By 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 SAN, Professor of Law
