In the name of the law. And the spirit?

By Rafiq Raji, PhD

The judiciary in Africa’s largest economies, South Africa and Nigeria, have been in the spotlight lately. The controversies border on law. The rule, and the spirit; in the Nigerian case especially. Is following the rule of law enough? Or should its spirit not be equally abided by? But who determines that? Last week, Nigeria’s spy agency conducted midnight raids on senior judges in a manner bordering on the dramatic, allegedly carting away cash in local and various foreign currency denominations. In the same week, longsuffering South African finance minister Pravin Gordhan, was issued with court summons on fraud charges. It was a new twist to his continued harassment by supposed allies of the country’s president, Jacob Zuma; ill-timed in any case: Mr Gordhan is slated to present the country’s mid-term budget in about two weeks. His proposals would be crucial to persuading rating agencies not to downgrade the country’s credit rating to junk status in December. They have probably had enough regardless.

Judge the judges
Nigerian judges can be prosecuted. Erring ones have generally gotten a slap on the wrist, some argue. Understandably, the legal establishment is in utter shock. They argue the ‘gestapo’ fashion of the raids and arrests was reminiscent of the dreadful military era; and even then, judges were generally left alone. I have no reason as yet to believe President Muhammadu Buhari’s fight against corruption is not sincere. Still, the manner of this latest event is quite concerning. Mr Buhari should probably be reminded that not so long ago, when he didn’t enjoy the company of bag-pipers serenading his steps, it was the judiciary that offered him some semblance of hope.

One of the embattled judges, Justice Adeniyi Ademola, alleges he is being victimised by the attorney-general, Abubakar Malami, for once ordering his arrest and detention for misconduct when he was a private lawyer. Granting bail to former national security adviser, Sambo Dasuki, undergoing trial on corruption charges, did not go down well with the security establishment, he alleges further. No warrant of arrest was shown to him when he was taken, he says. The senior jurist asserts any purported confession signed by him was done at gunpoint and has asked for the permission of the country’s chief justice to sue the spy agency. Another, Justice Nnamdi Dimgba, alleges his arrest was because of past rulings against the spy agency. He also alleges no search warrant was presented before the raid on his residence.

Nigerian authorities say they followed due process. The National Judicial Council (NJC), the highest judicial governing body, asserts they did not; maintaining the law requires the security services to first inform it of any planned action against a judicial officer. Some senior lawyers and judges that have spoken on the issue argue there was no violation of law, however. With proper documentation, judges can be arrested and their homes searched, they assert. What about the spirit of the law, some ask. What about the constitutionally guaranteed right to dignity, others opine. The courts would ultimately decide who is right I suppose. But then, who are those in charge of the courts?

Clear your name
President Zuma has proved to be a fast learner. After this latest move against Mr Gordhan by the prosecution authorities, he was quick to come all out in support of his finance minister. No one is fooled. There is now no doubt that there is serious infighting going on inside the ruling African National Congress (ANC) party. The gloves are off certainly. ANC grandees who want Mr Zuma out are no longer being politic. Trevor Manuel, another influential former finance minister, is mobilising leading politicians and business people for his ouster. Mr Gordhan, it turns out, also has a few poisonous arrows in his quiver. The very resilient man and politician, Mr Zuma, may disappoint them yet again. At stake for Mr Zuma are a myriad of corruption cases that just won’t go away. Also, Mr Zuma is desirous of ensuring when he completes his term as ANC president in 2017, his allies would still be well-placed in the party. That way, he is able to continue wielding influence until his term as the country’s president expires in 2019.

Ultimately, it is believed Mr Zuma wants his ex-wife, outgoing African Union chairperson, Nkosazana Dlamini-Zuma, to succeed him as ANC president, thereby giving her a good enough shot at the highest office in the land. He reckons she would protect him when he is out of office. Her rival, Deputy President Cyril Ramaphosa, is already garnering support from influential labour unions. Business leaders have also not hidden their preference for the former labour leader turned billionaire businessman and savvy politician. Mr Gordhan’s troubles are partly because he is reckoned to be allied with Mr Ramaphosa. The other reason is that Mr Gordhan is a little bit too influential to Mr Zuma’s liking. The treasury, ordinarily one of the most powerful department in the South African government, with its role and independence guaranteed by the country’s constitution, is virtually now a ‘government within a government’ because of the tremendous clout Mr Gordhan carries with global market participants. With this latest move by his opponents however, he has to clear his name.

Also published in my BusinessDay Nigeria newspaper back-page column (Tuesdays). See link viz. http://www.businessdayonline.com/in-the-name-of-the-law-and-the-spirit/

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