit has raised issues about her presence. Any further stress on this may send a very dangerous signal to Nigerians and the world at large. Her Lordship should heed wise counsel to save our judiciary of these avoidable stains. We have had enough!

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