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Nigeria and the rule of law – Part 2


Continued from last week Wednesday
The judiciary has sold their prestige for a mess of pottage. A few example would suffice. The judiciary has been thoroughly politicized that I am afraid that it may now be unsalvageable. The purpose of an election in a democracy is to be free to choose who would be leaders and who will rule us. There may be some wobbles along the way but nothing can trump the issue of election I believe that the judiciary has so extended itself in the electoral process that it is now the elector. This is no more than a continuum of the disregard which the executive, the legislature, the political process have for the judiciary which has now decided to be part of the election. The fundamental point of the election in a democracy has been thrown overboard as the judiciary fishes into blind furrows that obviate the principle of democracy, viz admittedly the election is a contest between political parties which are mandated by law to choose their candidate according to their constitution. So party A has not abided by all the provisions of its own rules in choosing its candidates. So the judiciary now rules that the party cannot offer candidates for the election because some members claim that certain arcane rules of the party had not been obeyed: thus disenfranchising millions of that party`s political persuasion and worse still gifting the post of President or Governor or Senator to a totally unrepresentational minority. Nigeria now has Governors, Senators, Legislators or even President who do not represent the people.

Suppose for the sake of argument another case comes before the court charging that the selection process of this newly gifted beneficiary President, governor and Senator was itself flawed and the court has to pronounce on that and does so. There will be no Governor, no members of the Legislature in Abuja or at the states. What is the cost of disenfranchising Nigerians at the cost of technicalities e.g. the governor did not have a school leaving certificate which was one of the prerequisite conditions; or that the political parties had not conducted proper primaries? Why should the courts not order fresh primaries (I know the old adage that courts do not award judgment or reliefs not asked for.)

In the 1999 election – one of the provisions for candidacy was that a candidate must win his ward and local government constituency. OBJ had not but he had gone on to the convention in Jos and thoroughly beat Chief Alex Ekwueme. Two nights later Ekueme brought a petition pointing out OBJ`s incapacity at ward and local government OBJ had however also won the Ogun State primaries; and now had won the election as the national convention as the flag bearer. Chief Ekwueme, going by the PDP constitution ought to be declared winner because OBJ by his ward and local government level performance was clearly incapacitated.

The problem seemed to me to be a no brainer. If OBJ could carry a national mandate why should a village mandate top a national mandate? But had Chief Ekwueme gone to court, he may well have become president (thereby ironically solving one of the main dangers to Nigeria of not having an Ibo man as president. But would that judgement be fair)

President Nixon had once asserted that he did not want liberal interpretations of the US constitution and would only appoint what he called strict constructionists. The US was saved by his crookedness – but the point still remained. In a similar situation in the US during the election between Al Gore and the president GW Bush – the election would have turned on the legal interpretations on how well the voting machine worked. Whether it punched the whole on the voting card. The case had started in the state court in Florida, then to the appeals court and to the Florida Supreme Court; another series of cases had stated in the federal court in Florida which also had an appeal court system. After all these courts the case would have been passed up to the Supreme court of the United States which would then decide on who won the election. The Supreme Court were agitated by the spectacle that while these cases traversed the judicial system, it might take 3 years before the case they got to the Supreme Court. During the period, the United States would have no President. That was unacceptable. The Supreme Court transferred the case and declared G. W. Bush the winner. To those who wish to belittle the judiciary, I hope the lesson is clear and needs no further elaboration.

A few weeks ago it dawned on Nigeria that smuggling was now endemic at our borders. I would imagine that it is not a difficult task to find out who the smugglers are and who their aides were. Several years ago, I went to the port in Cotonou and there was no doubt who the smugglers were, which goods were destined for Nigeria and how it would get there. I also saw the textile destined for Nigeria when at that time we had about 12 fully functioning textile mills (the smuggling killed the mills and the border authorities know this). At that time also smuggling of cigarettes competed with the Nigerian Tobacco Company especially Rothmans and Benson&Hedges The smuggling killed the company. The action of the government on the case of the recent smuggling would have been laughable if it was not so disastrous to our economy. Closing the border can never by any stretch of the imagination stop smuggling. To have done so would be the old tactics of deflection, thus avoiding the real problem: ie getting those mandated to stop smuggling – customs, immigration, SSS, DSS, other security agencies to do their jobs and uphold the law.

“The failings of the judiciary are not just obvious in the public law or election petitions arena. In private law also, contractual and other disputes between private parties are increasingly being decided on absurd interpretations and court orders (particularly ex parte orders) are frequently abused. Parties could contrive to obtain judgments or orders without the participation of the counterparties and judges often fail to interrogate the basic premises of a parties’ claims even if the counterparty is not available to present a counterargument. There is the recent example of the Adams Oshiomole and the contradictory orders of different (and equal) courts variously removing restoring him from/to office.

As a result of the uncertainty of justice in Nigerian courts, most international transactions involving Nigerian and foreign parties now reject adjudication before Nigerian courts.
Concluded.



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