January 10, 2009
"I think my greatest achievement is the effort to institute a strict culture of respect for the rule of law in Nigeria. All the problems this country is facing can be traced to a breakdown of respect for the rule of law, regulations, procedures and due process in almost every aspect of our national life."
"I think my greatest achievement is the effort to institute a strict culture of respect for the rule of law in Nigeria. All the problems this country is facing can be traced to a breakdown of respect for the rule of law, regulations, procedures and due process in almost every aspect of our national life."
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So said Nigeria’s President, Umaru Yar’Adua, on 15 May 2008 in answer to the question: “what do you think have been your achievements in your first year since taking office?” put to him by Matthew Green, the Nigerian correspondent of the London Financial Times newspaper.
Anyone reading the first page of the article “Political Theory and The Rule of Law” by the American political theorist, Judith Shklar would be forgiven for assuming that she was referring to Yar’Adua. Shklar had suggested that the rule of law “may well have become just another one of those self-congratulatory rhetorical devices that grace the public utterances of Anglo-American politicians”.
But the book, The Rule of Law: Ideal or Ideology (edited by Hutchinson and Monahan) where Shklar’s article appeared was published in 1987, twenty one years before the Financial Times published Yar’Adua’s contribution to the ideological abuse under the tongue-in-cheek title “Umaru Yar’Adua: In pursuit of respect for the rule of law” on 23 June 2008.
In dismissing the rule of law rhetoric Shklar had advised that “no intellectual effort need therefore be wasted on this bit of ruling-class chatter” but she probably never envisaged the bizarre case of a civilian government that makes democratic pretension perverting the rule of law to subvert the Constitution, and to commit acts of gross injustice against the people.
As Yar’Adua was citing strict respect for the rule of law as his government’s greatest achievement, the same government was effectively using the rule of law rhetoric as an instrument to cling to a stolen mandate that flies in the face of section 14(2)(a) of the 1999 Constitution that provides that “sovereignty belongs to the people of Nigeria from whom [the] government through this Constitution derives all its powers and authority”, and to shield the looting class from justice both at home and abroad despite the injunction of section 15(5) of the Constitution that “the State shall abolish all corrupt practices and abuse of power.”
This article seeks to use some uncontroversial principles of the rule of law to demonstrate the perversion of the rule of law by Yar’Adua’s government in the context of the petition against the election from which he derived his mandate.
What is The Rule of Law?
Brian Tamanaha [On the Rule of Law (2004), page 3] rightly described the rule of law as “an exceedingly elusive notion” that breeds a “rampant divergence of understandings”. He compared it to the notion of “Good” in the sense that “everyone is for it, but have contrasting convictions about what it is”.
Thus Joseph Raz [“The Rule of Law and its Virtue” in The Authority of Law: Essays on Law and Morality (1979), page 210] highlighted the tendency to use it as a shorthand description of the positive features of a political system. On the other hand, John Finnis [Natural Law and Natural Rights (1980), page 270] described it as “the name commonly given to the state of affairs in which a legal system is legally in good shape”.
The second part of Yar’Adua’s statement appears to embrace Raz’s broader description of the rule of law but since his government, under the leadership of the Attorney-General and Minister for Justice Mr Michael Aondoakaa, has tended to invoke the rule of law as a term of art this article will be guided by Finnis’s narrow description of the rule of law.
The rule of law, in this strict sense, is usually associated with the English jurist and constitutional theorist, A.V. Dicey, who popularised the concept in his work An Introduction to the Study of the Law of the Constitution Part II (1885). According to Dicey, “The rule of law … remains to this day a distinctive characteristic of the English constitution. In England no man can be made to suffer punishment or to pay damages for any conduct not definitely forbidden by law; every man's legal rights or liabilities are almost invariably determined by the ordinary Courts of the realm, and each man's individual rights are far less the result of our constitution than the basis on which that constitution is founded”.
