Friday, 11 March 2011

The Toddling Sanctity of Our Courts?

In theory, Nigeria should not need the Supreme Court or any court at all. Even before Mahandas Gandhi extolled the ‘court of conscience’ over that of justice, the Holy Quran had endorsed the need to repel evil with good and urged its adherents to be quick to forgive. Christians are told to stay away from filing suits against other believers while traditional deities outpace formal systems for delivering retributions. We however manage to mentally separate our deeply religious sentiments from the Nigeria we live in. We do it well. No one questions the beliefs of our Bible-quoting ex-president who declared elections do-or-die and who may also be guilty of telling untruths.

So, the judiciary stays. Despite our cynicism of the legal process, we inherently assume that this often snail-paced deliverer of justice will protect the weak and helpless. We silently agree that the courts will serve our pound of flesh if power-crazy naval ratings throw us off the road. We hope that sometimes, the courts will redress electoral wrongs and keep the executive in check. We don’t say it but we faithfully accept that Lady Justice is indeed blindfolded and swayed only by the weight of her scales. These assumptions keep society civil. It is also explains why we hesitate to place a tyre around the neck of corrupt politicians because we expect the sluggish long arm of the law to catch up - sometime. Or perhaps, we are too tired to do otherwise.

In any case, there is an implicit reliance on the relative wholesomeness of the courts to do its job. It is the way we take it for granted that electricity from PHCN won’t always destroy our electronics. Unlike executives with comparatively short tenures, judges spend their careers on the bench. They are not going anywhere for a while. A judge’s untainted reputation is perhaps, His Lordship’s most important asset. This is why allegations of corruption against judges must not be trivialised.

Whether it amounts to a modern day trial of the Biblical Job or ‘judgment day’, the Nigerian judiciary has had its fair share of allegations of corruption. Earlier this year, Senator Iyiola Omisore of Osun State placed advertorials alleging ‘brazen judicial robbery’ and also dismissed an entire hierarchy  of the judiciary. There is also the rather infamous and on-going inquiry into allegations of corruption thrown by two high-ranking members of the bench. A few days ago, newspapers reported that the judges of the Supreme Court took bribes, based on an alleged conversation between the ‘gregarious’ Mr. Speaker and the Ambassador Sanders.

I don’t think the courts should ‘descend to the arena’ to defend these allegations. There is something beneath that accepted nobility that makes it awkward to have their adjudicating Lordships explain their roles in the courts of public opinion. Yet, one cannot deny the taint on the courts’ reputation and the attendant effect on its powers.

Where do we draw a line between the duty of the press and the citizen to expose corruption in our institutions and a disdain for trivialising corruption allegations? I don’t know. I however think that headlines using excerpts from what sounds like gossip in an alleged Wikileaks cable borders on sensationalism.

The shame smeared on the bench is shared by everyone in a wig. The bar must protect the integrity of the bench. One place to start is an inquiry into Senator Omisore’s allegations. If indeed the court was compromised, Nigerians deserve to know. If the distinguished Senator was on a verbal plunder of sorts, then we must make an example of why careless accusations should not be made against the judiciary. Mr. Speaker has denied making the statements, which places the burden on the newspapers to help us better appreciate the authenticity of the document they based their reports on. It would be interesting to see how that goes.

United States’ Associate Justice of the Supreme Court, Robert H. Jackson’s aphorism rings as clear as 1953. The Supreme Court is not final because it is infallible; it is infallible because it is final. We must protect that infallibility. If we fail, we will succeed at mocking Hobbes by managing to live nasty, short and brutish lives under a central democratic government.

I put this up on YNaija and NigeriansTalk too.

Tuesday, 1 March 2011

Interpreting the law: Protecting our Political Institutions

There are many reasons why dead people are ideal role models - the human memory is a little frail and forgiving, it is easier to revere and beatify those who will never fall from 'grace'.  This especially applies when they leave just as we were about to place a halo on their heads. So, I’ll begin with Abraham Lincoln’s thoughts on ‘bad law’. Lincoln was America’s sixteenth president and its first to be assassinated. He was also a lawyer. In his Lyceum address, which was in defence of political institutions, Lincoln had firmly held on to a literal approach to interpreting law. According to him, ‘although bad laws, if they exist, should be repealed as soon as possible, still while they continue in force … they should be religiously observed’. This is often quoted as ‘[t]he best way to get a bad law repealed is to enforce it strictly’.  While the American justice system is not without its frailties, it is old enough to have made enough mistakes for us to learn from.

