Amaechi, Iwu And The Resurgence Of Equity In Modern Nigeria

By

Aloy Ejimakor

alloylaw@yahoo.com

Washington DC

My favorite Constitutional Law professor back in the day in the United States used to start his lecture for the day with the controversial remark that went like: ‘in any contest between Equity and Law, Equity will prevail because it is older than Law’. Each time he said this, he would go on to divide the class into two opposing groups, much like in a moot court scenario – with each group charged to adduce reasons for and against the statement. This method of teaching law is vintage America – where the learned professors employ techniques like this as part of what is called the ‘Socratic’ method, geared to encouraging students to be more creative (or mildly combative) in an atmosphere of intellectual exchange between them and their professors on the one hand and amongst them on the other. It so happened that each time the professor got us to critique this cliché or statement of a general principle, I found myself agreeing more with the broad postulation in favor of Equity and less with the opposite in favor of Law. And the reasons were legion. In Nigeria today, it is Governor Amaechi but before him there were others.

In post-segregationist America, Equity other than black letter Law was what helped most to strike down the barriers of racial discrimination and bring equality between whites and blacks. Recall that the letter of the law in America’s south where Jim Crow flourished, expressly denied blacks the same basic rights that white citizens enjoyed as a simple matter of law. Blacks were disenfranchised by statute, forbidden from mainstream public schools, were not supposed to eat in the same restaurants, must give up their seats on public transportation to all manners of white folks, and were even denied the basic civic right to serve on juries that tried one of their own. This double standard sadly persevered for centuries largely because America’s strict constructionists maintained that the good order and stability of the United States depended on the strict application of the law as written regardless of the disparate impact it held for her black citizens. But when a resilient Rosa Parks, a black woman broke the ‘law’ by refusing to give up her seat on a public city transit to a racist white guy, it provoked a chain reaction which culminated in flurries of vigorous civil rights litigations that saw to the systematic judicial dismantling of an entire body of written law that had held blacks back for generations. In the end, the Supreme Court of the United States was to finally hold that ‘separate treatment of blacks under law is immoral and unjust (or against Equity, if you will), and therefore is unconstitutional’. Thus began a new era in America, where what was an unwritten, but age-old community standards of fairness prevailed over the letter of the law. The Civil Rights Act of the early 1960s, an embodiment of Equity was then enacted to give force of federal law to what began initially as a difficult and lonely walk in search of Equity (or justice) by blacks in rural America. Though dealing with a different issue, Amaechi has brought Equity home to roost in Nigeria’s own judicial landscape. And there is more.

Those criticizing or bewildered by the ruling of the Nigerian Supreme Court in Amaechi versus Omehia seem to have missed the real point implicated in that ruling. And that is: before the invention of the written law, societies were guided by an ordinary set of clear rules of conduct and engagement that must be in comportment with the societies’ reasonable standards of fairness or Equity, by other definition. It is even in the Bible in more plain terms, where we have seen the ecclesiastical injunction that we must ‘love our neighbor as we love ourselves’. It runs the gamut of common torts, contracts and real property law and without question, even extends to garden variety controversies bordering on complex constitutional questions arising in nascent and advanced democracies alike. In lay terms, what all these mean is that if your human judgment or conscience tells you that you will not tolerate the same transgression you are about to visit on someone else, then you must cease and desist from perpetrating it. If you don’t, an adjudicatory authority like Nigeria’s Supreme Court, trained to be prone to the precepts of Equity and good conscience will not hesitate in doing the right thing by having you overruled. Nigerian political parties are human organizations and thus must abide by the universal tenets of fair play in their intra-party relationships. Put another way, Nigeria is a constitutional democracy, and as such, the political parties eligible by statute to engage in the contest to win in the general elections must themselves respect the outcome of any elections they conduct within their own parties; and can only repudiate such results through due process. It is only just or equitable and represents the only fair way for engendering a well-ordered society properly disposed and committed to the good order and happiness of Nigeria and her democracy-loving citizens.

