Last week, the US Supreme Court tied with the Supreme Court of Nigeria, which months ago ruled that a Chicago drug money launderer could be president, when it said, an insurrectionist could be.
Within six months, both the US and Nigerian Supreme Courts ruled that people who were clearly constitutionally disqualified, could run for president.
In an article titled, “The Supreme Court Just Erased Part of the Constitution,” New York Times Columnist David French said, “As of Monday, March 4, 2024, Section 3 of the 14th Amendment of the Constitution is essentially a dead letter, at least as it applies to candidates for federal office. Under the U.S. Supreme Court’s ruling that reversed the Colorado Supreme Court’s decision striking Donald Trump from the state’s primary ballot, even insurrectionists who’ve violated their previous oath of office can hold federal office, unless and until Congress passes specific legislation to enforce Section 3…
Through inaction alone, Congress can effectively erase part of the 14th Amendment.
It’s extremely difficult to square this ruling with the text of Section 3. The language is clearly mandatory. The first words are “No person shall be” a member of Congress or a state or federal officer if that person has engaged in insurrection or rebellion or provided aid or comfort to the enemies of the Constitution. The section then says, “But Congress may by a vote of two-thirds of each house, remove such disability.”
In other words, the Constitution imposes the disability, and only a supermajority of Congress can remove it. But under the Supreme Court’s reasoning, the meaning is inverted: The Constitution merely allows Congress to impose the disability, and if Congress chooses not to enact legislation enforcing the section, then the disability does not exist. The Supreme Court has effectively replaced a very high bar for allowing insurrectionists into federal office — a supermajority vote by Congress — with the lowest bar imaginable: congressional inaction.” https://www.nytimes.com/2024/03/04/opinion/supreme-court-trump-colorado-constitution.html?fbclid=IwAR1qiF1Awr9GMzpLks_gsBVHc2geF7MYvmsMoIbpAPfmpWgELfOhDhI9GDU_aem_AcJ0x-wB3mbBY9acfGgHz6mj08euW9Rw5eGvEt3bLqlwh7h20BWMeKm4xRQem3QFU78&mibextid=Zxz2cZ
This opinion mirrors my statement on Nigeria’s election verdict entitled, ‘Nigerian Supreme Court affirms fraudulent election as career fraud floors constitution in 24-year legal tussle,’ saying: “Nigeria’s Supreme Court …presided over… the late departed republic of Nigeria and its similarly deceased constitution and democracy…
The apex court did not fail to disappoint once again redeeming its image as the lost hope of the common man and the last hoax of the politician…It is not only the constitution that died today. Our moral values and culture as a society died with it. The very soul of the nation has been condemned to death row in today’s mass casualty fatality.”
Tinubu and Trump are people whose respective nations’ constitutions expressly disqualified them from presidential office but whose Supreme Courts disingenuously allowed them.
The US situation is absurder still because now an ex-convict can’t vote for a convicted man to be president. In other words, some states disallow convicts from voting but nothing disallows a convict from being voted for or elected president! The US Supreme Court has just exacerbated this illogicality.
According to Dr Sherman Tribble on social media, “As I read the SCOTUS decision on Trump not being disqualified from being able to be on the Colorado et al ballots based on the idea that he was an insurrectionist because Congress has not passed a specific law covering this, even though there is post civil war historical precedent, this idea occurred to me. States routinely pass laws disenfranchising felons from voting. There is no federal statue that covers this. It seems to me that there needs to be a class action suit that enfranchises all former felons. If states can’t stop someone from running for office, then states can’t stop people from voting unless there is a specific Congressional action to do so based on today’s SCOTUS decision. Did they open the door for a new class of voters?”
The fact is that Trump like Tinubu clearly was ineligible based on his overt actions as prohibited by the constitution. However, the courts went out of the way to allow bad actors in despite their duty to protect the constitution.
