On the sanctity of due process in democratic societies

In any new or emerging democracy, abiding by the constitutional provisos seems a foremost challenge. In countries where authoritarian control has existed, even after lifting such control through a regime change has sometimes hyped the contempt for constitutionally specified actions. But a democracy, even if fledgling, can uphold and sustain political and institutional ethics without necessarily violating constitutional rights if the willpower exists. In her work, Transformation and Trouble, the distinguished theorist and scholar in criminal justice system, Diana Gordon, critically examined the effort South Africa has made in order that the country can strike a balance between participatory democracy and social control. It is true that South Africa has achieved success in the pursuit of Western ideals of due process and participatory justice. But Gordon still discovers that popular concerns about crime have caused the increasing growth of a castigatory criminal justice system that can weaken the country’s rights-oriented political culture. Thus, Gordon’s work seeks for a country that reiterates its promise to public empowerment through reforms in the criminal justice system; a tactic that Gordon argues would fortify a new democracy.

Since constitutional democratic procedures are always entwined with the judicial process, it is not uncommon for judicialized politics to regulate the political space; especially in the case of intergovernmental contestations in often dysfunctional federations. Continually, elite power clashes are in constant resonance with due process, the rule of law and governance in general. Taking Nigeria as an example, the judiciary has played a central role in stabilising the nation, and this can pass for a pivot in the West African region in specific, and Africa in general. This is particularly in view of Nigeria’s categorisation as a weak state despite abundance of both natural and human resources. It is for these reasons that the Nigerian Supreme Court has assumed a strategic role in the task of building democratic institutions and reinstituting the rule of law within the country. So far, this strategic role has received wide public acclaim and commendation. However, alternate evidence also reveals that the judiciary, during its many interventions has been drawn into excessively political disputes that outplay jurisprudential predilections. In fact, of more significance is the fact that the judiciary is still being tested by institutional dysfunctions constituting part of the bequests of the authoritarian period. This calls for closer enquiry of the judicial function especially in emerging democratic societies.

For example, in the global war against official corruption, a new tool has been developed through the introduction of the crime of illicit enrichment in virtually all multilateral anticorruption conventions. Illicit enrichment is typically defined in such conventions to include a reverse burden clause which generates an instinctive presumption that a public officer found in possession of inexplicable wealth must have acquired it illicitly. But, the reversal of the burden of proof clauses raises a significant human rights issue since it is against the assumed person’s right to be presumed innocent until proven guilty. Regrettably, the recent wave of international law against official corruption does not provide clear procedures on how to advance in balancing the accused’s right to be presumed innocent against the contending right of society to trace and recapture illegally attained wealth. Fighting economic crimes therefore seeks to address what has been left unanswered by multilateral conventions on illicit enrichment, especially on the level of proof which should be placed on a public official suspected of illicitly enriching themselves with the resources of state, weighed against the safeguarding of legitimate community interests and expectations for a corrupt-free society.

Taking a historical cue from Nigeria, several instances in the performance of democratic power suggest that Nigerian leaders have consistently disregarded the principles of the rule of law and good governance; which violates the ideal democratic values and institutions capable of undermining the country’s sustainable development. The long years of military rule in Nigeria has impacted negatively on governance simply because the observance of democratic ethics and the rule of law do not sit well with military ethics and rule; making civilian regimes to not fare better. It is therefore not in doubt that this subversion of due process, manipulation of existing laws and regulations for suiting parochial interests lead to non-sustainable development and underdevelopment.

Recently, the Muhammadu Buhari administration suspended the Chief Justice of Nigeria (CJN), Mr. Walter Onnoghen. The president swore an interim replacement to the suspended CJN on reasons that Onnoghen failed to declare his assets as required by law through the Code of Conduct Bureau. Following this action, arguments arose for or against the suspension. The Nigerian Bar Association (NBA), an umbrella professional association of all lawyers admitted to the bar in Nigeria, for instance, issued a statement to condemn the president’s action. They show that the suspension was clearly extraneous to the constitutional provision of 1999. The constitution states that: “The National Judicial Council (NJC) shall have the power to recommend to the President the removal of the judicial officers specified in sub-paragraph (a) of this paragraph, and to exercise disciplinary control over such officers.”

But irrespective of the side of the legal argument one belongs or whether due process was observed in the CJN’s removal, the main reason why the polity is heated at this time over the president’s action lies not only in whether the president’s action was right or wrong but why he was very swift in acting on the CJN. We can all safely say that given our cognizance with the ways of the president in handling wrongdoings since he assumed power, his singular action, this time with its swiftness, comes to us as a surprise. Also, given the government’s attitude to previous court pronouncements, its response to the orders of the Code of Conduct Tribunal (CCT) which indicted Onnoghen causes some suspicion. Thus, it is within reason for the Nigerian public to raise questions in a bid to comprehend the underlying connotations of the president’s action. If the president had a habit of attending to all court orders and/or issues of misconduct in government with this type of rapid response, there may not have been doubts on the part of the public. As we await the final verdict by the courts on the legitimacy of the president’s action, perhaps this episode can serve as a moral to the president on the need to attend to all issues of governance (especially those bordering on corruption or breach of due process) speedily and fairly.