In popular parlance, this statement is usually expressed in the following three sentences: first, no man could be punished or lawfully interfered with by the authorities except for breaches of law; secondly, no man is above the law and everyone, regardless of rank, is subject to the ordinary laws of the land; and finally, there is no need for a bill of rights because the general principles of the constitution are the result of judicial decisions determining the rights of the private person.
Dicey was a great defender of Britain’s unwritten constitution which, unlike the Nigerian Constitution, is not contained in one document and much of which lacks formal legal status. Therefore his third sub-rule does not apply to Nigeria since the human rights provisions of successive Nigerian Constitutions, presently embodied in Chapter IV of the 1999 Constitution, provide a comprehensive bill of rights. In fact one of these rights, the right to a fair hearing under section 36 of the 1999 Constitution, captures the essence of Dicey’s notion of the rule of law.
In relation to civil matters, section 36(1) provides that: “In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.”
It is apparent from the above discussion that the one word that best summarises the rule of law is ‘justice’. As such some legal maxims about justice will be used to examine whether the Nigerian legal system can be said to be “legally in good shape” in light of the determination of the presidential election petition.
Ubi jus, ibi, remedium - where there is a right, there must be a remedy
It follows from Dicey’s statement and the constitutional provision quoted above that the right of unimpeded access to justice is the hallmark of the rule of law. According to the website of Nigeria’s Legal Aid Council, “Access to Justice is essential for any legitimate justice system. It strengthens public respect for the law and give[s] people confidence in the legal system.”
The Council is established under the Legal Aid Council Decree No.56 of 1976 (now Legal Aid Act Cap. 205 Laws of the Federation 1990) to facilitate access to justice through the provision of free legal assistance to eligible members of the public. But according to its website: “Despite the existence of the Legal Aid Council a huge population of the poor, especially the rural poor are still completely alienated [from] the legal system. Legal services are generally expensive and intimidating. Also most lawyers are concentrated in urban areas. This means that rural communities seldom have the services of lawyers or legal advice offices. In many cases, this leads people to take the law into their own hands and to administer their own brand of justice - something that no government can encourage.”
However, where a government fails to ensure access to justice it encourages the people to take the law into their own hands. The recent riots that claimed the lives of an estimated 350 Nigerians in Jos, Plateau State when people resorted to self help following disputed local elections portend grave danger to the corporate existence of the country.
The violent reaction to the local elections in Plateau State is also attributable to the frustration arising from the failure of the legal system to redress the injustices perpetrated during the general elections of 14 and 21 April 2007 that were roundly condemned by both national and international observers.
Max Van Den Berg, the European Union (EU) Chief Observer of the elections, said: "The EU observers witnessed many examples of fraud, including ballot box stuffing, multiple voting, intimidation of voters, alteration of official result forms, stealing of sensitive polling materials, vote buying and under-age voting". He added that "INEC's selectivity and inconsistency with regard to the application, and enforcement of electoral laws and court orders were apparent in a number of instances." Local commentators were just as critical of the farcical conduct of the elections, and even Yar'Adua himself publicly acknowledged the flaws.
It is therefore a sad reflection of the lack of access to justice in Nigeria that out of the eleven contestants that were rigged out in the April 21, 2007 presidential election, only the former Head of State, Muhammadu Buhari and the former Vice President, Atiku Abubakar (arguably the two richest of the contestants) were able to seek legal redress.
It is also significant that no individual or group (who were admittedly not entitled to present a petition against the election itself) brought any other court action in relation to the illegalities and criminalities that marred the election.
Justice delayed is Justice denied
If a party has a right to a remedy but the remedy is not forthcoming in a timely fashion, it is effectively the same as having no remedy at all. This is why section 36(1) of the 1999 Constitution provides for the right to a hearing “within a reasonable time by a court or other tribunal”. However, anyone remotely familiar with the Nigerian legal system will know that this constitutional requirement has no application in the real world.
There is no evidence to suggest that Yar’Adua has improved this sad situation in any way. In fact, at the time he claimed to have delivered the rule of law he was probably the biggest beneficiary of the lock jam in the court system because the petition against his election was yet to be resolved, more than 365 days after he assumed office!
