The Freedom Of The Commons And The Duel Between The Face And The Mask: A Brief Comment On Hon. Justice Onnoghen’s Saga By Dr Akinola Akintayo

• Background

It is no longer news that the Federal Government of Nigeria (FGN), on 14 January 2019, dragged the Honourable Justice Onnoghen, the sitting Chief Justice of Nigeria (CJN), before the Code of Conduct Tribunal (CCT) for arraignment on charges of non-declaration of assets.

This is based on a petition against the CJN received by the Code of Conduct Bureau (CCB) on 7 January 2019 from a civil society group, Anti-Corruption and Research Based Data Initiative (ARDI) which accused the CJN of false assets declaration, among other allegations. The promoter of the petition and the FGN apparently thought the CJN was going to resign when the news of his alleged infractions broke. The CJN however disappointed them and refused to resign while his supporters and legal team shopped around for injunctions to stall the planned arraignment and trial. The injunctions were granted with alacrity by many of the courts approached.

Piqued by the CJN’s recalcitrant attitude, President Muhammadu Buhari on 25 January 2019 suspended the CJN from office, purportedly acting under an ex parte order obtained from the CCT on 23 January 2019. This duel between the executive and the judicial arms of government created a deeply divided citizenry. While some hailed the President for his boldness in facing corruption in the judiciary and called for the head of the CJN, others egged the CJN to stay on and vilified the President for precipitating avoidable constitutional crisis. In the ensuing fight, the protagonists and antagonists have mouthed such hallowed principles of law and governance like the rule of law, good governance, separation of powers, due process and anti-corruption, among others, to support their respective positions. The truth of the matter is however that the dispute is much less about those hallowed principles of law than it is about preservation of class interests and privileges; and the maintenance of elitist influence, power and domination. Simply put, the duel is a struggle for power and influence among society’s privileged class. It has very little to do, if at all, with public interest or the welfare and interests of the masses which are the end to which all public exercise of power should be geared. At the time of writing, the dispute has finally been referred to the National Judicial Council (NJC) for consideration while the trial of the CJN before the CCT continued.

Whatever happened to the dispute, the case and the events leading up to it will be a significant contribution to Nigeria’s constitutional history. It will remain part of our history that a President once removed a CJN on the strength of a court order. The case is also set to make significant contributions to Nigeria’s constitutional law and practice. It has raised the following constitutional issues: (i) whether court orders can become additional ground upon which the President can remove the CJN? (ii) whether the exercise of the President’s constitutional power to remove the CJN is litigable before the National Industrial Court? among many others.

However, my aim here is not to examine or analyse the merits or demerits of the case or the arguments for and against. My aim here is to explain that the relationship between the courts and the state in liberal legal orders, like Nigeria’s, is that of the face and the mask where the courts is the handmaiden of the state and legitimises state power and oppression (you may read that to mean class power and oppression). Thus, there is ordinarily no conflict or dispute between the courts and the wielders of state power because they serve the same purpose and exist for the same objective – the domination of the common man. Where, however, there is conflict between the face and the mask and the ruthless power of the state is deployed against the judiciary as in this case, there is potential for the enlargement and enhancement of the freedom of the citizens from the terrible and awesome powers of the state. My argument here is that all things may just be working together for good for the masses in the unfolding events which is not likely to be the case when the interests of the ruling class are aligned. The articulation of how this may turn out to be the case is the focus of this short comment.

2. The dialectics of the face and the mask and potential for freedoms of the commons</In liberal legal orders, power defines legal justice. Baxi explains this point thus: ‘Justice, according to law, is that justice which people holding power of the state may consider necessary or justified to provide’.[1] According to the scholar, the very best one can expect from the law is the justice of power and not the power of justice.[2] Consequently, a thing or situation is unjust only to the extent defined by those holding the reins of state power. And the means through which the state deploys or administers legal justice is the courts. The courts are thus the mask covering the raw dominance and terrible face of power in liberal democratic orders. Baxi put the point succinctly thus, ‘…the mask [the courts] covers the hideous face of raw and bloody power. Dialectically, the mask often has to be the face; power acquires the visage of benign justice, despite its intentions and programmes. Herein, despite all we may say about power’s war of attrition against justice, lies the historic importance of the mask.’[3]

   Because the courts represent the face of raw and undiluted power of the state in liberal legal orders, the judiciary is organised in ways and manners that it is constrained to serve the interests of state power i.e the interests of those holding the reins of state power for the time being. However, the dialogical nature of judicial functions; the fact that the state has to pretend the autonomy, independence and separateness of the judicial arm of government; and the fact that the courts must appear as the benign face of the raw power of state means that the courts cannot at all times do the biddings of the holders of state power for the time-being.

