One of the major ideals that recommend democracy as a conventional system of government is the principle of Rule of Law as one of its cardinal pillars. British jurist and constitutional theorist, A.V. Dicey when he coined the concept at the end of the 19th century, described it as “one of the two basic principles of the English constitution” . He saw in it a veritable weapon for checking the excesses of governments who at the time carried on like lords of the manor with little or no respect for the triumph of laws. It is instructive to note however, that before Dicey popularized the concept, renowned philosopher, Aristotle already wrote 25 centuries ago in his work Politics III, that “the rule of law was preferable to that of any individual.”
This ideal has remained alive to the present day. Thus, the notion of “the free and lawful men and of the king being under God and the law” are to be found from the early times of the common law. The conception of the rule of law demands that all actions of government officials be justified in law and that no government official , however exalted in rank, be entitled to disregard the law in the name of “reasons of state”. In Dicey’s words, “every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals”. Quite more apposite to our discourse is the words of Herring CJ in the celebrated case of Arthur Yates & co pty Ltd v Vegetable seeds Committee (1945) 72 CLR 137 at 66, “it is not the English view of the law that whatever is officially done is law ….. On the contrary, the principle of English law is that what is done officially, must be done in accordance with the law”.
Of the three distinct branches of the principle, “Action According to Law”, finds more expressios and relevance to this intervention. This simply means that the organs of government must be subject to legal rules. This conception, being the simplest of the 3, can be found very early in the common law. Thus , King John promised in Article 39 of the ‘Magna Carta’ (1215) that “No free man shall be taken or imprisoned or desseised or outlawed or exiled or in any way ruined , nor will we go or send against him except by lawful judgment of his peers or by law of the land”.
The jurisprudential import of this phenomenon is one that begs of no serious intellectual riguour before its tenets meet conprehension. In fact, it is what it says: rule according to laid down rules and regulations as a veritable tool to check the excesses of power which we are told by Lord Acton, that its absolutism corrupts absolutely. And who is despot other than one with acute reprehension for the institution of laws.
The concept of rule of law therefore, side by side its adjunct principle of seperation of powers, it could be said, are the features next to enfranchisement , that have earned democracy as a system of government, its resplendent colours and arguably the reason why it has become a model for many nations in contemporary human society.
What follows from the foregoing therefore, is that a government which fails to institutionalise such and make it the raison d’etre of its administration is not worth its good name as a democratic government. Such a government becomes at best an authoritative one in democratic garb, flaunting democratic institutions , ostensibly to “fly the banner” of its democractic nature to the international community and citizens at home . That is, it becomes a democracy only in form but not in substance. And since substance in the equation of legality takes precedence over form, it would not be out of place to conclude that democracy is not practiced in such a clims but at best, a mockery of same.
It is therefore along this construct, that the uncivilized, militaristic, draconian and obnoxious manner, operatives of the DSS acting on “orders from above” (whatever that means), in a near nationwide brazen attacks cum invasion of the private residences of respectable judges of both the superior and inferior courts of records at the most ungodly hour of the day on Saturday, 8th of October 2016 must be situated. If anyone bought the narrative of the mercantilist spin doctors of President Muhammadu Buhari being a changed and democratised military dictator by the act of his taking the oath of office and swearing to uphold and defend the constitution of the Federal Republic of Nigeria on the 29th of May 2015, that confidence must have been lost with the speed the coconut falls from its tree, when the media ran to town with the news of the exectuive rascality and highhandedness carried into effect by its Gestapo police.
And as for Buhari and the gullible ilk who bought the narrative of the spin doctors of “white wash” wizadry at the campaign trails, this latest act among others provides an opportunity for their ranks to learn a thing or two from these age long proverbs to wit: The leopard does not lose its spots, no matter how much is expended to come about that, and that we do not learn to be left handed at old age. This much, PMB has proven times without memory.
For the records, there is nothing that can explain away the manner the DSS in the quintessential gestapo style set about their hatchet job the other day. No amount of explanation and justification can win it any acceptability. At law, we say that it is void ab initio and therefore, loses the chances of any legality deriving from it.
One is miffed and obfuscated over the manner and reckless abandon with which the SSS have carried on under the headship of Buhari’s kinsman, Alh. Lawal Daura so much that it has become a consistent pattern, snow balling into an unwritten law since the notorious invasion and arrest of the former National Security Adviser Alh. Sambo Dasuki in his house with no regard for standard procedures in its modus operandi. As of fact, it appears with each obnoxious act , they have only become more ferocious and brazen; a pattern that suggests some hands in the background patting them in the back and urging them on in their professional misfeasance.
It would be recalled that this same Gestapo police was reported to have invaded the government house of an incumbent governor at about the same ungodly hour of the day destroying, maiming and carting away properties including cash sums belonging to the government house without as much of a whimper from the presidency. An act never before witnessed in our chequered history. Observers of the political scene would also recall that the Zamfara and Ekiti state houses of Assembly in recent past, played “host” to these same rampaging boots.The same “Nazi police” has become notorious for disobeying and flouting court orders with inpunity and unbriddled breach of the fundamental rights of too many a citizen from Nnamdi Kanu, to Sambo Dansuki through Robert Azibola among others.
What should worry all and sundry, irrespective of political persuasions in this particular incident is the choice of judges who are victims of this latest act of gross insubordination. Upon a closer look, one finds out that they in one way or the other have an axe to grind with the DSS in the discharge of their professional duties as the interpreters of our Laws and “bulwark of the liberty of the citizens” in the words of Right. Hon. Nnamdi Azikiwe.
