NKEMJIKA AND ORDER OF PRECEDENCE

NKEMJIKA AND 'ORDER OF PRECEDENCE': FALLACIES, IGNORANCE AND MISCHIEF'S

If, as they say these days, that the ongoing Nigerian democracy is a perfect euphemism for the phenomenon of powerful demons going crazy, then the recent article credited to a certain Nkem-jika, published in the November 5, 2001 issue of the respected Vanguard newspaper and further propagated on the Web under the outlandish title "Issues in order of precedence" remains the best evidence so far for that frightful proposition.

Had the author declared his position as that taken in the maddening context of Nigerian soap-box vituperations where anything goes, then, there would have been really nothing for me to want to respond to as the verbal tone and overall package of the piece itself have sufficiently indicated its likely audience. Again, there is yet no evidence that our politicians really want us to begin to take them any seriously. So, I was inclined to ignore it. But I noticed that My Nkem-jika attempted some intellectual gymnastics, the type that would naturally draw the attention of those hankering after the truth. As a matter of fact, no one would bat an eyelid if our legislators decide to upturn the holy Trinity and substitute themselves with God. Heretical as this might sound, it would still have been a performance perfectly in line with their well-demonstrated tradition and therefore a matter squarely between them and their God, if they have any. We are only interested here because, in the course of their communal delict, they have resorted to misquoting and misapplying the national constitution. And like any other citizen of Nigeria, I have the requisite standing to intervene in furtherance of my civic obligations.

That in fact, is what compels this rejoinder to the piece in which Nkem-jika recklessly mounted the high dais of a Papal pontificator on a topic in which his ignorance was not only irritatingly manifest but exuded grave bias and extreme heresy. From what I could gather from the rather extensive semantic ramble, his argument was that those who picked quarrel with the new Order of Precedence for the nation by the National Assembly are wrong, both in fact and in logic. Consequently, he proceeded to mis-educate the readers on why the National Assembly cannot be faulted in their law making enterprise, no matter how odious that becomes. My last piece, entitled Legislative Terrorism, should, hopefully, have thrown some light on the murky mentality and civic irresponsibility that have tended to characterized our men in agbada presently occupying the National Assembly and then help us in the arduous task of x-raying their intentions and nuances whenever they exercise their legislative powers.

In Nkem-jika’s own language, "the most important consideration in placing public offices in the Order of Precedence, in a democracy, is the mode of ascendancy to public office and not qualifications". This, standing alone, may be correct but unfortunately, it does not, and cannot stand in isolation. In his view, the only criterion for determing status and precedence in the Nigerian democracy is "political constituency" which I guessed by that he might actually be alluding to the size of the constituency in numerical terms. In other words, a politician voted into office by one million votes has more political standing than the other that got only one thousand votes for the same office. This line of argument has been pursued by those commonly referred to in intellectual circles as "majoritarians" or proportional representationists particularly in the often difficult judicial task of discovering the preference of a given society. It does not however take into account the veracity of the electoral returns and indeed the quality and caliber of the voters and the need to achieve what we may call "a harmonious society". There is also the assumption that all offices must be subjected to the populist mechanism of electioneering. That, after all, is what popular democracy is all about, namely the tyranny of the majority. The truth however is that some offices are too important to be left to the vagaries of partisan politics and, giving the Nigerian situation, can we honestly say much about the veracity and legitimacy of the mandate obtained in the foggy atmosphere of 1999 elections? The nation opted to move on because it was already dictatorship weary and there was the concession that we must start from somewhere. Talking about election and size of the representation, as he alluded to, it has never been the case that all political units must have equal number of voters for them to be ranked equal within the system as many other items are invariably factored into such political calculation.

