Will Justice Ogebe And His Crew Fire President Yar' Adua?
Anthony Okosun
The elections held in Nigeria on April 21, 2007 were blemished and deeply screwed up. Nigerian politicians however, very carefully and maturedly handled the post election crisis, peacefully. They avoided the danger of allowing the flawed elections issue, to get out of hand. They refused to play into the hands of politicians in uniform. All the differences have so far been subjected to review within the confines of the law. No politician has detoured to extra legal nor extra judicial solutions.
The whole world was deeply disturbed by the depth of the rigging, the ill-preparedness, deliberate subvertion of the will of the people and the right of the people to choose their leaders, freely and fairly. Most curious, was the choice of the two main presidential candidates to participate in the elections, as the mother of all rigged elections did not spring upon any of the contestants by surprise. The former president Olusegun Obasanjo made it clear on several occassions, that the elections would be a do or die elections. Boy, was the elections a do or die affair? well, calling the widely discredited elections, a do or die affair, is an understatement. Before the presidential elections were conducted, there was great maelstrom, turmoil and tumult over the conduct and the massive irregularities that flawed the previously conducted gubernatorial elections. The Domestic Election Observation Group, a collection of Nigerian monitoring organisations called for the elections to be annulled. The European Union's chief Observer Max Van Dern Berg declared "The process could not have been credible" Even the U. S. State Department spokesman Sean McCormack had this to say "These were flawed elections, in some cases deeply flawed elections".
Despite, these observations, the other presidential contenders, went ahead to participate in the elections. Nigerians must recognise the maturity demonstrated so far by all parties to this ruckus, who at all times showed much love for their fatherland, by not turning themselves into war mongers and overheating the Nigerian polity, which could have annihilated our nascent democracy, and possibly turned Nigeria into another Rwanda, Kenya, Sudan or Yugoslavia. Though, the opposition claim, they were robbed at the polls,yet they juxtaposed their call for justice and fairness with the need to preserve and nurture the Nigerian political project. The two major opposition contenders, had the opportunity to observe the depth of rigging and collateral irregularities that bedevilled the governorship elections and still believed in the integrity and bona fide avowal of the Nigerian judiciary to conduct a free and fair judicial review of the presidential elections, should a review become necessary.Thus it is now germane, apropos and kosher for all judicial and quasi-judicial bodies reviewing these flawed elections to properly utilise the profound opportunity offered through the instrumentality of judicial review to impartially and with the fear of God, do justice and equity in all the matters brought before them, especially, the presidential elections.
Though, the fixed and variable factors that propel candidates to victory in elections, all favoured the candidate Umar Yar' Adua. He was sponsored by the most sophisticated and most formidable party machinery. The PDP machine is a behemoth whose massive tentacles spread throughout the nooks and crannies of all the units across all the local government areas in Nigeria. By virtue of the fact that he was sponsored by the incumbent ruling party, he had the largest financial resource to oil his campaign and execute his strategies. He had the best reputation among the major three candidates, before the elections. Nothing negative was known about him. He was generally perceived as God fearing, disciplined, humble , loyal, peaceful, gentle, well educated, well-bred and incorruptible. However, all the hereinbefore listed good points, in President Yar Adua's favour,aside. The fact remains that, if the elections were rigged, they were rigged. The question is, was the rigging insignificant or monstrously material enough to require the Presidential Elections Tribunal to annul the elections and make an order compelling the Independent National Elections Commission to conduct a fresh presidential election.
It is my sincere belief, that considering the fact that we have all had a taste of the military, nobody is desirous of a throw back to the Abacha years. All the fighting is being done in a highly urbane, polished and suave manner. The Election Tribunals and the Superior Courts have been the theatre of conflict resolution. INEC and the Presidency must therefore respect the judgment and orders of the Election Tribunal. Where fresh elections are ordered, INEC must comply immediately.The long suffering, impoverished, good and peace loving people of Nigeria do not want an ominous cloud of fear of coup or civil war hanging over their heads. President Umar Yar Adua and others in government, including all political leaders should work assiduously with determination and passion to diffuse any tension in the land and ensure that no enabling environment and atmosphere is created for those who would want to derail Nigeria's democracy through the instrumentality of force and coercion.
Justice Ogebe's very good reputation goes even much further and farther before him. The good judge and his crew, must use this historic opportunity offered by the instrumentality of Judicial Review to establish a good, solid and long lasting foundation for Nigeria's democracy. Judicial Review was first adumbrated by a former American Chief Justice, John Marshal in the globally celebrated case of Marbury V Madison. In that case the United States Supreme Court struck down an Act of the United States Congress, for being inconsistent with the United States Constitution. Alexander Hamilton a reverred American lawyer and political Philosopher in his efforts to persuade the people of New York to ratify the United States Constitution wrote "There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commissioner under which it is exercised is void. No legislative act[executive],therefore contrary to the constitution can be valid. To deny this, would be to affirm that the deputy is greater than his principal."
