Court Declares Pat Utomi’s Proposed ‘shadow Government’ Initiative Unconstitutional

The court gave reasons for declaring Mr Utomi’s proposed shadow government unconstitutional.

The Federal High Court in Abuja on Monday declared the proposed shadow government announced by Pat Utomi, a political economy professor and former presidential candidate, unconstitutional and unknown to Nigerian law.

In his judgement, Judge James Omotosho barred Mr Utomi and his associates from going on with the plan, which its proponents said was an initiative for holding the Nigerian government itself accountable.

“Professor Utomi, personally or through agents, is prohibited from establishing or operating a shadow government, shadow cabinet, or any similar entity not recognised by law,” the judge ruled.

He held that the idea was inconsistent with the country’s presidential system and could mislead citizens. He ruled that Nigeria’s constitution does not recognise any parallel or alternative government outside the one it provides for.

“Section 14(2)(c) makes no allowance for a shadow government. The defendant cannot use foreign constitutional models to confuse the people. Such a shadow government is hereby declared void,” the judge ruled.

The dispute between the State Security Service (SSS) and Mr Utomi, a former presidential candidate of the African Democratic Congress (ADC) in 2007, began after the agency sued him over his plan to form a shadow government, describing it as unconstitutional.

In the suit, the SSS, Nigeria’s domestic intelligence agency, sought to stop Mr Utomi and his associates from pursuing the idea.

Through its lawyer, Akinlolu Kehinde, a Senior Advocate of Nigeria (SAN), the SSS asked the court to declare any attempt to form a governmental structure outside the Nigerian constitution null and void.

Citing sections 1(1), 1(2), and 14(2)(a) of the Nigerian constitution, the lawyer argued that Mr Utomi’s planned “shadow government” was unconstitutional and threatened state authority. He sought a perpetual injunction restraining Mr Utomi, his agents, and associates from proceeding with the plan.

But Mr Utomi challenged the suit, arguing that a shadow government aligned with the Constitution and global democratic practice, citing his rights to freedom of expression and association.

In the preliminary objection filed on 24 June, he asked the court to strike out the case for lack of jurisdiction. He argued through his lawyer, Mike Ozekhome, a SAN, that civic political engagement shadow cabinet formation did not fall within the SSS’s statutory functions under Section 2(3) of the National Security Agencies Act.

Given the novelty of the issues, the judge, Mr Omotosho, invited seven senior lawyers from the six geopolitical Zones to appear as amici curiae (friends of court).

The invited legal experts included Ademola Popoola, a professor of international law and jurisprudence at the Obafemi Awolowo University (OAU), Ile-Ife, Osun State, and Uchefula Ugonna Chukwumaeze, a professor and SAN, who is the Vice Chancellor of Imo State University.

The list also included two former presidents of the Nigerian Bar Association (NBA) who are both SANs – Joseph Daudu and Yakubu Maikyau.

The rest are Joe-Kyari Gadzama, a SAN, and Dakas C. J. Dakas, a SAN and law professor at the University of Jos, and Miannaya Aja Essien, also a SAN.

On 10 July, the judge heard arguments from the lawyers to the parties, as well as the legal experts invited by the court.

Some of the amici curiae appeared in person, while others were represented by counsel. Their submissions revealed a division of opinions among them. Some, including Mr Daudu, Mr Maikyau, and Mr Popoola, opposed Mr Utomi’s proposal, arguing that it contravened constitutional provisions and could destabilise governance.

Others, such as Mr Gadzama and Mrs Essien, supported Mr Utomi, saying the initiative was a legitimate civic expression protected by law.

After hearing arguments from all sides, the judge scheduled 29 September for the ruling on both the preliminary objection and the main suit.

‘Shadow govt’ poses danger, not a right – Judge

Ruling on Monday, the court noted that the Nigerian constitution is supreme and binding on all authorities and citizens. “The Federal Republic shall not be governed, nor shall any person or group take control of the government except in accordance with the Constitution,” the judge said, emphasising that no law can override it.

“Any structure inconsistent with the Constitution is void,” he added.

The court explained that Nigeria’s presidential system (copied from the US) vests executive power in the President, elected by citizens. Unlike parliamentary systems in countries such as the UK, the judge explained Nigeria has “no provision for shadow cabinets or shadow governments.”

“Opposition parties may criticise government policies, but cannot establish parallel structures,” added Mr Omotosho.

The judge warned that recognising shadow governments could set a precedent allowing parallel entities, “threatening national coherence and encouraging disobedience to lawful authority.” Authority exercised outside legal frameworks, he said, “is unlawful and may be prosecuted as subversive or criminal.”

The court also addressed the use of entities such as Big Ten Nepal Limited, noting that “a company limited by shares may carry out business, but it cannot be used as a political platform to establish a shadow government.”

Mr Omotosho also ruled that the defendant is entitled to his fundamental rights, “but these rights are not absolute and must operate within the limits of the Constitution.” He added that the rights “do not extend to the formation of a shadow government, which is capable of causing chaos in society.”

The court observed that Sections 39 and 40, freedom of expression and association “are guaranteed but not absolute” and may be limited for public safety, order, morality, health, or the protection of others.

The judge said the proposed shadow government “poses a danger to peace and stability” and could encourage multiple parallel entities, undermining national security.

He ruled that civil society organisations and individuals remain free to criticise government policies, but “forming shadow governments is beyond legitimate civic engagement and unconstitutional.”

Mr Omotosho concluded that under Sections 1, 2, 3, and 14.2(a) of the constitution, the establishment or operation of any governmental structure outside the constitution is “unconstitutional and void.”

Earlier, the court dismissed Mr Utomi’s preliminary objection challenging the jurisdiction of the court to hear the SSS’ suit.

The judge ruled that SSS had the right to file the suit as part of its broad mandate to detect crimes and protect Nigeria’s internal security.

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