Due Process, Rule of Law and Impunity

Nasir Ahmad El-Rufai


The focus of this column is the analysis of policy issues with facts and figures to enrich debate for better governance of our country. It was determined to avoid commenting on current issues no matter how topical and controversial. Indeed, the column would prefer a reflective, facts-based approach to issues that have been hotly debated and then sidelined, but in need of deeper or broader analysis. We are making an exception this week. This is because the recent attacks on due process and rule of law in Nigeria and abroad are threats to stability, peace and governance everywhere. After all, Dr. Martin Luther King made it clear decades ago, that an injustice to anyone anywhere, is an injustice to everyone everywhere!

Earlier this year, the world was treated to the news of the capture and killing of the alleged mastermind of the September 11, 2001 attacks on the USA – Osama bin Laden. Bin Laden was killed by the US military in his hideout in Pakistan, even when there was an opportunity to arrest him because he was reportedly unarmed. His arrest and trial would have been consistent with fundamental human rights, regardless of our views of him. He was extra-judicially killed outside US soil - potentially two violations of international law. What happened to sovereignty entrenched in the UN charter and basic human rights? What happened to due process and the rule of law? And why would the world’s most powerful democracy fail to try Osama in a court of law, particularly in view of the heinous crimes he was alleged to have committed?

Since the beginning of the Arab Spring in the Middle East and North Africa, at least three dictatorships have collapsed in Tunisia, Egypt and now, Libya. These are all positive developments. However, the differing reactions of the West, even double standards to these developments show clearly that Western interests supersede any notion of consistency, rule of law or global best practice. While the governments in Bahrain, Yemen and Syria have between them reportedly killed hundreds of defenceless protesters, the Europe-led North Atlantic Treaty Organisation (NATO) singled out Libya for military assault. The swiftness of UN resolutions to enforce "no-fly zones" seems to be directly proportional to the amount of oil in a country and the history of past grudges!

Do not get me wrong. Ghadafi deserves no sympathy. Ruling a country for 42 years without elections, with an iron fist and running down its institutions are crimes against the citizens of Libya. Clearly, Ghadafi lost it long ago and should have left office. While Ghadafi lacks democratic credentials, the question can be asked “who elected the rebels?” In providing support for the rebels, NATO countries actually contravened UN arms embargo on Libya and backed the rebels with intelligence, logistics, ammunitions, training and aerial cover - all violations of the letter and spirit of the UN charter.

The impunity on the international scene is worsened by the inability of African leaders and the AU. While the political rivalry in Cote D’voire degenerated, the AU played a marginal role as international powers determined the outcome of the power struggle. This has also happened in Libya where the AU failed to proffer any meaningful options at the most critical decision points. The diplomatic shuttle by the South African President – Jacob Zuma was too little, too late. Apart from the war-ravaged Libya, the drought and famine in the Horn of Africa has put the lives of about 12 million of our people in danger. Again, the AU is watching helplessly waiting for food, aid and relief materials from elsewhere as tens of thousands of Africans are starving to death.

The self-acclaimed ‘Giant of Africa’ – Nigeria has contributed nothing to mitigate the crises on the continent. Is it because we have been grappling with our own season of impunity at home? The political leadership in Nigeria has not only failed to match the past records of the country in the leadership for the liberation of the continent and peace within ECOWAS, but the events of the last few days in Nigeria reflect an internally induced major attack on the Constitution, the deflation of the rule of law and entrenchment of impunity.

The saga started with the reversal of fortunes against the ruling PDP by the Court of Appeal in several gubernatorial election disputes in favour of ACN. Far from accepting the decision of the final arbiter and respecting the rule of law, the losers embarked on a campaign of calumny against the eminent justices of the Court of Appeal and particularly its president - Justice Ayo Salami for being daring enough to decide against the PDP. When it was obvious that the same fate might befall the PDP in Sokoto and in the more recent 2011 elections, a hatchet job to remove Justice Salami was set in motion.

It first raised its ugly head in the form of a Greek gift when the CJN decided to unilaterally 'elevate' the PCA to the Supreme Court without his knowledge let alone consent. Justice Salami declined and approached the bench for a right to fair hearing; thereby exposing the internal wrangling at the apex of the judiciary. This has now become a crisis in the top echelon of the Nigerian Judiciary and to the uninformed, it seems to be an overt disagreement between the two most senior jurists in the country. It is more, much more. It has exposed our political leadership at the highest level as anything but forthright.

