Comparative Constitutional law scholars will recall Sir Adetokunbo Ademola, who succeeded Sir Foster Sutton in 1958 as Chief Justice of Nigeria. They will also recall the early manifestations of military dictatorship in that country in the shape and form of The Constitution (Suspension and Modification) Decree No. 1 of 1966.
This decree not only introduced legislation by military Decrees and Edicts but forbade the Courts from inquiring into the validity of those Decrees and Edicts. It also suspended and modified several provisions of Nigeria's 1963 Republican Constitution.
Nigeria was enveloped by fear as military power surged to the fore. The Prime Minister of the civilian era and a regional Premier lay dead in their graves. There was fear and trepidation all around. It was in this environment that the first test of Decree No. 1 of 1966 came before the Supreme Court. This was the case of The Council of the University of Ibadan v Adamolekun. On August 7 1967 judgment was ready. The five Justices of the Supreme Court filed into the Court, led by Sir Adetokunbo Ademola, Chief Justice of Nigeria.
This Chief Justice not only led those Justices into that Court; he also led by delivering the lead judgment in the matter. In calm and stunning judicial eloquence he declared an Edict null and void. He had deployed an incisive and robust interpretation of both the Decree under which the Edict was made and the overarching principles of constitutionalism in arriving at this decision.
He had understood that the Constitution was not some rigid reality inscribed on a fading parchment. He had asserted with astringent clarity, that the pleasant day-dream that judges do not make law but play a role that is merely declaratory, was an egregious error; a hoax! He had handed down a historic judgment whose dynamic thrust and penetration marked out his tenure as Chief Justice and leader of a judiciary resolutely prepared to breathe life into the Nigerian Constitution.
He led and inspired a judiciary that was alive to the truth that civil liberties cannot merely be defended, they must be exercised. His tenure as Chief Justice from 1958 until his retirement in 1972 stands out in the annals of Constitutional thought. It was a lesson in what an independent and robust judiciary can do to protect human rights.
The Nigerian and many other experiences tell us something else. They tell us that there are good judges and bad judges; weak judges and strong judges; great judges; ordinary and less than ordinary judges. These terms refer not only to the skill and competence, elegance or reasoning power with which the judge structures or writes an opinion, but also the possession by the judge of a social vision, which he manages to translate into law.
In a constitutional setting this vision is underpinned by considerations of constitutionalism which recognise constitutional interpretation as not merely a simplistic but honest search for historical meaning. Constitutional interpretation requires a conscious and courageous appreciation of not just the words on a parchment but the spirit behind the project of constitutional governance. Constitutional interpretation rejects what Professor John Dugard calls the "phonographic theory of the judicial function", in which judges present themselves as blinkered hostages of text.
I will argue, in this reflection, that the claim itself, by judges, that they merely pluck out from a text a meaning that is out-there, plain and unambiguous; ready to be applied, is a master fallacy that takes not just the judge, on the one part, but also a party of the second part to bring it off. Like the emperor's "new clothes" it derives its purchase on legitimacy from the consent of those who are willing to be hoaxed.
Some people have asked me before if judges really believe this "nonsense". Well, my answer is that sadly some judges do! But it may be useful to let Lawrence Friedman give the answer for me,
"There is of course no way to enter the mind of a judge. There is no way to tell whether a judge "really" means what she says when she says it. Perhaps she first made up her mind, and then cast about for proper "legal" reasons. Perhaps legal arguments actually persuaded her. Or perhaps other facts or factors, quite external to "legal" facts or factors determined the outcome."
Let me bring it all home now
Constitutional analysis enjoins us, in reading and interpreting any constitutional provision, to have regard to the whole document. In doing so, we would avoid the pitfalls of ascribing to one provision a meaning that does violence to another in the same document. This is elementary. Further, despite what Professor Ng'ong'ola has called its tepid acknowledgement of human rights, which is readily conceded, our constitutional jurisprudence teaches us that rights-conferring provisions of the constitution must be given the most expansive interpretation,while those that seek to limit or take away rights must be accorded the most restrictive interpretation.
This is also elementary. Of these two elementary propositions I know that the judges in the Motswaledi case were fully aware. That these propositions are engaged in the Motswaledi case seems fairly obvious from their Lordships' acknowledgement that the Applicant placed this issue before them in his assertion of a tension between the extent of the immunity claimed by the President under Section 41 of the Constitution and "the likelihood of great and irreparable harm" to which he was exposed.
This tension is between Section 41, as invoked by the President, and other Sections of the Constitution. These are Sections 3 insofar as it guarantees Motswaledi the protection of the law and 10 (10) insofar as it guarantees him the right of access to the courts in pursuit of civil claims and relief. It must be appreciated that these two provisions, located as they are within the Bill of Rights, deserve the expansive interpretation enjoined by the first of our elementary propositions.
