A labour dispute has shut The Guardian down and the paper may not be published for some days. Articles of Levi Obijiofor will continue to be published at NVS until the issues are resolved.
Look who's defending the rule of law
By Levi Obijiofor
Wednesday, 7 November 2007
Whoever scripted the speech read by President Umaru Musa Yar'Adua at the opening session of the All Nigeria Judges' Conference in Abuja on Monday this week has exposed the president to public ridicule. That speech was contemptuous of high court judges and Supreme Court justices. It was in bad taste. It made Yar'Adua look like an ageing headmaster intent on persuading his pupils (judges) to do their jobs according to the headmaster's understanding of the role of judges in a democracy. But that speech was also instructive because it exposed the contradictions in Yar'Adua's doctrine of respect for separation of powers.
In strict adherence to the principle of separation of powers, Yar'Adua has no right whatsoever to interfere in the judicial process or to lecture judges and Supreme Court justices on the elements they should prioritise in the process of weighing cases presented before their courts. Here is why.
Barely two weeks ago, following public pressure on the president to use his leadership position in the People's Democratic Party (PDP) to advise the former Speaker of the House of Representatives, Patricia Etteh, to step aside as a mark of respect for the law of natural justice, Yar'Adua used the twisted logic of respect for separation of powers to explain his silence over the disruptive behaviour of Patricia Etteh.
If it was okay for Yar'Adua to consecrate the concepts of rule of law and separation of powers when there were leadership problems in the House of Representatives, why didn't Yar'Adua recognise that it was duplicitous of the president to criticise high court judges and Supreme Court justices – even if implicitly – in his speech at the All Nigeria Judges' Conference? Is the judiciary no longer an institution in Nigeria? Where does Yar'Adua's doctrine of separation of powers start and end?
Yar'Adua is a remarkable politician! When it is convenient for him, he takes the moral high ground on the rule of law debate. This selective application of his ideology of rule of law and separation of powers gives a whole new meaning to our understanding of the government's mantra. By the obscure and manifest contents of his speech at the Judges' Conference on Monday this week, Yar'Adua has seriously undermined the credibility of his own commandment.
It is incredible that a president who remained silent and watched a recalcitrant former Speaker of the House disrupt the business of government and the legislature should suddenly admonish learned judges on how they should do their professional job. Yar'Adua has transformed hypocrisy from its well-known meaning as a form of bad habit into a highly sought after moral quality discoverable only within the hierarchy of the PDP. Hypocrisy remains an enduring character flaw in political leaders.
Yar'Adua's oblique disapproval of judgments made by high court judges and the Supreme Court justices was injudicious and highly inappropriate. It was an unnecessary interference in the judicial process. His remarks also threaten the independence of the judiciary. In light of the ongoing legal challenges to the legitimacy of Yar'Adua's government, he ought not to have uttered those comments which held up the high courts and the Supreme Court in contempt. Perhaps Yar'Adua feels seriously worried about the likely outcome of the legal objections to his election. This was decipherable from his body language at the judges' conference.
In his conference address, Yar'Adua said in a rather harmless manner: "We must state that we do not necessarily agree with all the decisions of the various courts... Nonetheless, we have refused to interfere with the judicial process as it is our firm belief that upholding the rule of law is the only way in creating confidence in our system of government and invariably impact positively on the economic and social well-being of Nigerians in general."
There are logical cracks in the way Yar'Adua and his government have been marketing their new political incantation known as the rule of law. As a colleague mocked last week, "it seems the president has concluded that due process and rule of law are policies of government. They are not. Any president who does not abide by due process and rule of law is an outlaw president. We need our president and his retinue of aides to do more than announce they will abide by the rule of law."
The real test of Yar'Adua's commitment to his doctrine of rule of law and separation of powers will come when objections to the legality of his government move up one level to the Supreme Court for a final decision. When that time comes, everyone will be watching closely to see whether Yar'Adua – the apostle of the rule of law -- would abide by his own principles or whether he would willingly fall on his own sword.
In spite of public apprehension over Yar'Adua's new ideology, he has pressed on in an intense way. On Monday this week, he told the conference of judges in Abuja: "It is important that the judiciary does not fall into the temptation of delivering decision merely because it appears to be the popular one at that point in time… A decision may be apparently popular because it accords with the sensitivity of the people at a given time but may be wrong according to law… We should have in mind that the effect of this apparently popular decision is usually not confined or limited to the case at hand. It will govern subsequent cases on a similar subject matter under our principle of judicial precedent."
When Yar'Adua said judges should make judgments based on the rule of law rather than popular sentiments, he was in essence accusing the judges of playing to the gallery. He also suggested -- in his speech -- that he understood, more than the judges did, the well-established basis for judicial decisions. That kind of unsolicited layperson's advice was senseless and needless. It must have rattled and irritated the judges when they heard the symbol of the presidency trying to knock the judiciary into shape to fit with the pictures in the president's head.
Yar'Adua's observations made no impact because, in the past three years or so, the judiciary – in particular the Supreme Court justices -- have made landmark judicial pronouncements to the delight of legal celebrities, legal practitioners and a majority of ordinary citizens. Those who defend Yar'Adua and his principle of respect for separation of powers should be reminded that the president's speech at the judges' conference directly contradicted the president's position on rule of law and separation of powers.
No one should be persuaded that Supreme Court justices or high court judges are swayed by popular sentiments when they consider the judicial merits of cases presented before them. To suggest, as Yar'Adua implied, that high court judges and Supreme Court justices are engaged in popularity contests is to undermine the credibility of judicial officers and to smear the integrity of the judiciary. Yar'Adua's statements were made out of ignorance. He is not a high court judge. He is not a Supreme Court justice. He has little or no knowledge of the legal issues that judges consider prior to delivering judgments.
On a larger scale, Yar'Adua's statements reflect wider problems in our society. In Nigeria, everyone claims to be a specialist in everything. We are a nation of specialists and pretenders. Unfortunately in our nation, nothing really gets done in a professional manner. And yet we hold exaggerated opinions about ourselves and our abilities. It is a tragedy that a president should be telling learned judges the difference between courts of law and courts of public opinion. Yar'Adua's distorted knowledge of the judiciary is on display. A court of popular opinion is never the same as a court of justice.
Is Yar'Adua so scared of what these high court judges and Supreme Court justices will do to his government in a few months' time? Is he worried that if he did not speak out now, the judges might misinterpret his rule of law doctrine and use it to quash the authority of his government? No one has mentioned this yet but it seems the president is sweating well ahead of the likely outcome of the legal challenges to his election.