Oseloka H. Obaze
\nLegal, political and social dissents are part of the grounding principles of functional
\ndemocracies. Hence, the dearth of dissent anywhere, marks the birthing of subliminal and
\nirreverent revolution. And so it is with Nigeria. By definition \u201cdissent refers to having
\na different opinion from the commonly held or prevalent opinion or ideology.\u201d Thus, dissent is
\nvital in the executive, legislature and judiciary arms of government. Lamentably, Nigerians are
\nwitnesses to the suppression of dissent in all three arms; most egregiously within the judiciary.
\nIn his keynote speech titled \u201cDissident in a Democratic Polity: Options in a Presidential
\nSystem,\u201d delivered at the 1991 Conference of Attorneys-General of Nigeria in Abuja, General
\nJoe Garba said, \u201cWhen alternative opinions are not allowed to manifest themselves or flourish,
\nthey become insidious, and in almost every instance, transform into aggressive subterranean
\nopposition.\u201d Long before then, Abraham Lincoln, a founding father of modern democracy, said
\nof America; \u201cThis country, with its institutions, belongs to the people who inhabit it. Whenever
\nthey shall grow weary of the existing government, they can exercise their constitutional right
\nof amending it, or exercise their revolutionary right to overthrow it.\u201d Nigeria is well past the
\nera of military-anti politics, in which self-righteous soldiers overthrew democratically elected
\ngovernments in 1966 and 1983; or overthrew their fellow soldiers in cyclical naked power
\ngrab. Still, our democracy is struggling badly.
\nIn democratic Nigeria, dissent remains integral in ongoing efforts at restructuring, amending
\nthe Constitution, and in making judicial decisions germane to the rule of law. Unfortunately,
\nsome elected and appointed officials in relative positions, have failed to pass the required
\nlitmus test. Judicial prerogative is by rule sacrosanct. But the Nigerian judiciary has been
\nstultified into passing some opprobrious judgments, making criticisms of the courts inevitable.
\nWhereas, Courts reaching unanimity in any judgement ought to be salutary and convey,
\ncohesion, and the unsullied veracity of the judgement, that general perception has changed
\ndrastically. What is most troubling is that dissenting opinions in critical cases are becoming
\nrare, even in circumstances where they should validate and strengthen the law.
\n\u201cJudicial prerogative is by rule sacrosanct. But the Nigerian judiciary has been stultified into
\npassing some opprobrious judgments, making criticisms of the courts inevitable.\u201d
\nThe recent Supreme Court judgement on Imo state governorship election (Senator Hope
\nUzodinma et.al vs. Ihedioha Emeka et. al.), is a case in point. On two counts, the apex court
\nflunked a simple back of the envelope calculation. How did Hope Uzodinma an electoral
\nsupernumerary (Ugwumba Uche Nwosu was the nominated and voided APC candidate), who was
\nranked fourth in an electoral outcome, be catapulted to a winning position? Secondly, how on
\nearth could the voting figures assigned by the Supreme Court as the basis for awarding Hope
\nUzodinma victory, outstrip the number of voters accredited by INEC, the statutorily and
\nadministering authority. On both counts, the Supreme Court engaged in \u201cfuzzy maths\u201d for
\ninexplicable reasons. The substantive concern of this piece, however, is the fact that not one
\nmember of the Supreme Court panel deemed it fit; had the courage, or considered it imperative
\nto dissent and write a minority opinion. The Brethrens of the court failed the nation in this
\nregard. But such disposition has been imminent. The rogue precedents were set quite early in
\nrecent electoral matters. Whilst it\u2019s easier to accord infallibility to the Justices of the Supreme<\/p>\n
Court in this instance of malign conduct, the reality, quite beyond any supposition, is that in
\nresignation, the panel played a cameo role in perfecting a political and non-judicial script.
\nYet it is heart-warming, that Justice Chukwudifu Oputa JSC of blessed memory left a fitting legal
\nlegacy, and an informed basis by which the Supreme Court could redeem itself, when he
\ndelivered the lead judgment in Adegoke Motors Ltd. v. Adesanya [1989], wherein he adduced
\nreasons and powers of the Supreme Court to review an earlier decision, if a compelling basis
\nexist. As Oputa averred, \u201cThe Court can do incalculable harm through its mistakes. When
\ntherefore it appears to learned counsel that any decision of this Court has been given per
\nincuriam, such counsel should have the boldness and courage to ask that such a decision be over-
\nruled. This Court has the power to over-rule itself (and has done so in the past) for it gladly
\naccepts that it is far better to admit an error than to persevere in error.\u201d
\nOf late, Nigerian courts have engaged in judicial activism and judicial supremacy in electoral
\nmatters. This should not be. The role of the judiciary is to \u201cinterpret the law; the Constitution
\nincluded, but not to make the law.\u201d Apropos the substantive matter, Nigerian Supreme Court
\nJustices might also wish to draw lessons from views posited by U.S. Chief Judge John Marshall
\nas far back as 1821, in Cohen vs. Virginia; that \u201cThe Judiciary cannot as the legislature may,
\navoid a measure because it is doubtful. With whatever doubts, with whatever difficulties, a case
\nmaybe attended, we must decide it if it be brought before us. We have no more right to decline the
\nexercise of jurisdiction which is given, than to usurp that which is not given. The one or the order
\nwould be treason to the Constitution.\u201d When in 2016, President Muhammadu Buhari charged the Nigerian Judiciary to \u201cgo the extra
\nmile to sanitise itself and improve its capacity to act independently, courageously, and
\ntirelessly,\u201d I wrote in my 2017 public policy book, Prime Witness, that \u201cthat policy
\npronouncement while propitious can\u2019t be fustian; as Nigeria\u2019s Judiciary remains susceptible to
\nmanipulation.\u201d In the case of Imo State, the Supreme Court overreached, by making the law in
\nways that vitiated extant provisions of the Electoral Act, which empowers INEC alone to
\naccredit voters. The Court cannot usurp INEC powers. In not standing up for the rule of law, the
\nSupreme Court came across as malleable, if not timid. Then again, as the lawyers would say,
\nleges sine moribus vanae ~ laws without morals are useless.
\nSuggestions that an intimidated Nigerian Judiciary has become an outlier, now has validity.
\nCourts arbitrating electoral outcomes should be on exceptional basis and not as a matter of
\nroutine. I recall warning recently that the \u201cgreatest danger to our nation, Constitution, law
\nenforcement and anti-corruption war, is to allow the entrenchment of rogue precedents and
\nworse still, to allow such precedents to gain currency and assume validity.\u201d Nigeria has arrived
\nat that sorry juncture. The seeds we are reaping in ersatz judgements that fly in the face of
\nconventional wisdom, were planted with the arbitrary rustication of some judicial officers and
\nthe eventual removal of an incumbent Chief Justice of the Federation. Those, Judges who
\nremain on the bench, understand this fully, and in their enlightened self-interest, understand
\nthe dearth of dissent. Yet, the esteemed Justices, I guess, understand fully, what Justice
\nMarshall said about doing \u201ctreason to the Constitution.\u201d —– Obaze is Managing Director\/Chief Executive Officer, Selonnes Consult \u2013 a policy, governance and management consulting firm in Awka.<\/p>\n","protected":false},"excerpt":{"rendered":"
Oseloka H. Obaze Legal, political and social dissents are part of the grounding principles of functional democracies. Hence, the dearth of dissent anywhere, marks the birthing of subliminal and irreverent…<\/p>\n","protected":false},"author":1,"featured_media":71309,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","footnotes":""},"categories":[7],"tags":[],"class_list":["post-71458","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-articles-opinions"],"yoast_head":"\n