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When courts replace The People

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The theory and principle of democracy effectively removed the power of elevating officials into the ruling class from the hands of potentates and transferred same to the people. In practice there had always been interference from strong economic and political forces in the democratic process. These seek to undermine or influence and manipulate the electoral process to favour a point of view, an ideology, a selfish interest or some candidates. This has happened in all democracies; it is indeed a human trait. What has differed is the degree and for what ends. As a result, democracy or the principle of it has not always had its way. The checks and balances are in the hands of men; not angels or saints! It is this crack; the crack of human element and weaknesses that often times transfers the final pronouncement from the hands of the people to a select few.

Historically, monarchs and kings determined the fate of peoples. In most cases the word of the king was law. Under the doctrine of Divine Rights of Kings, the monarch was God’s viceroy on earth. Challenging the king’s authority or regicide was tantamount to toying with one’s salvation through God’s wrath. It was in this tradition that Louis XIV at the height of absolutism in France declared ‘L’etatc’estmoi’, that is ‘I am the state.’ How King Louis’ absolutism headed him into confrontation with the Huguenots and the papacy is subject for another day. Suffice it to say that the 1848 revolutions effectively marked the end of the obnoxious Divine Rights and gave way to the peoples’ rights in different degrees.

As democracy was being entrenched theorists believed that there should be separation of powers among the three arms of government – the Legislature, the Executive and the Judiciary. In separating the powers of the different arms theorists attempted to and did succeed to some extent in ensuring that no powerful interests subverted the system. The power of the judiciary was therefore created to check the excesses of the other arms of government. Symbolised by blind Athena the goddess of justice, the judiciary as noble as it was created, was never meant to replace the will of the people either by design or by default.

Some electoral laws may not favour popular democracy. In other words, there are circumstances in which a simple majority cannot produce a winner. As a result, additional laws could state that a winner must have two thirds of the vote. The American model prescribes the rather undemocratic Electoral College vote. Thus a contestant could win the popular vote and lose the Electoral College votes as it happened in the Al Gore/Bush and Donald Trump/Hillary Clinton elections.

The truth as we have come to see in contemporary experience is that the judiciary is NOT always blind, neutral and dispassionate. They have biases, predisposition and mindset. These also influence HOW they interpret the law and deliver judgment. Nothing so well illustrates this more than the current confirmation hearings of a Supreme Court judge Hon Brett Kavanaugh in America. Politics, more than anything else, determines who gets to the highest court in America, the much-vaunted bastion of democracy. It is so clear now that American presidents nominate persons who align with their overall viewpoints on the topical issues of the day. Some judges are pro-this or pro-that. Thus within a given law, they can also use the provisions to arrive at a liberal or conservative decision. We haven’t gone into the realm of judges who seek gratification in order to give favourable verdicts; we haven’t gone into the realm of judges who prepare two written verdicts and deliver the one for which they get the highest bribe money!

In human terms it is more acceptable if the courts, perceived and designed to be neutral, intervened in a deus ex machina process to resolve knotty legal issues. The infamous twelve two third story of the Second republic continues to haunt the nation! In preference to a laid-back primary school teacher, the court rejected the real man that could have changed the destiny of Nigeria if he stayed in Government House Lagos for one year! Where power brokers deliberately subvert the law and head for the courts which they know are weak and can be manipulated it can be said that the power of democracy has been transferred to the courts. This is dangerous to the development and life of democracy. It was not, in my view, the intendment of the formulators of democratic practice.

If our politicians understood the implications of ceding powers they would not readily refer electoral matters to courts, to judges who by the way had no hand and may not even represent the popular and democratic view. They would use technicality of the law to entrench a person or persons in office. Why this does not offend the sensibilities of current politicians is because they do not dwell on the profound issues behind institutions. Democracy is about the triumph of the people; not the triumph of a small but powerful elite.

It spirit and in practice it abhors the power of individuals to decide for the people. It is for this reason the constitution starts with ‘We the people…’ Any politician who does not respect the verdict of the ballot box is not worth the toga of ‘politician’. To claim the prize of democracy through legal technicality is fraud of the greatest order. Also, to cede power to some godfathers or a cabal is antithetical to the theory of democracy.

To deserve the peoples votes the politician must win the hearts and mind of the people. This is why we practice representational democracy. The elected legislators are the representatives of the people. If both the executive and legislative arms consult the people ALL the time, they will never go wrong. And there would be no need for rigging. A situation in which the courts now decide on technical grounds to award victory to one of the contestants is against the spirit of democracy. Win your elections without the courts. Let the courts adjudicate on points of law. Not on politics. Are politicians responsible to the courts? No; they are responsible to the people. The people are sovereign in the practice of democracy, not the courts, not the cabals, not the godfathers!


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Brett Kavanaugh
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