By Festus Adedayo
Is there any connect between law and public opinion or judgments and public opinion? Before Justice Musa Dattijo Muhammad’s (rtd) valedictory speech at the Supreme Court last Friday, the connect or disconnect between those two had begun to assume a life of its own. The presidential election judgment delivered by the Supreme Court the day before heightened concerted quests for the nexus or disjuncture between them. In the Dattijo valedictory, it would appear that the Learned Justice had deliberately set out to take the sail off the wind of views which divorced law from judgments and public opinion.
In the valedictory, Dattijo lamented how public perceptions of the judiciary had become “witheringly scornful and monstrously critical”. He was equally worried that “the public space” had been “inundated with the tale that court officials and judges are easily bribed by litigants to obviate delays and or obtain favourable judgments”. Quoting copiously from an earlier valedictory of a Justice of the Court of Appeal, Oludotun Adefope-Okojie, Dattijo read: “Pleas are expressed everyday by the generality of the public begging the judiciary to be just, to be truthful; and to save the country from collapse. My question is whether the judiciary needs to be begged or cajoled? What is it that qualifies any person to bear that exalted name ‘Honourable Justice’? Is it not for him to administer justice without fear or favour?… Unfortunately, it has been severely vilified, with the Apex Court so denigrated and called by a social commentator as a voter gaggle of useless, purchasable judicial bandits. How did the judiciary get to this level? Why is the whole country on edge for fear of what the public regards as unpredictable judicial pronouncements? There must be a rethink and a hard reset. If the people we have sworn to defend have lost confidence, there is a problem that must be addressed.”
Chief Justice of the Federation, Justice Kayode Ariwooola, a few weeks ago, attempted the thrashing of any nexus between judgment and public opinion. While administering oath on 23 newly appointed judges of the Federal High Court in Abuja, Ariwoola sternly warned judicial officers on the need for impartiality in the dispensation of their duties, stating implicitly that public opinion cannot supersede the constitution in any judgment. In the presidential election appeal at the Supreme Court last week, it was apparent that the court harkened to this warning of MiLord. The court sounded the death-knell of public opinion. Ariwoola didn’t believe that there was connect of any kind between the opinion of the people and redemption of society which law, broken into its brass-tacks, represents.
So, when judges deliver their judgments, do they bother about public opinion? Do public opinions sway them? Should it sway them?
Political science gives a prime place to public opinion due to the massive role it plays in government and politics. It gives major attention to the influence public opinion has on the development of government policy. Some political scientists even regard public opinion as equivalent to the national will. In its raw form, public opinion is primarily a communication from the citizens to their government. This is why, in autocratic regimes, such opinions are only expressed in a clandestine manner, if it is expressed at all, but is majorly suppressed. Jeremy Bentham so venerated public opinion that he called it “the tribunal of public opinion” which he believed could prevent misrule and suggest legislative reforms. Philosophers of the enlightenment period believed so much in the efficacy of public opinion that they demanded public communication of governmental acts.
Since Justice Ariwooola made that distinction, public opinion will seem to have suffered mortal blows in the hands of those who eke out their daily meal through canvassing public opinions. Arise Tv duo, Reuben Abati and Rufai Oseni have literally been at professional loggerheads, sparring in a mini rumble on the place of public opinion society. While Oseni was averse to emergency morticians proclaiming the death of considered views of the people, Abati appears to have lent the rabble a hearse to wheel the mercilessly pummeled public opinion to its graveyard. On Friday, in the duo’s final autopsy session on the cadaver of the opinion of the people, Abati had said: “Public opinion is kilometers and kilometers away from law. Law is not about emotions and sentiments…and we have the authority par Niki Tobi JSC in Atiku Abubakar v Umaru Musa Yar’Adua who said that the only clientele of law is the law and not public opinion. People may express what they like at beer parlours. We saw that yesterday as their Lordships dealt only with the law and qua law… the judges, yes they are not going to follow your opinion, they follow technicality of the law. This matter is now rex judicata, settled in law.” Abati even chose to tread the unenviable gas-lighting path that traducers of public opinion walk severally. This he did by equating public opinion to alcohol-induced views at shebeens. The way he argued it, you would think that public opinion was a demon whose spirit needed to be exorcised.
