Justice Or Public Policy: The Yar’adua Ruling

The recent ruling of the Court of Appeal, acting as the Presidential Election Petition Tribunal that decided that President Umaru Yar’Adua was validly elected on 21 April 2007 surely merits comments by Nigerians, and indeed the whole world, as we do not live in isolation as a nation. The general belief is that the ruling was fixed or at the very best, expected and predictable. Nobody expected the outcome of the Tribunal ruling to be in favour of both former Vice President Atiku and former military Head of State Buhari, the main petitioners, such that the election will be upturned.

However, what I have observed in the past two weeks or so since the judgement of the Tribunal is that previously vociferous opponents of the way the April 2007 elections were conducted have been very quiet. Have they given up the fight? Or could it be they have decided to accept defeat knowing there is nothing they can do about reversing the outcome?

Then comes the allegations of either bias, or outright bribery of the members of the Tribunal. This is very contrary to our recent views and confidence in the Nigerian judiciary, which has seen in very recent months, a lot of reversal of state, senatorial, state House of Assemblies and local government elections. At the last count, seven State Governorship elections have been voided, and either the sitting Governor removed completely and the petitioner installed (as in Rivers and Abia States), or new elections ordered to take place (Adamawa and Kogi States), and then the voiding of the election of the Senate President, Senator David Mark, himself, which I assume he will appeal. He has to, doesn’t’ he?

Nigerians have been having a new lease of life, as far as the judiciary is concerned. We were believing our learned judges to be more democratic, incorruptible (or at least, tending towards that) and fair and just. Then suddenly came this judgement? Is it the right judgement? Is it justice? Were they bribed or induced? Were they themselves convinced that their ruling is the right one, for the public interest, or political expediency, or for the good of Nigerians, and not for those of the ruling clique?

Many schools of thought felt that the ruling was for the common good and in the public interest. This is quite debatable, but I would tend to agree with this.

One thing we must agree on is that this was a judgement as opposed to justice. Justice is a matter of relativity: it depends on what side of it you are, or what you stand to gain or lose from justice being served. Justice concerns the proper ordering of things and persons within a society. It is a concept of virtue – a property of people which governs their actions and the institutions they create. It is emphasises actions or institutions, and is governed by the people who bring these about. In Plato’s Republic, justice is the interest of the strong, that is, it is merely a name for whatever the powerful or cunning ruler has managed to impose on the people, to his or her own advantage. Nietzsche, in Human, All Too Human, however stated that “there is no eternal justice”.

Again, justice may be derived from the mutual agreement of everyone concerned, or from what we would all agree under hypothetical conditions including equality and absence of bias. Thus, when we look at our particular case of the Yar’Adua ruling, the President, and others who supported him or who have something to gain from his being in power, will come out and say, they have received Justice. On the other hand, Atiku and Buhari and their supporters will never believe Justice has been served. This is the way things are.

Judgement on the other hand, is a balanced weighing up of evidence preparatory to making a decision, and a formal process of evaluation of all evidence, corroborative statements, criteria and conditions applies. A judgement is a mere statement or pronouncement of a decision arrived after an evaluation of alternatives. Hence the Judges of the Court of Appeal in Abuja came up with a statement, which we will assume that they have weighed up all alternatives before pronouncing it. As we also acknowledge that they are learned and very much experienced in the discipline of Law, we will also defer to them that they have considered all evidence and alternatives, and this is the best judgement they can come up with, under the prevailing circumstances and evidence at hand. Since they are in that high pedestal of knowledge and they are very erudite, it will be unfair of us, those of us not versed in Law, to doubt their wisdom and judgement.

This writer is neither for nor against the judgement of this Court of Appeal, for the simple reason that, no matter what the outcome of the decision is, President Yar’Adua will always be the winner. And I will guess this is what predicated the judgement of these learned men. However, if the decision had gone the other way, that is, if Yar’Adua had lost, and the election upturned or voided and a new election ordered, probably within three months, his administration would be a “lame duck” one, for three months, and the country will be held hostage. Granted, there will not turmoil in the scale predicted by some people, but such limbo of state governance will not bode well for Nigerians. As it is, things are going rather too slow for us from Yar’Adua’s Administration of barely nine months, and another three months of uncertainty will certainly add more to our problems. Thus, instead of the Administration concentrating on the work ahead of them, much, if not the whole of their energy will be dissipated on electioneering again, thereby leaving governance in limbo. This is what I will assume, predicated the decision of the Court of Appeal, amongst other factors.

Now, let’s say, the Court of Appeal voided the election of President Yar’Adua, and a new election is called, who will win it? I am of the opinion that Yar’Adua will replicate his success at the polls again, even under a very free and fair election. Nigerians are not only becoming used to him, after eight months, but we are gradually accepting him. Even at the last election, despite what we generally said about his election being flawed, the general consensus is that, Yar’Adua would have beaten both Atiku and Buhari, and other contenders, by a very long margin, even without Obasanjo’s dubious hands in it.

In the main, the resentment of most Nigerians to Yar’Adua’s election was the perceived manipulation of the “hated” Obasanjo, combined with his failed Third Term Agenda, and other misdemeanours, which still clings to Yar’Adua like a leech. Most Nigerians believe that Yar’Adua is actually better than his two main protagonists, Atiku and Buhari. It was a kind of Hobson’s Choice for us – where there is a free choice in which only one option is offered, and none may refuse to take that option, the choice therefore being between taking the option or not taking it at all; “Where to elect there is one, ’Tis Hobson’s choice – take that, or none” (Thomas Ward in English Reformation, 1688)

The bottom line in those days of politicking prior to the April 2007 was that Nigerians were not really given too many choices of Presidential candidates, despite the fact that we had over twenty contenders from several political parties. We were not spoilt for choice. On the long run, it was either chose Yar’Adua, or don’t chose anything at all. So it was not a true choice between two or more options. However, we are learning to accept it and live with the consequences, and as it is turning out, we may have made the right choice after all.