Justice should not only be done, but should manifestly and undoubtedly be seen to be done
This aphorism was brought into common parlance by the decision of Lord Hewart in the leading English case of R v. Sussex Justices, Ex parte McCarthy ([1924] 1 KB 256), which established the principle that the mere appearance of bias is sufficient to overturn a judicial decision. The principle derived from one of the twin pillars of natural justice: nemo iudex in causa sua, which literally means “no-one should be a judge in their own cause”.
The most famous application of the principle is perhaps In Re Pinochet, where the House of Lords took the unprecedented step of overturning its decision that the former Chilean dictator does not have immunity from extradition to Spain. The decision taken on 25 November 1998 was overturned on 17 December 1998 on the grounds that one of the law lords, Lord Hoffman, was affected by a conflict of interest.
Lord Hoffman and the other four law lords that decided the case had taken representations from a number of human rights groups, including Amnesty International (AI), during hearings that helped them reach their three-two decision. A few days after, Pinochet’s lawyers asked the lords to set aside the decision on the grounds that the links between Lord Hoffmann and AI were such as to give the appearance that he might have been biased against Pinochet.
Lord Hoffmann was an unpaid director of Amnesty International Charity Limited (AICL), a charity was set up to undertake charitable activities that AI itself could not engage in because of AI’s political nature. AICL was not involved in the Pinochet case; Lord Hoffman’s position in AICL was perfectly consistent with the role of a judge, was well known in legal circles and was a matter of public record.
Yet, the House of Lords overturned the decision and ordered a fresh hearing by a new panel of law lords. Lord Brown Wilkinson, who delivered the unanimous judgement, took the opportunity to clarify the law on the subject. According to him, “The fundamental principle is that a man may not be a judge in his own cause. This principle, as developed by the courts, has two very similar but not identical implications.
“First it may be applied literally: if a judge is in fact a party to the litigation or has a financial or proprietary interest in its outcome then he is indeed sitting as a judge in his own cause. In that case, the mere fact that he is a party to the action or has a financial or proprietary interest in its outcome is sufficient to cause his automatic disqualification.
“The second application of the principle is where a judge is not a party to the suit and does not have a financial interest in its outcome, but in some other way his conduct or behaviour may give rise to a suspicion that he is not impartial, for example because of his friendship with a party. This second type of case is not strictly speaking an application of the principle that a man must not be judge in his own cause, since the judge will not normally be himself benefiting, but providing a benefit for another by failing to be impartial.”
He described the first instance as a case of "automatic disqualification" in the sense that “once it is shown that the judge is himself a party to the cause, or has a relevant interest in its subject matter, he is disqualified without any investigation into whether there was a likelihood or suspicion of bias”. However, in the second case, the complainant will be required to show a real danger or reasonable suspicion of bias before the judgment can be set aside.
Lord Hoffmann’s case was held to fall into the first category. There was absolutely no suggestion that he was guilty of bias of any kind: he was automatically disqualified as a matter of law by reason of directorship of AICL, a company controlled by a party, AI.
This common law principle is directly applicable to Nigeria and is further affirmed by section 36(1) of the 1999 Constitution which provides for a hearing by a court or other tribunal “constituted in such manner as to secure its independence and impartiality.”
Therefore the appointment of Justice Ogebe, the chairman of the presidential election petition tribunal, as a Supreme Court justice by Yar’Adua less than a week before the tribunal ruled on the electoral dispute between him and Buhari and Atiku on February 25, 2008 vitiated the judgement of the tribunal.
Since Justice Ogebe had a relevant interest in the subject matter of the case (Buhari or Atiku may not have nominated him to the Supreme Court had Yar’Adua lost the case), he was automatically disqualified by law from further involvement in it after his nomination.
Even if he was held to lack a relevant interest in the subject matter of the case, it is arguable that there was a real danger or reasonable suspicion of bias to vitiate the tribunal’s decision. It is well established that the issue is not whether he was in fact biased (although several reports alleged this) but whether his continued involvement in the case created a reasonable apprehension of bias.
