Daily Independent (Lagos)
5 December 2008
editorial
The Supreme Court of Nigeria has become a court of Common Law and Equity. Or to speak contemporarily and more appropriately, the Supreme Court of Nigeria has become a court of Legal Justice and Social Justice.
The preponderance of legal justice at the expense of social justice - especially on fundamental cases in the polity such as election - can only sound the death-knell of a society that is largely and effectively rudimentary. Members of the bench have a choice between doing substantial justice (social justice) or presiding over - where they are alive or secure to do so - the obsequies of their loved ones who must willy nilly be caught in the crossfire when a lingering electoral injustice snowballs into explosion of incalculable proportion.
Nigeria is not United States of America. In contrast, the US is a highly civilized state while Nigeria is still in the backwoods of civilization, if not altogether the stone age. A man that presided over the liquidation of the semblance of anything called election in Nigeria emerged into the waiting hands of reporters after a meeting with the President on a day an African-American emerged as the President of the United States of America in a clear-cut free and fair poll. "What do you think Nigeria can learn from the US election?" "They have a lot to learn from Nigeria!" One question has continued to assail me and fill my heart with trepidation since that blasphemy. We have a saying in Yoruba land that when two brothers go in for a discussion and come out grinning, it means they have not told each other the truth. What did President Umaru Yar'Adua tell Professor Maurice Iwu at their freakish meeting?
It was quite easy for the United States to surmount the Florida electoral debacle and move on with life without chaos and violence because of the level of sophistication of its citizenry and time-tested, strong and incorruptible democratic institutions of governance. But in a superstitious and ignorant 21st-century country that runs Witch Children Torture Camps (See the documentary, Saving Africa's Witch Children), where all institutions of governance - INEC, Police, Military, Executive, Legislature, two-thirds of Judiciary - are firmly in the pocket of the one party (PDP), that has vowed to retain power for 60 to 100 years, the portents of a doomed state are unmistakable.
Wrote Bryce in Modern Democracies: "There is no better test of the excellence of a government than the efficiency of its judicial system." The greatest threats to national cohesion and stability in Nigeria today are not only election riggers but a conservative, perfidious and corrupt judiciary. Judges, especially those who go to election tribunals, are no longer bound by the evidence before them but the amount of Naira and Dollars the parties before them can trade with. The time is near, in fact, it is here with us, when lawyers (and the legal profession itself) will become superfluous. "Today, there is nothing that has put our profession and the judiciary on trial more than the widespread allegation of corruption oozing out of many election tribunals. If left unchecked, very soon the politicians will have scant regard for lawyers and their skills. They will simply come and pay you only transport fare to show your face in court. The rest, they will tell you, 'have been taken care of.'" (Festus Keyamo, Sunday SUN, 24/ 08/ 08).
It is only in Nigeria that a panel of judges will prove to you that you must have participated in an election before you can have the locus standi to allege unlawful exclusion in the same election! A panel of justices will deliver a ruling that is partly typed and partly handwritten! A tribunal will dismiss your suit for not stating the colour of your shoes or shirts in your petition! A panel of justices will find you guilty of double-nomination and will still allow you to participate in a fresh election through an ambiguous language of deceit! What is more, while your counsel are poring over volumes of files, rummaging through authorities in order to defend your case, the judges to determine your petition are already hand in glove with your opponent! Ah! Ah!! Ah!!! Where a corrupt tribunal is wary of a ruling that is manifestly against the grain, it ensures 'proceedings in perpetuity'- you rub my back with cash, I rub your back with adjournments! Nothing spoil!
No one will go to election tribunals in 2011. It does not pay to do so. The real 'do or die' election is in 2011. The Kibaki Courts are not only in Kenya nor are Mugabe Tribunals found only in Zimbabwe. Nigeria has a plethora of both. No one will go to them at the next general election: "Let us all do the rigging and kill ourselves in the process!" Yes, the ruling party (PDP) will have all the aces - police, army, INEC, SSS - but the opposition too will plan ahead: "We either build Nigeria together or we jointly tear it down!" The battle-line is already and clearly drawn. (Last weekend's electoral violence in Jos and that of Kano some months earlier offer a foretaste of what to come in 2011: "It was difficult to distinguish the rampaging youths from security agents as most of them wore army and police uniforms" - See "Jos Boils Again," Punch 29/11/08).
Unfortunately, the apex court may not be able to save the nation from the impending electoral tsunami. Virtually all election cases are determined by the lower courts. The constitution says so. Even if she annuls the presidential poll (its recent attitude points in that direction), PDP will still win. The party may not even need to rig in a re-run. The Kibaki Courts have already confirmed and affirmed their victory in every nook and cranny of the nation. With such prodigious state funds at their disposal, PDP will win 'a clear-cut landslide' in a fresh presidential poll. Can the opposition that is scattered and virtually non-existent regroup in less than 90 days to dislodge PDP? That would be a pipe dream.
The best the Supreme Court can do is to continue to be guided by the fact that Nigeria is and ought to be a federation in determination of (electoral) cases that get to her doorstep (by default). The proportion of Social Justice - at the expense of Legal or Technical Justice - must continue to increase. For instance, those (governors and president) who are serving a 'second term' through fresh elections must be disqualified from further elections to the same office in line with Sections 137(b) and 182 (b) of the 1999 Constitution. If their acts as de facto governors and president are valid in law, it means the elections that brought them in the first instance constitute de facto elections; their first and second terms are therefore effectively valid. It is a universally acknowledged principle in law that no one can profit from his own wrong.
Postscript: Pulling Nigeria back effectively from the precipice begins with the convocation of a national constitutional conference that is backed up by law. But of course, the National Assembly will prefer to embark on jamboree peregrinations across the country in order to share about 1 billion naira as travel, inconvenience, hazard and sitting allowances even though the national questions are at the fingertips of everyone. Can you stop them?
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