Note: “Every subject’s duty”, Shakespeare wrote, “is the king’s, but every subject’s soul is his own”. This week’s title (Let The ‘Due Process’ Be) is a necessary prelude to next week’s in which I intend to tell the story of Suleja Emirate’s historic royal tussle in the mid 90s where two throne-seeking princes both staked their claim to the rulership of Zazzau-Suleja and one in the end was acquitted by the ‘due process’ of law and the other punished for his wanton neglect of it. It’ll be a lesson both for the ‘commoner’, Ganduje and his king, Sanusi.
Prologue
The ‘court of public opinion’ is not listed in the hierarchy of our courts; but most Nigerians, whenever they have issues, appear to have a penchant more for approaching that idle Babel of a thousand tongues than they do the regular courts of the land -which are there to restore rights and to impose obligations. Most times it appears our goal is to heat up the polity rather than to resolve differences. We get so unnecessarily schismatic, we cavil at every trivia including as flimsy as ‘whether the president has a right to take ill’, or that he only has an ‘obligation to stay healthy. It appears often we prefer that time-wasting ‘court of public opinion’ because that is the only arena where our grievances can have legs to stand. And so when we have an issue that can’t stand in a regular court of law, we resort to the public court where there’s always a willing lay jury to help it stand on crutches.
The media too, especially online, has learnt nowadays to constitute itself into a court of competent jurisdiction. It has both its ‘touch-not-my-anointed’ mood and its ‘crucify-them-all’ temperament. Nowadays, media trial is becoming the ultimate default mode of the ‘due legal’ or ‘judicial process’. Everyone preaches the ‘due process’ but prefers to use the default mode. Our aversion to the ‘due process’ explains why we are quick always to recommend the regular courts to the victims of our self-serving mischief, but we prosecute our traducers in the court of public opinion. And it beggars the question: ‘what happens to the ‘due process’? We are political without being democratic; we ‘love’ party politics but we hate the level playing field; we advocate good governance but we anoint mediocre into office; we ‘one man, one vote’, but we pay to violate the sanctity of the ballot box; we preach magnanimity in victory and gallantry in defeat, but we are malevolent in victory and petulant in defeat; we defend the ‘due process’ only when we have been outwitted in the attempt to circumvent it.
Due process
Democracy is a ‘system’ of government run or regulated by several ‘processes’ -and none of which is less or any more important than the other. To be legitimate, every democratic action must not only result from an established process, but the process itself must’ve been observed to the full extent of its ‘due measure’. Meaning that it is not sufficient that a particular ‘process’ is followed, but that it must also be seen to have been followed -to the letter. It’s like when lawyers say that ‘it is not sufficient that justice is done, but that justice must be seen (even by the ordinary man in the street) to have been done. And so it is the reason that whenever any ‘process’ is referred to, it is qualified by the adjective ‘due’ (suggesting something that meets all the requirements and is thus ‘proper’ and ‘appropriate’ to the situation). Not just following the ‘process’ is enough, but complying with the ‘due measures’ of the ‘process’ is desideratum. It is the reason we say ‘the due process’ of ‘this’ and the ‘due process’ of ‘that’. When she introduced the principles of ‘due process’ to our procurement and contractual ways of doing things –as is the global practice now in capitalist democracies- Dr. Obi Ezekwesili earned herself a sobriquet, ‘Madam Due Process’, a subtle snide at a deeply intolerable novelty that politicians, contractors and government official loved to hate.
The ‘due democratic process’ is the touchstone of the ‘democratic system’ itself. There is no ‘democracy’ unless it is regulated by the ‘due democratic process’. And it does not matter whether these processes are contained in a nation’s fons juris or that they merely exist in conventions. Just as the touchstone of the ‘democratic process’ itself is the conduct of regular elections, -by which the people freely and willfully ‘elect’, ‘re-elect’ or ‘remove’ their leaders. Without the conduct of regular elections by which the people determine who governs their affairs, there is no democracy, let alone a ‘process’ by which to regulate or legitimate it. But it is not sufficient also that ‘elections’ are regularly conducted by which the people elect their governments; such elections too must are conducted according to certain established ‘rules’-or the ‘due electoral process’. Unless the ‘due electoral process’ is followed to the letter, the credibility of elections remain unimpeachable or voidable. Thus the ‘due electoral process’ itself, is the touchstone of ‘democratic elections’. Any breach of the ‘due electoral process’ de-legitimizes the outcome of any election.
But there is a limit by which the electoral umpire can determine whether or not the ‘due electoral process’ has been breached, or complied with. Beyond the electoral umpire’s duty of declaring a winner in a contest, it will then require an entirely different ‘process’, and no longer the ‘electoral’ one, to legitimate, or to de-legitimate that victory. Hence the role of the ‘due process of the law’ –which itself is the touchstone of the principle of ‘rule of law’, ware-housing both the ‘due legal process’ which is at the behest of lawyers and the ‘due judicial process’, the prerogative of judges. The ‘due process’ requires that certain issues at certain points are ultra vires certain actors –whether individuals or institutions- to reverse or to legitimize. An end achieved by one set of constitutional ‘due process’ may require an entirely different process to reverse or to justify. No matter where we choose to go to debate injustice, in the end we must come to the courts to argue for justice. The same way that those who have won the battles mid-air, must come down to win the war on the ground.
Epilogue
The ‘due process’ may not conduce with our diverse moral or philosophical considerations, but it is nonetheless the best game in time. And it should be respected –if not loved- by all who desire to have a just society. It is true that democracy, quite unlike other systems of government, can be frustratingly ‘slow’; but this is consoled by the fact that the system is assuredly ‘steady’ too. And whatever is ‘slow and steady’ as the saying goes, that, in the end is favored to ‘win the race’. Those who have opted for democracy as a system of government must be consoled by the fact that a system of processes is in place which regulates all spheres of human endeavor and by which all who stake claims to any rights or to whom any duty or obligation is beholden, are justly treated. “Ubi jus”, as the maxim of law says, “ibi remedium”: ‘where there is a right, there is a remedy’. But the converse of that is equally true: “Ubi jus in certum, ibi jus nullum”: “Where the right is uncertain, there is no right”. It is via the ‘due process’ alone that all rights are made ‘certain’ -and thus remediable. If the Kano State governor, Ganduje and the state’s House of Assembly have no right in law to do what they did, namely split the Kano Emirate in five, and if the Emir of Kano Sanusi Lamido Sanusi, has a right in law to the administration of a kingdom made up of 44 local governments instead of 10, it is for the due ‘legal’ and ‘judicial’ processes to determine and not the ‘court of public opinion’ to resolve.