Law And Politics: Filling The Gaps


The Supreme Court by its judgement must promote public interest and public morality, writes Chimezie Elemuo

The Supreme Court of Nigeria has been on the radar of legal and political discourse recently following its refusal to set aside its judgment in respect of the governorship election in Imo State. This judgment like others before it has raised some legal, political and moral questions. Law and politics play different roles in human affairs. But in between law and politics, is the need to maintain good moral standard in the political affairs of the state, and the areas law is permitted to make an inquisition. It suffices to say that the decisions of our political class and the judges must maintain a minimum standard of morality. Judges don’t make laws neither will the legislature sit in judgment over its matters. Both the judiciary and the legislature have their core mandate and discretion.

They must exercise these mandate and discretion within those values cherished in a modern society. It was in recognition of this, that Jonathan Sumption, a retired British Supreme Court judge said in his Reith Lectures organized by the BBC entitled law’s expending empire that “judges don’t decide cases in accordance with the state of public opinion but it is their duty to take account of values of the society which they serve.” So we may well ask ourselves what are those values we expect our judiciary and political institutions to imbibe in their daily functions- functions that affect the daily affairs of men and women in the society? The core of these values no doubt is probity, transparency, honesty, merit and self-appraisal, to mention a few. All these core values are moral issues, the law only provides the tool through which they are maintained and their infraction becomes punishable. The Supreme Court is expected to imbibe these values in its judgments, and the failure to play this role has placed a serious moral burden on the society.

Human society is dynamic. Law is dynamic as well. Law must respond to the change in the society. How does it do this? This is why the courts exercise inherent discretion in their adjudicatory functions. Judges don’t make laws. In Fawehinmi V. Akilu (1987) 4 NWLR 797 at 843, the Supreme Court held that “in every actions before the courts, in every step taken by a judge, his discretion is called into play, whether in interpreting the law or in deciding an action one way or the other, if it is otherwise, giving effect to the rule of law would amount to dexterity in manipulating date….” The courts, particularly the Supreme Court are meant to give meaning to the mute words of the constitution and give hope to the society. In other words, where the constitution or any law is silent, the judge fills the gaps by exercising its discretion judicially and judiciously. The constitution did not create solution to every problem that would rear its head from time to time, but that does not mean that the situation is entirely hopeless. The constitution vested the judicial power on the courts by virtue of section 6(6) (a) “to all inherent powers and sanctions of a court of law.” So, it is not expected that the courts shall fold their hands, when a problem calls for a legal pronouncement. It is therefore, important to state that the role of the law in the society is to ensure that all human conduct complies with the basic expression of orderliness and decency.

For what is decent and proper cannot be wrong. It is in this regard that one may say that law is a method of social control. Law is also an instrument of corrective and distributive justice. Law calls us into social conformity. Law creates a code of conduct. There is no alternative to this code of conduct. Therefore, any judgement of the court must resound with reason, and should not create any moral or legal loopholes. In other words, one of the qualities of a good judgment is that the judgment must be morally and legally sound. A judge is not called to answer moral questions, but he must not create the avenue for the public to question the morals of his judgment. So law calls us to conformity in every aspect of life. Judgment of our courts must conform to the basic values cherished in the modern and decent society.

The former governor of Imo State, Hon. Emeka Ihedioha, lost his application to set aside the Supreme Court judgement that sacked him as the governor of Imo State. The Supreme Court said granting the application will lead to a floodgate of such application in the future. The Supreme Court simply said that its decision is final, not that there are no grounds to grand the application. The fear of the Supreme Court is that it does not want to ridicule itself by granting the application. But the Supreme Court would have restored the confidence of the Nigerian people on the judiciary by granting the application. It is on this score that I salute the courage of justice Nweze who granted the application. It does not matter to the Supreme Court that the man who lost an election has been declared the governor. The Supreme Court has laid a very dangerous precedent on Nigerian politics. Did the Supreme Court simply deliver a political judgement? I fear so. As noted earlier, a good judgement must be sound legally and morally.

The judgment is not a good one. The Supreme Court has been engaging in legal somersault recently, and this is not good for the image of the Nigerian judiciary. If a judgement is an illegality or obtained by fraud, it is a good ground to set the judgement aside. The Supreme Court has set aside its judgements that are illegality a number of times. The court should not be seen as taking over the functions of INEC simply because the politicians and INEC have failed. The court should be circumspect to avoid giving the impression that the court is the final decision making body as to who won an election or not. The ultimate body that decides who won an election or not is INEC, and not the courts. What the courts do is to simply review the decision of INEC by way of election petition. Therefore, the Supreme Court by its judgement must promote public interest and public morality. There are no alternatives to these.

It suffices to say that the Supreme court at all times has the opportunity to redeem itself, where it had erred. The Supreme Court has the jurisdiction to determine whether it erred or not- that is, whether its judgement led to miscarriage of justice.
The Supreme Court must strive to always deliver judgement not coloured by politics. Like Sir Winston Churchill puts it, “the principle of the complete independence of the judiciary from the executive is the foundation of many things in our island life. It has been widely imitated in varying degrees throughout the free world.” Independence of the judiciary is key if our democracy must survive.
––Elemuo is a Port Harcourt- based legal practitioner