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Maintaining Finality of Judicial Interventions
- the path to enduring democracy in Nigeria
-Leonard Dibia & Tolulope Oluwaranti *

Having come to the brink of another democratic era – usually referred to as “republic”, the need to assay the events of the last eight years of democratic rule cannot be taken for granted. Notwithstanding the assertion by the National Secretary of the PDP, Chief Ojo Maduekwe that democracy is not a destination but a process, there is still no virtue in learning the ropes for a lifetime. Oscar Wilde rightly condemns the deceptive act of calling mistakes experience repeatedly. Blaming the military for the regretfully enduring nascence of our democracy may be placing the hatchet safely on an alibi. We must not forget that military interventions could also be an incidence (as against a cause) of a collegial malfunction of the democratic process. Therefore, in finding a path to democratic health and stability we and our politicians must not be self-sparing and hedgy. We must take a peep at the various countries where this system (democracy) has survived without interruption for multiple centuries; we must identify our points of departure accurately and build on the lessons and realizations from that exercise.

Basic Misconceptions about Democracy
In beginning the process of examination, this paper seeks to dwell on one of the many areas of democratic malfunction; and that is our failure to realize that: (i)democracy is not as much about written constitutions as it is about the existence of democratic values that morally support and protect the Constitution, and (ii) that in societies like ours where our democracy did not have the benefit of an organic evolutionary process, democratic values cannot be entrenched otherwise than by according finality to judicial interventions in all socio-political conflicts. In other words, the policy and practice of treating the constitutional role of the judiciary (especially under Obasanjo’s administration) as an obstructive and dispensable nuisance on socio-political issues is one of our characteristic departures from the fundamental values of democracy – a departure which, more than any other factor, has and will keep our democracy in its diapers for a very long time.

Judicial Authority in the Last Eight Years of Democracy
The last eight years of democratic rule witnessed a systematic subversion of judicial authority by the Obasanjo led PDP government; the racket of subversion was a complex grid, comprising such shocking misnomers as re-interpreting court orders to suit executive purposes, pre-election disqualifications of opposition candidates – even against the terms of court orders, outright disobedience of court orders, refusal to comply with lower court orders on the pretext of pending appeals, subversion of Supreme Court orders by expulsion of successful litigants, barricading of court premises with armed security agents in order to forestall trial, withdrawal of case files from presiding judges on the date of trial, and filing of frivolous appeals to courts that expressly have no jurisdiction by INEC & government preferred candidates. If the epic words of Article XVI of the Declarations of the Rights of Man, 1776 is anything to go by, these acts of executive intrusion into the judicial domain spells nothing other than the conclusion that we (Nigerians) do not yet have a Constitution. Article XVI of the Declaration reads: “Every community in which a separation of powers and a security of rights is not provided for, wants a Constitution”.

 Although it would appear that ascribing finality to judicial interventions over the socio-political issues amounts to subjugating one or other branches of government to the other, Political history will for all times attest to the role of the courts in sustaining democracy, especially in the following areas:

Maintaining Institutional and Political Stability through the Courts
Political stability correlates directly with the enthronement of due process and judicial authority in a democratic society. Military interventions have not found a place in the political life of countries like U.S.A, Britain, France, India, and even South Africa in spite of periodic challenges in their political process, not because their crop of officers are too naïve to covert political power, or because their constitutional prohibitions (against coups) were cast in steel, and ours in ink, but because beyond the written letters of the constitution, there are fundamental values (like the authority of the courts) that render such usurpations abhorrent and unnecessary. The fact that volatile political issues like racial conflicts and socio-economic rights can be resolved by the courts makes a whole lot of difference and renders rebellious interventions unnecessary.

