Analysis/Commentary
Case for Due Process
Nov 15, 2007, 17:05
| | Case for Due Process
Despite the clarifications by presidential adviser on communications, Mr. Olusegun Adeniyi, more queries have been raised by some analysts who express deep reservations about President Umaru Musa Yar’Adua’s policy of strict adherence to the rule of law. The obvious implication of these reservations on the insistence of Mr. President that he would not sacrifice due process, an offshoot of the rule of law, at the altar of political expediency, is that the policy is wholly misconceived even by learned people in critical sectors of the society. Yet Mr. President has not postulated a novel doctrine on democratic governance. His position is that government needs moral authority to govern and that the main source of that authority is its own full compliance with the law. He thinks one of the basic causes of the nation’s underdevelopment is the general disregard for established rules and regulation and the impunity with which laws are broken. He admits that the greatest culprits are the big men who are not used to obeying the nation’s laws. For him, therefore, the way forward out of the morass is to restore law and order which most Nigerians agree have completely broken down. To achieve this, he contends, there must be full compliance with the law and respect for due process and established rules and regulations.
But some analysts disagree with Mr. President on the practicability of the notion of full compliance with the law, established rules and regulations as well as strict adherence to due process. Using two recent issues of national interests, the disagreement between the Minister of Justice and Attorney-General of the Federation (AGF) and the Economic and Financial Crimes Commission (EFCC); and the crisis of leadership in the House of Representatives, they seek to show the weaknesses of Mr. President’s policy of strict compliance.
In one critique of Mr. President’s invocation of the principle of separation of powers to justify his policy of non-interference in the leadership crisis in the House an analyst agrees that, “It is good to hold strongly to the rule of law as an article of faith in a democracy,” but warns, “It can also be very dangerous to be enslaved by it as if it is an end in itself.” He argues that the policy “creates a dichotomy between integrity and due process,” when what was required was for Mr. President, “as an embodiment of moral authority in the country, to exercise that influence through the party caucus as the leader of the party” to “ensure that the speaker does not use her position to compromise the principle of natural justice… or allow her actions to further damage the integrity of the whole nation.” Furthermore, he says, the policy betrays “presidential officials’… narrow view of the rule of law and [the doctrine of] separation of power[s],” because they fail to appreciate that the doctrine “does not eliminate interdependence and influence.” Plainly put, Mr. President should have intervened by summoning the former speaker to the party caucus and ask her to step aside.
Another analyst says the policy amounts to an act of indifference but for which the crisis would not have been prolonged if Mr. President “was conscious of the moral responsibility of his office.” According to him, “As the leader of the party, [Mr. President] should have used the party to demand Etteh’s resignation when it appeared the crisis was not only bringing the party to odium and ridicule, it was crippling the process of legislative activities.”
Contrary to these submissions Mr. President’s policies on the two issues are sound in law and politics. As the presidential adviser on communications has explained, the rule of law is not an abstract legal coinage that is bereft of concrete and tangible meaning. It means rule according to law. It is characterized by ascertainable codified rules that guide the conduct of citizens and lay down the process through which they must engage themselves. The latter is what is generally referred to as due process. The purpose of law is to set order in the society so that there can be peaceful cohabitation without which there will be anarchy. This is why everyone is enjoined to obey the law. And the Supreme Court has in several celebrated cases highlighted the need for both citizens and government to subject their conducts to the requirement of the law of the land. In this, there appears to be no disagreement between Mr. President and his critics. The disagreement, however, stems from the notion of compliance. Whereas his critics say there should be no rigid or dogmatic approach to compliance, he insists that it should be total. Whereas critics believe that compliance can be relaxed for political reasons, he contends that obedience to rules must not waver in the face expediency. This position was clearly enunciated in one of the communications adviser’s interventions: The fight against corruption will not be compromised. But the battles will be waged within the confines of the law. No one no matter the justness of his cause will be allowed to pursue it outside the stipulated process.
This was the principle that Mr. President applied in the quarrel between the AGF and the EFCC over prosecutorial powers, and investigation and prosecution processes. Given perceived abysmal performance of many of the former governors in office, they are understandably unpopular with the people and it is true that there have been loud calls for their probe by corruption agencies. Many Nigerians believe that public funds meant for provision of infrastructures have ended up in the governors’ private foreign accounts. Consequently, there is palpable outrage in the land and many people have called for their prosecution for corruption. Obviously in response to the popular yearnings, the EFCC moved in, arresting and detaining some of these former governors. Some of the former public officials turned to the courts for reprieve. To the consternation of many Nigerians, the courts obliged them and granted interim orders, restraining the EFCC from arresting and detaining them. In one of the cases, the AGF intervened to enforce the order. This increased public outrage as many complained that the rule of law has become a haven for “looters of public funds.”
