PREMIUM Times, an online portal, was, perhaps, the first to break the news. It ran under: Akwa Ibom govt gets injunction; says EFCC can’t probe “federating units”, July 22, 2016.
Immediately the news made the rounds, we were pleased for the development of our legal and justice systems. It was signally a thing of grace that in this instance, our justice delivery system was developing in the direction of the march of civilisation. For those who are students of civilisations, the duty, it appeared, is to wait and watch, as the case evolves and finds final resolution. Of course, we were prayerful it will be in the direction of our greatest humanism, and thus civilisation. But before one could take a breath, a gentleman broke ground and circulated an online riposte: Illegality of the Injunction Obtained By Akwa Ibom Government Against EFCC, ICPC And Others, by Inibehe Effiong.
The first great error of this author, a canvasser of opinions, is to write in a self-elected, magisterial if misguided self-importance. He writes for instance: ‘’Contrary to the submissions of Mr. Nwoko, the orders granted by Justice Ntong are not only incurably bad and illegal but constitutes a gross abuse of judicial process and powers in the light of litany of judicial decisions, including those of the highest court of the land (the Supreme Court) on the matter.’’
If he had limited himself to this style dry understanding of law and legalisms, we would have visited him with pity or even condolences. But he was not to be done. He strayed further to write of: ‘’A nation without an independent and conscientious judiciary cannot advance or be taken seriously in the comity of nations. Strange injunctions, such as the one granted by Justice Ntong, has greatly diminished the sanctity of our courts and eroded public confidence in the administration of justice.’’
In a sense, he was pontificating on history, the rise and civilisation of nations. At this point it was clearly evident he was into matters beyond his briefs. Comity of nations is a concept attached to Westphalian sovereignty, as developed by western scholars. [By the way comity of nations is not a gathering of nations, but a courtesy protocol of nations in civilisation, and not barbarian nations, for whom Gowonisms and or the beast is the king is rule].
Now, like with all ideas, the concept of comity of nations comes with a substratum, an assumed universe that is not often current to intellectual or legal interlopers, who have not bothered to read the minutes of the last meeting. While the written words or stated assumptions were clear, the inner room or sociological assumptions upon which these were built are not. The only way an outsider scholar or legal mind may know those is to ‘excavate’ into the soils below the humus.
Central to its submerged logic of comity, is not just the integrity of the system but its outward and inner fairness. And this fairness is and can only be achieved by independences of the various arms of governments or in proper words governance. That is to make an entrée into the comity of nations and enjoy the privileges thereof, is to have a government of not just separation of powers, but powers in balance.
Now Nigerians understand separation of powers in its outward and dry definitions of the division between the executive and judiciary and the legislature. On the face of it, that is. But the submerged logic or ‘pre-norm,’ and not the wrongly mouthed Grundnorm, is that powers must not only be distributed, but must be so distributed that none of the power centres can amount to a Caesar, an incubus or the tail that wags the dog. And this must be without prejudice to its avowed aims, whether of rooting out corruption or turbocharged development. Of course, history teaches us that is the feint of innocence upon which a dictator stealthily mounts his thrones. [See American second amendment for instance].
That is to enter into the comity of nations is not just in having a constitution, legal systems and all, and adhering to them. It is most important that the said constitution and legal systems must be so architected that no one power centre therein is able, for whatever purposes, to overwhelm others. So, it is not the presences and adherences of enforceable constitution that admits one to the privileges of the comity, but first, its construction or forever going reconstructions.
To give example. Amongst the great and not just powerful nations of the world, most of which are Western [and that includes Japan], the observance is strong that outlandish or freakish nations like Russia, North Korea and China are not entitled to the privileges and protocols associated with the comity. China, etc. for instance, are still notorious for their show trials. Theirs, are just about the only justice systems where a man begins to shed tears of remorse immediately he is docked, and even his ‘retained’ counsels admits first to his or her guilt. It is interesting to recall this headline for instance: ‘’China returns to show trials of 1950s and ’60s, legal experts say analysts say China is moving back to public trials aimed at shaming and intimidation.’’ Aljazeera August 28, 2014.
This is why legal decisions of rogue and fantastical states like North Korea, Russia and China are not admitted into equivalences in the West. And this is a key test of the comity of nations concept.
The submerged point to note is that the distortion of the justice system and its deliveries necessarily happen in all political and judicial systems where one of the arms [especially as history records the executive], acquires dominant and or dictatorial powers to itself, so much that it overwhelms not just the judiciary and the legislature but the other constituent units and centres of power, like the states and other municipalities.
Now, one of the greatest phrases of the Western comity experience is to ‘’achieve a more perfect union’’. Literally, it is about the division of powers. But in its submerged or conceptual backgrounds, it is about the role of the state as a tool of civilisation. In fact, that phrase, which must be taken as electorally sacred, is a portable summary of all the political theorising from Plato to Montesquieu and beyond. And the central question is how do you construct and disperse power in such a manner that the state will be not only stable, but becomes developmental vehicle in sustainable terms.
The answer is that the law becomes a tool of civilisation and not vice versa. That is to say that at any point, power is to be so harmoniously segregated amongst the judiciary, the legislature and the executive, as well as the various sub-national units like states and mayoralties. The historical experience is that if power is for whatever reasons aggregated in one hand, it will destroy civilisation, even if that be in the vain hope of erecting the state, ala Hitler. Hitler, we all have to recall, was not an evil child. His monstrosity was because of the omniscience powers he aggregated into his own mortal hands. The point is that anybody with the powers of a Hitler will be just as evil. Power corrupts and absolute power maddens. Civilisation has learnt its lessons.
The danger thus, is that if the Federal Government for whatever purposes is allowed to aggregate dominant powers, not just over the other arms of government but its constituent units, we are despite our good intentions about transforming an elected president into a monster.
And we have to warn that the gambit that the Federal Government is in it for the rooting out of corruption is an old and retired movie. For instance, China’s Xi Jinping is using the same time worn bogey of cleansing China of corruption. Meanwhile, behind the mask of anti-corruption drive, he is aggregating the most power, rivalling that of Chairman Mao. And just as is the experience in Nigeria, the Chinese economy under his quest for monster powers is nosediving. For example, a Financial Times July 25 e-cast has it: ‘’Xi Jinping, China’s leader since 2012… has… grown to have such power in such a short time and what does he want to do with it?’’ So, it is under the feint fight against corruption that Xi is going for the greatest power grab in China since Mao.
Now the EFCC is in control of the presidency. And Nigeria’s presidency is notoriously the most odiously powerful in the whole world. If we next fall into the legalist error of handing over more powers to the presidency, the following is indicated. We would have chosen to have made General, retired, now president Muhamadu Buhari, not only the president of Nigeria, but the Governor- General of the 36 states of Nigeria plus the federal capital. We would have thus castrated the governors, into subaltern District Officers, DOs, of the 36 provinces of the president. And this would have issued from the ignorance of legalism being ranked over civilisation by poorly briefed lawyers.
It is in this sense that we must all salute the vision of the Akwa Ibom Attorney General and the judge in issue, for their visionary steps towards safeguarding our fragile civilisation and destiny. The point must be stressed, whenever the law is anti-civilisation, it must be reinterpreted towards the graces of a sustainable civilisation. To repeat, that is what Americans mean by ‘’towards a more perfect union’’. It is in this sense that the nation may have to grant counter-party immunities for principal officers of the several Houses. Democracy is not just about the separation of powers. It is more about the balance of powers and the harmonies therein. It is anti-civilisation to endure a president, who is as powerful as the gods and yet its agents, like the misbegotten EFCC, want more powers for her.