By Mohammed Adamu
Last week Chief Judge of the High Court of the Federal Capital Territory, Justice Gumi ruled confirming the legality and the binding nature of Zoning, but which for reason of ‘non-justiciability’, he said the courts cannot enforce.
And I ask ‘what can be more justiciable? By entertaining and making pronouncement on the ‘internal affairs’ of PDP the Judge confirms, at least, that the courts are not constrained not to enquire into a non-justiciable matter. Which beats my lay imagination.
Because there are legal rules governing the internal affairs of ‘bodies’ and the breach of which either the internal regulatory mechanisms of that ‘body’ can remedy or to a certain limit, the intervention of the courts.
Or so the HARBOTTLE RULE establishes: that whenever there is a controversy in the internal affairs of a ‘body’ (say PDP) which is resolvable by a simple majority of members, the courts will not entertain the suit of a minority member of that ‘body’.
This principle applies in all situations except where the minority action brought before a court is to restrain that ‘body’ from committing the following wrongs: one, ‘an ultra vires act’ (as in act beyond that body’s legal authority); two, ‘an act to achieve, by a simple majority, that which by the body’s rules ought to be achieved by a special majority’; three, ‘an act tantamount to committing a fraud on the minority and four, ‘an act which invades or violates membership rights.
In my lay opinion, no charge is sustainable against PDP on item (1) above since the Party did not exceed her authority by consensually adopting zoning. In fact, the nation’s Constitution (Sec 224) anticipates “The program”, “aims” and “objectives” of political parties to “conform with the provisions of Chapter II (on Federal Character)”.
Also no charge is sustainable against PDP on item
(2) above since it is not on record that the party’s voting on zoning breached its own internal electoral rules. Nor is any charge sustainable against it on
(3) since the party did not ‘commit any fraud on its minority by instituting a power-sharing arrangement which even Justice Gumi said was “in the interest of equity and justice” and reflects “the adverse nature of the Nigerian society”
What is sustainable in court against PDP, is item
(4), namely the invasion or violation of membership rights of contest. In my humble, lay opinion, Rimi, not having benefitted from zoning or willfully submitted his Constitutional right of contest, could be justified under this exception to sue –which he did.
The same cannot be said of Jonathan who, as proof of the willful forfeiture of his Constitutional right and as evidence of his unconditional endorsement of zoning, even agreed to benefit from it when he accepted the Party’s invitation to fill the Vice Presidential zoning largesse on behalf of the South.
This he did consciously and without any doubts that he was drawing not from the pool of democratic merit but rather from the spring of political consensus.
Thus if Jonathan’s practical consummation of zoning implied personal acquiescence, there was, implied in that acquiescence, not only an undertaking to be bound, but also a promise, in the fullness of time, to return benefit for benefit! Because there are quite delicate un-navigable hyacinths of legal matters in the way of retrieving a right (whether constitutional or otherwise) which a person voluntarily forfeited either by himself or in representative capacity by a ‘body’ to which he voluntarily belongs and whose lawful ways he willfully subscribes to.
The constitutional right of contest of a member therefore is only superior to a party consensus, to the extent that that member has not willfully surrendered it! The legal maxim is explicit: ‘convention vincit legem’ meaning: ‘the express agreement of the parties overrides the law.’
In fact, said P.S. Atiyah, in law “There are circumstances in which those who received benefits at the hands of others may be compelled to pay for them even if no promise has been given” Not only were promises on zoning mutually given, they were in fact, cast in the iron of legislative Deed, enshrined in the PDP Constitution and, more or less, ‘signed sealed and delivered’!
And ‘contracts’ the law says ‘receive legal validity from agreement of parties.’ Or put in maxim: Contractus legem ex conventione accipiunt: In fact even if it is argued that since zoning was conceived in the face of a superior constitutional right, it is thus ‘a mistake in law’, the legal maxim culpa tenet suos auctores, meaning: ‘in law even a fault binds its authors’ resolves that!
Thus whether by strict ‘law’, which arises from fact or by strict ‘morality’ which arises from ‘truth’, zoning is no less justified. Nor can Jonathan contest without Sec 7 of the PDP Constitution expunged. Because again the maxim is: “Eodem ligamine quo ligatum est dissolvitur” –‘an obligation is dissolved ‘only’ by the same bond by which it is contracted’.
It is thus jurisprudentially defeatist in this case for the courts to interpret justiciability in the disfavor of the judiciary, given the clear philosophical rationale that under extraordinary political circumstances, judicial rulings should aim at the preservation of that which the law always seeks to preserve, the state!