Posted by By KENNY ASHAKA, Kaduna on
He is a crusader of sort. Like all crusaders, he is championing a course that is desirable, but not already common. And like all new ideas, his has been opposed and violently resisted. But he remains undaunted.
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He is a crusader of sort. Like all crusaders, he is championing a course that is desirable, but not already common. And like all new ideas, his has been opposed and violently resisted. But he remains undaunted.
From his first day in office as Attorney General and Minister of Justice, Mike Kaase Aondoakaa's theme is a refrain. It is a plea to accept this government as one that operates with respect to the rule of law and a complete departure from the past.
To all those who cared to listen to him, Aondoakaa, at his rhetorical best, always argued that he would, if given the chance, stand on the side of the rule of law, its painful sting on government notwithstanding.
This rule of law campaign strategem sharply explains why he is today the most controversial of all the ministers recently appointed by President Umaru Musa Yar'Adua.
On the hustings, Aondoakaa is telling Nigerians that the Yar'Adua government has the capacity to change the Nigerian political system for the better.
In a clever stretch of that line, he is stunningly washing the hands of the present government off the sins and misdeeds of the eight- year administration of Chief Olusegun Obasanjo.
Last Saturday, Aondoakaa emphasized the resolve of the present government to alter the hitherto mundane manner the previous government handled the issue of respect for the rule of law. It was in Kaduna at the famous Centre for Historic Documentation and Research, Arewa House, where the Joint Northern Youth Forum held a conference to discuss the subject: 'The Principle of Rule of Law and the Present Dispensation."
As usual, Aondoakaa came into the hall well prepared, clutching a copy of his well researched paper on the subject matter very dear to his heart. The Minister had a microphone in his hand but spoke into it only when it became necessary while occasionally welding it menacingly in the direction of his audience in the manner of an impatient teacher in a classroom to dullards.
It was sunny and Aondoakaa somewhat looked uncomfortable in his white babanriga. But each time his audience applauded, he would amplify his struts with such amazing meekness of character. In such state, he cut the image of a jilted lover pleading for another chance.
For instance, when his speech was punctuated by a northern youth who wanted to know why Al-Mustapha, Bamaiyi and other northerners held more than eight years ago were still languishing in prison when others have been granted bail and released, Aondoakaa, revealed how the northerners being held can get their freedom.
'I will convey your feelings in the strongest term, just as I conveyed the feelings of the Southern Senators. The difference is that all the Southern Senators petitioned to me. And I will push it back to you. I am your brother, you must make me act in a way that people will know I am not being biased.
And I will give you what the Southern Senators did. It is that all the Senators from the South East wrote a petition to the President and also gave a copy to me and said Haba! Somebody who was on television wearing arms that he would blow pipelines and you gave him bail, why are you keeping my brother who just said I declare Biafra.
'I took the petition to the President and said, Sir, we have a system that says do not discriminate. I think the man was released last week. I have answered your question." he said to the administration of his audience who greeted the explanation with a loud applause.
For about an hour, he erupted like a volcano. From his bowels, the fire that would consume all anti-rule of law attitudes and programmes and the fervour of action against individuals and institutions wanting to thwart government's stance in that direction gushed. It was the Yar'Adua led-government's first attempt at explaining the rule of law and its concept in the present dispensation.
To make his audience understand what the rule of law is, Aondoakaa went on a wild excursion, gathering examples from other Republics. He puts the rule of law in its proper perspective, describing it as a system that attempts to protect the rights of citizens from arbitrary and abusive use of government power. 'The contrasting attraction under the rule of law regime is that no one is above the law, not even the government. The standpoint of the rule of law is an autonomous, independent, legal order. Under the rule of law, the authority of law does not depend so much on laws' instrumental capabilities but on the degree of autonomy.
With relish, the Minister says the topic 'The Principle of the Rule of Law and the Present Dispensation," represents one of the cardinal programmes of the Yar'Adua administration. But as if to tell his audience that the present administration had a choice, he says the meaning of the rule of law varies with nations and legal traditions. Hear him: 'In the most basic form, rule of law is the principle that no one is above the law. It can be understood as the principle under which the law restrains the government by promoting certain liberties and creating order and predictability regarding how a country functions.
'Rule of Law ensures that government authority is legitimately exercised only in accordance with written, publicly disclosed laws adopted and enforced in accordance with established procedure and due process. Rule of law is hostile to both dictatorship and anarchy. Basically, therefore, we could define rule of law as a system that attempts to protect the rights of citizens from arbitrary and abusive use of government power."
With confusion written in the faces of his audience, the Minister quickly made a distinction between the Rule of law and Rule by law. In order for them to appreciate his distinction of the rule of law, he drew the example of familiar rulers of the past who epitomized their various states, casting them in the mould of dictators.
The outburst of Napoleon of France where he said 'I am the state", the conduct of such other dictators as Mobutu of Zaire, Bokasa of Central African Republic, Idi Amin of Uganda, very recently Saddam Hussein of Iraq and a host of others, clearly illustrate this point.
'For much of human history, law was simply the will of the ruler. Rulers were not subject to the law but were an embodiment of the law. Under rule by law, therefore, law is an instrument of government - with the government itself being above and beyond the law," he says.
