On the rule of law debate viz-a-viz the fight against corruption, Ripples has moved on. But not some reader-citizens who want to contribute their bit to the public debate now trending, to use that online lingo, in the public space. Col. Innocent Azubike Nass is my guest today. Please enjoy.
There is this popular argument that President Muhammadu Buhari is not properly following the “rule of law” or “due process of the law” in his anti-corruption (more-specifically anti-looting) fight.
This often suggests that for an effective anti-corruption fight, the president should first change certain criminal procedures/laws before seriously tackling the monumental corruption in our society. That could be as good as advising him to soften or give up the fight, under the excuse of judicial hindrances.
In the annals of American Central Intelligence Agency (CIA) and Federal Bureau of Investigation (FBI), there are innumerable cases of re-arresting a suspect on trial who has been granted bail.
There are also cases of other law-enforcement agencies taking related actions, such as Immigration and Naturalization Service (INS) arresting and deporting back an in-coming witness or plaintiff who has valid court papers and visa.
Many of the current arch-proponents of ‘Government must obey all court orders on bail’ do not seem to care to mention this other side of the coin to balance the argumen.
Nigerian society has reached a heartlessly devilish dimension of looting and sharing of the commonwealth of the nation by a few well-entrenched, well-networked and deep-pocketed elites; who had serially proven to have ways of outsmarting and compromising certain judicial processes to evade justice. They deploy their wealth and influence to that effect.
The current cases involve the looting and sharing of war fund, while our fighting soldiers were being humiliated and killed in hundreds for lack of appropriate weapons and equipment in the fight against Boko Haram.
Thousands of civilians were killed and several hundreds of thousands displaced from their homes and living in refugee camps; both in Nigeria and in the neighbouring countries, while those that looted and shared the war fund live and swim in obscene wealth and luxury, with properties and bank accounts littered in Nigeria and in foreign countries, just as majority of Nigerian masses live in abject poverty and helplessness.
So, does an elected president have the executive power to take certain radical actions if he is convinced it is in the over-riding interest of the nation and the people?
In about 1864 (during American civil war between the Union side and the Confederates), President Abraham Lincoln, through an executive order/decree, suspended the legal “writ of summons”, made a law that was back-dated (retrospective effect) and used it to try some detained saboteur suspects, and those convicted were executed within days after the review of the judgment.
He did that because he was convinced that the masterminds of the saboteur network could exploit existing legal loopholes to beat the law, while their foot-soldiers were more easily trapped. Lincoln wondered how he could sanction the execution of convicted foot-soldiers (“the little solder boy who deserts”) while their masterminds remained free to do more harm to the society, under the subterfuge of legal technicalities. Lincoln saw the survival of the United States as greater than the lives of those few individuals.
For that decision, President Lincoln came under sustained attacks and media condemnation, as well as litigation, all orchestrated by some American human-rights activist groups and public affairs commentators. But the overwhelming majority of Unionist Americans (who had less media publicity) tacitly supported Lincoln. Posterity had since reckoned that he acted in over-riding national interest for the survival of the United States.
During the Second World War, shortly after Japanese forces attacked and destroyed American naval base at Pearl Harbour in late 1941, which drew the United States into the war, the United States judiciary found itself in a delicate and controversial situation. This was related to the security measures being taken to identify and weed off internal saboteurs, most of whom were of dual-citizenship (particularly Japanese-Americans and German-Americans).
There were reported cases of saboteurs and spies caught while transmitting information to the enemy (the Axis powers). The detention, investigation and trial of these suspects became a problem under the law, as civil libertarians cried out loudly against abuse of fundamental human rights of suspects (who by law were presumed innocent until court proves otherwise), and the rule of law as enshrined in American constitution.
There was also wide-spread public hysteria calling for severe action against enemies of the nation, irrespective of the niceties of the legal due process. In a celebrated case brought by a group of civil libertarians to the U.S. Supreme Court in 1942, Chief Justice Robert Jackson, against the strong argument of civil libertarians on the issues of “interrogation without the due process of law” and prolonged detention of suspects, gave his famous ruling that the United States “Constitution is not a suicide pact”.
Chief Justice Robert Jackson argued that the constitution and laws of the United States were made for good, order, peace and harmony within the society. That is the spirit of the law. But an unanticipated situation had arisen whereby evil-minded forces threaten the values and the very existence of the nation, exploiting the liberal values to destroy the very same society. In that case the spirit of the law overruled the letters of the law. The Supreme Court sanctioned the mass internment of Japanese-Americans. It vacated the decision two years later when the war situation had stabilized.
The purpose of this recollection is to show that even the judiciary has a very crucial patriotic role to play in checkmating the forces that threaten to destroy our values as an ordered human society, rather than take subterfuge under legal helplessness and technicalities.
President Buhari needs decisive actions in the anti-corruption fight, if effective impact is to be achieved. A loud minority of opinions and commentaries could dominate most media outlets. That could be acceptable as part of the dynamics of change.
But the overwhelming majority of Nigerian masses (and sizeable minority of elites) enthusiastically support Mr. President to give entrenched corruption a tough fight and stubbornly resist the desperate fight-back by corruption network.
Yes, there is a genuine fear of abuse of such executive presidential power. Nigeria’s recent history is replete with such abuses. But under the present situation, the president has got to take resolute action, and take responsibility for the outcome.
There could be no other effective way to pull Nigeria out of the woods.
NATION
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