By Prof. Mike Ikhariale
“The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by law.” – Oliver Wendell Holmes, in The Path of the Law,Album 10 Harvard Law Review 457 (1897)
Speaking last Sunday at the auspicious occasion of the opening of this year’s Conference of the Nigerian Bar Association, in Abuja, President Muhammadu Buhari somehow indicted the Judiciary for its apparent unjust alliance with criminality as evidenced by the numerous instances in which obviously corrupt members of the Nigerian ruling class are casually left off the hook by citing flimsy technical or purely procedural rules and prosecutorial short-comings without any serious consideration of the grave harm such unbridled lootings do to the nation as a whole. In pressing his case, he asserted that the “Rule of Law must be subject to the supremacy of the nation’s security and national interest”.
Ordinarily, such an indicting statement on the law and its applicability in the national interest would generate considerable controversies but when it is further given at a place where the overall audience is an assembly of nation’s lawyers, the ripple effects could indeed be seismic,possibly a fractious jurisprudential war.
What really is the LAW and why must it be obeyed, if I may ask?
While most jurists think the law is whatever the legislators (directed by the “will of the people” and accented to by the sovereign) chooses to enact is the law. The Realist legal school of thought, spearheaded by the famous Harvard scholar, Oliver Wendell Holmes, on the contrary, forcefully contend that, at the end of the day, it is what the Judge, the last actor in the long chain of the law thinks is about law that really matters. In other words, no matter the good intentions of a piece of law, no matter its intrinsic imperatives, it is what the judge before whom a case on it is brought thinks, correctly or incorrectly, that matters.
In effect, legal thinkers of the Realist hue are squarely holding the courts/judges and, tangentially the lawyers, who professionally serve as “officers in the temple of justice” responsible for whatever happens to the Rule of Law. I don’t think the case of Nigeria is different. And as if to corroborate the contention of his boss on the subject, Mr.Ibrahim Magu, the nation’s anti-corruption Tsar disclosed that he is personally aware of a single case in which a lawyer collected the sum of 1.7 billion Naira as “fees” from an allegedly corrupt politician who he represented.
While a lawyer is free to charge any amount that he deems appropriate, such a humongous sum of money as “fees”,by any means calculated, would naturally suggest to the onlooking by-standers that there is a “kill and divide” transaction going on and when that person eventually gets exonerated by a judge purely on “technical grounds”, the frustrated citizens, including the President,are left with no option but to conclude that something inappropriate has happened, inter se.
A socially responsible and patriotically-minded judge would consider the fact that the unlawful taking out from the public till of billions Naira by a single individual who contributed nothing of value to the national economy in exchange for his “wealth” has a case to answer irrespective of the loopholes in the law.If the law is truly an “instrument of social engineering”, those are perfect occasions in which a fair-minded judge would demonstrate that principle by asking himself if such a huge theft is to the good of the society and proceed to judicially remedy the anomaly. Unfortunately, that has not been our experience lately.Justice, we were taught must not only be done, it must also be seen to have been properly done. Unfortunately, the perception of the law and its application in Nigeria today is undoubtedly worrisome and only a dishonest evaluator would think otherwise.
My argument, therefore, is that the actual and perceived failure of the Rule of Law in Nigeria cannot be considered in isolation. The entire system is defective and no longer able to deliver on its desired results. Corruption, which has taken the lead in the destruction of the country is a nation-wide malady. It is therefore presumptuous to expect that lawyers and in particular, judges, alone would behave differently simply because of their toga of “learnedness”. So when Mr. President sought to construct a simplistic hierarchy of the importance of National Interest over the Rule of Law, it must be understood that he was speaking from the position of a man who is frustrated with the law and its practices in contemporary Nigeria.
The Rule of Law cannot be sacrificed for the national interest because while the Rule of Law,properly deployed, is an objective tool for the resolution of various conflicts, the concept of “national interest”, on the other hand, is a very subjective proposition which changes its meaning according to the ideological preferences of the ruling class in power who are able to translate such ideas into the legal system.
Normative parameters of the Rule of Law
There is often the common mistake of taking courts judgements synonymous with the Rule of Law. Pronouncements of courts are supposedly deduced within the normative parameters of the Rule of Law but unfortunately, just as Wendell Holmes noted above, the individual judge handling the case, more often than not, could proceed to taint the true dictate of the Rule of Law via corrupt lenses. What we should be insisting on, therefore, is the superiority of the Rule of Law over court rulings.
Just the same way we have bad laws which we are morally enjoined to disregard, we also have bad judgements which can only the implemented at great cost to justice. It is to avoid such unpalatable outcomes that the appellate system wherein higher courts correct lower courts, was instituted. But there are no objective assurances that this will always be the case due to the overwhelming prevalence of corruption especially when it is on record that there have been some judicial efforts at making Nigerian judges to be above the law in complete repudiation of what the Rule of Law itself stands for, namely, “equality before the law”.
If the goal of courts adjudication is the promotion of justice, it follows therefore that the State is at liberty to ignore those injudicious rulings that have totally disregarded the best interest of society. President Buhari, a layman, may not have been technically correct to suggest that national interest supersedes the Rule of Law because without the law there will be no nation in the constitutional sense as we know it but he would not be far from the truth if he were to say that court rulings are not above national interest.