Lincoln was not particularly ingenious on his arguments for the literal interpretation of law. American jurisprudence provides a history of strict constructionism. As Alexander Hamilton said at least half a century before Lincoln’s speech: ‘liberty can have nothing to fear from the judiciary alone’ as the legislature, not the judiciary has the power to make laws.

The Nigerian judiciary has also towed this path. In AG Abia State v. AG Federation (2006) 16 NWLR (Pt. 1005) 265, for example, the Supreme Court warned against courts going out on ‘an unguarded voyage of discovery’.  And we agree. It accords to common sense that laws be followed as they were written. Judicial activism must not be used as a cloak for retroactive application of laws. The text of the law must be adhered to. This certainty allows for fairness.

However, even literal enthusiasts realise that strict literal interpretation can lead to illogical absurdities. For example, a law that punishes a person who draws ‘blood in the streets’ cannot extend to a surgeon who opened the vein of a person who fell down in the street - K Mart Copr. V. Cartier Inc. 486 US 281 (1988). While this may be an extreme example, it does not remove the fact that strict construction can often lead to absurd consequences. Language is after all, in Denning’s words, ‘not an instrument of mathematical precision’.

Nigerian jurisprudence is also rich on interpretation of statutes. We have been cautioned again and again to first begin with a literal interpretation except where the provisions are unclear. Niki Tobi JSC’s metaphor in Global Excellence Communication Limited & 3 Ors v. Donald Duke SC. 313 /2006 is helpful: where the provisions are unclear…. [t]he court is expected to apply a compass in a ship to navigate the waters to arrive at the intention of the makers of the Constitution’. Other judgments echo this and it would do little to expound on them.

What makes a statute unclear? Is it the judge’s perception or in Jerome Frank’s words, ‘what the judge had for breakfast’? We hope not. Determination must perhaps, depend on what the Court in AG Federation v. Abubakar (2007) 10 NWLR (Pt. 1041) 1 put as the ‘circumstances of our people’.

This is why the Honourable Federal High Court’s decision interpreting the tenure for the governors of Kogi, Cross River, Bayelsa, Adamawa and Sokoto states as beginning from 2008 may have fallen victim of the doctrine of absurdity.

Section 180 (2) (a) of the 1999 Constitution amendment provides for gubernatorial tenure from the date the governor was ‘first elected as Governor… took the Oath of Allegiance and oath of office’. The honourable Federal High Court has interpreted this literally – holding that the governors of those states began their tenure after the rerun. The honourable Court’s reasoning indeed follows a sequential logic – since these governors were elected afresh, then they must indeed be deemed as newly elected. I however humbly and respectfully disagree with the distinguished court’s rationale.

The Nigerian Constitution, as many other constitutions, does not state the rules for interpretation. It is because it is an organic document, ‘intended to endure for ages’ to be ‘adapted to various crisis of human affairs’ – McCulloch v. Maryland, 4 Wheat. 316 (1819) 415. It is not meant to be interpreted with ‘stultifying narrowness’ or with a meaning that will effectuate rather than defeat its purpose - A-G Federation v. A-G Abia State (2001) 11 NWLR (part 725) 689 @ 728 -729. Indeed, the true meaning of a legal text almost always depends on a ‘background of concepts, principles, practices, facts, rights and duties which the authors of the text took for granted or understood, without conscious advertence, by reason of their common language or culture’ - McHugh J in Theophanous v Herald & Weekly Times Ltd, (1994) 182 CLR 104 at 196.

A literal interpretation must mean that the terms earlier granted to the governors were illegal since the same Constitution provided for the expiration of the Governor’s tenure at the expiration of four years from the day he was first elected. It can therefore be argued that all actions made during the initial period before the rerun are void. The governors must also be made to account for all moneys spent and income received as a result of this illegal tenure. Yet, we would immediately deride these assertions as illogical and perhaps inequitable that these gentlemen be punished for the delay in the legal process.

Thankfully this loophole has been addressed by the amended constitution. Yet, we must remember that we create the law and rule by it. The law does not rule us.  Even if a law is bad, it behoves on us to ensure that the judiciary remains the last hope for justice – the type of justice that the man off the street recognises as such. Fittingly, Lincoln’s address went on with what has now been regarded as an ironic warning against a ‘towering genius’ with ambition to push against the norm: whether at the expense of emancipating slaves, or enslaving freemen. In 1863, twenty-five years after his fiery call for the perpetuation of political institutions, he did the exact opposite by issuing the Emancipation Proclamation.

This was first published in the THISDAY LAWYER, THISDAY: 1st March 2011