Changing The Rules In Midstream
Elizabeth Ohene
Trying to change the rules in the midst of the contest is not only against all natural laws, it is aimed at pushing the judiciary into a confrontational role with the military and giving an unfair advantage to those lawyers who cannot operate unless the rules are bent in their favourThere is a group of vultures that always swoop down to wherever a military coup d'etat has taken place.
First to arrive on the scene invariably are the journalists, anxious to tell the world how dreadful the overthrown regime had been and desperate to unearth juicy titbits about the carrying-ons of members of the former regime. Earth-shattering details like the "outfits of deposed President Shagari were said to cost $2,500 each, ministers and top party officials demanded and got high commissions on every contract thus making Nigeria a difficult and expensive place to conduct business."
They linger around for a while to document the laying low of the 'big men' of yesterday, if a few executions will be thrown in, so much the better, but should they be deprived of that, reports about former ministers being transported in police 'black Marias' and sharing maximum security prison cells four to a cell in terrible sanitary enter conditions, will do very nicely thank you.
They do not seem to consider that these bits of front-page information they are writing would have been more interesting if they had been written itself BEFORE the overthrow. The problem being that the journalists that belong in this pack usually are the ones that would have been loudest in their praise of the former rulers while they were in power.
Before moving on to the next scene of devastation, they would have written stories about the 'austere and incorruptible life-styles' of the present rulers being in sharp contrast to the opulence and corruption of the members of the erstwhile regime.
Next on the scene would be the civil servants anxious to convince the population that they had been powerless in the hands of the politicians, their advice was constantly ignored and they thank Allah that at last there has been deliverance. Since the politicians are always by this time conveniently locked up in jail without access to the media, nobody can ever contradict the civil servants and the myth of the powerless technocrat continues.
Next group on the scene are the failed politicians and 'experts' from the Senior Common Rooms of the Universities who see an easy and short cut to power by moving into the positions that have been forcibly vacated by the politicians - they become ministers and advisers to the military regime.
It is this last group that must surely rank as the most contemptible, for they are those who would exercise power behind the protection of the military without any accountability for their advice or actions.
The military bans all political activities and while everybody else is prohibited from participating in political activity, this small exclusive group, mostly made up of people who had either been rejected by the electorate or who did not have the courage to the hurly-burly of political campaigns, monopolise the centre stage without any competition from anybody else.
Under the atmosphere of military rule which would have proclaimed not bound by 'legal technicalities,' these cosetted 'politicians' have a field day, getting away with things no politician under a constitutional government will dare attempt.
This basic dishonesty is best demonstrated by some members of the legal profession and has been demonstrated at its most flagrant recently in the Lagos courtroom before Mrs Justice Rosaline Omotoso.
The lawyers of the Attorney General's Department and the Armed Forces Legal Directorate had obviously all put their brains together and devised the various decrees that have been enacted since the 31st December 1983 coup. With most parts of the constitution thrown overboard and the Head of State having proclaimed himself above all else there was no need to pay attention to technicalities. Indeed all the stakes were heavily weighted in favour of the lawyers that are seeking to give legal solace to the military regime.
It must not have been an easy task for an ordinary lawyer therefore to have undertaken to take up the case of the three former Unity Party of Nigeria (UPN) governors who have been brought before the special military Tribunal in Lagos.
Seeing that the accused people had already been accused, tried, found guilty and in some cases, sentenced already by members of the military regime and in the press, many people were already willing to consider anybody who dared to offer a defence for the detained politicians, an enemy of the state.
With all that advantage, it is very sad indeed that the Attorney-General's Department had to resort to the meanest trick in the play ground 'change the rules, we are losing...' to be able counteract the arguments advanced by Mr G. O. K. Ajayi the lawyer for the ex-governors.
Getting the laws changed after the game has started to suit the government is not only unworthy of behaviour generally expected of officers and gentlemen, but puts the government's lawyers in a professionally uncomplimentary light. For even military regimes have to operate within the law even if it is the law as decreed by them without any discussion by the elected representatives of the people.
When the coup took place and the soldiers announced the suspension of the constitution, some aspects of it were retained by the military itself and some amendments made by decree, having made those changes as they deemed fit, (or as advised by their advisors, aimed at making life easy for them) they were then bound to act within the framework of the law as defined by them.
If the government then acts outside this newly defined framework, they are liable to pay the same consequences as are members of the public. In much the same way, if the amendments or the new decrees should turn out to be flawed when subjected to the demands of the fundamental rights of the people or are later shown not to cover completely what the government had sought to cover, the government has to pay the consequences and cannot try to cover its tracks after they have been exposed.