It is unfortunate that the petitioners’ lawyers failed to formally object to his continued involvement in the matter, and also failed to argue this point before the tribunal and on appeal to the Supreme Court.
Similarly, Yar’Adua’s decision to appoint Justice Ogebe to the Supreme Court in the circumstances is corrupt and unconstitutional, and clearly belies his purported efforts to institute a strict culture of respect for the rule of law in Nigeria. He was bound to exercise his power to nominate Supreme Court justices under section 231(1) of the 1999 Constitution in accordance with the Constitution.
Ironically, the same tribunal that was plagued by its chairman’s conflict of interest relied on a provision designed to avoid such conflict in arriving at its decision. Section 83 of the Evidence Act (Cap. 112, laws of the federation of Nigeria, 1990) provides that "an affidavit shall not be admitted which is proved to have been sworn before a person on whose behalf the same is offered, or before his legal practitioner, or before a partner or clerk of his legal practitioner". The tribunal relied on this provision to exclude the affidavit evidence tendered on Buhari’s behalf on the ground that it was sworn before a notary public who was also his counsel.
That decision appears to breach the second rule of natural justice, audi alteram partem, which literally means “hear the other side”. The rule requires the tribunal to provide all the parties appearing before it with sufficient opportunity to present their cases, in other words, “a fair hearing” as provided by section 36(1) of the 1999 Constitution. But according to Buhari’s counsel, Mike Ahamba, SAN the tribunal “ambushed” them by preventing them from presenting oral evidence in the first place (thus necessitating the reliance on affidavit evidence) only to turn around to castigate them for failing to do so.
According to Buhari, “This judgment is overtly perverse in the sense that, it was agreed by all parties in the chambers of the lower court that depositions would be accepted without oral testimony. This was backed by an express order of the honourable court to the effect that oral evidence is unnecessary. For the courts to now turn round and conclude there was no evidence is squalid in the extreme.”
Therefore it is clear that Buhari did not enjoy the fair hearing to which he was entitled under the common law rules of natural justice and under section 36(1) of the 1999 Constitution, and that as such the rule of law was not upheld by the tribunal. It follows that the tribunal’s decision should have been quashed by the Supreme Court. However, in a split decision of four to three Justices, the court upheld the decision of the tribunal that Buhari did not adduce enough evidence to prove his case. Justice Tobi, who delivered the majority judgement conveniently ignored the serious breaches by the tribunal and directed his fire at Buhari’s counsel instead.
Fiat justitia, ruat caelum – let Justice be done, though the heavens fall
This maxim found its most celebrated use in the judgement of Lord Mansfield in the English case of R v Wilkes (1770). According to him, “The constitution does not allow reasons of State to influence our judgments: God forbid it should! We must not regard political consequences; how formidable soever they might be: if rebellion was the certain consequence, we are bound to say 'fiat justitia, ruat caelum'.”
Lord Mansfield may well have expressed himself in rather flamboyant terms but his dictum is not more radical that Thomas Paine’s famous statement on the rule of law published five years later in the pamphlet Common Sense (1776), which advocated America's independence from the United Kingdom. According to Paine, “in America THE LAW IS KING. For as in absolute governments the King is law, so in free countries the law ought to be King; and there ought to be no other.”
There is significant support for the view that the decisions of both the presidential election petition tribunal and the Supreme Court were irremediably flawed. The kindest explanation that has been proffered in their support is that the perceived political consequences of annulling the presidential election and holding a fresh election may have weighed heavily in the judicial minds that decided the petition.
The treatment of the issue of the missing serial numbers on the ballot papers used for the election throws this issue into sharp relief. Justice Tobi, speaking for the majority, took the view that there was no proof that the non-serialisation of the ballot papers conferred any advantage on Yar’Adua. According to him, “How can this court come to the conclusion without proof that the alleged non-serialisation of ballot papers substantially affected the result of the election? This court lacks the competence or jurisdiction to do so. After all, this is not one of the matters that this court can take judicial notice of within the provision of section 74 of the Evidence Act.”
