The Role o f the Judiciary in the sustenance of Democracy (1)

The history of democracy dates back to the ancient times. The earliest democracy in history was found in republic of ancient India, which were established sometime before the 6th Century BC. These republics were known as Maha Janapadas and among these states, Vaishali (in what is now Bihar, India) was the world’s first republic.

Athens is among the first recorded and one of the most important democracies in ancient times. The word “democracy” (“rule by the people”) was invented by Athenians in order to define their system of government around 508BC. Athenian democracy was based on selection of officials by lot, and decisions in other cases by majority rule.

One of the reasons why this system was feasible was because of the relatively small population of Athens, by modern standards only 300,000 people.

During the golden age of classical Athens in the 5th Century BC, when it was hegemon of the Greek city-states, the Athenians encouraged democracy abroad. This led to the adoption of democratic or quasi- democratic forms of government in several of Athens allies and dependent states. However, in the 1st Century BC, the Peloponnesian War saw the Greek world divided between an alliance led by Athens and a rival coalition led by Sparta. The Spartans won and democracy was abolished i.e. Greek city­states which had adopted it. The Athenians themselves restored their democracy in less than a year, but were no longer in a position to promote it abroad.

Features of democracy
Today, we have different types of democracy - over thirty. There are certain minimum features which true democracy must possess. These features are popular sovereignty, political competition, majority rule, and the provision of also rights or freedoms for the citizens and equality before the law.

A. Popular sovereignty, political competition and majority rule
In a true democracy, the people must have the right and should have the power by constitutional action, by free and fair election with secret or open ballot to choose or change the character or form of government under which they dwell and by which they are governed. The freedom to vote or rather, the right to vote and the corresponding right to be voted for are the essential props of modern democracy.

Once the people have voted and made their choices, they must have their verdict accepted and respected. Democracy does not express itself in clever manoeuvre by which a handful of men remain in power against the wishes of the electorate. Rather, it expresses itself in free and fair elections and the willing acceptance of the peoples’ verdict at the polls.

One recalls with admiration, the prompt acceptance of election defeat by Bush to Clinton or John Major to Tony Blair. But in Africa, particularly Nigeria, no loser ever accepts defeat.
This is very unfortunate and most disappointing. Here in Nigeria, regardless of the popularity and acceptability of the winner, the loser would always allege one form of impropriety or the other, usually rigging.

The point I am trying to make here should not be misconstrued or misinterpreted to mean that cases of genuine grievance never existed. No. It is indeed an open secret that elections are sometimes shamelessly rigged to the extent that caution and decency are thrown easily into the dust bin. But for goodness sake, where the victory of the winner is clear, the loser should just admit defeat and be honourable enough to congratulate the winner.

Indeed, it is very disheartening that some losers go to the extent of trying to bring the government of the day down at all cost. This is what Yoruba call: “Kaka ki eku ma je sese, a fi se awa da nu.” (If you can’t beat him, pull him down by all means). This is nothing but a nauseating sign of underdevelopment and backwardness. And the situation is so bad that today, in Nigeria, after news of daily robbery incidents, the most prominent news on our airwaves is election petitions across the land.

B. Freedom of speech and press freedom
Freedom of speech and Press freedom are easily recognisable badges of a true democracy. It is by means of free speech and free press that the people are educated and informed about affairs of government. The people are also to form and express their opinions on public affairs. Justice Brennam clearly recognised the supreme importance of freedom of speech under a democratic dispensation when he observed in the case of Roth V. United States 354 L:S 476 (1957) as follows: ­

“The protection given to speech and press was fashioned to assure unfettered interchange of ideas for the bringing about by political and social changes desired by the people. To achieve this, all ideas, having even the high test redeeming social importance, unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion — have the full protection of the guarantees (of the 1st amendment) unless excusable because they encroach upon the limited area of more important interests... The fundamental freedom of speech and press have contributed greatly to the development and well being of free society and are indispensable to its continued growth. Ceaseless vigilance is the watchword to prevent their erosion by the Congress or by the States. The door baring Federal and State intrusion into this area cannot be left ajar; it must be kept tightly closed and opened only to the alighted crack necessary to prevent encroachment upon more important interests.”

C. Equality before the law
As far back as 370BC, Plato in the Republic said: “Democracy... a charming form of government, full of variety and disorder, and dispensing a sort of equality to equals and unequals alike...“
Equality before the law is another essential feature of democracy. This principle of equality before the law is predicated on the self-evident truth that all men are created equal by their creator and are endowed with some unalienable rights. Thus under a democracy, men and women must have equal freedom, equal justice and equal rights. Equal opportunity is therefore the cornerstone on which to build a genuine democracy.

