In the mind of Musdapher (1)

on   /   in The Spectrum 12:01 am   /   Comments

By Mohammed Adamu
Of the many jurisprudential issues raised last Monday by Richard Akinjide at the Special Session of the Supreme Court marking the commencement of a new legal year, was the United States’ near-Constitutional crises of 2000. That year, U S electorates were in a quandary; and the ‘democratic’ world itself was ‘curiously transfixed’ –by the G.W. Bush-Al Gore Presidential Election debacle.

Said David Ingram, a Professor of Philosophy at Layola University, Chicago, “The battle was whether certain under-marked and over-marked ballots cast in Florida that had not been electronically tabulated should be manually re-examined and counted in the final tally of votes”.

Florida held the decisive swig votes and which as they stood then, apparently gave Bush the Presidency by a margin of a couple of hundreds of thousands of votes.

It was not yet Uhuru for a trepidating Bush! A manual recount of the ‘swing votes’ evidently would give the Democratic Party a sure victory. But Florida Secretary of State Katherine Harris, in disdain of a possible recount, had certified the election, sealing the fate of Al Gore and thus giving Bush a controversial victory!

Twice the matter went to the Florida Supreme Court and twice the State apex Court overruled the Secretary of State and ordered continuation of the manual recount. Bush’s Republicans needed to buy more prayer candles! Al Gore’s Democrats doubtless, perhaps more wine bottles!

It was at this critical point that the US Supreme Court intervened and by a split decision of 5 to 4 justices, ruled calling off the Florida recount in favor of retention of the status quo ante bellum. Bush won an electorally unmerited, nonetheless court-sanctioned victory!

In fact while discussing this subject last Monday Akinjide had gone on a brief voyage of search for ‘The Sovereign’ especially in modern democracies, admitting that whereas in a Parliamentary system like UK’s ‘The Sovereign’ resides in the Parliament, in a Presidential democracy it is wrong to search for ‘The Sovereign’ in the ‘legislature’ because, for all intents and purposes, ‘Sovereignty’ lies with the ‘Constitutional Court’! Reason: not only can ‘The Court’ overrule ‘The legislature’, the Court may in fact even annul a law dully and procedurally passed by the legislature.

What Akinjide had even tucked away in the arm pit of his Florida analogy (where innocent electorates were virtually judicially disenfranchised), was the unpleasant fact that even those who think that ‘Sovereignty’, if it is not found in the legislature, at least it must lie with the people, may not after all be right! The reasoning being that Sovereignty cannot possibly lie with a ‘people’ helplessly prostrate and disenfranchise-able by the judicial action of a ‘non-sovereign’!

Nor, in the reasoning of Akinjide, does ‘Sovereignty’ reside even in a mute,  non-self-acting ‘Constitution’ which practically only the Court, by its unique and supreme power of interpretation can either rouse to action or, left to its own rhythm, the ‘Constitution’ remains inert!

Whereas there was not the slightest chance of doing injustice to Bush by allowing ‘manual recount’ in Florida (since in the unlikely event of an unfavorable recount he could challenge its legality), the reverse would not -and it did not- do substantial justice to Al Gore (because he stood to lose everything unless there was a recount).

Paradoxically thus, the Constitutional Court, in deference to higher goals of achieving political stability, can annul even the legitimate civic electoral expressions of the people. In fact not many jurists believed that the US Supreme Court‘s verdict disallowing a recount in Florida was so as not to violate the Equal Protection Clause of the Fourth Amendment to the United States Constitution!

Perhaps a more tenable reason would have been to cite even if mere, unwritten ‘convention’ as a veritable sanctuary -or repose of sort- for a constitutional Court, whenever duty calls to act even against the grains of the law, to save a state from itself! And this sense of resort to ‘convention’ is what Richard Akinjide said the Nigerian constitutional space does not have!

The US Supreme Court, drawing less from the ‘letter’ than the ‘spirit’ of the American Constitution in its intervention in the Florida recount, was said to have been anchored on the unwritten convention that ‘the overarching aim of the Court is to promote stability’.

Thus perhaps the unintended lesson from Akinjide’s jurisprudential riposte is the fact that in situations of extreme political exigencies, even ‘electoral legitimacy’ can be sacrificed to achieve ‘political stability’!

And it is from the prism of this that the views of the new Acting CJN, the Honorable Justice Dahiru Musdapher, -contradistinctively rather than contrarily-, asserted its stand because it ultimately returned to the ‘people’ the very ‘Sovereignty’ that Akinjide’s logic had diplomatically given to the Court!

Yes, by a judicial pronouncement even ‘electoral legitimacy’ can be sacrificed on the altar of ‘political stability’, nonetheless the legitimation of all actions -legislative, executive or judicial-, lies not with the singular or collective ‘will’ of any or all of the three arms of government, but strictly –in the long run- with the ‘People’!

And which was at the heart of Justice Musdapher’s address last Monday when he seemed to suggest that notwithstanding all that the Court is constitutionally or conventionally empowered to do, it does so only subject to the endorsement of ‘the People’!

In fact many jurists say that it was for stability’s sake that ‘an overwhelming majority of Americans chose to live by the US Supreme Court’s decision” on Florida, and not because ‘the Court’s decision was the best one for promoting stability’

Said he “the efficacy of exercising constitutional judicial power is firmly anchored to a moral authority that rests on public confidence. It commands no armies and collects no taxes as its authority rests squarely in the public’s perceptions of its propriety.

Public confidence in the judge and the judicial system reinforces conviction for the attainment of justice and enhances the willingness of the populace to subjugate before the law.

To be continued

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