Beyond the personalities, the scenario also poses serious constitutional challenges capable of shaking the very foundations of Nigeria. The unequivocal provisions of the 1999 Constitution, as amended, laid down the process through which judicial officials are disciplined. The purported suspension of the President of the Court of Appeal (PCA) and swearing in of an Acting President appear to be a gross violation of the Constitution and the Oaths Act. Section 292 (1) (a) of the Constitution provides thus:

“…A Judicial Officer shall not be removed from his office or appointment before his age of retirement except in the following circumstances –
In the case of –
Chief Justice of Nigeria, President of the Court of Appeal, Chief Judge of the Federal High Court, Chief Judge of the High Court of the Federal Capital Territory, Abuja, Grand Kadi of the Sharia Court of Appeal of the Federal Capital Territory, Abuja and President Customary Court of Appeal of the Federal Capital Territory, Abuja, by the President acting on an address supported by two-thirds majority of the Senate…”emphasis added.

This provision of the Constitution, when read together with the functions of the National Judicial Council (NJC) as stated in paragraph 21, Part 1, Third Schedule to the Constitution, shows that the NJC has no constitutional powers to suspend or proclaim the suspension of the President of the Court of Appeal. The NJC can only make recommendations to Mr. President to remove - not suspend, who is in turn required to effect the disciplinary measure only when backed by a resolution supported by at least 73 senators of the Federal Republic. Nothing more or less is allowed by the Constitution and the NJC knows that.

The Constitution protects the independence of the Judiciary and the fundamental principle of separation of powers. The actions of the NJC, apart from prejudicing the pending lawsuits on the matter has depicted an entrenchment of impunity as opposed to the principles of rule of law, fairness and equity which the Judiciary and its organs should protect at all times. The unusual efficiency of the President in effecting the suspension of the PCA and approving the swearing in of another Judge to that position, even in an acting capacity is in breach of the cardinal principle of separation of powers; thereby foisting a fait accompli on the Senate.

Apart from the violation of S.292 of the 1999 Constitution by the NJC and the President, the swearing-in of an Acting President of the Court of Appeal is anomalous on two main grounds. On the first ground, the swearing in runs contrary to the provisions of section 3 (2) of the Oaths Act which provide thus:

“…A person appointed to act in any office or capacity in the place of any officer or person, shall not be required to take any oath on the occasion of such appointment, unless the oath is required to be taken in respect of such appointment is different from or in addition to any oath duly taken by him in respect of any other appointment, permanent or temporary…”.

From the foregoing, it is obvious that the hasty swearing in of an Acting PCA is a calculated attempt to entrench impunity. Worse still, the out-going Chief Justice Katsina Alu, who was the principal antagonist of PCA Salami , in the dispute that precipitated the crisis was not only the chair of NJC which minority of members recommended the "suspension", but was the very one who administered the said oath of office on the Acting PCA in spite of the provisions of the Oaths Act. This also violates the legal maxim of "nemo judex in causa sua" - you should never be a judge in your own cause!

Plenty of questions therefore come to mind. Could it be that the substantive PCA – Justice Ayo Salami is being shoved aside because of not doing or likely to do the bidding of the ruling PDP at the ongoing Presidential Election Tribunal? This is the feeling in many circles. If not, the President should explain why he chose to violate the Constitution. Is the sanctity of the temple of justice not being violated? Is the Jonathan administration practising ‘Rule of Law’ or ‘Ruse of Law’?

Sadly, it appears that due process and rule of law are at the whims and caprices of those with the reign of power both locally and internationally, to trample upon, as due process seems to have given way to impunity. For how long these short-sighted elite will get away with this travesty is left for the Nigerian people. This is one assault on our Constitution, our sensibilities and our sense of fairness that has gone too far - even further than that of the Yar'Adua cabal. We must all rise against these ugly trends, whether within Nigeria or outside. And it is gratifying that the Bar, media and civil society have courageously risen to the challenge. This is commendable and must continue until this injustice is remedied - expeditiously by the Courts or sporadically on the streets! The choice is ours to make.