In Amaechi’s egregious substitution, what we witnessed was a sort of double assault on Equity because the PDP constitution and conventional rules of engagement was clear that whosoever polled the highest number of votes (or over 50%) wins the primaries. Amaechi polled delegates well over the fifty percentile but he was still denied for reasons that were later to be held not to be ‘cogent and verifiable’, as required by statute. In other words, his substitution held no legal merit and due process as it was not for cause. Imagine how it will sound if PDP constitution had provided ‘that whosoever polled the winning number of votes in the primaries can still be denied the ticket on some quashed (or disputable) indictment, rumors and innuendoes’. Chances are that such naked rape of fairness will offend the average Nigerian Joe with any basic sense of Equity. And PDP or any other party that chooses such an unfair path may have to brace for an immediate and significant depletion in its ranks and membership, and incalculable loss of public goodwill to boot. In some ways, democracy is all about using the system of ballots or elections to ascertain where the popular will lies between two opposing contestants for public office, and the contest begins from within the political parties that are recognized by the laws of our land as the only entities that can field candidates for elections. The substitution of Amaechi was against Equity and thus repugnant to the fine ideals of our democracy because it represents a stark subversion of the popular will central to the progression of Nigeria as an emerging democracy.

But unlike enacted Law, Equity is without independent vigor, and thus requires a good dose of aggressive litigation to come alive. Conversely, the Law itself is enlivened and self-propelled by its plain letters, but Equity, ever so ignored and inherently inexplicit in its many ramifications is just there like a sleeping giant until a gutsy victim like Amaechi (or America’s Rosa Parks) takes matters in hand to seek redress for flagrant wrongs. That is why some lawyers say that to get Equity; you must come to Equity, but with clean hands. Nigeria’s Amaechi and Black America’s Rosa Parks had lots of clean hands. Rest assured therefore that once Equity is awakened, it goes far enough to overcompensate for lack of appropriate legal remedy by pedaling back to make you whole again and it bears the strong message to the general population to stay within the limits of fairness and common decency in all treaties amongst them. A gutsy ‘Candidate’ Amaechi knew well enough not to rest on some remote chance that someone else will see fit to bring Equity to him unless he, as the person so treated unfairly musters the outrage and doggedness to supplicate to Equity. It is all good for Nigeria because we are now witnessing a new regime of resurgence of Equity in our land; and better yet, it carries the prospects of ultimately seeing to the broader advantage of all Nigerians who yearn to be treated fairly and justly in all situations where the black letter has fallen short or abused with audacity. So, it follows that nullifying the election and ordering a new poll would not have gone far enough because wherever Equity rules, it comes with a totality and finality that must bring closure to the case and controversy that necessitated its application. Thus, by awarding the governorship to Amaechi, the court intended not to resort to Equity as a half-measure but as the only recompense capable of making Amaechi whole again and foreclosing any further conspiracy to deny him what was his due from the very beginning.

Therefore, as a general principle, the Supreme Court precedent in Amaechi versus Omehia goes beyond party primaries and faulty substitutions to something much more core and fundamental to our growth as a modern nation of civilized citizens who will try and treat our next neighbor (or aspirant for office) the same way we expect to be treated. The Supreme Court has done well, but thanks to the courage of conviction shown by his Excellency, Governor Rotimi Amaechi who went to Equity with clean hands, and then succeeded in helping the nation to take one great leap in making a new law that embodies the legal boundaries and best practices for playing internal party politics. And as can be seen from all the facts at play, there was no way Professor Maurice Iwu and INEC could have stepped in to protect Amaechi, especially when INEC itself was joined as a defendant/respondent in the litigation, thereby forcing it to defend itself and thus creating the misleading impression that the commission was complicit in the grand plot to stop Amaechi. But most importantly, this case presented myriad issues of first impression outside the limited purview of a lay agency like INEC or a Maurice Iwu, who dared, but was barred by judicial rulings from exercising any quasi-judicial powers. 

Aloy Ejimakor is of Law Group, Washington DC alloylaw@yahoo.com