Enugu governorship: Lessons for Cicero, by Nigerian judges

Writing in The Republic III, Marcus Tullius Cicero had laid down what, until Nigerian judges began to re-evaluate his legal principles, looked like an eternal truism in Law, upon which every lawyer in the world was trained. It’s very popular and contained in that famous publication of this great Roman jurist:

“True law is right reason in agreement with nature; it is of universal application, unchanging and everlasting; it summons to duty by its commands, and averts from wrongdoing by its prohibitions. And it does not lay its commands or prohibitions upon good men in vain, though neither have any effect on the wicked. It is a sin to try to alter this law, nor is it allowable to attempt to repeal any part of it, and it is impossible to abolish it entirely. We cannot be freed from its obligations by the senate or people, and we need not look outside ourselves for an expounder or interpreter of it. And there will not be different laws at Rome and at Athens, or different laws now and in the future, but one eternal and unchangeable law will be valid for all nations and all times, and there will be one master and ruler, that is, God, over us all, for he is the author of this law, its promulgator, and its enforcing judge. Whoever is disobedient is fleeing from himself and denying his human nature, and by reason of this very fact he will suffer the worst penalties, even if he escapes what is commonly considered punishment. . . .”

To those who would be encountering these words for the first time, I will commend them to read them over and again. In these words, Cicero summarised law as its provisions appear in codes, as they also align with the command of God for equity, equality, justice, and fairness, and more importantly for the need to retain its very essence even in a changing world.

When I dutifully absorbed this quote from Cicero while taking some of my Law courses as a student of Mass Communication at the University of Nigeria back in 1993, it never occurred to me that the time would ever come when Nigerian judges would prove my lecturer – a man I knew simply as Rev. Fr. Prof Ejiofor – totally wrong.

Fr. Ejiofor quoted Cicero quite copiously during his classes and I cannot forget how he mentioned the Latin expression, Senatus Populusque Romanus (the Senate and the people of Rome) to describe the Roman government under which Cicero thrived as a philosopher, lawyer, scholar and writer.

Given what is happening in many Nigerian courts today – and I make a particular reference to the judgement of the Enugu State Governorship Election Petitions Tribunal – there is an urgent need to raise an armada of necromancers to rouse the soul of this respected Roman sage to enable him to reframe the context in which he wrote his idea of what Law is. With the new wisdom emerging from Nigeria, there is no way the Ciceronian school of thought would survive the onslaught of our peculiarly revolutionary judicial intellection.

Coincidentally, this article was written on the Jewish Yom Ha-Kippurim holiday, a day set aside for the expiation of sin, and I wonder whether our judges, in dispensing justice with such peremptory disregard to its implication on posterity, habour the belief that, as the Jews believe, time and season would cover their transgressions and make them clean again by the turn of another day for atonement.

Even if the Jews believe in cleansing from sin, and this has been reinforced by the Christian teaching on forgiveness, who would forgive and cleanse the society from the stained assaults on justice occasioned by case laws and jurisprudence arising from dangerous precedents from our courtrooms?

The words of Robert Nesta Marley in his song, So Much Trouble in the World, remind me of the implications of the flagrant travesty the decisions of our judges bear on society. Marley sang that “When the rain falls, it falls not on one man’s house”, and I dare challenge our judges to ask themselves if their judgements will, or will not have effects on the entire society, including possibly in the future, on members of their families and friends, even if they were – like all mortals – dead and gone?

I have received the certified true copy of the decision of the Enugu State Governorship Election Petitions Tribunal on the case between Chijioke Edeoga and the Labour Party on the one hand, and Peter Mbah and the Peoples Democratic Party, on the other, and have been left disgusted by the apparently intentional assault on truth, justice and fairness.

Edeoga had gone to court to challenge Mbah’s announcement as the winner of the 18th March governorship election, and he had three grounds upon which he instituted his action. The first is that Mbah had allegedly violated Section 182 (j) of the 1999 Constitution of Nigeria which prescribes disqualification of a candidate who submits a forged document to the Independent National Electoral Commission (INEC).

Even in the face of documentary and subpoena evidence to support his claim, and in the absence of a denial of the allegation, the tribunal ruled that, while Mbah may have submitted a forged document, the minimum requirement to contest for the office of governor of a state in Nigeria does not include the presentation of a discharge certificate of the National Youth Service Corps (NYSC), and that it was not Mbah’s intention to deceive the electoral body with the (forged) certificate he so submitted.

I do not have to be a lawyer to decipher that the very intendment of that law against forgery was to guard against all forms of dishonesty by anybody seeking public office. Forgery is an act of dishonesty and should be punished without excuses, but it seems that these judges are operating a new and strange form of selective permissiveness that flies against reason designed to favour one person while inflicting incalculable damage to the rest of society.

I do not know where the judges got the idea that Mbah did not intend to deceive the electoral body by submitting a certificate that was on several occasions repudiated by the issuing authority, but even if the intention was not to deceive, was it also not done to gain the advantage over opponents and gain the support of voters? If other opponents in the contest had submitted only secondary school leaving certificates in that election, did these judges not suspect that the superior qualifications would not have moved the electoral needle to Mbah and against the other contestants?