Justice Adeniyi Ademola and Dimgba of the Federal High Court, Abuja Division is said to have been raided for allegedly granting bail to retired Air Commodore Mohammed Umar of the presidential Probe panel on Arms. Another is said to have been raided for banning the DSS from coming to his court for unending flouting of its orders. Justice Muazu Pindiga who was picked at Gombe state, is said to be the first chairman of the election tribunal that upheld the election of governor Nyeson Nwike in Rivers State.
Justice Sylvester Ngwuta of the supreme court is also hounded for delivering judgments that have not been particularly favorable to the DSS and the presidency. In Rivers state, the governor would not allow the abduction of justice Abdullahi Liman under his watch. We are told he had the nozzle of a gun pointed at him and went home with injuries. Altogether, one is presented with an ugly picture of the DSS resorting to inpunity as a weapon to itimidate the judges and send a word to the judiciary that the barrel of the gun is stronger than the gavel.
To justify and lend some credence to their stealth, they fly the Kite of corruption on the part of the judges in the discharge of their duties and allege the recovering of substantial amount of money in the apartments of their victims in a fit to earn popular support. But the corruptness or otherwise of our judges is not immediately in issue here . What is, is the resort to the commando style in the prosecution of a supposed legal duty. At law, an unlawful act done in the prosecution of a lawful duty remains a wrong.
In criminal jurisprudence, a criminal summons almost always preceed and arrest. With the latter option always had recourse to, when a summon has been disobeyed. At no time atleast as far as we know, were the justices invited by the DSS for interogation neither is a search warrant which the operatives claim to have gotten executed at such ungodly hour of the day, save in circumstances where efforts to arrest an accused or a suspect within the window set by the law which is between 5am and 8pm has proved abortive. All of these cast serious doubt on the testimony or representation of the DSS and leave behind the impression of a sinister object by the DSS to itimidate and embarras the learned Justices.
No one says the judges that line our court both the superior and the inferior ones are paragons of decency or vintage cesar’s wives beyond reproach, but diplomacy and professional due deligence matters. The Nigeria judicial council (NJC) is not oblivious of the rot within the judiciary and only last week recommended the compulsory retirement of three judges of the superior courts including a chief judge to send the message that professional indiscretion and misconduct both in professional respects and otherwise, would not be tolerated within the bench.
In any case, the DSS cannot overeach it self by constituting itself into a busy body holding brief for both the EFCC, ICPC and NJC combined. No matter the amount of money found in the private residence of these judicial officers, it doesnt in anyway earn their stealth any justification, however they belabour the narrative. That can only be a story for another day.
Let it be said that our grouse is not with the personages or the personalities of the judicial officers – indeed the law remains supreme in any democratic institution. Our worry and fear is with the institutional victim of this affront. If the judicial arm of government in a state should at anytime become the object of ridicule; the victim of executive compromise or abitrage, then citizens in such a society have every course to be worried – for if the institution that is widely aclaimed to be the last hope of the common man comes under attack from the executive, not only is their independence compromised, but also the civil liberties of citizens vanishes into the thin air like a gust of wind.
It is commendable therefore, that the Nigeria Bar Association (NBA) under its new headship, A. B. Mahmud (SAN), and the Nigeria Judicial Council (NJC), have both voiced their opprobrium for the otiose and odious conduct of the DSS calling for the immediate release of the learned justices without more.
It is trite that two wrongs does not make one right. In the bid to rid our body politic of corruption that has become its by word, courtesy deserves and the law impresses it that such a general good must be prosecuted with equal respect for the laws shorn of any promiscuity and impunity so that we do not lose four running after eight.
President Muhammadu Buhari, may or may not have given the orders upon which such Gestapo-ic theatrics was executed but the buck still stops right at his table as the Commander in Chief of this Octopus of a nation.
At not time should any arm of our nascent and burgeoning democracy, or any of its institutions be subjected to such level of intimidation, harassment and embarrassment as witnessed last weekend if at all the idea of running a democratic system of government according to the dictates and sanctions of the law, still appeal to us.
It is high time PMB as he is popularly called heeded the voice of reason by taming what has overtime leapfrogged into a Gestapo police reminiscent of the dark era of Nazi Germany, as the consequences of a failure to, promises incalculable harm to both government, the citizens, our democracy and the ultimate goal of governance. This is not Banana Republic nor is it a “Hitlaristic” Germany. Enough said!
Dino Fiddling while Nigeria “Burns”
The ostentatious, opulent, controversial and profligate self – styled Anti-corruption crusader, senator Dino Melaye, Chairman Senate Committee on Federal Capital Territory, in an obvious show of nonchalance to the poverty, deprivation, indigence hunger and want ravaging many Nigerians in the face of a biting recession, bought himself a brand new Rolls Royce which media Reports say is valued at 180 million naira. When quizzed by press men as to the source of the money, the garrulous senator tells them, “he deserves some Privacy and ought to be respected”. Dino Melaye gives no hoot what anybody thinks and like emperor Nero, would rather fiddle while Nigerians especially members of his senatorial district, “burn”. Like the French Queen Maria Antoinette in the 17th century, he may as well ask Nigerians to go grab some cake if they can’t afford bread. What pity!
Raymond Nkannebe, a Lawyer and Public affairs commentator Can be reached at [email protected] Twitter :@RayNkah