   This fact that the courts function as the benign face of raw power of state legitimates and at the same time undo the awesomeness and invisibility of state power. This is because for the courts to effectively perform its assigned role of legitimating state power, it has to appear to hold the balance of power between the citizens and the state by actually being neutral, independent and benign sometimes. And therein lies the potential for the enhancement and enlargement of the freedom of the common man from the terrifying powers of the state.

   3. 3. The Nigerian courts and state-centric disposition

   In fidelity to its role as handmaiden of state/class interests, Nigerian courts have not been pro-masses or pro-poor. The courts have mainly been elitist, state-centric and anti-poor. Three examples illustrate this point here. First is the near total failure of Nigerian courts, except for one or two progressive decisions of the High Courts, to engage with the socio-economic rights in the Nigerian human rights frameworks despite the courts’ many opportunities. Socio-economic rights is a specie of rights most useful to the common man. It helps to bridge the gaps between the rich and the poor and should ordinarily resonate with a pro-poor judiciary.

   Contrary to what some legal scholars may think, however, the reason for the courts’ failure to engage with socio-economic rights is really not because of the constitutional ouster of jurisdiction in section 6 (6) (c) of the Constitutions of Nigeria. Other courts with similar constitutional provisions have fared much better in been able to chart quite a different course despite the ousters. The Indian Supreme Court and the Colombian Constitutional Court are cases in point. The main reasons for the courts’ failure to engage are the courts’ formalist approach and their fidelity to liberal democratic and capitalist bent of the Nigerian legal order as exemplified in Chapter II of the Constitutions.

   The second example is the constant subjugation of the rights and freedoms of the commons to the interest of the state. This played out very well in Dokubo Asari v. Federal Republic of Nigeria[4] where the Nigerian Supreme Court (NSC) held that where the human rights of a person clashes with the security of the state, individual rights will take second place. As Okafor has rightly observed, while the overall decision of the NSC in that case may be unassailable, some of the Court’s reasoning in the judgement ‘is perhaps a good example of the kind of ambivalent attitude that the apex court has sometimes displayed toward pro-poor struggles against oppression.’[5] The learned scholar therefore concludes that the reasoning of the SCN in the case ‘portends trouble for the effort to protect the human rights of even those who make bold to wage vigorous (and not necessarily violent) struggles for social justice in Nigeria.’[6]

   The third example is the anti-movement posture of the courts and deliberate roll back of the freedoms of the masses when such freedoms clash with the neo-liberal thrusts and agenda of the government. In FGN v Oshiomole,[7] for instance, the Federal Government of Nigeria (FGN) had sought a court order to restrain the Nigerian Labour Congress (NLC) from embarking on strike or leading a mass protest against the attempt of the government to remove fuel subsidy early in 2004. The High Court of the Federal Capital Territory, Abuja where the matter was filed rejected the application and held that the provisions of section 40 of the 1999 Constitution (as amended) guaranteed the right of persons to freely associate and assemble for the protection of their interests and confers a right on all Nigerians to meet and discuss all matters of common interest.[8] The Court pronounced thus, ‘[i]f the Nigerian workers through the Nigerian Labour Congress consider the imposition of the N1.50k fuel sales tax inimical to their interest, they have a fundamental right to assemble or mass protest in opposition to such imposition.’[9]

   The FGN was however dissatisfied with the decision of the High Court of the Federal Capital Territory, Abuja and in a process that amounted to forum shopping; the government approached the Federal High Court, Abuja (FHC) for the same relief. The FHC obliged the government and held that the deregulation policy of the government is not a trade dispute within the meaning of the Trade Disputes Act against which the NLC can embark on strikes or mass protests in furtherance of their rights to peaceful assembly and association in section 40 of the 1999 Constitution.The Court of Appeal affirmed this decision on appeal to it by the NLC.[10] Okafor has rightly criticised the FHC and the CA decisions in these cases. According to him, both cases conflated trade union rights and the right to protest guaranteed in section 40 of the Constitution; both were wrong in law and both unduly circumscribed the agency and ability of the masses to resist unpopular and harmful policies of government.[11] The foregoing examples, among many others, show that Nigerian courts have hitherto been state-centric and elitist.

