Dearth of Dissent and Treason to Constitution – Oseloka H. Obaze

Oseloka Henry Obaze .jpg

Legal, political and social dissents are part of the grounding principles of functional democracies. Hence, the dearth of dissent anywhere marks the birthing of subliminal and irreverent revolution. And so it is with Nigeria. By definition “dissent refers to having a different opinion from the commonly held or prevalent opinion or ideology.” Thus, dissent is vital in the executive, legislature and judiciary arms of government. Lamentably, Nigerians are witnesses to the suppression of dissent in all three arms; most egregiously within the judiciary.

In his keynote speech titled “Dissident in a Democratic Polity: Options in a Presidential System,” delivered at the 1991 Conference of Attorneys-General of Nigeria in Abuja, General Joe Garba said, “When alternative opinions are not allowed to manifest themselves or flourish, they become insidious, and in almost every instance, transform into aggressive subterranean opposition.” Long before then, Abraham Lincoln, a founding father of modern democracy, said of America; “This country, with its institutions, belongs to the people who inhabit it. Whenever they shall grow weary of the existing government, they can exercise their constitutional right of amending it, or exercise their revolutionary right to overthrow it.” Nigeria is well past the era of military-anti politics, in which self-righteous soldiers overthrew democratically elected governments in 1966 and 1983; or overthrew their fellow soldiers in a cyclical naked power grab. Still, our democracy is struggling badly.

In democratic Nigeria, dissent remains integral in ongoing efforts at restructuring, amending the Constitution, and in making judicial decisions germane to the rule of law. Unfortunately, some elected and appointed officials in relative positions, have failed to pass the required litmus test. Judicial prerogative is by rule sacrosanct. But the Nigerian judiciary has been stultified into passing some opprobrious judgments, making criticisms of the courts inevitable. Whereas Courts reaching unanimity in any judgment ought to be salutary and convey cohesion, and the unsullied veracity of the judgment, that general perception has changed drastically. What is most troubling is that dissenting opinions in critical cases are becoming rare, even in circumstances where they should validate and strengthen the law.

“Judicial prerogative is by rule sacrosanct. But the Nigerian judiciary has been stultified into passing some opprobrious judgments, making criticisms of the courts inevitable.”

The recent Supreme Court judgment on the Imo state governorship election (Senator Hope Uzodinma et.al vs. Ihedioha Emeka et. al.), is a case in point. On two counts, the apex court flunked a simple back of the envelope calculation. How did Hope Uzodinma an electoral supernumerary (Ugwumba Uche Nwosu was nominated and voided APC candidate), who was ranked fourth in an electoral outcome, be catapulted to a winning position? Secondly, how on earth could the voting figures assigned by the Supreme Court as the basis for awarding Hope Uzodinma victory, outstrip the number of voters accredited by INEC, the statutory and administering authority. On both counts, the Supreme Court engaged in “fuzzy maths” for inexplicable reasons. The substantive concern of this piece, however, is the fact that not one member of the Supreme Court panel deemed it fit; had the courage, or considered it imperative to dissent and write a minority opinion. The Brethrens of the court failed the nation in this regard. But such disposition has been imminent. The rogue precedents were set quite early in recent electoral matters. Whilst it’s easier to accord infallibility to the Justices of the Supreme Court in this instance of malign conduct, the reality, quite beyond any supposition, is that in resignation, the panel played a cameo role in perfecting a political and non-judicial script.

Yet it is heart-warming, that Justice Chukwudifu Oputa JSC of blessed memory left a fitting legal legacy, and an informed basis by which the Supreme Court could redeem itself, when he delivered the lead judgment in Adegoke Motors Ltd. v. Adesanya [1989], wherein he adduced reasons and powers of the Supreme Court to review an earlier decision if a compelling basis exist. As Oputa averred, “The Court can do incalculable harm through its mistakes. When therefore it appears to learned counsel that any decision of this Court has been given per incuriam, such counsel should have the boldness and courage to ask that such a decision be overruled. This Court has the power to over-rule itself (and has done so in the past) for it gladly accepts that it is far better to admit an error than to persevere in error.”

Of late, Nigerian courts have engaged in judicial activism and judicial supremacy in electoral matters. This should not be. The role of the judiciary is to “interpret the law; the Constitution included, but not to make the law.” Apropos the substantive matter, Nigerian Supreme Court Justices might also wish to draw lessons from views posited by U.S. Chief Judge John Marshall as far back as 1821, in Cohen vs. Virginia; that “The Judiciary cannot as the legislature may, avoid a measure because it is doubtful. With whatever doubts, with whatever difficulties, a case may be attended, we must decide if it is brought before us. We have no more right to decline the exercise of jurisdiction which is given than to usurp that which is not given. The one or the other would be treason to the Constitution.”

When in 2016, President Muhammadu Buhari charged the Nigerian Judiciary to “go the extra mile to sanitize itself and improve its capacity to act independently, courageously, and tirelessly,” I wrote in my 2017 public policy book, Prime Witness, that “that policy pronouncement while propitious can’t be fustian; as Nigeria’s Judiciary remains susceptible to manipulation.” In the case of Imo State, the Supreme Court overreached, by making the law in ways that vitiated extant provisions of the Electoral Act, which empowers INEC alone to accredit voters. The Court cannot usurp INEC powers. In not standing up for the rule of law, the Supreme Court came across as malleable, if not timid. Then again, as the lawyers would say, leges sine moribus vanae ~ laws without morals are useless.

Suggestions that an intimidated Nigerian Judiciary has become an outlier now has validity. Courts arbitrating electoral outcomes should be on an exceptional basis and not as a matter of routine. I recall warning recently that the “greatest danger to our nation, Constitution, law enforcement and anti-corruption war, is to allow the entrenchment of rogue precedents and worse still, to allow such precedents to gain currency and assume validity.” Nigeria has arrived at that sorry juncture. The seeds we are reaping in ersatz judgments that fly in the face of conventional wisdom were planted with the arbitrary rustication of some judicial officers and the eventual removal of an incumbent Chief Justice of the Federation. Those, Judges who remain on the bench, understand this fully, and in their enlightened self-interest, understand the dearth of dissent. Yet, the esteemed Justices, I guess, understand fully, what Justice Marshall said about doing “treason to the Constitution.”

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Obaze is Managing Director/Chief Executive Officer, Selonnes Consult – a policy, governance, and management consulting firm in Awka.

The News Chronicle

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