Rousseau -although a proponent of legislative supremacy- seems to be on the same page with Musdapher: ‘the people’s obligation to obey the law depends upon their ‘freely’ CONSENTING to it’! Meaning although ‘who’ writes the law may smell like the ‘Sovereign’; or ‘who’ interprets ‘it’ may seem like the ‘The Law-giver’; it is who CONSENTS to the law that is ‘the law’!
Thus in all the medley of jurisprudential and juridical arguments about who is ‘sovereign’ in a constitutional (presidential) democracy, evidently in his recent speech, Musdapher, unlike Richard Akinjide, pitches his tent rightly with ‘the people’. Not with the law-making ‘legislature’ -like many believe; not with the mediatory, law-interpreting Judiciary’ -of which even he is a part; nor even with the ‘grundnum’ itself, ‘the Constitution’ which is thought to stand proxy always for the people –ironically a ‘stand’ which, as we saw in Florida, could not even save the people from being judicially disenfranchised!
Citing, in that speech, the French novelist and playwright Honore de-Balzac, the CJN explained that public confidence (or the lack of it) in ‘the law’ has an inevitable nexus either with the survival or “the beginning of the end of society”. Thus there is some kind of legal conundrum, especially of the proverbial ‘chicken and egg’ type which presents ‘the law’ as capable of stabilizing society even as the society is susceptible to the destruction of some forms of ‘the law’.
In fact, many jurists had concluded –and rightly so- that Bush V Gore, the very manner in which the US Supreme Court decided it, -by setting ‘the law’ virtually against the grain of ‘the law’- has left the field of jurisprudence with ‘an unsettling’ paradox which gives the impression that the ‘rule of law’ can function in a manner that limits ‘the very democratic process that is supposed to legitimate it’.
Nonetheless, there is always (incumbent on citizens) a prima facie obligation to obey the law notwithstanding sometimes this self-de-legitimating character of some laws (given the manner in which they are conceived and enacted by lawmaker); or notwithstanding, in some other instances, the existence of good or bad-natured laws (given the manner in which one form or another of judicial ‘interpretation’ or ‘construction’ by judges, has brought them about).
And, so even Musdapher’s firm belief in ‘the people’ virtually as their own ultimate ‘sovereign’ (as implied in his speech), should not be construed in disdain of that which even the CJN had admitted only the people, by their free consent, ultimately legitimate, -namely ‘the law’!
Because although as he said “the efficacy of exercising constitutional judicial power is firmly anchored to a moral authority that rests on public confidence” the CJN had also admitted: “no person, institution or government, no matter how powerful or wealthy is outside the sphere of legal authority”. Thus what seemed like: ‘the people’, the people and nothing but the people’, on one hand is also ‘the law’, the law and nothing but the law’ on yet another.
And it is that practical supremacy of ‘the law’ –whether in statute or in action- over and above all other candidate-sovereigns that makes a constitutional necessity of all citizens, as matter of necessity, subjugating before the law -and in all circumstances.
Meaning, therefore, that although the CJN can -and indeed has proposed- reform of the embattled judiciary which he now has the unenviable duty of superintending, his reform-list cannot, conceivably be expected to include an extra-judicial resolution of the Salami saga like many naively anticipate -and though that vexatious issue has become a blight on and a virtual distraction for the Musdapher regime.
In fact, for us to expect that the new CJN, outside of the due judicial process, should bring the weight of his office to bear in the resolution of a matter that is before the court and one in which he is joined as a party, is to eat our judicial cake of due process on the one hand and then to want to have it, on the other!
And, worse even to expect that the NJC which the new CJN heads, should undo a chain of irreversible actions, some quasi-judicial, some legislative and others executive around which the fate of Salami is now predetermined-ly hung, already. Salami’s case, it appears, is beyond resolution by any extra-judicial sleight of hand. On the contrary, a diligent and expeditious implementation of the CJN’s reform initiatives appears to guarantee that the judiciary will never be faced by a saga the like of Salami’s ever again!
And, so if the new CJN must have anything on his mind; or conversely his mind on anything, it should be less of Salami and more of his reforms. The resolution of the Salami saga, already before the court, cannot be part of the reform initiatives of the new CJN, but the reform can be part of the resolution of the Salami saga. Meaning that Salami can wait for the reforms; but the reforms cannot wait for Salami.
This must be on the mind of Mustapha when he said: “The choice is simple and our resolve is absolute –plata o plomo” (meaning ‘Gold or Lead’), it did not require any judicial soothsayers to see that what Musdapher had in mind was the ‘Gold’. This he would polish himself!
But the ‘lead’, he seemed to suggest, should go polish itself!