Oceans of ink and, in some instances, blood, have been spilled in pursuit of these propositions. I mention this if
I submit that it is in their failure to properly appreciate the full import of, and interrogate, this tension that their Lordships in the Motswaledi case fell into grave error. Considered within this grid reference, Section 41(1) would have been examined as a provision that seeks to limit or take away, at least for a 10 year period, the rights of a citizen, which are enshrined and protected by the same constitution.
The second of our elementary propositions would then operate to give Section 41 (1) a narrow meaning, which comports with the recognition and protection of the expansive rights given under Sections 3 and 10 (10). The conceptual fraud evinced in the approach taken by their Lordships is to smuggle into our constitutional framework the English principle that the "King or Crown can do no wrong". Even under English law this principle has its own peculiar features mired in the history of Britain and its monarchy.
But the English "Crown" has been said to bear two meanings. These are the "Crown" as monarch and the "Crown" as Executive. Although English law holds that the courts cannot enforce the law against the "Crown" as monarch since it can do no wrong in that capacity, they do however, enforce the law against the "Crown" as Executive.
The judgment of their Lordships in the Motswaledi case, furthers the error it has begun by engaging in fuzzy reasoning to introduce some fluffy concept of dignity not anchored on any sound theoretical basis. If the animating impulse under section 41 (1) of the Constitution was dignity of the office of President in the sense in which their Lordships perceive it, why does the provision not immunise the President against civil action in the discharge of his functions as President?
Even agreeing that the office must enjoy dignity, how does holding the President accountable for acts that he carries out in the discharge of functions he has assumed, in exercise of his own constitutional right to associate, diminish the "dignity" that their Lordships so jealously want to preserve?
And to the extent that this "dignity" renders the protective provisions of the Constitution nugatory, why is the notion of qualified immunity urged upon the Court, not an elegant and attractive way to strike harmony and resolve the tension? Why?
What comparable prejudice does the President suffer if, in relation to acts done in the capacity of office bearer of any organisation he voluntarily associates himself with, he is held liable to legal action? And now consider the staggering prejudice occasioned on poor Motswaledi!
That is devastating. But more devastating is the tedium of timidity with which our Judges dealt with this matter. In so doing, the Chief Justice and his Judges have fallen from their own best insights in earlier cases in which some of these issues arose. There is no exacting precision in the words used in Section 41 (1). They call for interpretation to squeeze the meaning out.
I want to end on pretty much the same note on which I began. The "salutary warning" referred to by their Lordships at p. 16 of their judgment, which they embrace without demurrer, is ,in fact, the manifestation of a deadly and pervasive malady in our judiciary.
This malady afflicted the South African judiciary during the apartheid era and although it still presents pockets of resistance, the Constitutional Court has done a remarkable job of containing and curing it. This is the malady that Professor John Dugard captured in an interesting debate that pitted him against Christopher Forsyth and Johann Schiller in the early 70s.
The cases of Madzimbamuto v Lardner Burke NO, decided by the judges of Rhodesia, State v Dosso, decided by the Courts of Pakistan and Ex Parte Matovo decided by the Ugandan Courts present a potent strain of this malady. It is deadly. It is called legal positivism. Speaking in particular about the Madzimbamuto decision Professor Dugard states;
"It is hardly necessary to add that undisclosed political premises probably influenced the judiciary, which simply goes to confirm the view that the vice of positivism is that it permits the true reasons for the judicial decision to be concealed beneath a cloak of legalistic jargon".
A proper understanding of the enterprise of statutory interpretation especially where the Constitution is at issue, must necessarily probe the role of the judge and how his values and preferences provide a filter in his reading of the statutory words and text. We need to be upfront about the fact that judges are not neutral in stand point, despite their persistent claims. They articulate or assume a collection of values and preferences, which define the interest they have in the matter they are called upon to interpret and may reveal why they interpret the statute the way they do.
Perhaps a fruitful inquiry is to seek and establish the nature of that interest! An even more fruitful inquiry is one that asks what legacy our Chief Justice and his judges want to bequeath on this nation, its nascent democratic institutions and its people. I would like to believe that there is still time for them and their institution to redeem themselves and persuade the populace of this great republic that they are worthy of the garbs and privileges of their office.
They can contribute to a lasting legacy by subjecting those they will recommend for appointment henceforth, to a rigorous examination that requires of them penetrative insights, boundless courage and probity, and above all the humility of knowing that sovereignty lies with the ordinary citizen.