Posted by News Express | 7 June 2017 | 1,610 times
The enduring beauty of democracy, as practised in civilised climes, is the institutional and enforcement frameworks that are put in place to ensure that nobody is above the law.
In those climes, the supremacy of the Constitution is not merely uttered by words of mouth but applies in all aspects of their national lives.
Checks and balances are effective, and because absolute power corrupts absolutely no individual is clothed with such unwholesome power that such a person can afford to arrogate to himself the powers to undo the Constitution.
Few months back, a certain Federal Court in a remote part of the United States of America issued a mandatory judgment invalidating the presidential order put into place by the President of the United States, Mr Donald Trump, which sought to exclude visitors from seven largely Moslem nations from visiting the USA.
The swiftness with which the United States’ President obeyed the verdict – even when he holds a diametrically opposed position and, indeed, strong view against that judgment which frustrated his plot to implement one of the cardinal electoral promises – remains the clearest indicator that democracy is working in America.
The Congress is such an independent institution that has the capacity to sanction the holder of the office of President, should he decide otherwise not to follow extant antecedents, practices and principles to obey the validly issued order of the competent court of law.
Another instance of how democracy works when the decisions of the courts are respected by holders of the executive or presidential powers is the United Kingdom (with parliamentary system of government in place); where the Supreme Court ordered the parliament to conduct a congressional vote before the Article 50 could be triggered to begin the exit of Great Britain from the European Union. The British parliament, which was the defendant in the suit filed by a private citizen, immediately complied with the order of the highest court of the land.
On the corollary, the weakest link of the sort of distorted democracy that is practised in much of Africa and Nigeria, particularly is the absence of strong institutional mechanisms for compelling the Executive arm of government to play by the rule of the democratic game, by complying with binding court orders or judgments.
To make matters worse, the parliamentarians are mostly made up of politicians who lack the strong will to use the constitutional powers of impeachment enshrined in section 143 of the Constitution against the head of the executive branch of government for serial breaches of binding judgments and orders of the courts of competent jurisdiction which, to all intents and purposes, amounts to gross misconduct or even high treason.
The judiciary itself has so far failed to exercise their internal strength to force the enforcement of the judgments made by courts.
The ease with which some judges fraternises with and grants wee-hour ex parte orders to some security agencies whose heads clearly have no modicum of respect for the judicial institution, tells a lot about the inner decadence within the judicial system that must be dealt with. Since some judges of the High Court, especially in Abuja, are in the habits of granting ex parte injunctions authorising prolonged and extra-constitutional detention of accused persons, makes the judiciary a laughing stock before the Presidency; thereby emboldening the President to persistently disobey court orders in favour of persons perceived as enemies of Buhari.
Some judges are also guilty of not showing good enough strong will to refuse to entertain cases from the executive that fails to comply with decisions of competent court of law.
Aside the judges, the body of lawyers in Nigeria has the power to put pressure on the executive arm of government to obey the courts. But, right now, the Nigerian Bar Association (NBA) is itself in breach of a judgment of a Federal High Court annulling the legal foundation upon which the election that swept the council members of NBA at the national level into office.
Mr Abubakar Mahmoud, whose headship of the private bar is facing tough legal battle, has so far refused to vacate office even when a Federal High Court said the amendments done to the NBA's constitution which brought them into office is null and avoid.
The leader of the public bar, who is the Federal Attorney-General and Minister of justice, Abubakar Malami, has also failed to compel his boss, the President, to respect the various court verdicts which Buhari has so far breached: the plethora of court orders asking that immediate past National Security Adviser, Col Sambo Dasuki, and leader of the Islamic Movement of Nigeria, Sheikh Ibrahim El zakzaky, be freed. And, because, the NBA under Mr Mahmoud faces ethical and legal dilemma, the NBA disciplinary committee that ought to sanction the Federal Attorney General and, possibly strip him of the prestigious title of Senior Advocate of Nigeria, seems to have gone into functional slumber. This is tragic!
Sadly, the Presidency has tried to justify the illegality of flouting the competent orders of courts of competent jurisdictions by manufacturing some unbelievably untenable excuses. But try as the Presidency did, the nakedness and ugliness of the flagrant disobedience of the court verdicts and, by extension, the impeachable offence of disobedience to section 6 of the Constitution, is beginning to stare on the faces of some of these officials and security forces who are actually detaining these Nigerians.
What kind of dishonesty is this when Garba Shehu, one of the many spokespersons of President Buhari say his boss won’t release the duo of Col Dasuki and El zakzaky because of other cases and for protective custody, due to insecurity in Zaria whereby the leader of Islamic Movement of Nigeria ought to have returned?
