Mohammed Adamu
5 January 2009
opinion
It is worth waiting a little while for the dust thrown up by the verdict on the 2007 Presidential Election to begin to settle down; at least so that away from passion and politics one can take the public on an academic journey into why judges reason the way they do. The law being 'an ass', the last verdict has left views both on strict points of law and on the plains of morality; on the exigency of political stability and on the imperative of electoral credibility.
All these aggregate to reignite the raging war of the divides in jurisprudence concerning the two main theories on 'justice' namely 'Formal Justice' and 'Substantive Justice': one orthodox, bordering on conservatism, the other, liberal leaning towards the heretical. Formalists insist that courts must apply the law strictly without extra-legal considerations, even if "law" appears, after all, to be just "for law's sake". Substantivists advocate a liberal dispensation which considers extra-legal values with the implication that "justice" becomes the "judge's" perspective of what is "just" and not what is proved legally so according to law.
These arguments are broadly represented by the unending academic schism between morality and law or between Natural Law and Legal Positivism. Naturalists are concerned with "ethics" and "morals", of the law (a 'censoral' kind of jurisprudence which elevates the "content" of law not its "form".) Conversely, Positivists insist law must be applied as it "IS" in the books, (an 'expository' kind of jurisprudence which elevates the "form" of law not its "content".) Recently "democratic imperatives" of "political stability" and "electoral credibility" have continued to encroach on this reasoning in a manner that casts judges as either "pro-law" or "pro-democracy". But that is neither here nor there!
Morality and law: Should the 'law' firmly retain the guard of its 'blindfold' and always do justice without fear or favour or should it sometimes sneakily preview the destination of its Sword before its ultimate landing? It is argued that no one school of jurisprudence can best answer the question: "should morality enter into the interpretation of law?" This argument predated the history of English Common law and Equity. Yet liberal jurists of the Natural law School believe that judges must be 'custos morum' (guardians of society's morals) and that they have "the super-intendancy of offences which are 'contra bonus mores (i.e. contrary to public morals.) Jurists of the Positive School however insist that to apply the law in the dimension of what it "ought to be" and not simply what it "IS" (as promulgated by lawmakers) amounts to 'judicial activism' the consequence of which unwittingly collapses law into politics or morality! They say it amounts to a usurpation of legislative function because only Parliament (not the judiciary) can engage in legislative activism to add normative value to the "democratic process".
Said David Ingram "we entrusted elected representatives -not appointed judges- to make our laws... By contrast, we entrust judges -not elected politicians-to apply our laws because they are insulated from politics and have a higher duty to uphold the rule of law as an embodiment of rational justice and impartiality". This agrees with J. Hart's belief that 'judges are uniquely positioned to exercise judicial review, because they are immunized against the partisan pressures that citizens impose on their elected representatives' (Their terrain being the law "not selfish conformity to tradition or popular consensus".) But that is also neither here nor there!
The last verdict: It is in the chasm created by these two dimensions of law that views on the Apex Court's last verdict on the 2007 Presidential Election can be located. A historic split decision of four justices giving judgment in favour of an "orthodox-formalist" perspective of law against the perspective of three "radical-substantivists" whose minority ruling is widely perceived as a Renaissance of judicial activism in the Nigerian judicial space. Most jurists, notwithstanding their philosophical predilections, are united in the belief that modern legal systems, inevitably 'incorporate the contradictions of the societies' in which they operate. Predictably therefore, Nigerians were divided between the extremes of these judicial divides depending on their perspectives of what is moral or immoral or depending on their political leanings, their social status or educational background. In this inevitable milieu, justice appears to the "employee" differently from the "employer"; and even much more so to the "rich" and to the "poor", let alone (in an electoral contest), how inexorably different it would appear to a "winner" and to a "loser".
In Buhari's case, both Majority and Minority judgments appeared to rely strictly on 'points of law' even though in spirit the 'Minority' sounded 'activist' and deferential to 'public opinion' while the Majority ruling was temperate and un-patronizing. It is more in these opposing slants that they respectively took their 'radical' and 'orthodox' coloration than in their flight off the 'law' or their plunge into 'morality'. In asserting the orthodox, Justice Niki Tobi said "Courts of law do not give judgments according to public opinion or to reflect public opinion unless such opinion represents or presents the state of the law". And to drive home this orthodoxy he added that "the judge's clientele is the law only and alone". He was referring to Section 146(1) of the Electoral Act concerning the proof of proportion and substantiality of 'non-serialization of ballot papers' (as an irregularity) which in his view constituted a "legal Rock of Gibraltar." The Minority Ruling, insisting that "ballot papers" constituted the 'super structure' of the election, argued that their "non-serialisation" amounted to their "invalidation" and thus a "vitiation" of the election. Yet the activist tone of the Minority ruling did not take its coloration so much on the legality or otherwise of the "un-serialized ballot papers" as it did on its 'zero sum' submission which radically deflated the norm of political "Game Theory" by proverbially, collapsing the 'house' in order to assuage contending heirs in an inheritance squabble.
Yet both rulings appeared to be 'in pari materia' with the 2000 U.S. Presidential election where a plan to manually recount some votes in swing-State of Florida was about to overturn a marginal victory for Bush. The Florida Supreme Court had allowed the recount which would give Gore victory, but the U.S Supreme Court intervened by a split 5-4 decision to stop the recount and to hand Bush a legal, non-electoral "victory" on the technical ground that "the recount violated the Equal Protection Clause of the Fourth Amendment."
But in Atiku's "exclusion" claim, the majority 6 demonstrated strict judicial orthodoxy while Justice Oguntade's lone activist opinion leaned towards liberal logic. The 6 without compassion, interpreted "exclusion" and "participation" as mutually exclusive (arguing that Atiku could not do one and claim he suffered the other); Oguntade interpreted the two words metaphorically and with a liberal sense of logic that looked 'compassionately' on Atiku's 'littered political road' to 'legal participation'; again the difference between them being one either of keeping the blindfold of the 'law' firm or one of giving the 'law' a benefit of sneak judicial preview. Again this is neither here nor there!
To be cont'd
Mohammed Adamu is an Abuja-based Journalist
Be the first to Write a Comment!
Copyright © 2009 Daily Trust. All rights reserved. Distributed by AllAfrica Global Media (allAfrica.com). To contact the copyright holder directly for corrections — or for permission to republish or make other authorized use of this material, click here.
AllAfrica aggregates and indexes content from over 125 African news organizations, plus more than 200 other sources, who are responsible for their own reporting and views. Articles and commentaries that identify allAfrica.com as the publisher are produced or commissioned by AllAfrica.