Cicero said that there would not be “different laws now and in the future, but one eternal and unchangeable law will be valid for all nations and all times, and there will be one master and ruler, that is, God, over us all, for he is the author of this law”. Well, it does seem this man, as I said at the beginning, was wrong. The decision of the judges at the Enugu tribunal clearly points to a different law for some people in Enugu as against the one for the rest. In this same country, another law still makes the national youth service compulsory for all university graduates under 30. In view of the fact that he presented his university degree to INEC as part of his prequalification requirements, on what basis was Mbah adjudged qualified to hold public office, and such a high one at that, if it is allowed to be inferred that he did not perform his compulsory national service?

Again, I will go back to Cicero, who said: “True law is right reason in agreement with nature; it is of universal application, unchanging and everlasting…” By every consideration, the interpretation of our laws by the judges in Enugu was everything but universal and unchanging. Without putting it into words, they have said that those of us who have laboured to acquire genuine and verifiable certificates have wasted our time and made mistakes. What is the importance of a certificate, or any document for that matter, when you can, according to this judgement, be excused for either not possessing it or not intending to gain any advantage with it.

Again, I am not a lawyer, but I am educated enough to understand that Section 182 (j) of the Nigerian Constitution was provided to guard against, not just certificate forgery, but forgery of all kinds. It means that if anyone is found and proven to have forged even his electricity bill, he should stand disqualified from holding public office. But the Enugu judges were as tolerant and permissive as to provide excuses for someone whose NYSC discharge certificate was disclaimed by the issuing authority. I have read the positions of the Nigerian Supreme Court on certificate forgery, and one of the positions is that it is only the issuing authority that can adjudge its certificate authentic or forged. But here is a court of first instance clearly overruling the apex court of the land.

Cicero was wrong; he probably was daft, and these Nigerian judges are out to right the wrongs of hundreds of years of the application of his teachings all over the world. But of course: if we are able to export our Afro hip-hop to the world and top the Billboard 100 charts; if our movie industry could, out of nothing become number one in Africa and on of the topmost in the world, who says we wouldn’t be able to export our jurisprudence and get the world to copy our examples?

Cicero has misled the world for eons! One other ground upon which Edeoga anchored his petition was the issue of overvoting, particularly in two electoral jurisdictions of Owoh and Ugbawka, in Nkanu East Local Government Area of the state. Backed by Certified True Copies (CTCs) of election results, Edeoga and the Labour Party were able to establish the manufacture of numbers in these areas. Not satisfied, they subpoenaed INEC to bring the Bimodal Voter Accreditation System (BVAS) machines to the court. Although INEC dithered, it eventually complied, bringing only five of the 15 machines in the subpoena.

In open court, INEC officials refused to open the machines for a forensic examiner. But under cross-examination, the officials said the contents of the BVAS were the same as the ones in the CTC already frontloaded by the Labour Party and Edeoga lawyers. But what did the judges do? They ignored this and instead make slight adjustments on the strange concocted numbers in some polling units, and delivered judgement in Mbah’s favour.

This is still against the provisions of the Nigerian electoral law, which prescribes cancellation of the results where there is evidence of over-voting. How wrong was Cicero about the universality of law!

This also happened, even when a PDP witness, Dr. Festus Uzor stood before the court to also acknowledge the prevalence of over-voting in the areas the Labour Party identified. Uzor also acknowledged before the court that there were incidents of voter suppression and substitution of PDP’s votes with those of the Labour Party. Their excuse? They claimed that the Labour Party did not frontload their subpoenaed witnesses, even when another decision of the Supreme Court had decided that frontloading subpoenaed witnesses was anathema to justice.

I am persuaded to suspect that the judges at the Enugu State Governorship Elections Petitions Tribunal were out to test the efficacy of Experimental Jurisprudence, which seeks to investigate the content of legal concepts using the mix of emotions and the methods of social science, as against Normative Jurisprudence, which is concerned with evaluative theories of law. This must have been why they interpreted the NYSC certificate forgery aspect of Edeoga’s petition based on what they thought was Mbah’s intention, instead of what the alleged act of forgery itself. By implication, a burglar could, in the future, be set free, if judges can determine that although he did break someone’s store and cart aware his goods, he is free to enjoy the proceeds of his robbery because merely wanted to prove that the store was vulnerable.

What the judges told the actively attentive world was that although Mbah submitted a certificate that was disclaimed by the issuing authority, it was possible that he submitted it merely to test the vulnerability of the INEC system, and did not intend to gain any advantage with it. Cicero was dead wrong!

But whether he is as wrong as these judges have suggested in their judgement, Nigerians should worry about what happened in Enugu, and its cancerous infestation on the rest of the country. It looks like Nigeria is being dragged back to the Hobbesian “short, brutish and nasty life”, and it would be existentially disastrous if our judges make themselves willing accomplices in this avoidable descent to Hades.

Who knows, we might still rescue some of the eternal truths laid down by the great Cicero for mankind, for mankind, and for the continued recognition and enthronement of God as the source of all truths, and from whom the courts derive their powers to dispense justice.