The Watergate Scandal of 1972 represents a landmark example of the benefit of maintaining political and institutional stability by building a culture of finality around judicial interventions at all levels of the judicial hierarchy. Even when the law gave President Nixon exculpatory latitude under the “un-reviewable executive privilege”, the President submitted to the specific order of the U.S Supreme Court demanding that the President must yield to the demonstrated specific need for evidence in a pending criminal trial (underlining mine). It is remarkable to note that in taking a position against the “un-reviewable executive privilege”, the U. S. Supreme Court relied on a norm which derived from notions and values of democratic justice for the American people, and not necessarily on a written law. Chief Justice Warren E. Burger, in delivering the historic judgment in a packed and hushed court room ruled (with the full concurrence of other justices of the Supreme Court) that “… the judiciary must have the last word in an orderly constitutional system even though its view of the constitution is at variance with the construction given the document by another branch” (emphasis mine). Giving judicial interventions the last word should, by determinate choice of the next democratic government, be reinforced, being, in one’s humble view, a veritable means of driving democratic ideals from the realm of law into the realm of value.

 The Judiciary – Answer to Minority Tyranny in Democracy
The answer to “democratic” tyranny lies with the judiciary. At the Rivonia Trials of 1963 -1964, Dr Mandela not only pleaded guilty to the charge of high treason (punishable by death), he assured the Hon Justice De-Witts (in his allocutus) that given another opportunity to live, they would continue with the treasonable violence that brought them to trial. While President Pietre Botha and his cabinet prepared the gallows for the execution, the Hon Justice De-Witts in his judgment of 12 th June 1964 went beyond the justice of the written law, overlooked the unrepentant, though justified, anti-government stance of Dr Mandela in the dock, and handed down a judgment that represents the true spirit of democratic constitution. In effect, the Mandela we celebrate today as an African hero is simply a child of judicial intervention. But most importantly, the apartheid government whose executive interest Mandela’s death would have comfortably served did not appeal the judgment. They accorded “finality” to the judicial intervention even when it stood painfully against their interest. The intervention of His Lordship (De-Witts. J), though a backlash on white supremacy policy, preserved South Africa as an enviable multi-racial democracy in the world.

Fortifying the Judiciary for the Next Republic
The subversion by the PDP Working Committee of the judgment of the Supreme Court in Chief Ifeanyi Ararume’s case gave a new dimension to the tools of subversion. Just like in the Atiku’s case, the apex court concluded the Ararume’s case with a positive directive but the Working Committee of the PDP subverted the order by expelling Chief Ararume, only to turn back to seek an order of court that its candidate, Chief Charles Ugwu be put on the ballot as PDP candidate in the proposed re- run elections. We therefore urge the need for the courts to be given the kind of supervisory jurisdiction like in India which enables them monitor and supervise compliance with judicial directives, irrespective of whether the decision is appealed or not. This therefore would require an adjustment of the functus officio doctrine which has deprived the courts of the very necessary jurisdiction it requires in protecting integrity of its pronouncements. In effect, every injunctive order of the court must be supported with a fixture of a return date. The court shall on the return date assess compliance to its orders and, where necessary, issue such orders that would enforce compliance. Extricating the courts from the apron-string of the executive in terms of financing is now an urgent imperative, and so in fortifying the judiciary for the next republic, repeated calls by stakeholders for the inclusion of judicial financing in the Consolidated Revenue Fund which have been ignored for decades, should be addressed decisively.

The Constitution and other laws, while recognizing their incapacity to defend themselves against violation, created an institution that would stand for its defense. Therefore building and fostering a culture of subversion against that institution is to put the entire fabric of democracy to question. The basic challenge spotlighted here is the need for pushing our constitutional democracy from the realm of law to the realm of values, such that even when written laws are silent or limited, the consensus around foundational values will provide the answer.

Leonard Dibia & Tolulope Oluwaranti
Access to Justice, Lagos
Lagos

* Dibia and Oluwaranti are Legal Officers of Access to Justice, Lagos. Access to Justice is a non- political, non- profit, justice advocacy organization working to defend rights of equal and non- discriminatory access to courts of law, expand access of marginalized people to equal and impartial justice, attack corruption in justice administration, support legal struggles for human dignity and disseminate legal resources that help achieve these purposes.