To drive home the metaphysical powers inherent in opinions of the collective, otherwise called public opinion, popular Yoruba Sakara music exponent, S. Aka, alias Baba Wahidi, narrated an instructive fable in his Itan Agilinti album. He must have sung it in the 1960s. Aka was a traditional songster who dominated the musical stratosphere of the Western region of the 1950s, 60s and even up till the late 1980s. He was an Egba of Abeokuta in Ogun State and bitterly rivaled another notable musician who sang same genre of traditional music, Yusuff Olatunji. Aka’s songs were steeped in the tradition and culture of the people of Yorubaland, with occasional tinges of his ancestral Egba dialect jutting out of his rhythms. Proverbs, incantations, wise-sayings and ways of life of the people were dished out in a medley of praise-singing and excoriation of the evils of society.
In this particular album, Aka told the story of a king who, in appreciation of a favour he did to a renowned medicine man, was given a small talismanic gourd. Whenever he had the gourd as amulet around his waist, so said the medicine man, he would hear clearly the exchanges between animals, including domestic ones in the palace. One day, a sheep strolled into his hearing distance in the palace, ostensibly on a visit to another sheep within. Distinctly, the king heard the visiting sheep tell the one in the palace that in the next seven days, the king’s palace would be totally razed down. On the prompting of this revelation, that night, the king evacuated all his costly belongings from the palace. On the said seventh day, the palace was in total flames as the sheep predicted. When the whole town thronged the palace to commiserate with the king, they asked, pleasantly bewildered, how the palace was bereft of any belongings at the time of the inferno. Did the king have premonition that disaster was afoot?
A few weeks after, the same sheep strolled into the palace and in conversation with his pal, revealed to him that the king’s priceless horse would die in the next seven days. As he did earlier, the king pretended he hadn’t heard this foretelling and the second day, sold the horse. Exactly the seventh day of the foretelling, the horse suddenly died in the hands of its purchaser. A couple of weeks after, the sheep again came into the palace and told his peer that exactly seven days thence, the king himself would die. Exasperated and terribly worried, the king, unable to feign understanding of the two sheep’s conversation, moved closer to them and asked what he could do to avert his impending death. The sheep however told him that, no matter what he did, he would surely die. And on the seventh day, the town erupted in mourning as the king kissed the canvass. The morale of the fable was that, if the king had allowed the previous calamities he averted to befall him, they would have acted as propitiations for his life. The animals told him that in the commiserating words of a multitude of the people lay redemption from colossal tragedies.
Yes, public opinion has mutated from its erstwhile kingly role to the place of scorn it currently occupies. Today, it is a dirty and filthy rag which is often held as the province of charlatans. In ancient times, this was not so. First, what is public opinion? Hans Speier, in his Historial development of public opinion, defined it as “free and public communication from citizens to their government on matters of concern to the nation.” In the words of some scholars, public opinion is a synthesis of the views of all or a certain segment of society. In his 1918 writing, American sociologist, Charles Horton Cooley said that public opinion comes from interaction and not as a broad public agreement, while the political scientist, V. O. Key defined public opinion as “opinions held by private persons which governments find it prudent to heed.” In the same vein, American editorialist, Walter Lippman, in a treatise published in 1922, said that the mystery enjoyed by public opinion was given it by democracies. In decades, public opinion has become a powerful force across human spheres of existence like culture, fashion, literature and the arts.
In his valedictory of Friday, Dattijo made a significant dissection of the public perception of the judiciary and his conclusion was that the public was right about some of its opinions on judicial interventions and judgments. Dattijo stood on the side of public opinion. So why would Abati and Justice Ariwoola pour such scorn on public opinion as if it was a filthy rag?
There have always been struggles between law, morality and public opinion on whether there is a relationship between them. Between law and morality, while both regulate behaviours of human beings, there has not been any consensus on their relationship. While a school of thought believes in their mutual independence, another believes they are interdependent and yet another, they are mutually exclusive. The argument is, how does any law that claims to regulate human behavior not be in harmony with moral norms? The law must be such that safeguards the welfare and good of humanity and this can only happen if the law sits firmly on a strong moral template.
While Justice Ariwoola may be right to some extent in his submission that judgment takes no cognizance of public opinion but the technicalities expressed by the books and the constitution, Abati was not right in his claim that “public opinion is kilometers and kilometers away from law.”
