GUEST Column by Mohammed Adamu
THE LAW AS ‘IS’
There are two fundamental species of law, ‘Natural law’ which the philosophers of ancient Greece considered as the perfect, un-enacted law given to man by nature; and ‘Positive law’, namely that body of enacted laws imposed by the state on society, which sometimes is consistent with, but often starkly contradistinctive with it, natural law.
Natural law which is supposed to be the ‘permanent underlying basis of all law’, is both anterior (that is coming before) and also superior, to positive law. Thus natural law is ‘law as it ought to be’ whereas positive law is merely ‘law as it is’ –meaning that it is law not necessarily because it is intrinsically co-terminus with justice but because the state has said that it itself ‘the justice’.
Jurisprudentially it behooves man to make laws that conform to natural law as closely as possible. But because man has not always done that positive law, even in the eye of the juristic ‘reasonable man’, has not always been wholly about what is ‘ethically right’ or what is even ‘morally decent’ -which is not necessarily to suggest that ‘positive law’ is generally ethically-numb or morally-blind.
In fairness to it though, Positive law, in spite of its apparent juristic foibles, has still managed to draw considerably from the ‘moral’ and ‘ethical’ pools of ‘natural law’ –even though the much that it has drown has not always been sufficient to guarantee man ‘natural justice’. And so since a substantial part of natural law still remains un-enacted into positive law, it then means that this un-enacted part of the most pristine of self-evident ‘law’, has continued to languish in the theoretical realm of legal jurisprudence only for the philosophical adumbration of textbook-jurists or rarely for the rumination of a few do-gooder judges.
Incidentally it is not only judges and lawyers –by the fact of their having been tutored to be learned- that possess excellent juristic minds. Fundamentally all men –whether lay or illiterate- are naturally gifted with excellent juristic minds. We all are naturally endowed with the senses to feel the texture of justice and to smell the putrid of injustice. We can easily discern when injustice has been wrought or when justice has been travestied.
THE JUROR AND THE JUDGE
Virtually everyone of us, especially here in my country, appears to qualify for that proverbial ‘juristic man’ that the law refers to whenever it tries to quantify or value the weight of ‘reasonability’ using the measure of ‘objective test’. The lot has always fallen on the ‘opinion’ of the ‘reasonable man on the street’, -the question being: ‘will a reasonable man on the street believe that justice has been served?’
And maybe it is the reason that lawyers and judges, whenever they talk about ‘substantial justice’, they are always wont to cap that desirable juristic goal with the assertion that ‘justice must not only be done’, but that ‘it must be seen to have been done.’ Meaning that it is not sufficient only that the judge believes that his judgment is just; or that the lawyer accepts that the court has served the end of justice; but that every ‘reasonable man on the street’ if accosted to vouchsafe an opinion, must believe that justice has been done.
And maybe too, it is the reason that whereas in most legal jurisdictions of the world judges deal with both the ‘facts’ and the ‘law’ of a case, in quite a few others (including in the United States) stark laymen are randomly selected from the community and appointed as jurors on a jury to handle the bare ‘facts’ of a case while the judge is left to handle only the raw ‘law’ concerning it. Meaning that in such jurisdictions a judge is not one of both ‘fact’ and ‘law’. He is only a judge of ‘law’. He informs the jurors the position of the law on every ‘fact’ or testimony that they have heard. So that in the end the judge himself does not pronounce the verdict. Rather he asks lay men on the jury a question: ‘after hearing the testimonies, how do you find the defendant?’
FACTS AND LAW
And which means, in a sense, that in such jurisdictions it is the bare facts of a case and not necessarily the raw laws of it that determine the justice or otherwise of that case. So that in spite of the letter or spirit of the law, men without laws in their heads, armed with the bare facts or testimonies of what exactly happened –namely the ‘where’, ‘when’ and ‘how’- pronounce judgment. Lay men guided less by the law than by their individual consciences say who exactly is guilty or who is not.
It means, in a sense that the facts of a case are virtually more important than the very laws that judges apply to them. It is not sufficient that judges apply the law to the facts judiCIAlly (i.e. following due judicial process), but more importantly they must do so judiCIOusly –that is with an overarching aim to achieve justice. It is only then that justice can be said to be seen to have been done.
Plus, it also means that in jurisdictions where the jury system is practiced, a random assemblage of laymen (our version of the ‘reasonable man on the street’), is trusted more than judges are, to do justice. Meaning, again that although the judge is the master of the province of law, in the end it is the lay, ignorant juror, free mentally from the technicalities and intricacies of the law, who knows the texture and quality of ‘justice’.
THE OATH AT NIGHT
A proclamation for the inauguration of the Edo State 24-member House of Assembly was issued by the Governor, Godwin Obaseki for the 7th of June 2019. Due to some unforeseen circumstances connected to the exigencies of state activities, the inauguration could not hold on the proclaimed date. Thus the event thereafter was to be held till further notice. Or as they would say in the parlance of law, ‘sine die’.
On the 17th of June, 10 days after the failed proclaimed date, the Clerk of the State Assembly Yahaya Omogbai, authorized by the Governor, quietly invited to the Assembly 9 only out of the 24 members-elect who allegedly were loyal to the Governor, and at the odd hour of 10 pm inaugurated them. The 9 nocturnally-inaugurated members thereafter elected one of them, Frank Okiye, Speaker and a reign of the minority 9 assumed legislative control over a 24-member legislature.
Technically 15 members-elect allegedly loyal to the out-gone Governor, Comrade Adams Oshiomhole, were excluded from the inauguration -or should we say were ‘un-inaugurated’- and by necessary implication, 15 legislative constituencies representing nearly two-thirds of the entire State, were technically unrepresented.
On July 17, 2019 a resolution of the House of Representative issued a one-week ultimatum to the Governor asking him to remedy the situation by issuing a fresh proclamation for the proper inauguration of all 24 members-elect. Failing to do this the Federal House warned, the National Assembly shall have no other option but to invoke the Provisions of Section 11(4) of the 1999 Constitution (as amended) which empowers it, under such circumstances, to take over the legislative affairs of the State Assembly until the aberrant situation was reversed.
A month after this, precisely on September 19, 2019 a Federal High Court sitting in Governor Nyeson Wike’s Port Harcourt, Rivers State, ruled to validate both the proclamation and the controversial inauguration of the 9 pro-Obaseki members, and by implication also endorsing the exclusion of the 15 pro-Oshiomhole members. And the rest is now history.
And since there has always been a clamor also for the jury system in Nigeria, I was wondering, were a jury –instead of a judge- of a randomly selected Nigerian ‘reasonable men on the street’ to be seized of the ‘facts’ and the ‘law’ concerning the events on the Edo Assembly, how would it have ruled? And would this be objective enough, a test, for whether or not Nigeria can operate the jury system.