Date Published: 11/24/09
Restoring a Stolen Mandate – A Judicial Imperative By Martin Ajaero
Saint Augustine said a long time ago that the legitimacy of a state rests upon its claim to do justice. ‘Take away justice’, he said, and what is a state but a large rubber band?’ St Augustine, The City of God, Bk, IV (Penguin: Hammondsworth, 1984), 139. Contemporary political and social philosopher and former Harvard University Professor, John Rawls, postulated that justice is the ‘first virtue’ of social institutions, which means that justice is more fundamental than any other virtue, and that we cannot expect individuals to accept social regulations, and engage in social co-operation unless the terms on which society operates are seen as reasonably just. (John Rawls, A theory of Justice, pg 3-14).
Princeton University Professor of Politics, Alan Ryan, in his book, ‘Justice’ referred to the observation by Professor Rawls as the basicness feature of justice meaning that justice can be determined by all disinterested people when it is done, and similarly, it can be determined when it is miscarried. The idea of justice is so basic that most people can tell when it is done. The interest of society is advanced when most members of a society agree that justice is served. (Alan Ryan, Justice, pg 4).
It follows therefore that a society that wishes to live up to the true meaning of its creed and do the right thing by its people must strive to do justice; and those entrusted with the awesome responsibility of making sure that justice is done must be seen by acclamation as doing justice by the people. The learned Justices of the Abuja Court of Appeals must operate from a veil of ignorance as Professor John Rawls reminded us in his book, ‘A Theory of Justice’. These Justices must look at the issues before them in a dispassionate way and not be encumbered by personal feelings and relationships and the trappings of power. Thus far, they have met the challenge and we are very proud of them.
I am delighted as do many foreign observers of the April 14, 2007 Imo gubernatorial election that the Courts have finally waded into the matter to determine exactly whether the laws were broken or faithfully executed. In my opinion, and as one of these foreign observers, what happened in Imo State on April 14, 2007 was scandalous and nothing short of a stain on the conscience of great nation. INEC’s action shocked the collective conscience of the people of Nigeria. Their action was not only perceived as manifestly and grossly unjust, it was seen as unjust. INEC’s action gave rise to this legal challenge by Chief Martin Agbaso.
Justice Felix Frankfurter, in Rochin v. California, 342 U.S. 165, 72 S. Ct. 205, 96 L. Ed. 183 (1952) held that conduct by state agents, although not specifically prohibited by explicit language in the Constitution, "shocks the conscience" in that it offends "those canons of decency and fairness which express the notions of justice of English-speaking peoples." Due process of law requires the state to observe those principles that are "so rooted in the traditions and conscience of our people as to be ranked as fundamental." Notice again a familiar message, the basicness feature of justice is again emphasized by Justice Frankfurter.
In the case of Chief Martin Agbaso versus the Independent National Election Commission (INEC); the ordinary citizens of Nigeria believe that the well heeled Justices of the Abuja Court of Appeals and the Supreme Court of Nigeria have so far done the right thing. This is heartening and makes one believe Nigeria is not after all the banana republic that has been portrayed in some media outlets. There is not a single political case in Nigeria today that cries out for justice more than the Agbaso case. There is no objective political, philosophical or social analysis even by the most astute and gifted ones amongst us that can provide a reasonable corollary or logical explanation for what happened in Imo State on April 14, 2007.
As a foundational matter, the reader should know that INEC abbreviated the Imo gubernatorial election of April 14, 2007 after returns from 24 out of the 27 local governments areas were already received and collated. The collated returns had a winner and that was Chief Martin Agbaso of the All Peoples Grand Alliance (APGA). For this innumerate economist, 24 out of the 27 local government areas work out to 88.9 percent completion rate. The electoral body, INEC, claimed that violence and mayhem of the magnitude envisaged in Clause Part IV, section 27 (1) of the 2006 Electoral Act attended the election and yet, no one is able to independently verify their claim. For the benefit of the reader, the ‘Act’ reads as follows:
“Where a date has been appointed for the holding of an election, and there is reason to believe that a serious breach of the peace is likely to occur if the election is proceeded with on that date or it is impossible to conduct the elections as a result of natural disasters or other emergencies, the Commission may postpone the election and shall in respect of the area, or areas concerned, appoint another date for the holding of the postponed election”.
If violence and mayhem as envisaged in the electoral ‘act’ had attended the three remaining local government areas of Imo state, it is clear from the above reading of the ‘act’ that only the affected areas i.e., the three remaining LGAs, can be postponed to a latter date. INEC should not have cancelled the election, statewide. Under what authority did INEC cancel, statewide, the Imo gubernatorial election of April 14, 2007? It is evident from the relevant ‘Clause’ in the electoral ‘act’ as cited above that the authority to cancel the entire votes cast in the state gubernatorial election was not supported by either the 2006 Nigerian Electoral Act nor was it supported by the 1999 Nigerian Constitution. My friends, herein, lay the conundrum and the beast.
As a country of laws struggle to make a determination on whether the laws were broken or faithfully executed; we are once again reminded of the basicness feature of justice; and, that the legitimacy of a state rests on its ability to do justice. Reversing the wrong done in Imo State is, I believe, a judicial imperative and one that is long overdue for the people of the state and Nigeria.
In layman’s language, the cruxes of the matter are INEC’s action, their motivation, and the result of their action. For two and one-half years, Chief Martin Agbaso and his supporters have appealed to the conscience of this nation to hear their case and live up to the true meaning of its articles of faith and in the same length of time, the Independent National Electoral Commission, Governor Ohakim, Senator Ararume, and the Imo State resident electoral commissioner have used all that power, money, and influence can do to stop this case from moving forward.
