EL-RUFAI ON FRIDAY
Due Process, Rule of Law and Impunity
By
Nasir Ahmad El-Rufai
elrufai@aol.com
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.
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