Even as some of the executive lackeys, such as Mr Itse Sagay and Mr Femi Falana, have begun asking their friends in the executive arm of government to obey the court orders, it is still shameful that both the legislative and judicial arms of government have stood by without doing anything to stop the sacrilegious disobedience of court judgments by the Federal Government. This is an invitation to anarchy, which has for long been foretold by an erudite justice of the Supreme Court of Nigeria, Justice Niki Tobi.
Let us see how some justices see or view disobedience of court judgments by the President.
Justice Niki Tobi, of blessed memory, formerly of the SupremeCourt of Nigeria, seemed to have equated disobedience of court judgments to a civilian coup plot to destabilise democracy. However, Niki Tobi appeared to be saying that the judiciary is incapacitated to act, should the President refuse to obey the judgments made by courts, as it is right now as I write. He (Niki Tobi) wrote extensively on this theme of how democracy is imperilled by executive willful disobedience of court judgments.
He noted: “Court orders and judgments are meant to be obeyed and be obeyed by the parties. It is the presumption that parties who enter into litigation must obey the outcome of the litigation, by the way of orders and judgments. That presumption is irrefutable in a democracy. In other words, parties cannot contract out of orders and judgments. They are bound to obey them whether they are given in their favour or not.
“A party who fails or refuses to obey court orders and judgments does not only show disrespect to the court, but by his conduct, shows disregard to the Constitution of the land, the foundation of the legal system, and the laws of the land. But he the individual, or corporate body committing disobedience of court orders and judgments are doing so and these conducts are inimical to democracy. This is because by the conduct of disobedience, the party has brutalised not only the rule of law, the life blood of democracy, but also the tenets of justice and fair play in any legal system.”
Above all, Justice Tobi argued that it is a most uncivilised and uncouth conduct. His words:
“While individual disobedience of court and judgments is serious, corporate disobedience is not only serious but heinous and devastating. One example of corporate disobedience of court orders and judgments is government.
“As all the powers of the judiciary centre on the orders and judgments of courts of law and their enforcement or enforceability, judges the world over are concerned with and sensitive to when the orders and judgments they give are not obeyed.
“They feel not only disparaged, but also disrespected. The entire judicial process or the administration of justice will be of little or no value of enforceable court orders and judgments cannot be enforced because a party refuses their enforcement.”
Tobi went further to depict the enormity of the demolition of democracy it would amount to, if the President is permitted as it were to perpetuate the disobedience to court judgments. In such a situation, he said, the judges are reduced to toothless dogs, who can only bark but cannot bite. This, according to him, is because the court system becomes useless without orders and judgments and attendant enforcement.
He averred: “A society or government which encourages disobedience of court orders works on cross purpose with the tenets of democracy. Such a society will be nursing or housing condiments for a state of anarchy, totalitarianism or oligarchy. And that is bad for democracy, both in its conservative outlook of Abraham Lincoln and its contemporary meaning of upholding the rule of law that germinate democratic institutions and structures.”
Yours truly however finds it difficult to concede to what Justice Tobi said regarding the lack of institutional capacity to compel obedience to judgments of the courts, because I believe the operators of the judicial system have not brought out innovative forms or modalities of compelling obedience.
The learned Justice submitted that while judges generally find it not that difficult to enforce their orders and judgments against private disobeying parties, it is not so when the disobeying parties are the governments and their agencies.
“Judges, in the latter case, are handicapped because they lack the capacity to police such disobedience. This is because the enforcement agencies, in most cases, are government functionaries. And, so, what the judges do is to resort to the condemnation of the conduct of the party in disobedience by the use of strong language, which cannot bite because of lacks of teeth.”
Here is what i propose: the Chief justice of Nigeria should find a way of calling out all the federal judges out on national strike, should the President persistently flout the lawful orders of the courts.
The Chief Justice of Nigeria should send powerful petition to the National Assembly calling their attention to these breaches.
Lastly, the Chief Justice of Nigeria as the statutory head of the national judicial system can proceed to the International Criminal Court in The Hague, Netherlands, to file a petition seeking injunctive orders to compel the President to respect the Constitution and, if he still fails, then let the Security Council be petitioned, and lastly the civil populace can mount pressure through organised unions and civil rights groups.
Civil disobedience to a serially disobedient President to the rule of law is an option. Nigeria must make hay while the sun shines, and not let one man collapse our hard-won democracy.
•RIGHTSVIEW appears on Wednesdays, in addition to special appearances. The Columnist, a popular activist, is a former Federal Commissioner of Nigeria’s National Human Rights Commission and presently National Coordinator of Human Rights Writers’ Association of Nigeria (HURIWA). He can be reached via 08033327672 (sms only) or via firstname.lastname@example.org
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