   3. 3. 4. Now that the face is biting the mask: The scope for the enlargement of the freedoms of the common man

   Studies indicate that scope for the political power and influence of groups at the lower strata of the society is widened when there is fragmentation, disruption or dealignment among society’s elite class.[12] Flowing from this, the present scenario may well work in favour of the enlargement of general freedoms as adverted to above. The coercive powers of the state having been turned upon the judiciary, they may not be as ready as was the case previously to pander to state or class interests at the expense of the rights and freedoms of ordinary citizens. As what goes round may come around even for the judiciary, the judiciary may now be more circumspect in holding the balance of power between the state and the citizens. Judicial officers may now begin to see their roles as interpreters, arbiters and guardians of the law and the constitution differently.

   The Nigerian judiciary is quite capable of bringing about the necessary changes. Nigerian courts are not in fact timid or shy in asserting itself or its authority when its interest and prestige are at stake. They have on different occasions shown themselves eminently able to engage in pro-active interpretation of the laws and the Constitution when their interests and powers are at stake. Two examples will suffice here. The first is Elelu–Habeeb & Anor v. Attorney General of the Federation & Ors[13] where the Supreme Court held that the removal of Chief Judge of Kwara State which was later ratified by the House of Assembly of the State without recourse to the NJC is unconstitutional. However, a quick perusal of section 292 (1) (a) of the Constitution which deals with removal of the heads of the courts will shows that there is nothing in that provision stating or compelling recourse to the NJC in such circumstances. That conclusion of law was arrived at through the courts’ interpretations. The second example is the recent decision of the CA in Hon. Justice Hyeladzira Ajiya Nganjiwa v Federal Republic of Nigeria (Nganjiwa)[14] where the CA held that criminal proceedings cannot be initiated against a serving judicial officer until NJC has exercised disciplinary control over such judicial officer(s). Again, a careful analysis of section 158 (1) and paragraph 21 (b) of the Third Schedule to the Constitution upon which the CA based its decision in that case will show that the provisions on their face do not compel such reading. That conclusion was also arrived at through the Court’s interpretation.

   So now that the executive has shown the judiciary that it is not immuned from the general law of the land, the judiciary may see the wisdom in interpreting the general laws in ways protective of individual rights and general freedom much more than previously. Herein lies the hope for the expansion and enlargement of the freedoms and liberty of the masses.

   Dr Akinola Akintayo, a Senior Lecturer and Researcher at the Department of Public Law, Faculty of Law, University of Lagos, Akoka-Yaba, Lagos, is a constitutional law and human rights expert.

   [1] U Baxi ‘Judicial discourse: Dialectics of the face and the mask’ (1993) 35 Journal of the Indian Law Institute 1

   [2] Ibid

   [3] Id at 3.

   [4] (2006) 11 NWLR (pt 991) 324.

   [5] O C Okafor Poverty, Agency and Struggle in the Human Rights Praxis of the Supreme Court of Nigeria (1990-2010): A preliminary Assessment’ in E Azinge and C J Dakas (eds) Judicial Reform and Transformation in Nigeria:  A Tribute to  Hon. Justice Dahiru Musdapher, GCON, FNIALS, Chief Justice of Nigeria (2012) 311 at 329.

   [6] Ibid.

   [7] (2004) 9 WRN 129.

   [8] Id at 137.

   [9] Ibid.

   [10] Oshiomole and Another v FGN and Another [2007] 8 NWLR (Pt. 1035) 58 at 68 – 70.

   [11] OC Okafor ‘Between elite interests and pro-poor resistance: The Nigerian courts and labour-led anti-fuel price hike struggles (1999–2007)’ (2010) 54 (1) Journal of African Law 95 at 101 – 112.

   [12] F F Piven and R A Cloward ‘Collective protest: A critique of resource mobilization theory’ (1991) 4 International Journal of Politics, Culture and Society 435.

   [13] (2012) 13 NWLR (Pt 1318) 423.

   [14] Appeal No: CA/L/969c/2017. Delivered on the 11^th day of December, 2017.]]>