As understandable as this outrage is, it is essentially misconceived and betrays a misconception of the nation’s legal processes and system. The constitution presumes a criminal suspect innocent until proven guilty. It insists that investigations and prosecution must be timely. This is why, for instance, suspects are required to be charged to court within 48 hours of their arrest. It also enjoins every citizen who fears that his rights may be trampled upon to approach the court for protection. These provisions are applicable to every citizen, including the ex-governors who have taken advantage of them.
But it is untrue, as some critics have portrayed, that law-abiding citizens are at the mercy of social misfits. What the law seeks to do is to prevent a situation where law enforcement agencies will use their awesome powers to oppress the citizens. That is why it imposes the burden of proof on them so that innocent citizens do not get punished because of the mistake of the enforcers of the law. Indeed the criminal justice system is rooted in the belief that it is better for a million criminals to escape justice than for an innocent man to be punished for the offence he did not commit. The law is decidedly protective of citizens’ rights, including those of criminal suspects. It will, therefore, be shortsighted to seek to abridge this intention of the law simply because some big men who have allegedly mismanaged the nation’s commonwealth are involved. Once that precedent is set it can be abused and used to put the people down.
As Mr. President has explained, due process is not particularly convenient but it is essential for the development of the nation’s institutional capacity for growing its democratic culture and combating vices. Therefore, while the ex-governors can approach the courts for restraining orders, the law enforcement agencies too can ask the courts to set them aside. Meanwhile, orders of courts no matter how silly they may look must be obeyed until they are set aside. This is what has happened in the Delta State Government and the EFCC case over former governor James Ibori.
Nothing so far has justified Mr. President’s policy of non-interference and compliance with due process better than the resolution of the leadership crisis in the House of Representatives. He refrained from intervening at the onset of the crisis and advised that the House should apply its rules in dealing with the crisis. Refusing to yield to pressure for executive intervention, Mr. President insisted that he was constitutionally barred from interfering in the internal affairs of the legislature. In using the principle of separation of powers to defend non-interference, he was not oblivious of the related issue of the interdependence of the three arms of government as a collaborative instrument and catalyst for good governance. This was why at his maiden breakfast meeting with the leadership of the National Assembly in June, Mr. President stated his rule of engagement with the legislature and said he would always consult its leadership before taking any major policy decision.
The critics of Mr. President overlook the fact that the leadership crisis in the House arose from the subversion of its internal processes for the award of contracts. The crisis also became prolonged for this same reason, as members who wanted to unseat Madam Speaker were not willing to abide by the House rules for fears that they might be outnumbered and outmaneuvered by the initial numerical strength of the Speaker’s supporters. For there was no way under the House rules Madam Speaker could have sat on the consideration of the David Idoko report. Certainly, this problem could not have been solved by a further subversion of the House processes, which was what the intervention of Mr. President would have amounted to. The guiding principle was the need to encourage the legislature to strengthen its capacity to use its internal mechanism to deal with its challenges.
This principle shows a sound appreciation of the failure of the interventionist policy of President Olusegun Obasanjo. It would be recalled that from the inception of his administration in 1999, President Obasanjo felt that he needed to control the legislature before his policies could have a smooth sail in the National Assembly. He, therefore, intervened in the selection of the leadership of the two chambers. As it turned out the policy was an unmitigated disaster as it sowed the seed of instability not only in the National Assembly but also in the party. In the first Senate of the Fourth Republic, for instance, the leadership seat changed hands three times. In the second Senate, leadership changed twice. Many analysts have argued, with justification, that the House leadership crisis as well as the sorry state of the Peoples Democratic Party (PDP) is a direct consequence of this policy as most of the members of the House saw Madam Speaker as a burdensome imposition that must be relieved.
Borrowing a leaf from this disaster, Mr. President insists that he does not need to impose his views on anybody or group but rather will prefer the tedious process of persuasion, believing that superior arguments will always prevail in any rational discourse. This was why he refrained from having any preference in the selection of the National Assembly leadership in June, and also resisted the pressure to be part of the selection process after the fall of Madam Speaker. The correctness of this position has been further manifested by the demystification of the party leadership by its members during the selection process of the new speaker. Despite Mr. President’s advice that the members should be allowed to choose their speaker, the party leadership joined the fray and got badly burnt. The party leaders apparently failed to see what Mr. President saw: That the leadership was in a state of flux, a lame duck whose diminishing value lacked the moral authority to command respect.
By Bolaji Adebiy, Special Assistant (Political) to the President
© Copyright 2006 nigeriafirst.org
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