So, again, the decision of the learned judges of the Court of Appeal may have been a Hobson’s choice. Have Yar’Adua or nothing. The other options are not better than what you have now. This is not a matter of justice, but that of public or political interest. Or for the good of the country. And after all, has not the “Rule of Law” been adequately demonstrated and accomplished in several states? So, people, leave well enough alone, and let’s get back to the business of governance.

This now brings us to the matter of “public interest”, which again may have had an impact on, or been predicative of the judgement of the learned judges. Definitely, the outcome, whichever way, of their decision, is in the public interest of Nigerians. What is missing is whether it will be negative or positive to the public interest. The judges have taken the view that the interest of Nigerians is best served by coming to their particular decision. They have assumed, rightly or wrongly, that it is for the good of the public, and not for the good of the contenders. Of course, this is debatable. Whose interest is being served by keeping Yar’Adua in power, or by legitimising his election? Are we, the public and the common Nigerians, now to assume that we will now get a better deal from Yar’Adua, since he can now concentrate on his “seven-point agenda”, having had a stamp of approval on his election, and thereby no more distractions (except the Appeals that will surely come from Atiku and Buhari)?

A society is composed of individuals, and the matter of public interest must be calculated with due regards to the interests of the members of the society. A definition of public interest supposes “common well-being” of “general welfare”, and is central to policy debates, politics, democracy and the nature of the government itself. In our country, we all know that our leaders do not share our pre-defined views of public interest, only their own interest is paramount to them. While it is claimed that aiding the common well-being or general welfare of the people of a society is a positive ideal, there is little, if any, consensus on what exactly constitutes public interest. A totalitarian ruler may for example claim he is acting in the interest of the public, as have been claimed by all of our military leaders in the past, and which we have found, to our great cost, as a big lie. So, what is the public interest in such cases?

It is possible that in some cases, advancing the public interest will hurt certain private interests, and thus risks the “tyranny of the majority” in a democracy, since the interests of the minorities may be discarded. So it may well be that the Court of Appeal’s judgment, while ostensibly based on public interest or public policy, may actually be advancing the interest of some cliques, in this case, our political class. In Nigeria, nobody ever knows for sure whose interest is being advanced, but based on our past political and governance history, we may be able to conclude that our governments never consider our interests, or if they do, they only do so half-heartedly or only when they are forced to. Hence, why would any right thinking people, or group of people, include an “Immunity Clause” in the country’s constitution, to protect some leaders from prosecution, no matter what crime they commit against the people whilst in power? Whose interest is being served – the public’s or the political leader’s?

Another explanation of the judgement or decision of the Court of Appeal in this case, is that they may have come to their decisions with consideration for public policy. In most legally advanced countries, judges in common law systems have the right to make judgements on the grounds of public policy, a related term to public interest, and which addresses the social, moral and economic values that binds a society together. Richard Cappalli, in The Disappearance of Legal Method, (1997) suggested that in performing the function of public policy, the critical values of any legal system must include neutrality, impartiality, certainty, equality, openness, flexibility and growth. This assumes that the true purpose of any dispute resolution system is to discourage self-help and the violence that often accompanies it; that is; citizens have to be encouraged to use the court or legal system to resolve conflicts or get justice, instead of resorting to violence or anarchy.

In a way, the judges are probably right to base their judgment on public policy. If we all remember all the protracted events and utterances prior to the April 2007 elections, many Nigerians, and even interested foreign powers, were fearful that the elections may not hold at all, and Nigeria will be thrown into confusions and possibly into civil war, what with several aggrieved politicians making threatening noises like “If I am not allowed to run, the election will not take place”, “Nobody can stop me from running for President”, etc. So, it is probable that if their decision had gone the other way round, we may have anarchy on our hands, at least until a new election holds. On the other hand, when the gubernatorial elections were voided in some states, what happened? Nothing, in most cases. The heaven did not fall down.

So then, we can see that President Yar’Adua has always been in a win-win situation. He has always been sitting pretty in Aso Rock. It does not matter what the bias, neutrality, impartiality or political leanings of the judges are. He has always been assured of success. What Nigerians should be hoping for is that he now translates this new success and legitimacy into meaningful, responsible and good governance. For his own sake, he had better, for History and Nigerians will judge him very harshly if he fails to take advantage of this opportunity, as his predecessor, Obasanjo, is being judged now, because he failed to take the same advantage. It is up to him.

The final word on this issue is the “right” man is still the President of Nigeria, insofar as the April 2007 elections are concerned. Forget about the election being flawed. Abubarka Atiku does not deserve to be the President of Nigeria, much as Adebayo Alao-Akala does not deserve being Governor of Oyo State. They are both aberrations. Muhammadu Buhari, does not deserve to be there too, knowing his human rights record and his rigidity when it comes to religious and tribal tolerance.

A few lessons are to be learnt from this. And I would like to refer to Professor I A Akinjogbin’s excellent book on Yoruba History and Culture, ” Milestones and Social Systems in Yoruba History and Culture (2002)”, which although was a thesis on Yoruba History, is also apt to our political history as a nation. One is that unequal distribution of wealth and power weakens the social fabric of any nation and may ultimately lead to its decay. Two, that continuous and deep-seated disunity and disagreement among the ruling classes for whatever reason may also lead to the ultimate demise of the polity; and three, an unwonted attack and destruction of the constitution that holds a country together for selfish and sectional reasons ultimately does no good to anybody in the whole country. It is important that our political leaders heed these three lessons; else they are not the only one heading for destruction, but they will bring down the roof on all of us.