PRESS STATEMENT
by
Professor Ben Nwabueze
The attitude on the part of the Supreme Court, as the apex Court, that
it is not subject to the law, is fraught with grave danger for our
constitutional democracy. This is because, whilst the law of the
Constitution, is the primary instrument of the Rule of Law, and the
statute law the next leading instrument for it, court decisions form its
foundation. And when the foundation is faulty, the entire edifice
becomes shaky. The point needs amplification..
In our constitutional system, the courts are the only authoritative
decider and interpreter of what the law is for purposes of the Rule of
Law. And once a court has spoken, then, its decision establishes, with
binding force, the law on the point in issue, unless and until it is
reversed or overruled by due process of law. Neither the President nor
anyone else has the power or the right to substitute and apply their own
view of the law in preference to that of the court in a matter
affecting the lives, affairs and actions of other people. To admit any
such power or right in anyone, the President included, would only lead
to anarchy, to the substitution of the rule of the jungle for the Rule
of Law.
The binding force of decisions or orders of the court as the
authoritative decider or arbiter of what the law is under the concept of
the Rule of Law applies notwithstanding that a court decision or order
is perverse or blatantly erroneous on the merits; not only that, they
also apply despite the fact that the court lacks jurisdiction to give
the decision or make the order in question either because its
jurisdiction is ousted by statute or for some other reason. In a system
of government under law, as ours is supposed to be, no one, the
President again included, is entitled to disregard a decision or order
of a court of law, because, in his opinion, the court lacks jurisdiction
to give it.
In the recent case of Att-Gen of Anambra State v. Att-Gen of the
Federation & Ors [2005] 9 NWLR (Pt 929 – 931) 574 at page 606, the
Supreme Court, speaking through Katsina-Alu JSC, (as he then was),
affirmed the binding force of the court’s decision or order as the
authoritative statement of what the law is that governs or rules the
lives and affairs of people in society. Said the Court:
“The law in this regard is clear……..An order or judgment of court, no
matter the fundamental vice that afflicts it, remains legally binding
and valid until set aside by due process of law” (emphasis supplied).
But this obliges the courts to ensure that their decisions and orders
are in accordance with the law, and not given in disregard of it; the
court should not over-step the limits of its jurisdiction or power in a
show of reckless activism, as was done by Hon. Justice Okon Abang of the
FHC Abuja in his decision sacking Dr Okezie Ikpeazu as Governor of Abia
State, declaring Dr Ogah as Governor in his place and ordering INEC to
issue a Certificate of Return to Dr Ogah as well as ordering that he be
sworn-in forthwith, and as was done by the Supreme Court itself in Jev’s
Case (2015) 15 NWLR (Pt 1483) 484 when it ordered a person who took no
part at all in a general election for the election of members of the
House of Representatives, and for whom no votes were cast, to be
sworn-in as a member of the House and also ordered INEC to issue him a
Certificate of Return – all in disregard of the law as embodied in the
Constitution and the Electoral Act 2010.
It is apparently the pre-eminent role assigned to the judiciary in the
concept of the Rule of Law that has created in the Supreme Court, as the
apex court, the arrogant attitude that it is the law itself, and not a
subject of the law. As earlier stated, the attitude is fraught with
grave danger for our constitutional democracy, and the Court needs to be
shaken out of it by means radical enough to transform the Court’s
attitude about its role in our constitutional system, and the way it
goes about in applying its role.
The arrogance of power on the part of the Supreme Court must be curbed.
This requires to be done in a manner that accords with the guarantee
against “inhuman or degrading treatment” and respect for the dignity of
the human person in section 34(1) of our Constitution; the protection of
the right to private and family life in section 37; the guarantee of
personal liberty in section 35 relating especially to the processes of
arrest, detention and search.
Whilst judges are not granted immunity from criminal process, the vital
and sacrosanct role of the judiciary in governance entitles them to
great respect over and above that accorded to the ordinary citizens. To
disgrace a judge, as by a degrading treatment, is not just the
disgraceful treatment of an individual; it brings the entire judiciary,
as the third organ of government, the Third Estate of the Realm, into
disrepute and undermines its credibility in the eyes of the public. It
diminishes our country, and all of us. The matter therefore counsels and
demands cautious handling.
We are in a constitutional democracy, not a military dictatorship, and
the law must be respected and obeyed in the way the affairs of the
country are handled, including the handling of the fight against
corruption which we all wholeheartedly support.
Professor Ben Nwabueze
10 October, 2016
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