THURSDAY Column with Mohammed Adamu
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To let the due process be. The wheel of ‘democracy’ –like the wheel of justice- grinds slowly, yes. But it is too early for Mr. President to get into fatigue mode. Democracy is a meal cooked on the frustrating boulders of ‘due processes’. And here, unlike in the kitchen, ‘too many cooks’ do not necessarily ‘spoil the broth’; or at least not as quickly as impatience with the cooking processes does. And especially impatience by the Chief Cook himself. MR. President cannot afford to be more enthusiastic than the system itself permits. It is not just about the tedium of the processes; it is about the diligence and the faith of its practitioners –to be ‘slow-and-steady’. Maybe we should tell Buhari to let the due democratic process be. That he was not doing badly, after all, when he was ‘Baba Go Slow’. That we would rather have him in that mode than have him overshoot the runway! It is the reason I am revisiting a previous piece this week, titled:
‘LET THE DUE PROCESS BE’
The ‘court of public opinion’ is not listed in the hierarchy of our courts; but most Nigerians, whenever they have issues, appear to have a penchant more for approaching that idle Babel of a thousand tongues than they do the regular courts of the land -which are there to restore rights and to impose obligations. Most times it appears our goal is to heat up the polity rather than to resolve differences. We get so unnecessarily schismatic, we cavil at every trivia including as flimsy as ‘whether the President has a right to take ill’, or whether he has an ‘obligation to stay healthy. It appears often we prefer that time-wasting ‘court of public opinion’ because often it is the only arena where our grievances can have legs. And so when we have an issue that can’t stand in a regular court of law, we resort to the court of public opinion where there’s always a willing lay jury to help it stand, even if it is on crutches.
The Media too, especially the Online, has learnt to constitute itself into another species of public court, of incompetent jurisdiction; so that it has both its ‘touch-not-my-anointed’ mood and then its ‘crucify-them’ temperament. Media trial is becoming the ultimate default mode of the ‘due legal’ or ‘judicial process’. Everyone preaches the ‘due process’ but then prefers to use the default mode. We are political without being democratic; we ‘love’ party politics but we hate the level playing field; we advocate good governance but we anoint mediocrity into political office; we promote ‘one man, one vote’, but we pay to violate the sanctity of the ballot box; we preach magnanimity in victory and gallantry in defeat, but we are malevolent in victory and petulant in defeat; we rise in defense of the ‘due process’ only when we have been outwitted in the attempt to circumvent it.
Democracy is a ‘system’ of government run or regulated by several ‘processes’ -and none of which is less or any more important than the other. To be legitimate, every democratic action must not only result from an established process, but the process itself must be observed to the extent of its ‘due measure’. Meaning that it is not sufficient that a particular ‘process’ is followed, but that it must also be seen to have been followed -to the letter. It is just like when lawyers say that ‘it is not sufficient that justice is done, but that justice must be seen (even by the ordinary man in the street) to have been done. And so it is the reason that whenever any ‘process’ is referred to, it is qualified by the adjective ‘due’ -suggesting something that meets all the requirements and is thus ‘proper’ and ‘appropriate’ to the situation). Not just following the ‘process’, but complying with its ‘due measure’. When she introduced the principles of ‘due process’ to our procurement and contractual ways of doing things –as is the global practice now in capitalist democracies- Dr. Obi Ezekwesili earned herself a sobriquet, ‘Madam Due Process’, a subtle snide at a deeply intolerable novelty that we all love to hate.
The ‘due democratic process’ is the touchstone of the ‘democratic system’ itself. There is no ‘democracy’ unless it is regulated by the ‘due democratic process’. And it does not matter whether these processes are contained in a nation’s fons juris or that they merely exist in conventions. Just as the touchstone of the ‘democratic process’ itself is the conduct of regular elections. Without the conduct of regular elections by which the people determine who governs their affairs, there is no democracy, let alone a ‘process’ by which to legitimate it. But it is not sufficient also that ‘elections’ are regularly conducted by which the people elect, re-elect or remove their governments. Elections too must be conducted according to certain established ‘rules’-referred to as the ‘due electoral process’. Unless that ‘due process’ is followed, the credibility of any election is impeachable. Thus the ‘due electoral process’ itself, is the touchstone of ‘democratic elections’. Any breach of the ‘due electoral process’ de-legitimizes the outcome of any election.
Yet there is a limit by which the electoral umpire is to determine whether or not the ‘due electoral process’ has been breached, or complied with. Beyond the electoral umpire’s duty of declaring a winner in a contest, it requires an entirely different ‘process’, and no longer the ‘electoral’ one, to legitimate, or to de-legitimate an election victory. Herein comes another ‘process’, the ‘due process of law’, itself also the touchstone of the ‘rule of law’, -or a principle ware-housing the ‘due legal process’ and the ‘due judicial process’ (the former at the behest of lawyers, and the latter, the prerogative of judges). Ab initio, the ‘legislative process’ is the Babel from whence all legislation are made –following a complex labyrinth of due legislative processes the breach of any of which delegitimizes the entire process. Thus the ‘due legislative process’ is the touchstone of the lawmaking process. No legislation is valid except it is a product of the ‘due legislative process’. A breach of that ‘process’ renders any legislation liable either to rebuff by the ‘executive process’ which may deny it assent, or to nullification by the ‘judicial process’.
The concept of ‘due process’ means that certain issues at certain points are ultra vires certain actors –individuals or institutions- to reverse or to legitimize. An end achieved by one set of constitutional ‘due process’ may require an entirely different ‘process’ to reverse or to justify. No matter where or how far we choose to go to debate the ‘injustice’ we suffer, in the end we must return to the ‘due judicial process’ to argue for the ‘justice’ that we believe we are entitled to. The same way that those who war-war may win the battles mid-air, but must come down to win the war on solid ground. The ‘due process’ may not conduce with our diverse moral or philosophical considerations, nonetheless it is the best game in time. And it should be respected by all who desire to have a just society. Those who have opted for democracy as a system of government must be consoled by the fact that due processes are in place which regulate all spheres of human endeavor and by which all who stake claims to any rights or to whom any duty beholds, are justly treated.
“Ubi jus”, as the maxim of law says, “ibi remedium”: ‘where there is a right, there is a remedy’. But the converse of that is equally true: “Ubi jus in certum, ibi jus nullum”: “Where the right is uncertain, there is no right”. It is only via ‘due process’ that all rights are made ‘certain’ -and thus their violation remediable. If the Kano State Governor, Ganduje and the State’s Assembly have no right in law to do what they did, namely split the Kano Emirate in five, and if the Emir of Kano Sanusi Lamido Sanusi, has a right in law to the administration of a kingdom made up of 44 local governments instead of 10, it is for the due ‘legal’ and ‘judicial’ processes to determine -and not for the ‘court of public opinion’ to resolve.