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Legality, constitutionality and the separation of powers – Reflections on the readings of 27th Jan 2019 of the Catholic liturgy

The link line below takes us to today’s readings in the Catholic liturgy

http://www.usccb.org/bible/readings/012719.cfm#.XE3ax5U_CpN.gmail

A number of the themes and points in today’s readings resonate with ongoing events in Nigeria, especially the suspension from office of the Chief Justice of Nigeria (CJN) by the president who said he was acting on an order of the Code of Conduct of Bureau (CCB). There appears to be almost unanimity of views concerning the unconstitutionality and thus the illegality of the president’s action in this regard. The dominant view is that the president’s action violates sections 292 and 157 of the 1999 constitutions of the FRN, a constitution the president swore to defend.

Supporters of the president’s action have tried to justify his action by claiming that the CJN had admitted to making incomplete assets declaration before the CCB, this failure being a sign of corruption, and that the president was thus right in the taking the action he took to deal with the wrong that the CJN had admitted to doing. This type of argument amounts to saying that an illegality is justified if it is perpetrated to deal with an illegality, never mind if that illegality in question is still an allegation. A president is thus justified to flout the constitution according to the dictates of his sense of what is right and not what is constitutional or legal. An argument of this nature is dangerous in that it amounts to saying that the personal whims and leanings of a president supersede the provisions of a country’s constitution. But worse still, an argument like that could lead to a situation where one person becomes judge, jury, and hangman at the same time a situation that violates the principle of separation of powers, a principle upon which modern democracies rest. For democracies to survive and thrive, the three arms of Government must be separate, with no arm encroaching on the duties and functions of the other, with no arm thinking that it has the right to lord it over the others or that it has a monopoly of moral consciousness or of overbrimming patriotism. Relations between the three parts must be governed by respect and recognition of interdependence. The constitution clearly spells out the ways and manners that these three arms of government are to interact. Processes enshrined in the constitution and stipulations on the limits to the role and powers of each arm of government must also be respected by all.

Today’s readings, especially the first and the second readings, illustrate the spirit of such recognition of role scope and limits as well the interdependence of functions. In the first reading (Nehemiah 8: 2-10), Ezra brought the law before all the people. The message here is full transparency before all, no opacity, no hanky-panky. Ezra opened the book in the sight of all the people. Again, nothing is hidden. Was the process for the suspension of CJN undertaken with the same transparency? The answer is NO! The process is shrouded in opacity and smirks of an operation carried out with indecent haste with the head of the executive stooping to some low practice such as by-passing laid down processes. When you stoop to such practices, you lose respect. Recall too that in the first reading, Ezra stands above the people as he read to them – proxemics, height in this case, being used to symbolize the moral authority of Ezra on matters of the law. Notice here that Nehemiah, the executive head, recognizes and respects this separation of powers between him and Ezra.

The second reading is a classic text in systems thinking and functional interdependence. No part of the body can exist in isolation from the other parts, none can claim that it is the most important, none can carry on in a spirit of arrogance. Each must recognize its limits as well as respect the roles and limits of other organs. No role usurpation, no shortcuts to laid down processes or self-promotion at the expense of other parts are allowed. As with the body, so with the principle of the separation of powers in democratic governance. And governance is at its best when this principle of separation of powers but functional interdependence is maintained and respect. Sadly in the suspension of CJN, the president neither kept faith nor respected this principle. Even when one concedes to arguments that seek to justify the president’s actions by appeals to the goodness of his intentions, the point needs to be made that respect of the constitution is superior to an admiration of intentions, whether such intentions are real or imagined. Corruption should be fought but the fight must be within the limits of legality. Adopting or advancing an approach to deal with corruption that suggests the subversion of laid down laws and processes is dangerous not because it reveals a flawed and corrupted mindset but also it can launch the whole country down the slippery road to tyranny and anarchy

The third reading enjoins us as children of God upon whom His spirit rests to speak up against injustice, against the abuse of power and against all gimmicks by which persons in power who seek to hold others in bondage and mental enslavement. The good news of the gospel is a message of freedom, a message that is designed to restore sight to the blind and to restore liberty to all those who are held in shackles by the demagogy of power-hungry persons and their allies who are willing to subvert laid down processes for political gains. The duty of all on whom the spirit of God rests is thus to proclaim the truth which will set captives free and break the chains and limitations that ignorance and fear cast on such persons. The word of God speaks to us every day and has relevance to each challenge that life throws at us. May we be open to His words and may His spirit illumine us to derive meaning from his words which are truth and life and to share these with others..

Source: January 27 2019

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