Nigeria's executive branch of government, under the leadership of President Olusegun Obasanjo constituted the Independent National Electoral Commission. The commission conducted a presidential election, which was challenged and the rumble is now ripe for judgment before the Justice Ogebe Presidential Election Petitions Tribunal. All the gladiators went to the judiciary as the temple and last bastion of hope and justice. Ideally the judiciary is a repository of wisdom,understanding and insight.The ball is now where it should be. The gladiators have decided to act within the norms of civilisation and decency. They have chosen not to take the laws into their hands but to seek legal redress. Nigerians and indeed the whole world must be interested in this legal combat and the up coming decision thereof.
Considering the unfolding scenario from Alexander Hamilton's perspective, the Executive branch of the Federal tier of Government is an Agent,Operator,Executor or Worker of the people of Nigeria. The law of Agency is concerned with any Principal- Agent relationship. A relationship in which one person has legal authority to act for another. The law of Agency is based on the Latin Maxim QUI FACIT PER ALIUM,FACIT PER SE.Which means, He who acts through another is deemed in law to do it himself. An Agent cannot be greater than his Principal or Headmaster. An Agent can only exercise the powers delegated to him by the Principal. An Agent is answerable to his Principal or Headmaster. An Agent cannot exercise powers that he has not received from his Principal. In the instant case the Judicial branch of Nigeria's Federal tier of Government represent and symbolises the Principal status of the Nigerian people. It is now judgment day. The day of reckoning is here. Did the Agent (Executive branch of government, operating through INEC abuse the powers, delegated to it, by the Principal (the People)? Did the Agent perform within his lawful and or constitutional powers? Did the Agent perform BONA FIDE, meaning in good faith.
Government is a Social Contract. The Social Contract theory says, those who govern receives the power and authority to govern, from the people. Those who are governed, voluntarily submits and yields themselves to the overriding authority of an institution, they have willingly created for convenience to help run their collective affairs,based on the Constitution,not the whims and caprice of any man. The government (INEC) must be pliable and malleable to the desires of the people. The Social Contract theory explains the justification and purpose of the state. According to Hobbes theory the essence of Social Contract is that without organised government we would live in a state of nature,where we each have unlimited natural freedoms.The inhrent problem with this totally autonomous state is that it includes the right to do whatever one wants to do and thus grants the freedom to harm all or any who threaten one's self preservation.It would be a state of BELLUM OMNIUM CONTRA OMNES(war of all against all). To avoid this, we unanimously agree to enter a Social Contract to acquire civil rights for accepting the obligation to honour the rights of others,giving up some freedom in the process. The authority or body we create to to represent our joint interest,to whom we delegate our powers is the Government or State.Thus, the State is an Agent while WE THE PEOPLE are the Principal. The rules and provisions of this sacred, profound and noble contract are enshrined in a document known as the Constitution. The Justice Ogebe Tribunal, must now determine, whether the government, through it's alta ego (INEC) violated, the Nigerian constitution, in the way and manner, it conducted, the Nigerian presidential elections held on April 21, 2007.
It is the sacred duty of the Judiciary to interpret the constitution, and to protect the inviolability and time honoured sanctity of the constitution. The Constitution is sacred and its sanctity must be honoured by all. The polity thrives in crisis and the constitution brings order to that crisis. It is also the profound jurisdiction and domain of the judiciary to review every action of the State as an Agent of the Principal, that is ,the People ,based on the principles enshrined in the Vade Mecum, that is the Constitution. In this regard, the Nigerian people, look up to Justice Ogebe and his crew and they must not be found wanting.
Justice Ogebe and his brothers in the Presidential Election Petitions Tribunal are people of honor and integrity, and as much as it is tempting to address, the facts and figures of the subject matter of this globally awaited landmark judgment on it's merit, I know, I cannot do that, as the matter is effectively subjudiced. However, it is within my civil jurisdiction as a humble Nigerian to air my neutral and patriotric opinion and remind the tribunal of the duty of fairness that they owe to all Nigerians. The doctrine of Appearance of Fairness seek to promote the elimination of actual bias, prejudice, improper influence or favoritism, and also the curbing of conditions which by their very existence, tend to create suspicion, generate misinterpretation, and cast a pall of partiality, impropriety, conflict of interest or prejudgment over the proceedings to which the relate. It is my sincere belief, that Justice Ogebe and his brothers will not be found wanting.
It is incumbent on the Justice Ogebe Tribunal, to give a historically momentous judgment, that will inspire, motivate and build up Nigerians faith in democracy. The tribunal should deliver a judgment that will help teach our congenitally corrupt and devious politicians, the differences between democracy, free elections, rule of law, supremacy of the constitution and the fruitlessness and vanity of electioneering thuggery, naked brigandage and empty ego fuelled bravado. The tribunal's judgment if pro-truth, pro rule of law and pro true- will of the masses, will go a very long way, in helping to establish true democracy in Nigeria. A judgment of the kind, hereinbefore described, will positively impact Nigerians, and help Nigeria and Nigerians, to navigate this teething period of our journey to true federalism and true democracy. Such profound judgment will also help found a new and a greater Nigeria, that we can all be proud of, and can joyously call our own.
ANTHONY OKOSUN (tonyosun@yahoo.co.uk) writes from the USA
|
# 
Your Comments
Please make The Square an enjoyable experience for everyone by refraining from gratuitous ad-hominem contributions, defamatory comments and off-topic posting. Such posts will be removed.