The travesty of the American situation is further illustrated by the drama playing out in Trump’s election interference conspiracy trial in Georgia. Apparently, two black lawyers who screwed each other can’t prosecute a white guy who tried to screw an entire democracy. Once again it is easier to be rich, white and guilty than to be poor, black and innocent in America.
The US Supreme Court’s action is deadlier than Nigeria’s Supreme Court’s. The latter enthroned a forger, money launderer, rigger and thief and months later the economy is destroyed and hunger protests ongoing.
The former however allowed the chief insurrectionist – who invited a mob to attack congress and hang his own VP – and hundreds more already jailed plus future Insurrectionists a free pass to war against the government and democracy by using the tools of public office.
Despite the differing deadly impacts of both Supreme Courts on their respective nations, one thing is uniform – they have done incalculable harm in weakening the constitution and reversing democratic jurisprudence – frustrating the express expressed intent of the framers.
Ironically, putting the onus on congress to disqualify Trump not only offends against separation of powers by giving the legislature a judicial or executive function, but it also over politicises a criminal matter.
Worse still, the congress has already impeached Trump related to this conduct and also had a select committee that investigated the insurrection subsequently and referred him and others for the Department of Justice to prosecute. For the Supreme Court to say, despite seeing all the congressional action and evidence, that more needs to be done, leaves the US exposed and vulnerable to insurrectionist infiltrators into office! The Supreme Court just tacitly legitimised treason – the most fundamental crime against a democracy, a constitution and a nation.
In October, I wrote, “What is left for the Supreme Court is simple – to save Nigeria and by so doing itself from being a tool of legitimisation of criminality and delegitimisation of constitutionality.”
Apex courts worldwide have that prerogative of exceptions to allow for substantial justice which brings us to the tale of the third Supreme Court.
Fifteen years ago, a British friend discovered a Nigerian as the sole black prisoner on death row in an Indonesian prison.
The young man was awaiting execution when I came into the case on the basis of mistaken identity having been trafficked on a Sierra Leonean passport by a ruthless drug cartel.
The Indonesian ambassador, who was fortunately a lawyer, told me diplomatically speaking there was no hope since it was confirmed by their Supreme Court but that as a professional colleague, whispered to me an Indonesian term.
It meant the last chance offered by the Supreme Court that 27 days before his execution, he would be notified by the authorities and then we could we file a last minute reprieve application on new evidence.
Client T had already been on death row for years so began the race against time to find new evidence before the hangman came calling. However it took us years to establish his true Nigerian identity because the government didn’t have records of passports issued. We had to conduct a DNA test on him in Indonesia and his brother in Nigeria which had to be tested in South Africa because there was no DNA facility in Nigeria. We traced the client’s Asia travel verifying he had applied for refugee status with the United Nations and also tracked the drug kingpin who set him up to a prison in Thailand. For years, lawyers and volunteers on five continents worked tirelessly to uncover his unfortunate story and finally produced a massive dossier of new evidence. Then we waited – for years upon years.
Finally we got the execution notice and immediately filed our new evidence. The Indonesian Supreme Court reopened the case accordingly. I flew to Nigeria from US and picked the younger brother of Client T to Indonesia to appear in court then immediately after flew back to the UN in New York for an International Women’s Day event with the Deputy General Secretary of the UN and the Chibok girls I sponsored abroad – exactly seven years ago.
To the glory of God, the Indonesian Supreme Court accepted our evidence and Client T was released in December 2023 after over 20 years in prison and I flew him back to his family in Nigeria on Christmas Eve. It was career crowning achievement from a decade and a half of pro bono assistance.
The Indonesian Supreme Court rendered justice to a single poor Nigerian citizen but we have Supreme Courts today that render judgment for rich bad actors against entire nations. Which of the three Supreme Courts was truly the last hope of the common man?
•Emmanuel Ogebe, Esq, is a prominent US-based international human rights lawyer and Nigerian pro-democracy advocate with the US NIGERIA LAW GROUP in Washington.
