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THE IMPARTIAL OBSERVER
Matters of the Moment
Expedient Judicial Temperament Abets Impunity
Wednesday 17 December 2008
Instead of acceding to the vigorously argued grounds of the appeal,
a majority of the Supreme Court opted
– out of, one suspects, moral cowardice – to rubberstamp impunity.
~ Okey Ndibe
Some thirteen months ago, I wrote on this space about the unfolding judicial activism in Nigeria, (See Judicial Supremacy in Nigeria), its salutary values and obvious drawbacks. Incidentally, what triggered that perceived groundswell was, as anyone would guess, the vagaries of Nigeria politics. This month, the Nigerian judiciary blew an opportunity of a lifetime, when once again, it was called upon to interpret the law, and it failed dismally, swinging as it were in full throttle reverse.
It is now common knowledge that on Friday 12 December 2008, Nigeria's Supreme Court quashed an appeal before it by upholding a lower court ruling, which in turn, upheld as legitimate, the broadly acknowledged flawed results of the 2007 presidential elections that resulted in the proclamation of Umaru Yar'Adua as Nigeria’s president.
Whereas Nigerian and foreign observers, and even President Yar’Adua himself had hitherto publicly characterized the elections as deeply flawed, Nigerian Courts saw it all differently. In denying the plea by the two putative runner-ups, Muhammadu Buhari and Atiku Abubakar, the seven-person Supreme Court concluded that while there were admittedly irregularities, such shortcomings were grossly inadequate to warrant overturning the flawed electoral outcome.
Nigerians knew that this day would come, and had hoped for the best, hoping against all odds, that the Supreme Court would abet the growth and true grounding of our nascent democracy by repudiating the political impunity and official licentiousness that led to electoral irregularities, boldface rigging and the disenfranchisement of the national electorate. By its ruling, the Supreme Court have ended nineteen months of costly electoral legal tussle, but certainly, it has not served Nigerians and the rule of law well.
Essentially, the justifiable legal challenges to the electoral outcome came to an anti-climatic and bittersweet end last week. If the Supreme Court ruling offered any relief, it was severely tempered as it was discomforting. Considering the slim margin by which the Court upheld the prior ruling, it is clear that President Yar’Adua and the ruling PDP escaped full censure and reversal of the unpopular electoral outcome only narrowly. While it is admittedly debatable, this observer believes that the outcome would surely have been remarkably different, had the court been differently composed or the panel enlarged.
It is disconcerting that the Nigerian judicial system of which the Supreme Court is the apex, continue to exhibit a troubling degree of schizophrenia. Such a slant would appeal to some, and be interpreted by others as indicative of the courts’ show of flexibility. But even in accepting that a modicum of flexibility is to be preferred to rigidity or doctrinal dogmatism, any such balance by the courts, should be in favor of the rule of law, equity and justice and not in favor of politics or parochialism, even if there are perceived or real national interest questions at play. Concisely, the Supreme Court under the prevailing circumstance should lead by example in promoting a judicial system beholding to the rule of law, not to political imperatives or expediency.
Truth is the mother of justice. It is therefore unfathomable that the Supreme Court would admit the existence of indisputable evidence of irregularities, and yet, demur on making a ruling that is in tandem with such findings. It seems that the court was more interested in preserving the status quo, for whatever reasons.
When, the lead judge, Niki Tobi declared, "The president and vice president remain the president and vice president of this country," he and his colleagues on the Court, grossly overlooked that such an expression did not necessary represent the universal suffrage and intent of the Nigeria electorate. Hence, the Court had by judicial fiat, validated an illegality fostered by the ruling political party and an incompetent Independent National Electoral Commission (INEC). As Okey Ndibe rightly put it,
“Instead of acceding to the vigorously argued grounds of the appeal, a majority of the Supreme Court opted
– out of, one suspects, moral cowardice – to rubberstamp impunity.”
The Supreme Court has proven that in critical national issues, there would be shades of the law; not blind or impartial law, but expedient interpretations of the law aimed at dealing with inconvenient truth and realities. Such expedient judicial temperament, invariably translates to abetting impunity.
What a shame?
The present outcome fools no one; certainly, not with the impudent and blinkered subtext on which Justice Tobi rationalized the Court’s thinking. It boggles the mind that the learned judge would represent a majority opinion in such a critical landmark case, by positing that, “because Nigeria is a vast country made up of so many diversities in terms of tribes, cultures, sociology, anthropology, and many political parties, there must always be irregularities...Courts of law must therefore take the irregularities for granted unless they are of such compelling proportion or magnitude as to affect substantially the result of the election." Such an enunciation from a supine court, amounts to heresy and borders on judicial conceit and collective deceit. The position, surely, is a national disservice, which for long will erode national confidence in the judiciary.
If there is one positive aspect in the present development, it is that the Court’s ruling was far from unanimous. Indeed, the near-tie 4-3 ruling, is such that the dissenting views were far weightier, better reasoned and in tandem with the vox populli, than the courts majority opinion. This point has not escaped attentive Nigerians. As the Lagos State Chairman of the All Nigeria Peoples Party (ANPP), Abiodun Oyebolu rightly observed:
It is quite historic that in the history of the Supreme Court, we have as much as about three dissenting voices in the verdict. It has always been six-to-one or five-to-two, not three against four. It was a narrow escape and that is to tell you that that case has a lot more credibility than any other thing, but for the extraneous factor that made Supreme Court judges to have gone the way they have gone.
Implausible as it may sound, the present ruling by the Supreme Court underlines the tangled nexus between politics and the law that continues to bedevil the separation of powers in Nigeria. It further affirms the Executive Branch’s undue and unwieldy influence and intrusion into the judicial realm. A judiciary that cannot exercise full independence of thought and action merely erodes its own credibility.
What the Supreme Court has done is to give succor to President Yar’Adua and the ruling PDP. Nigerians, this observer included, have no choice but to respect the fait accompli that the ruling represents. However, we do not necessarily agree with it. We are not obligated to.
But let there be no doubt about this, the Supreme Court has merely and unconscionably deferred the inevitable electoral doomsday to the next round of national elections, while all the same, endorsing even if obliquely, electoral irregularities and other forms of impunity. By this singular act and judgment, Nigeria lost a great once-in-a-lifetime opportunity for bringing about both entrenched electoral and judicial reform. We have only postponed the inevitable; and sadly so.
With neither anger nor partiality, until next time, keep the law, stay impartial, and observe closely.
Hank Eso is a columnist for Kwenu.com. His commentaries on Nigerian politics and global issues have appeared in The New Times (Lagos), African Profile International (New York), The Nigerian And Africa Abroad, (New York), African Market News (New Jersey) and in Gamji.com and Nigeriavillagesquare.com
© Hank Eso, Wednesday 17 December 2008.
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