Indeed, in their literature, there is a close affinity between law and public opinion, with public opinion being seen as a major source of law. This is because it is almost an impossibility for the legislature to pass any law, for usage by the government, without basing such on public opinion and the demands of the people. In the same vein, public opinion has been held to be the guardian of rights and freedom and this is so because the rights and freedom enjoyed by the public requires adequate protection and these guardians are opinion moulders. No law can operate without public opinion in a democracy and in fact, as underscore of their Siamese relationship, the legislature has been held to be a very important source of law. This legislature is a body of representatives of the people who are expected to be mirror of their opinions in the parliament. In practice, and according to P S. Mathur, “Law should be not firmly rooted in public opinion but should be a little ahead of it”. He was most probably giving heeds to German philosopher, Georg Wilhelm Friedrich Hegel who described public opinion as “containing both truth and falsehood” saying that it was the task of the great man to distinguish between the two.
Dattijo’s valedictory is a restoration of a pride of place to public opinion. First, in the earlier valedictory of Adefope-Okojie he cited, that public opinion scion was Saturday Tribune’s inimitable columnist, Farooq Kperogi. Kperogi’s submission that the Supreme Court had become “a voter gaggle of useless, purchasable judicial bandits” was the public opinion that went viral when the Supreme Court affirmed that former Senate President, Ahmed Lawan had won an election he didn’t participate in. For Justice Adefope-Okojie to cite the opinion of Kperogi is an affirmation of agreement with his submission. For Dattijo to now cull it is an affirmation that that greatly vilified opinion of the public space also retains some weight of pride.
Dattijo had deliberated on further issue of “the unpredictable nature of recent decisions of the courts as well” and that “a number of respected senior members of the bar inter alia, citing the Lawan, the former President of the Senate and the Imo governorship appeals, claim that decisions of even the apex court have become unpredictable. It is difficult to understand how and where, by these decisions, the judicial pendulum swings. It was not so before, they contend”. The Learned Justice even went a step further: “In some quarters, the view is strongly held that filth and intrigues characterize the institution these days! Judges are said to be comfortable in companies they never would have kept in the past. It is being insinuated that some judicial officers even campaign for the politicians. It cannot be more damnifying!”
You will recall that the judicial affirmations of the elections of Lawan and the Imo State governor, Hope Uzodinma, in the court of public opinion, irretrievably dimmed the respect and reverence accorded by Nigerians to the apex court. That public opinion that is said not to matter has since removed the rug of legitimacy from Uzodinma as governor. He is mocked as “Supreme Court governor” and I hear that the widespread discontents against his government arose out of the belief that the governorship must have been arranged. If someone didn’t participate in a senatorial election but the apex court awarded him the election, all in the name of technicality, what kind of opinion should the society have about that person and the institution that awarded him that seat? If another one came fourth in a gubernatorial election but a court, which claims it is insulated from public opinion, ordered that the person should be sworn in as governor, what should public opinion say about such a court?
Then Justice Dattijo raised issues about quadrupling finances of the apex court and asked repeatedly what happened to the billions that accrued to the court. You didn’t need any soothsayer to know that MiLord was lamenting the existence of a mysterious funnel at the Supreme Court that drains the monies into unseen pockets. For the judiciary to even have a modicum of moral right to try any case of fraud or corruption subsequently, it must answer all questions posed by Datijjo on what happened to those billions.
The retired justice’s recourse to the Holy Quran and its precepts about morality and the path to tread speaks volume about the nexus between the voice of opinion of the people and the voice of God. Public opinion stands for justice, just as the Holy writ enjoins the people. Technicalities of law do less of justice. In the words of Dattijo’s quotation from the Quran, “O you who believe! Stand out firmly for justice, as witnesses to Allah, even though it be against yourselves or your parents or your kin, be he rich or poor, Allah is a Better Protector to both (than you). So follow not the lusts (of your hearts) lest you may avoid justice, and if you distort your evidence or refuse to give it, verily Allah is ever well a Acqunted with what you do.” Chapter 9 Verse 71, he said, requires that believers, both men and women, do what is just and forbid what is evil.
With the revelations by Justice Datijjo, (rtd) and the hubris of self-righteousness that surround the Nigerian judiciary’s dispensation of justice, it is becoming crystal clear that Nigeria’s Lady Justice is fascinated by the jungle. When law or judgments of the court become impervious to public opinion, they turn into purely mechanistic and absolutely mechanical rituals, lacking human blood flowing in their veins. To divorce public opinion from judgments equals the technicality that is today the provenance of the Nigerian judiciary. That provenance breeds the public perception that the Nigerian judiciary is home of miscarriage of justice.
