In the beginning, our republic opted for liberal democracy as the form of government best suited to the advancement of our common political, economic and social objectives. In any case, we had no suitable alternatives in view of the heterogeneous backgrounds of the various groups that were brought together by our colonisers.
Liberal democracy combines two of the most contested models of governance. While liberalism underscores the importance of the freedom of individuals to pursue their ideals of life without fear of coercion from other individuals or society, democracy highlights the sovereignty of the people. Lincoln’s definition is apt. Democracy is the government of the people by the people and for the people.
Therefore, the conjunction of liberalism and democracy in liberal democracy makes sense. Individual freedom is maintained as long as the voice of the individual is effectively introduced into and entertained by the process that culminates in law-making and in the governance of the polity. A true democratic system makes this possible through various processes and institutions: elections, referenda, community organisations, civil societies, political parties, etc. These are the institutions of democracy.
In an ideal situation, where objective reason regulates individual inclinations and ego is kept in check, the institutions of democracy are sufficiently effective in protecting individuals from abuse and in greasing the wheels of democratic governance. In such a situation, every citizen obeys the rules, serves as his brother’s or sister’s keeper, refrains from corrupting and abusing the system and does his or her part in protecting the system from collapse. Needless to say, however, there has never been such an ideal situation. Humans have always been too human.
It is with our understanding of the baseness of human nature that we device the means of protecting these institutions of democracy. We set up agencies for promoting law and order and the rule of law. These include the police and the courts. We entrust to them our individual lives and properties and we expect that should there be an unlawful breach by any fellow member of the republic, these agencies as guardians of our democracy will rise to the occasion to protect us not just from bodily harm but also from emotional abuse.
The confidence that we repose in the guardians of our democracy is the heart and soul of the system. Compare this with a similar interest we have in one of the segments of our lives as citizens. I have in mind the economic system through which we enter into contracts either as buyers and sellers or as creditors and debtors. We cannot trust the fulfilment of such obligations to individual goodness; therefore, we rely on the courts to protect the terms of the contract and are assured that we can seek redress in case of an unlawful breach. If there is a generalised skepticism about the effectiveness of these agencies in protecting contracts, the economic system is bound to breakdown and collapse.
By the same token, if there is a generalised cynicism about the effectiveness of the guardians of democracy in the discharge of their sacred responsibilities for the protection of the institutions of democracy, it is a short cut to anarchy. For individuals would have no reasonable alternative to self-help in such a situation. There is little or no difference between the state of nature where everyone fends for him or herself, with its attendant uncertainties of life and limb, and a state of society in which one is at the mercy of others who are illegitimately protected by powerful interests at one’s expense.
Since the pronouncements of the Supreme Court on the election petitions by governorship candidates from various states, there have been comments, some adverse, others favourable on the performance of the court and its eminent jurists. None of the comments can or should be ruled out of court. In a free society, the freedom of opinion and discussion is guaranteed. More importantly, the justices are human and adorning them with the robe of infallibility is dangerous. Indeed, as humans, it cannot also be ruled out that some of them are subject to extra-legal or extra-judicial influence and ideologies. And the fact that there have been individual defences here or elsewhere against such accusations or challenges amount to little. Surely, an accusation that is left unanswered amounts to acquiescence even if the answer doesn’t cut it.
In the case of the United States Supreme Court, I have always been stunned by the fact that a president nominates a justice ostensibly based on the justice’s knowledge of the law and his or her qualifications for the bench, but in reality based on his or her judicial philosophy, which could be liberal, conservative or moderate. And when senators are called upon to advise and consent, it is the judicial philosophy that dominates their mind. How is it not to be expected that particular judges will decide in particular ways? There is no pretence about it. Hence the conflict between Senate and President whenever there is a vacancy.
In our case, there is a shameful deception, which was laid bare by no other person than Chief Obafemi Awolowo in a powerful 1980 paper titled: “On Man’s Injustice to Man.” That paper was a response to Chief Graham-Douglass’ paper titled: “Judicial Process Today: Constitutional Interpretation”, which had been read at the Commonwealth Law Conference in Lagos. The Graham-Douglass paper had sought to defend the judgment of the Supreme Court in the Awolowo v. Shagari and others, that is, the election petition of Chief Awolowo against the declaration of Alhaji Shagari as the winner of the 1979 presidential election.
Chief Graham-Douglass had suggested that “the public interest is a potent –not just potential—factor in the production of judicial decision in cases of constitutional significance and consequence” and that in the case of “Awolowo v. Shagari such was the intensity of public interest generated by the case and such was the extent of the judgment of the Supreme Court that not many Nigerians would have castigated the court for manifestly taking into consideration and predicating its decision inter alia on the repercussions of the decision and the manner in which it would either assuage or frustrate the public interest.”
Among the factors of public interest that the justices were understood to have considered were the fact that the Head of State had received messages of congratulations from world leaders on the conduct of the election, that market women from Lagos and Southwest Obas had visited the President-elect with solidarity messages, and the outgoing Head of State had completed his handing over notes for the new administration to take over, etc. The argument then was that the Supreme Court had to take all of these into consideration in its decision. Public interest must trump legalism; the argument seems to suggest.
Of course, Chief Awolowo turned the argument into shreds, debunking all the judicial precedents identified by Chief Graham-Douglass. The interesting point, however, is that while dwelling so much on public policy and public interest as good ground for judicial decision, Chief Graham-Douglass goes on to suggest that in the case of Awolowo v. Shagari and others, the court’s dismissal of Awolowo’s appeal was based on another ground, that is, the “fractionalising of a legal entity” as Chief Awolowo puts it. And because that judgment was not supposed to serve as a precedent, it is clear how much of a moral burden it has proved to be on the Fatayi-Williams Court to this day.
Based on Justice Fatayi-Williams’ alleged political sympathy for the ruling party in Western Region in 1964 and 1965, Chief Awolowo raised several questions about the manner of the jurist’s appointment as Chief Justice in August 1979 just as Awolowo’s election petition appeal was formally submitted. Other two candidates considered were Justice Udo Udoma and Chief Rotimi Williams.
The Supreme Court, like any other court, is a human artifice which is not immune to human frailties. Citizens must be on guard to protect the eminent jurists from their humanity.Their Lordships must appreciate this. Besides, it is the duty of citizens to jealously guard their freedom from narcissistic judicial philosophies.
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