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Published On: Thu, Sep 27th, 2018

Ain’t the ‘rule of law’ a bitch? (III)

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THURSDAY Column with Mohammed Adamu

(08035892325 sms only) | dankande2@gmail.com

This week I close my three-part series on the title ‘Ain’t The Rule Of Law A Bitch?’ And I do so with a re-jigged version of a previous piece titled ‘Of Rule Of Law And The Madding Minority’.

OF ‘RULE OF LAW’ AND THE MADDING MINORITY

The last time, recently President Buhari said that ‘national security’ was superior to the ‘rule of law’ was actually not the first that he would be communicating that presumably ‘extra-legal’ (?) point of view. The President had severally in the past demonstrated that radical leaning, to the chagrin especially of the opposition and to the delight mostly of his supporters and of radically-minded Nigerians like us. It was in deference both to ‘national economic interest’ and ‘national security’ that Buhari, at his Media Chat debut, rejected the idea of bail for the duo of a corruptive Dasuki and a treasonably subversive Kanu. And those who do care that thousands of petty offenders and little felons are all over the cells and prisons of this country un-bailed and awaiting trial for ages, are the same who are quick to cite the ‘rule of law’ in support of the bail-rights of the high and mighty who have committed such high crimes and misdemeanors as would make heaven tremble. What manner of ‘rule of law’ would require that a man, Dasuki, be ‘lawfully’ set free by whom a whooping 2.1 billion dollars was stolen without a trace; or what manner of ‘rule of law’ would ‘legally’ require that a mis-primed, secessionist canon, Kanu, be let loose, by who’s inciting and hatemongering outburst the nation was about to conflagrate. What manner of ‘rule of law’ will insist that those who defy the law to keep the patrimony of all or those who disdain the law to invite anarchy, are the most entitled to the treatment of the law without derogation?
After Buhari’s Media Chat, a national daily had published the angst of some obscure ‘constitutional lawyer’, Ms. Carol Ajie, who had petitioned the U.S. President Barack Obama, over what she said was Buhari’s disregard for the ‘rule of law’. She may not have ever been to any of the Police or prison cells to see the situation of petty thieves, many of whom may be there longer than the terms they would’ve served if a court had convicted them! Where is the ‘rule of law’ when the conscience of judges and lawyers is not pricked by this but it is tribulated by the condition of the high and mighty whose crimes are potentially ruinous of all? Besides, you’d think that any lawyer worth his wig should know that concerning the observance of ‘rule of law’, America cannot to hold the candle to any nation, except that nation is her ally and partner-in-crime, Israel. To report Buhari to America was as ridiculous as the Hausas would ‘Kai kuuka gidan mutuwa’; or the Americans ‘take coal to Newcastle’. For, the civilized world has been at it, nibbling persistently at the numb conscience of a hypocritical America, urging her to respect the rights of detainees at the infamous Guantanamo Bay Prison, but to no avail. Detainees here do not even enjoy the right’ of classification as ‘awaiting trial’, let alone afford the luxury of contemplating the possibility of a conviction. Hell, they are not even entitled to the basic right of access to a lawyer. And virtually every American seems to be saying ‘if this secures America, so be it’!
Laws cannot be made sacrosanct in the affairs of man unless they are ‘just’; or that the judges who interpret them do so judiCIOUSLY to attain justice and not only judiCIALLY to vindicate the law. It will amount to man ‘serving the law’ if by being self-obligated to obey including irrational laws and manifestly unjust rulings, man brings to his affairs untold hardship. The ‘rule of law’ is NOT to be made sacred and inviolable in spite of the ‘will’ and convenience of the ‘people’. In fact radical realists have often advised judges to try to “balance competing values of ‘freedom’ and ‘equality’ in ways that correspond with ‘popular democratic sentiment’. And as we should know the ‘popular democratic sentiment’ may not always be consistent with the ‘rule of law’. This was exactly what Agbakoba, a member of the National Judicial Council, NJC was trying to remind judges about when he said: “I believe the judges handling corruption cases in the country at this moment must balance public opinion with law. And what is the public opinion? People want to see those looters of their treasury in jail as soon as possible”. Every right-thinking judge should have known that granting bail to the likes of Dasuki or Kanu cannot be said to correspond with the ‘popular democratic sentiment’. For as the U.S. novelist Richard Wright would say: no law can “contradict the lives of millions of people and hope to be administered successfully”. If the courts abandon their overarching judicial duty to rule always in a manner consistent with justice and the peace and security of the society, it should behoove the executive arm –in might if not in right- to arrogate that duty and to effectively and timeously discharge it.
Said historian Babington Macaulay, “The law has no eyes; the law has no hands; the law is nothing … till public opinion breathes the breath of life into the dead letter”. And since the people are their own sovereigns, they alone determine what is ‘democratic’ from what is not. And what is ‘democratic’ therefore may not necessarily be what constitutional law says it is or what political scientists theorize that it should be. Rather it is what a ‘majority’ of the people has chosen to live with or tolerate. And it is immaterial that what the people have chosen to live with or tolerate is not approved by law; or that what they have chosen NOT to live with or tolerate is what actually the law permits. Because the revolutionary right of a majority of the people to alter every situation including the law, to their convenience, is a right that predates and thus exists outside of the Constitution. It is not a right that the Constitution has the capacity to warehouse because the Constitution itself exists by the leave of the people. In actual fact the ‘will’ of the ‘majority’ is the veritable ‘rule of law’. Because it is the very ‘force’ that legitimates all laws.
When I wrote ‘Buhari And The Metaphysics Of Presidential Powers’, I said that “the President, constitutionally, is not only imbued with enormous ‘discretionary’ and ‘prerogative’ powers, he even exercises ‘conventional powers’ which are not contemplated by the Constitution and yet which are not in conflict with it”. In fact many even say that a popular President can exercise conventional powers which are expressly in conflict with the Constitution, provided that such liberty resonates with the majority of the people or that its object is to secure the people –even in spite of the people. Barry Goldwater, author of ‘The Conscience Of A Conservative’ was the one who said “extremism in the defense of liberty is no vice (even as) moderation in the pursuit of justice is no virtue”. A president should be out in spite of everything, including the law, and in spite of everyone, including the people, to secure the nation and to preserve its endowments. And although in going against the grain of the ‘law’ he would be walking in the valley of the shadow of death, yet such a president needs fear neither harm nor evil coming to him. This power is rooted more in ‘democratic convention’ than in the ‘letter’ or spirit of the law. Since the ‘law’ needs not advance the ‘common good’ to be legitimate, an elected President needs not legitimize his actions to improve that ‘common good.’ As the philosopher James Africanus Beale Horton said: “where the aim is to bring up the governed rapidly to advancement…, a little despotism is ABSOLUTELY necessary”.
CONCLUDED

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