Accordingly, democracy cannot be built on the foundation of the permanent superiority of one group in the country and the permanent inferiority of other groups. Ethnic or tribal marginalisation is antithetical to democracy and is only an invitation to chaos and social disequilibrium. Democracy can only flourish in a free society in which all persons live in harmony and with equal opportunities.

This is where the issue of gender comes into play. According to the settled projection on population, (since we have never had an acceptable census) women outnumber men numerically-speaking. Ironically, by a combination of certain factors like religion, custom and environmental influences, many of our womenfolk are shamelessly disenfranchised. For true democracy to take shape therefore, this area has to be addressed squarely. Women must not be marginalized consciously or unconsciously.

It is apt to quote from the allocutus of Nelson Mandela after his conviction on charges of sabotage and of trying to bring down the South African Government by force and violence for its relevance to the concept of quality as a democratic ideal He declared Inter alia:­

“Communists regard the parliamentary system of the West as being undemocratic. But on the contrary, I am an admirer of such a system. I have the greatest respect for the British political institution. I regard the British Parliament as the most democratic institution in the world. The American Congress, that Country’s doctrine of separation of powers, as well as the independence of the Judiciary arouse in me similar sentiments.

During my life, I have dedicated myself to the struggle of the African people. I fought against white domination and I have fought against black domination I have cherished the ideals of a democratic and free society in which all persons live together in harmony and with equal opportunities. It is an ideal which I hope to live for and achieve; but if need be, it is an ideal for which I am prepared to die.”

(To be continued)

Who wants Gani dead?

By Dolapo Ekanade

The rumour filtered in, in the evening of one of Gani’s 70th birthday prog-rammes. Earlier in the day, that Monday April 28, 2008, friends, associates and well-wishers had put up the beautiful programme in honour of the legal icon and lawyer of the masses.

The likes of Nobel Laureate, Professor Wole Soyinka, who delivered the lecture, President of the Campaign for Democracy (CD), Dr. Joe Okei-Odumakin, Chairman, Oodua Peoples Congress (OPC), Dr. Frederick Faseun, President of the West African Bar Association, Mr. Femi Falana, Chief Frank Kokori, former chairman, Nigeria Labour Congress (NLC), Comrade Adams Oshiomohole, among other elite and technocrats who struggled for the enthronement of democracy and the rule of law attended the event.

Gani, absent from the ceremony and currently on admission at a London hospital due to his ill health, still spoke to guests at the occasion. According to those who attended the momentous occasion, a speaker was attached to a mobile phone and Gani’s voice reverberated through the hall, exuding the same raw energy and emotions that belied his state of health and simply defined Gani. He was clearly not afraid of death.

Coincidentally, albeit sadly, the next day, another foremost jurist who incidentally supervised the cutting of the cake of the celebrant’s birthday, Professor Jadesola Akande died peacefully in her sleep.

The late jurist was reportedly escorted to her car for the last time (as it turned out) by another fiery lawyer, Mr. Femi Falana. Her death came while the nation was still mourning the passing of another legal icon and nationalist, Pa Abraham Adesanya.

After hurried calls to Gani’s associates and friends who described the rumor as not only spurious but also wicked, the nation heaved a sigh of relief. Barely a week after, just as the nation was still reeling from its losses, Monday last week precisely, another rumour was generated by a popular television that was reported to have “broken the news” of Gani’s death.

Yet again it turned out to be a farce. The legal luminary who fought with an enviable will for a new Nigeria, in the same spirit and will fought for his life.

At the time the nation was thrown into disarray, back in London, Gani was about to have his break-fast!

So who really wants Gani dead? And why? Are they wishing for an eternal silence to his unwelcome voice of truth, his emotional outbursts often revealed in tears, anger and rage of how a selfish government had sabotaged the future of its youths, or how they had squandered and looted the resources God has so blessed the nation with? Or how supposed custodians of the rule of law have greatly compromised true democracy and have rubbished the rule of law? For these and more, Gani stands as an example of sound principles, good leadership and uncompromising values and as a nagging voice to the conscience of the nation.

It is true that Yoruba adage translated literally says, ”A good tree does not last in the forest”

But far be it from Gani, the tree may yet last in the forest for many more years-to provide shelter for young saplings taking nourishment from him.