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Rule of law vs rule of lawlessness

By Yakubu Mohammed
27 October 2016   |   3:47 am
The rule of law provision in the constitution is supposed to be the most potent defender of the democratic principles of equality of all citizens before the law.


The rule of law provision in the constitution is supposed to be the most potent defender of the democratic principles of equality of all citizens before the law. Sprinkle this with all the rights guaranteed the human being in the constitution and what you have is a near perfect society which is the other side of the Hobesian state of nature where life is brutish, short and nasty.

A society that is governed by laws, where the rule of law rules supreme, does not subscribe to arbitrariness nor permit the autocratic use of force to clobber the citizen to abide by decent societal ethos and ethics. Though some people say the law is an ass, but this ass is supposed to protect the poor and the pauper as it protects the kings and other potentates of the land. But this is only as far as the theories go.

Since the invasion of the inner temples of some seven odd judges by security agents some couple of weeks ago at an unholy hour of the night, when innocent people, including their lordships, should be sleeping, the nation has not quite come to terms with what it has been up against. The sacredness of the sacred cows had been violated and this grotesque act of abomination has thrown the society into confusion and we’ve not had the luxury of unanimity of views on the matter. I don’t wish to join the debate for or against the method or manner of the invasion or investigation especially as many more gifted discussants have had a field day since then and they are not done yet.

In the discussions so far, and in all the interrogations arising from this unfortunate episode, one phrase that remains constant and central is the rule of law. But it is also one phrase whose role and significance in this matter has not been properly interrogated to expose our rule of law for what it truly is, or what it has become. Going by the so called rule of law, the question has been: should the Directorate of State Security invade the homes of judges in the middle of the night to arrest those suspected of corrupt practices? Why not? That is the chorus you’ve been hearing on one side of the argument. Those who chorus this, insist that any suspect can be apprehended any time of the day or the night and nobody, not even their lordships, is above the law.

Naturally, it is from the judiciary, on the other side, that most of the anger against the invasion is more poignant. Protecting his turf, as it were, the Chief Justice of Nigeria, Justice Mahmud Mohammed, was extremely but understandably angry that the security men would, against all caution, invade the sacred temples of their lordships in the night. In fact, why should they do it at all, day or night, he seemed to have wondered aloud. The procedure, he says, is for anybody, and that includes law enforcement agencies, DSS or EFCC, who has any axe to grind with the judges to lay their complaints before him for appropriate action. And he reeled out the evidence of what he had done in the past – retiring some judges who fell foul of the law and rebuking others for conducts unbecoming of their exalted offices.

Initially, the CJN had a useful ally in the Nigerian Bar Association whose new president, Abubakar Mahmud, was caught on television camera spitting legal fire and almost declaring a state of emergency in the judiciary the day the news of the arrest broke out. But the NBA boss must have done a rethink since then having seen the enormity of the mess that the big wigs have allowed themselves to be dragged into because of the love of the filthy lucre. So troubled has been the Chief Justice of Nigeria, who is virtually on his way into retirement, that he can be forgiven for some sentiments he was wont to express.

For a start, the CJN believed that the invasion on the home of the judges was a grievous assault on the whole judiciary. But some of us don’t think so. Though the affected judges are senior members of the judiciary, two of them, Justice Okoro and Justice Ngwuta are at the Supfeme Court, it does not follow that they symbolise the whole judiciary. They are being investigated as individuals suspected of having stained their hands in the course of their duties.

Like Vice President Yemi Osinbajo has said, all the three arms of government harbour crooked and corrupt individuals. But such individuals represent themselves and nobody else, talk less of symbolising the institution to which they belong. And they are, like other lesser mortals, equal before the law, certainly not above the law.

Not done, the Chief Justice, who appears to have taken this episode personal, has gone further to take decisions which are not only controversial, but ludicrous, certainly beneath his esteemed position. In reaction to the various allegations that the Judicial Service Commission which is responsible for disciplining errant judges has not been up and doing enough, which must have accounted for the rot in the judiciary, the CJN on Monday read out a new policy guideline as it affects petitions against judges.

He announced that the National Judicial Council had barred media publication of allegations of misconduct against judicial officers or employees of the judiciary. For emphasis, let us quote the Daily Trust that reported this on Tuesday. It reads thus: “It shall be the policy of the judiciary on complaints that allegations of misconduct against judicial officers or employees of the judiciary shall not be leaked or published in the media.

“Where complaints on allegations against judicial officers and court employees are submitted for investigation, the complainant or complainants shall be made to give an undertaking not to do anything to prejudice investigation or actions that may be taken.” It is the judgment of the Judicial Council that in case of any leakage of such petitions no matter, who is responsible for the leakage, the council shall stop action on the matter and the matter will therefore be rested. Sine die!

I guess this judgement is subject to appeal. Obviously it is not a product of well thought out decision. I guess the embarrassment of the night invasion and the quantum of money allegedly discovered in the homes of some of the suspected judges has put the top echelon of the judiciary in very foul mood. Whatever, permit me to put the question. Did they, these eminent justices, give any serious thought at all to the constitutional role of the media as the fourth estate of the realm, watching over the three other arms of government and bringing them to be accountable to the people? What if a nosy reporter digs out any such petition and decides to publish it, then the disciplinary arm of the judiciary would simply wash its hands off the matter? Is that it? Will that be serving the cause of the anti-corruption war?

And while we’re still at it, may we take a look at the flip side of the almighty rule of law that is supposed to prevent egregious abuse of power and the abuse of human rights but which I think seems to protect only the powerful kleptomaniacs and other sundry treasury looters, exempting the poor and the pauperised citizens. There is a provision in our constitution which rightly says the accused person is deemed to be innocent until he is proved guilty. For those who are genuinely interested in doing battle with corruption, here is the snag, a big snag. The accuser must be the one to prove the accused guilty otherwise he remains innocent even if he has converted the whole Central Bank to his personal use; even if he has run down a road user and killed him in broad day light and everybody on the road is a witness to the crime.

And if he is a politician, he invokes the name of the almighty rule of law to contest the primary of his party and equally fraudulently to become a candidate of his party even if abinitio he is not qualified to do so because of the sins of the past which still hangs on his neck. He goes ahead to win the election through massive rigging, even when everybody is crying blue murder. And when he gets to office, he arms himself sufficiently with the treasury of the state to fight the rest of the battle all the way to the Supreme Court to retain his compromised position. And he does so, of course, through the instrumentality of the ass that is our law and the filthy fingers of some not so decent lordships.

In other circumstances, the powerful man of the rule of law remains innocent even if it takes 10 years, 15 years or two decades for the case to be decided.And while he remains innocent, he sticks to public office where he sits comfortably and has all the chance in hell to cause more social and economic havoc. Is that the spirit of the rule of law or the rule of the lawless?

What I have painted here is not a matter of speculation or the painting of an idle scenario. The rule of law has caused a lot of havoc. The same rule of law allows an otherwise innocent poor man to remain in jail for 10 years awaiting trial because one big man had accused him of stealing his radio set. He is deemed to be innocent until proven guilty. But our rule of law is keeping him and so many others who are down on luck in prison waiting for the slow wheel of justice to run its full course. And our Minister of the Interior, General Abdulrahaman Dambazau is a witness to this.