There is nothing wrong in requesting a hearing to sort out the facts in an election? There is nothing wrong in making sure that the individual who would be called upon to make life and death decisions over the people of a state truly has the legitimacy necessary to carry out these functions. Despite very vigorous efforts at scuttling a hearing, the indomitable spirits of those who seek justice persevered and are undeterred by the flailing spirit of those who seek to thwart it. I have argued previously that contemporaneous in the notion that a hearing should not be had is a counter notion that those who resist it are afraid of might be uncovered if one is had.
Dr. Martin Luther King Jr’s 1967 speech in Memphis to the Southern Christian Leadership Conference (SCLC) asked how long before justice is achieved? Not long, he said, because the arc of the moral universe is long, but it bends toward justice. There are hopeful signs that those who sought to prevent Chief Martin Agbaso from getting a hearing from the courts; those who wants to continue the current political arrangement in Imo state, without regards to the legitimacy of the government; those who were instrumental in hoisting an unlawful government on the people of the state, and, those who have worked to perpetuate it will soon be reminded of these powerful words by Dr. King.
The legal jousting is almost over and the people of Imo state await the decision of the Abuja Court of Appeals with a great amount of dread and apprehension. The lawyers have done their best to discombobulate the facts, to conflate the issues, and convolute our understandings of the basisness feature of justice; yet, they have been unable to show us the source of INEC’s authority to cancel an election that was concluded in 24 out of the 27 local government areas of Imo state.
The people do not yet understand this theory of selective cancellation – a process where under the same set of circumstances and conditions, i.e., date, time, weather, staff, resources, referee, etc, state assembly elections were certified without being affected by violence and mayhem and yet, the governorship election under the same exact conditions and circumstances was cancelled because of it. Those responsible for what happened in Imo state on April 14, 2007 treated our collective ability to understand their game with insouciance; they underestimated the ability and capacity of free people yearning for justice.
The people of Nigeria would like to see the evidence and an independent reporting of the violence and mayhem of the magnitude envisaged in the 2006 Electoral Act that gave rise to the selective cancellation of the April 14, 2007 election. How many members of the governor’s former political party (PPA) members rode on his coattail to Imo House of Assembly as it should be when a popular politician wins an election in a landslide? If there are only few of them, why so? Is it plausible to win an election in a landslide and yet have a couple of legislators of the same political stripe in the state House of Assembly? Something is just not adding up.
Now that the lawyers have made their submissions to the Abuja Court of Appeals; the Justices of the esteemed Court have retired into their chambers to deliberate on the facts of the case. They are soaked in the knowledge that the citizens of Nigeria will jubilate when justice is finally done and faith in our nascent democracy restored. The Justices do understand as hogwash, INEC’s argument through its lawyer, Adentuji Oyeyipo (SAN), that the Abuja Court of Appeals, has no jurisdiction to announce the result of the April 14, 2007 Imo gubernatorial election.
According to their legal theory because Chief Martin Agbaso participated in the April 28, 2007 polls, he forfeited any claims he may have had to the April 14, 2007 election. This esoteric legal argument does not however answer the basic question of why the April 14, 2007 election was cancelled and this is the crux of the matter. It is flawed logic on the part of INEC and they can no longer confuse the issue. The people will not allow it anymore. The Supreme Court has ruled that the Abuja Court of Appeals has the authority to hear and rule on the case and that is all that is important.
The argument by Governor Ohakim’s Counsel, Livy Uzoukwu (SAN) that Chief Martin Agbaso was relying on photocopies of election results in his claim to be declared governor of Imo state; and that only truly certified copies are allowable and appropriate for declaration, denies the knowledge that those who had the motivation to deny Chief Agbaso the governorship were also responsible for not certifying the election results.
Photocopies of election results were not manufactured by Chief Agbaso; it is the basis and evidence of the will of the people of Imo State without the connivance of some powerful interests who were irrevocably committed to denying an Agbaso governorship. The issuance of forms EC8A and EC8B was within the proper province of those accused of wrongdoing and the reason for the legal challenge. Counsel Uzoukwu’s argument is labored and tenuous at best and the people can see through it.
Counsel for Senator Ararume, Fagbemi (SAN) who argued for a redo April 14, 2007 election that will see him as the PDP flag bearer is an attempt at revisionism and is designed only for the sole purpose of further delaying judgment in the case. Society is better off focusing on the main issue at stake without giving any thoughts to the Senator’s high level Abracadabra.
In building a just and prosperous society there must be the belief amongst the citizenry that playing by the rules does pay off. Citizens should never be made to feel that committing a crime is the only way to achieve success. If it becomes evident, as in this case, that committing crimes are the surest way to success, then, all is lost. No matter how torn they may be, state agents should always keep the public interest above all other interests.
It is the corruption and arrogance of power by a few that threatens the collective aspirations of all Nigerians and we must, as a prudential matter, not stand for it at all. We must remember that albeit, deeply embedded in the individual is absolute self interest and that it does not always equal the public interest – Kantian formulation. The role of government in addition to all its numerous other functions is to checkmate individual excesses and the boogieman plays of unwholesome political actors by ensuring that all actions by individuals or state agents such as INEC are lawful.
According to Professor Rawls, the liberties of equal citizenship are taken for granted in a just society, and the rights secured by justice are neither subject to political bargaining nor to the calculus of social interests (Alan Ryan, Justice, pg 74). It is a categorical, as well as, a judicial imperative that the stolen mandate in the April 14, 2007 Imo gubernatorial be restored to the rightful winner, Chief Martin Agbaso, and then, justice shall reign like a mighty river and our society shall long endure.
By Martin Ajaero