Continuing, he said, “I do not also see that the non-serialisation favoured the respondents had disfavoured the appellant. Above all, the appellants did not tender even a copy of the un-serialised ballot paper. Where is then the evidence in proof? I ask this question because I do not agree with the Court of Appeal that there was an admission on the part of the respondents.”
With respect to Justice Tobi, he simply failed to uphold the clear provision of the law the way Justice Oguntade, who delivered the lead minority judgment, did.
According to Justice Oguntade, “The inevitable conclusion I arrive at is that the failure of the 1st and 2nd respondents (the Independent National Electoral Commission and its chairman Professor Maurice Iwu) to use serialised ballot papers bound in booklets is clearly a non-compliance which shows that the 2007 presidential elections were not conducted substantially in accordance with the principles of the Electoral Act, 2007. The court below should have nullified the said elections for this reason.”
“The court below went on to say that the petitioner/appellant did not show that the failure to use serialised ballot papers and have same bound in booklet substantially affected the result of the election. With respect to their Lordships of the court below, they were wrong in their view. They failed to bear in mind that the printing of serialised ballot papers and bound in booklets was an act to be performed before the elections were conducted.
“The said act therefore was a condition precedent to the holding of the elections. When a provision of the law requires an act to be performed before taking any further steps and that act is not performed, the further steps taken may amount in law to a nullity. The reasoning of the court below would appear to be curious. They proceeded on the basis that the elections conducted with the ballot papers unauthorized by law was valid; and then turned round to ask the petitioners/appellants to prove that the same election was invalid for non-compliance.
“They unwittingly put the cart before the horse. That was a strange way to reason for a court. A court could not first assume that a disputed act was valid and then place on the plaintiff the onus of proving the invalidity of the same act when what was in dispute was the constitutive elements which would lead to a pronouncement of the validity of the Act.”
He noted that the courts of law are bound to help ensure the enthronement of democracy and concluded that: "If elections are to be held in Nigeria which are credible and rancour free, the starting point is the enforcement of the provisions of our Electoral Act.”
“We cannot be witnessing violence resulting in the loss of many lives at each election. An interpretation of the Electoral Act in a manner which undermines rather that promotes the advent of democracy is bound to create avoidable problems for the country", he warned.
Justice Oguntade is undoubtedly correct. The rule of law does not allow judges to sacrifice justice on the altar of political expediency. To do so, as the Nigerian judiciary has done in all presidential election petitions since 1979, is to build the foundations of a democracy on the sand rather than on the rock.
Conclusion
Whilst President Yar’Adua cannot shoulder the blame for all that is wrong with Nigeria’s legal system it is cynical of him to claim the rule of law as his greatest achievement when his government has done nothing concrete to improve the legal system but has in fact undermined the rule of law.
Unfortunately, eight months after the infamous statement nothing has changed either with regards to the legal system or to his mandate. It is undeniable that the Supreme Court’s decision effectively legalised his mandate but as the preceding discussion shows, that decision does not bring the mandate within the hallowed confines of the rule of law.
As the former British Attorney-General, Lord Goldsmith QC, explained in a lecture titled “Government and The Rule of Law in the Modern Age”, “The rule of law is not simply about rule by law. Such a proposition would be satisfied whatever the law and however unfair, unjust or contrary to fundamental principles, provided only that it was applied to all. Instead it seems to me clear that the rule of law comprehends some statement of values which are universal and ought to be respected as the basis of a free society.”
A comparison can be made with a military regime that enacts a decree that suspends and modifies the Constitution following a coup. Whilst the said decree confers legality on such a government, it does not make it compliant with the fundamental principles of the rule of law.
The conduct of the April 21 2007 presidential election that brought Yar’Adua to power by the Independent National Electoral Commission and the resolution of the consequent dispute by the presidential election petition tribunal and the Supreme Court fell short of the universal values that underpin the rule of law as the basis of a free society. Therefore the government’s continued use of the rule of law rhetoric is an aggravated insult on the collective intelligence of Nigerians.
by Osita Mba
[email protected]
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