In the National Assembly, the situation so far is that every lawmaker sees himself as the constitutional counter-force to the President: both being representative of the entire nation. Accordingly, it has not been difficult for them to seek to relegate the judicial branch of the government as the least representative and less majoritarians in the scheme of things because, in their mistaken thinking, the judges were not voted for and, more curiously, they do not have "electoral constituencies". But awaiting them on this treacherous philosophical odyssey is the superior argument that the authority of the judiciary does not depend on the inferior periodic mandate which the political branches of the government (legislature and the executive) must receive before assuming office and, renew, to remain in office. Rather, the People in their sovereign totality and in their supreme wisdom have, ab initio, invested the Judiciary with the prior power (a superior mandate, for that matter) in the most original form via the Constitution, something that could not be entrusted to the other departments of government giving their limitations. In other words, while the political branches have to renew their mandates and exercise same in a representative capacity on behalf of the electorate, the judiciary does so on the basis of a permanent endowment by the People at the very inception of the Constitution which, of course, means that the power of the Judicial department is an integral part of the Grundnorm.

This has to be so if the constitution itself is to be validated and lawfully implemented upon inauguration. Put in another way, the constitution is nothing until a judge breadth life into it through an authoritative and reasoned interpretation. So, until the court pronounces on any law in question, including the so-called order of precedence, everything remains mere legislative fantasy.

Under this principle, the Judiciary is the center of gravity of the political process founded on a system of separated powers and constitutionalism. So, if the President of the Nigerian Bar Association Chief Okocha, SAN, gave an interpretation supporting this reality, rather than seek to ridicule him as Nkem-jika attempted to do in his piece, he ought to be listened to attentively, for failure to do so now will definitely confront us with an unpalatable fait accompli down the line. Who knows, the same Okocha would have to be briefed by the same litigious politicians someday to pilot then through the legal forest leading to what the constitution really says on the subject?

On the larger question of who has a the bigger constituency as between the legislature and the members of the executive branch, I am deeply saddened that the National Assembly, the palladium of our democracy, has allowed itself to be inebriated by purely selfish and egoistic reasons to arrive at the formula they have contrived as the basis for allocating precedence in the national arena. It exposes them as petty and ignorant of the essence of the Nigerian State. For a start, the true significance of the National Assembly is in the fact that the political system is based on a theory of separated powers, namely, the Legislature, the Executive and the Judiciary. The legislature is composed of such number of legislators as prescribed by law. In the case of the National Assembly, its legislative competence is nationwide within the enumerated powers as carefully contained in the various legislative lists. But the individual legislator can only find his mandate to participate in the high duty of law making from his particular constituency, a local matter. At bottom, the Nigerian State is an amalgam of individuals from specified locations within the Union. In other words, the individual and his community existed before the state and that is why the Constitution remains the handiwork of "We the People....", and not the other way round. That is the core of the fallacy embedded in Nkem-jika’s argument.

The tripartite relationship that is envisaged in the constitution is one between the Legislature as an institution and the other branches of government and not the individual legislators. So it is purely the outcome of the illusion of grandeur and legislative rascality for any federal legislator to begin to think of himself as a practical manifestation of ‘federal power powerism’. Federal legislators are merely the representatives of their local constituencies, irrespective of the allure and luxury of Abuja. Any contrary reasoning would be nothing but unpardonable abdication of the covenant between them and their constituencies, a repudiation of the democratic values, which richly animate our federal constitution. It is the nature of federalism that no legislator represents the national government BUT represents his constituency at the national level. In other words, they were not elected by the federal government to represent the ‘distant constituencies’. The only way to explain these derelictious inanities is to acknowledge the fact that we still have militarists in power whose only idea of governance in Nigeria is based on the unitarist form of ‘military postings’ to the regions in the manner of the old Roman consuls.

