A MODEST PROPOSAL REGARDING ELZAKZAKY AND DASUKI – HOUSE ARREST (2)
“In a government of laws, existence of government will be imperiled if it fails to observe the law scrupulously.” Justice Brandeis, 1856-1941.A cardinal principle observed globally by every “government of laws” is that a person is presumed innocent until proved guilty by a competent court of law in a country where the judiciary is independent. The Nigerian judiciary, despite its known weaknesses, is for the most part quite free of government interference. It is understandable that power-hungry people in the Executive branch would resent such independence and attempt to intimidate judges the way Fuhrer Donald Trump tried to do when some US state judges knocked down his Executive Order in immigrants to America. We have had our own experience with attempts to cow the Judiciary by false accusations and arrests of Justices – including those of the Supreme Court. The war of independence of the Nigerian judiciary is still raging. Executive branch dictatorships are far more common than judicial dictatorships.
Most of the first generations of African leaders elected when “the wind of change” blew through Africa – Nkrumah, Kenyatta, Mobutu, Sekou Toure, Arap Moi, Hastings Banda, Kenneth Kaunda,William Taubman, to name a few, were elected and swore to uphold a constitution which they proceeded to subvert and make themselves life or long term presidents. We still have remnants in Cameroun, Uganda and Zimbabwe today. Gambia just got rid of another nuisance. There is no single instance of judicial despotism to which anybody can point. The Nigerian judiciary has been playing its part to uphold our liberty. It is the Presidency which seeks to abridge them.
When the law states that a person is presumed innocent until proved guilty, it implies that no punishment can be imposed on that individual. That is a cardinal principle of law which Buhari/Osinbajo are sworn to uphold. But, in the cases of El-Zakzaky and Dasuki, the President and the Acting President have failed so far to obey the law. Their government has become a law breaker and they are demonstrating bad examples to the citizens and encouraging contempt for the law.
Perhaps it has not occurred to our Presidents that by holding El-Zakzaky, despite court orders for their release on bail, they are not only imposing punishment on people presumed to be innocent, they are violating several of their constitutionally guaranteed rights. Among these are freedom of movement, association and the right to be heads on their households and members of their families as well as the right to provide financially for themselves and their families. It is unimaginable for one to think that our Presidents would not have considered these consequences of their disobedience of court order. I am prepared to give both of them the benefit of doubt. But, after this, there will be none.
However, two married men with wives and children, siblings, perhaps parents or uncles and friends play vital roles in the lives of other people and in their pursuit of liberty and happiness. Wives need and are entitled to the protection, support and comfort of their husbands; so do the children. These are basic rights which every free society seeks to uphold and which are not to be taken away from the family arbitrarily. Yet, these are the rights of several Nigerian citizens which the Federal Government under President Buhari and Acting President Osinbajo, SAN, are now willfully violating by disobeying court order.
Granted, ignorance is no defence in law, Buhari can be partly excused because he still has not adjusted to the tenets of democratic society. He swore to uphold a constitution he probably had not read fully only because it was mandatory. The same cannot be said of Osinbajo, a Professor of Law, Senior Advocate of Nigeria, SAN and a former Commissioner for Justice and Attorney General. He knows the constitution, the law and, most importantly – the truth. Honour and justice demand that he should live up to his oath of office on this matter. Since our constitution and Presidential system borrowed heavily from the United States of America, let me remind Osinbajo of a real test of honour which occurred in that country on what was called “Saturday Night Massacre”.