If the government's lawyers have given bad advice or have been negligent in their homework, such advisors cannot hide behind the military to win arguments and points they cannot win on the legal front and this has nothing to do with what is fancifully termed 'legal mumbo-jumbo or legal technicalities," it is simply and absolutely the sanctity of the only defense that the ordinary citizen has against the arbit- rariness or the potential arbitrariness of all governments.
That is why it is the height of mischief for the civilian lawyers who cover their legal nakedness with military decrees to try and push the judiciary into taking the heat from the soldiers. The judiciary, after all, remain the sole independent interpreter of whether the individual or the government remain within the required framework of the law. If the military advisors are haphazard in their work or give bad advice or as is being popularly suggested in Nigeria now, leave 'loopholes' in the law, the rulings of the courts as will stem from such decrees and laws do not and cannot constitute political positions against the military government.
The courts do not have to back up the law. the sloppy legal draftsmanship of the government's lawyers by interpreting the law to suit what the government wants.
This basic dishonesty is best demonstrated by some members of the legal profession and has been demonstrated recently in political advantages. the Lagos courtroom before Mrs Justice Rosaline Omotoso.Quite often, the argument has been made that military regimes and/or revolutions cannot tolerate and have not the patience for legal technicalities and that in the pursuit of 'natural justice,' they are free to ignore such considerations or bend the rules whenever it suits their purposes.
But it is that very argument that exposes the flaw in such reasoning, for the laws of nature are nothing if not clearly defined and are never changed, amended or bent to suit a temporary need however tempting it might be. The sun does not rise from the west on certain days because those who inhabit the western hemisphere would want it that way, nor does the tropical sunshine of Nigeria get switched to Greenland because the sunshine is not equitably distributed on the earth, nor does the harmattan wind blow in the months of May and June.
Having made its laws, nature keeps strictly to them and makes it possible for human beings to plan and lead an orderly life. Thus we expect the rains to fall during certain times of the year and tomorrow. make arrangements for planting, tend- ing and harvesting plants accordingly, and we are all surprised when the rain does not fall at its appointed time and call the phenomenon 'unnatural'.
Those who would have 'natural justice', must seek to emulate nature and keep within the bounds of their own laid-down rules.
Trying to change the rules in the midst of the contest is not only against all natural laws, in the circumstances of military rule, it is aimed at pushing the judiciary into a confrontational role with the military and giving an unfair advantage to those lawyers who cannot operate unless the rules are bent in their favour.
The problem is that these lawyers and advisors, having gained the temporary advantage, are not even willing to take responsibility for their actions after the event. For when the soldiers go back to the barracks, as they will, sooner or later, these lawyers will have everybody believe that they were helpless in the hands of the military hell-bent on running rough-shod over the law.
Everybody can understand or at least sympathise with the military impatience or incomprehension of the law - soldiers are often ill-equipped to understand anything but military regulations, but it is unforgivable when lawyers who ought to know better exploit the crudeness of the military to be able to score legal and political advantages.
If the lawyers - civilian or military who have been advising the Supreme Military Council had a proper respect for the law, as one would expect from their training, they would not use their brains to subvert the natural laws of the country. For even if indeed the initiative of issuing decrees to give the government an advantage every time it found itself in a corner, came from the soldiers, anybody who had a proper respect for the law should not find it difficult to refuse to be a party to such immoral acts.
For the moment, it is very tempting to see a possible ruling by the Lagos court in favour of the three ex-governors as a win for ex-governors Ige, Ajasin and Onabanjo and possibly the other 500 or so detained people due o be brought before the tribunals, but only short-sighted people can draw such a conclusion from such an action.
History has shown; that these laws will not be invoked only against the three ex-governors or the 500 detainees; once the principle has been established and the government has been allowed to get away with it, there is no guarantee that even today's advisors I will not fall victim to the same laws tomorrow.
In the meantime, having pushed the judiciary into the unsought for and unenviable role of confrontation against the military regime, the judges are soon brow-beaten or terrorised into acquiescence and they also begin to dance to the tune being played by the military.
The soldiers ought to realise that such advisors do them no good and in fact, succeed only in giving military regimes a bad name. But maybe the soldiers are very much aware of the fact, for how else can one explain the total disdain and contempt with which the military treat such civilian advisors after they have finished doing their dirty work for them.
Even the military ought to recognise and respect the fundamental law that playing by the rules is the only protection the individual has - there are well-defined and laid-down rules that guard behaviour even on a battlefield - every soldier knows that!
