Essay

By Prof. Mike Ozekhome, SAN

Introduction

IN last week’s episode, we reviewed the modalities for judicial appointments, the training and re-training of judges, the importance of the rule of law generally, and in a democratic setting. In today’s installment we shall conclude our discussion of the role of the rule of law, and then we shall draw a perfect conclusion of this interesting treatise. Come with me.

The Role of the Rule of Law in a Democratic Setting (continues)

In other words, a constitutional government is a government according to rules, i.e. institutional government.  It is an impersonal system of rules and office that effectively binds the conduct of individuals involved in them.  Contrary to our experience in Nigeria, government being impersonal should not have a temper. By way of contrast, government in a regime of personal rule is uncertain and problematic because it is largely contingent on men, upon their interests, ambitions, desires and aversion, their hopes and fears and all other predisposition’s that the political animal is capable of exhibiting and projecting upon his political life.

Whereas, in a constitutional democracy where there is a pre-eminence of the rule of law, where there is absolute Supremacy” of the constitution, the government has no more powers than are granted to it, either expressly or impliedly, but the constitution, and any exercise by it of power not so granted or which is prohibited to it is unconstitutional, null and void.

Conclusion

The Judiciary has an important role to play in this democratic dispensation. But, we have seen from the foregoing that its independence (which is necessary for the effective discharge of the role) cannot be merely assumed, from the mere fact of existence of democratically elected government. All governments, be they military or civilian seek to water down the effectiveness of the Judiciary, one way or the other.

Democracy involves the institutionalization of the Rule of Law and guarantee of human rights. There must therefore be a concerted effort to hold the balance between the traverses of power and instill the spirit of liberty, democracy and social justice in the people. This is where the judicial power conferred on the Judiciary under section 6 of the constitution becomes very vital.

The Judiciary is the soothing balm in the face of frictions accessioned by new expeditions in balancing of power in a nascent democracy like ours. The Supreme Court  has demonstrated this important role in the manner it judicially resolved burning national issues like the so-called ‘resource  control’ suit, the Local Government Law conflict, the registration of political parties face off, the Anti-Corruption Act case, to name a few.

The Judiciary, in a democracy, is a pacifist par excellence! The imperatives for an independent Judiciary are therefore more urgent in this dispensation than at any other time. Justice must not just be done, but manifestly seen to be done. Nigerians must have implicit confidence in the Judiciary. We have demonstrated that the viciousness of the judicial fangs would depend on the level of its independence as perceived by the people.  Commenting  on the maxim, “de fide et officio non recipitur quaestio,  sed de sicentia  sirve error juris  facti”  (the honesty and integrity  of a  judge  cannot  be questioned, but  his decision may be impugned for error, either of law or fact), Ogham-Emeka Counsels:

“The option before a person who perceives that an order was wrongly made against him is to obey and expeditiously move to set it aside. But there is so much the judiciary must do if the people would not soon sneer at this time honoured principle and accuse lawyers of merely dressing a long rotten  apple with lousy  Latin and grammatical saccharin. And may the day never come!” 

The Judiciary, in a democracy, is a pacifist par excellence! The imperatives for an independent Judiciary are therefore more urgent in this dispensation than at any other time. Justice must not just be done, but manifestly seen to be done. Nigerians must have implicit confidence in the Judiciary. We have demonstrated that the viciousness of the judicial fangs would depend on the level of its independence as perceived by the people.  Commenting  on the maxim, “de fide et officio non recipitur quaestio,  sed de sicentia  sirve error juris  facti”  (the honesty and integrity  of a  judge  cannot  be questioned, but  his decision may be impugned for error, either of law or fact), Ogham-Emeka counsels:

“The option before a person who perceives that an order was wrongly made against him is to obey and expeditiously move to set it aside. But there is so much the judiciary must do if the people would not soon sneer at this time honoured principle and accused lawyers of merely dressing a long rotten  apple with lousy  Latin and grammatical saccharin. And may the day never come!”

Accordingly, we all have the challenge to do all that is in our power to maintain the integrity of the court which in turn would uphold the hallowed principles of the Rule of law.  The importance of an independent Judiciary in a democracy cannot be down played.

“No institution carries with it the responsibility for democracy’s survival as does the Judiciary.  In the inevitable confrontation between the State and citizens, between tiers of government and between all manners of political actors, it is the Judiciary that is the last hope for the resolution of disputes.” 

It would be appropriate to end this paper by borrowing what would be a present challenge to the Judiciary, indeed a tasking of its independence in this democratic dispensation.  We see the constitutional role of the Judiciary in this democratic dispensation as follows:

“To call both the legislature and the executive to order when they are going wrong.  They should stop dancing as if they are appendage of the legislature or the executive.  The Judiciary should act independently.  It should come down heavily on the side of justice, of the masses of the Nigerian people.” 

If we do not stand up for the independence of the Judiciary now, when do we do it?  When there is no more government?  Or when chaos and anarchy set in?  Or when there is no more Nigeria?  It is better now than never! (The end).

Thoughts for the week

“The judiciary perpetuates a breath of state structure. If it fails to purify and justify itself; consequently, all of its systems, evince a collapse. Indeed, it embraces only the destruction.”
(Ehsan Sehgal).

“The bedrock of our democracy is the rule of law and that means we have to have an independent judiciary, judges who can make decisions independent of the political winds that are blowing.” (Caroline Kennedy).

A.

-April 09, 2024 @ 12:16 GMT|

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