It is therefore wrong to think that because the National Assembly is of ‘national jurisdiction’; any of its members is thus constitutionally higher than the office of the Chief Justice of the Federation and also state governors! I admit that every country has its own idea of who comes first in the national arena and this is always in conformity of the peculiarity of the constitutional stipulations. I must however confess that, in my little study of constitutionalism, this must be the first time I am coming across such morally debased and intellectually hollow contention. Where it to be otherwise, ours would have been the height of madness. And if our laws were made to reflect such madness, then, they would be nothing but the product of legislative insanity! More importantly, the National Assembly is only a single institution as far as the constitution is concerned. The Senate and the House of Representatives are only different chambers of the same Assembly. So, a proper order of precedence should have made only the President of the Senate next to the Executive officers while the Speaker of the House of representative would be placed somewhere below all the other primary officers of the sovereign branches of the national government, i.e., Legislature, Executive and the Judiciary.

This would lead us to the natural result of having the president as the number one citizen, the senate president and the Chief Justice of the federation, in that order. It is instructive that the conference of Nigerian judges came out recently with the verdict that: "Whereas by constitutional arrangement, there are three arms of government in Nigeria, namely the Executive, Legislature and the Judiciary, and the head of the Executive is the President of the Federal Republic of Nigeria, the Head of National Assembly is the President of the Senate and the Head of the Judiciary is the Chief Justice. The Chief Justice should be placed in the third position in the order of precedence." This ought to be a clear signal that as far as the law is concerned, what the legislators have done cannot stand the test of judicial evaluation. Our intervention here, as preliminary as it is, should therefore be seen as an attempt to save the nation from the imminent embarrassment of having a law that indecently passed a super majority of two-thirds in the nation’s legislature judicially nullified as being unconstitutional, irrational and of no effect whatsoever. The beauty of the constitutional game is that the legislators can pass any law that they like, good or bad. The ultimate determination of validity of the remains the prerogative of the Judiciary.

Whatever we might be saddled with for now, it must be clear that it would not stand the test of time. If and when Nigeria finally attains democracy, properly so-called, a more realistic Order of Preference would be drawn up. Not to do so would mean cutting the nose simply to spite the face. That little individuals with equally little minds have hi-jacked the legislative process does not mean that the nation has lost its senses as a result. It is within the sovereign prerogative of the peoples to reject, by all means possible, any government that has become burdensome and inimical to the national order. That is why we are a republican society and not a theocracy or something else.

As mundane as the argument is, in the face of massive failure in governance and the untold immiseration of the nation, it is still important to correct the wrong impression being given that because the federal legislators where elected and that their responsibilities are ‘national’, that they should therefore be higher than state governors whose territories made up the federation within the union. The fact that school prefects are elected in school politics does not make them superior to their tutors and their headmaster who were only "appointed". In any case, it is mischievous to argue as Nkem-jika strenuously did, those qualifications or general mental and attitudinal preparations are not factored into the evaluation of our elected politicians as against those merely ‘appointed’ into offices.

The constitution makes adequate provisions for the minimum qualifications that must be met by those going for elective offices. Whether or not these rules have been, or being followed is yet another question. With reference to the Judiciary, however, its members are the most rigorously scrutinized both in terms of erudition and morality. That is why not everyone can be made a Chief Justice, the same way most people became legislators or councilors and that was also why the national Legislature within two years in operation has produced ex-Speaker Buhari and former-Senate President Ewenrem. If these legislative leaders have been found to be abysmally wanting in eligibility, how much less should we expect of the lesser 'honorables'? There are times when it is not proper to say that a society gets the government it deserves. This is one such case. Nigeria certainly deserves more than she is getting right now. At the end of the direct military dictatorship, Nigerians thought that the end of their suffering has come. Alas! They were tricked into a political ambushed cruelly manned by those who had earlier tormented them in the previous dispensation. They are now showing their true colors as militarists. That is how I understand Nkem-jika’s strange thesis on the National Order of Precedence. To attempt to place the Chief Justice of Nigeria behind the Speaker of the House of Representative in a national order of precedent, for whatever reason, is a clear confirmation of the disheartening fact that what is currently going on Nigeria is anything but constitutional democracy.

December 2001