Saturday Night October 20, 1973, would remain for ever in American history as the night President Nixon disgraced himself and his Attorney General, AG, Mr. Elliot Richardson placed nobly in history. Nixon had ordered the AG to fire a prosecutor who was investigating the President’s involvement in breaking the law. As the investigation moved from minor officials closer to the White House, Nixon panicked and asked Richardson to terminate the appointment of the prosecutor. For the first time in American history the AG refused the order. Instead he resigned his appointment. His Deputy, William Ruckelshaus, was asked to take over immediately and to fire the investigator. He also declined the order and resigned. The episode marked the beginning of the end of the Nixon administration because as a Harvard Professor of Law, Raoul Berger had pointed out to US lawmakers “Disobedience of the law is a subversion of Constitution, which is an impeachable offence”. Berger was not finished. He went on to state that “….the attempt by the President to set himself above the law. We cannot permit that. It’s the road to tyranny, dictatorship, and Hitlerism. Democracy cannot survive if a President is allowed to take the law into his own hands.”
The following day, Monday Judge Sirica, one of the judges looking into the matter warned Nixon that “no President had ever been held for contempt of court, this might be the first time.” That the President and the Acting President of Nigeria are holding the two defendants despite court order is undeniably contempt of court which Osinbajo in particular should not be associated with. For him, more than Buhari, there is no excuse and it is the acid test of his integrity as a person. Money tests our honesty; power tests our integrity. Integrity, meanwhile, is not a fifty per cent thing; it is not even ninety per cent. It is hundred per cent. You either have it or you don’t – in which case your ethics become situational.
That said, I am not entirely naïve. People with high integrity find themselves in a group situation in which their own personal integrity might not be the only deciding factor. For Osinbajo the continuing detention of El-Zakzaky and Dasuki could be regarded as the exceptions that test our will to the limit. But, like Richardson, he still has a choice. Nobody was born Vice President or Acting President; and it shouldn’t be a do-or-die affair. At any rate, you either leave the office or the office kicks you out. If you live long after office, you will spend the rest of your life explaining what you did or failed to do – especially, given your antecedents. You can’t as a lawyer campaign for the rule of law and get into office to work against it and hope to enjoy a peaceful post-office life. That was why William Rogers, said that “Politicians are their own grave diggers.” (VANGUARD BOOK OF QUOTATIONS, VBQ p 191).
It is in the realization that Osinbajo might not have a totally free hand to decide what to do that this half measure – house arrest — is being proposed. It does not fully constitute full obedience to the rule of law; but it at least addresses the security concerns of government.
The benefits to both sides should be obvious. But, let me point out some of them to those who might want to take up the matter with the Presidency. By releasing them from prison custody or government detention centre the government has restored part of their freedoms now totally denied. The government moves from a total law breaker to a partial felon. That is a significant step. For the accused persons and their relatives and friends, it will constitute a giant step and demonstrate that we have a government with a human face. Wives and kids, especially, can once again some of the peace and harmony of family life of which they are now deprived –despite the fact that their head of family had not been convicted of any crimes to warrant the deprivation. Government and defendants and their lawyers can work out the details of the house arrest. But, government would have partly redeemed its promise to be law abiding.
ADVICE TO GOV ROCHAS ON FANI-KAYODE.
“Two people you should never argue with, my son, a fool and a lunatic. People might not know the difference.” My loving mother, August 4, 1964.
As I was packing my small luggage for departure to the United States of America, a proud recipient of American government scholarship, ASPAU, my mother called me aside and prayed for me. She ended with that admonition regarding fools and lunatics. I have taken it to heart; though I must confess that I sometimes let my guard down.
Owelle Rochas, Executive Governor of Imo State recently got himself involved in a needless controversy with Femi Fani-Kayode. It was a grave mistake which should not repeat itself.
Rochas, a very busy public official with direct responsibility for the lives of millions of people in Imo State and indirect obligations to 180 million Nigerians as a member of the Council of States, Nigeria Governors’ Forum, a top member of the ruling party is already one of the forty most influential persons in Nigeria. He should have no time for idle persons waiting for the “food is ready” announcement and seeking relevance.
Fani-Kayode has no responsibility for anything or any entity in Nigeria. Why waste precious time and energy on him?
“Be thou as chaste as ice, pure as snow, thou shalt not escape calumny.”
Shakespeare, 1564-1616. (VBQ, p 25). A word is enough.
