On the sanctity of due process in democratic societies

In any new or emerging democracy, abiding by the constitutional provisos seems a foremost challenge. In countries where authoritarian control has existed, even after lifting such control through a regime change has sometimes hyped the contempt for constitutionally specified actions. But a democracy, even if fledgling, can uphold and sustain political and institutional ethics without necessarily violating constitutional rights if the willpower exists. In her work, Transformation and Trouble, the distinguished theorist and scholar in criminal justice system, Diana Gordon, critically examined the effort South Africa has made in order that the country can strike a balance between participatory democracy and social control. It is true that South Africa has achieved success in the pursuit of Western ideals of due process and participatory justice. But Gordon still discovers that popular concerns about crime have caused the increasing growth of a castigatory criminal justice system that can weaken the country’s rights-oriented political culture. Thus, Gordon’s work seeks for a country that reiterates its promise to public empowerment through reforms in the criminal justice system; a tactic that Gordon argues would fortify a new democracy.

Since constitutional democratic procedures are always entwined with the judicial process, it is not uncommon for judicialized politics to regulate the political space; especially in the case of intergovernmental contestations in often dysfunctional federations. Continually, elite power clashes are in constant resonance with due process, the rule of law and governance in general. Taking Nigeria as an example, the judiciary has played a central role in stabilising the nation, and this can pass for a pivot in the West African region in specific, and Africa in general. This is particularly in view of Nigeria’s categorisation as a weak state despite abundance of both natural and human resources. It is for these reasons that the Nigerian Supreme Court has assumed a strategic role in the task of building democratic institutions and reinstituting the rule of law within the country. So far, this strategic role has received wide public acclaim and commendation. However, alternate evidence also reveals that the judiciary, during its many interventions has been drawn into excessively political disputes that outplay jurisprudential predilections. In fact, of more significance is the fact that the judiciary is still being tested by institutional dysfunctions constituting part of the bequests of the authoritarian period. This calls for closer enquiry of the judicial function especially in emerging democratic societies.

For example, in the global war against official corruption, a new tool has been developed through the introduction of the crime of illicit enrichment in virtually all multilateral anticorruption conventions. Illicit enrichment is typically defined in such conventions to include a reverse burden clause which generates an instinctive presumption that a public officer found in possession of inexplicable wealth must have acquired it illicitly. But, the reversal of the burden of proof clauses raises a significant human rights issue since it is against the assumed person’s right to be presumed innocent until proven guilty. Regrettably, the recent wave of international law against official corruption does not provide clear procedures on how to advance in balancing the accused’s right to be presumed innocent against the contending right of society to trace and recapture illegally attained wealth. Fighting economic crimes therefore seeks to address what has been left unanswered by multilateral conventions on illicit enrichment, especially on the level of proof