The apparent distinction between the rule enunciated by the Minister seemed to launch the audience into the beauty of the rule of law. Aondoakaa, says the rule of law must pass the validity test of Thomas Aquinas. To pass the test, he says, the rule of law must be kept within reason, established by a proper authority, be for the purpose of achieving good and properly communicated to all.
The Minister was categorical in his standpoint of an autonomous legal order as it relates to the rule of law. He says three meanings of the rule of law come to the fore. In his estimation, the rule of law is a regulator of government power. It also means that every body is equal before the law and that it means procedural and formal justice.
For the benefit of doubts, Aondoakaa stated the legal principles upon which the present government is anchored. 'That no individual in government or private citizen stands above the law. Our government shall exercise authority by way of law and be subject to legal constraints. Our laws shall represent the will of the people not the whims of our leaders or political parties"
However, says the Minister;" as the government abides by the rule of law, we shall demand a corresponding respect for rule of law from our citizens. Our courts will have the power, authority and the prestige to hold government officials, no matter their standing accountable to the nation's laws and regulations.
Aondoakaa has words for the judges in Nigeria . 'Our demonstrated commitment to obey court orders confers a responsibility on our judges to be professional, independent and impartial in giving orders. They must exercise restraint, shun arbitrariness and must be committed to the principles of democracy."
The cardinal principles of the present government, the Minister continues, ensures that all Nigerian laws and enactments must enshrine certain provisions, protect the rights and freedom of citizens.
Call it the legal framework of the Yar'Adua government; he says 'the laws under this administration are embedded in equal protection under the law which should not be uniquely applicable but have universal application."
By now, the Minister is abreast of the happenings in the past. As if querying the order of the past, he told his audience that the rule of law principles of the present dispensation guarantees that citizens 'must be secured from arbitrary arrest and unreasonable search of their homes or seizure of their personal property.
'If we are to discuss the present dispensation, we must sanitite the past for its elements of prologue and consolation. We must realize that shortly after our political honeymoon, the tenets of democracy became frustrated. Constitutionalism and the rule of law as the civilized procedure of running government were abandoned for despotism: where the will of leaders became supreme." He submits.
Amid applause from the crowd which includes representatives of top government functionaries, Aondoakaa fired on. 'the abandonment of adherence to the rule of law as enshrined in our constitution set the stage for conflict and disorder… you are not unaware of the records of abuse of power through unlawful arrest and detentions, unjust and unwarranted impeachments that were upturned by the Supreme Court, flagrant disobedience to Court orders and many other violations of the principles of rule of law.
'Against this background, President Umaru Musa Yar'Adua who has personally suffered the excesses of arbitrary use of power through painful and untimely death of his elder brother, Gen.Shehu Musa Yar'Adua chose to return the country the part of sanity. President Yar'Adua deserve a Nigeria where no citizen will suffer the violation of his rights on account of abuse of power and non adherence to the rule of law"
But the question as to whether the president Umaru Musa Yar'Adua would obey the tribunal's judgement assuming it favours the plaintiffs, Major-General Muhammadu Buhari and Atiku Abubakar became a pill too bitter for the Minister to swallow. With a frown on his face, he said: 'we are dealing with reality. When that time comes, you will know how it would be handled."
Retrospective Laws are Anti-Democratic
As a regulator of government power, rule of law sets limits on the discretionary powers of government thus, saving the confusion of turning popular will, be it short term passion, sentimentality or long rationality into law. Without rule of law as a limit, popular will can easily be corrupted by passions, emotions, sentiments and short term irrationalities. Without constitutional and legal limits, popular will can be as destructive, or even more destruction than the unfettered discretion of the few. It is important to emphasize that, discretionary authority on the part of government means insecurity of legal freedom on the part of subjects.
If government is to be restricted in the exercise of discretion, it must follow legal procedures that are prefixed and pre-announced before hand which makes it possible to foresee with fair certainty how the authority will use its coercive powers, in given circumstances and to plan one's individual affairs on the basis of this knowledge. Government cannot define a new crime and apply the new definition retrospectively. It would be grossly unjust and oppressive for government to punish someone for behavior that was not known to be criminal at the time of commission.
The second core meaning of rule of law is equality before the law. Every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amendable to the jurisdiction of the ordinary courts.
The third meaning of rule of law is formal or procedural justice which connotes the method of achieving justice by consistently applying rules and procedures that shape the institutional order of a legal system. Formal or procedural justice is based on a basic principle that: -
The judicial system must have a complete set of decisional and procedural rules that are fair, prefixed, pre-announced, transparently and consistently applied.
Procedural Justice Best for Nigeria
Following from this principle therefore, justice is a concerned with process and procedure as with the end result. If our system sacrifices procedural justice for the sake of substantive justice, it will certainly endanger and threaten individual liberty. When a system emphasizes procedural justice however, arbitrary government power is checked, liberty is protected and substantive justice is preserved in the long run.
We must understand and appreciate the fact that without fair and just procedure, there is no guarantee that the end result will be just. As such, procedural justice must be seen as a necessary condition for substantive justice. When a government is required to follow prefixed, transparent and fair procedures before it can deprive a person's life, liberty or property, the danger of arbitrariness is substantially reduced and the prospect of wrongful deprivations of individual rights is significantly diminished.