Abstract
This paper examines the strategies for the legitimisation of power in courtroom en- counters. It focuses on how discourse becomes the instrument for power and control during the judicial process of witness examination in a Nigerian courtroom context.
Legitimisation, as used in this study, therefore, provides more insight into how lan- guage use within an institutionalised setting becomes the locus of social interactions designed to achieve specific social goals. Critical Discourse Analysis (CDA) was adopted as the theoretical framework to undergird the description and discussion of the data. The data for this study was drawn from the proceedings of two regional Election Petition Tribunals in South-western and North-eastern Nigeria in 2007 and 2011 respectively. The legal contexts provide the adversarial space for the use of discourse as power and control. The findings reveal that various legitimisation strategies such as confrontational move, circumlocution and pleading forgetfulness along with such traditional strategies as authorisation, moralisation and rationalisa- tion are deployed by the discourse participants to legitimise and delegitimise power in this institutional setting. The paper shows that language is crucial in the judicial process and should be carefully handled so that litigants can have sufficient confi- dence in the process and be reassured of effective resolution to their legal matters.
Keywords Critical discourse analysis · Cross-examination · Delegitimisation · Legitimisation · Power relations
Accepted: 10 September 2023 / Published online: 2 November 2023
© The Author(s), under exclusive licence to Springer Nature B.V. 2023
Strategies for Legitimising and Delegitimising Power in Nigerian Courtroom Discourse
Anthony Elisha Anowu1 · Tunde Ope-Davies2 · Mojisola Shodipe2
Anthony Elisha Anowu
[email protected]; [email protected]
1 Anchor University, Lagos, Nigeria
2 University of Lagos, Akoka, Lagos, Nigeria
1 Introduction
The focus of this paper is the study of the use of legitimisation strategies in counsel/
witness interactions during the examination phase of courtroom proceeding. Legiti- misation in discourse interactions has provided a periscope for the examination of the communicative behaviour of powerful participants in discursive events. Courtroom settings have always been a challenging scenario for witnesses because a series of issues often affect their responsiveness in this communicative event. The discomfiture experienced by witnesses is not unconnected with the discursive strategies adopted by counsel whose enormous influence creates an unwieldy power imbalance in the communicative process. It is worthy to note that the deployment of language in such a way as to undermine witnesses actually makes the courts a strange or an unwel- come setting for many witnesses. This study is therefore motivated by the need to explicate not just how courtroom cross-examiners seek to legitimise their discourses but also identify how witnesses not only hold their ground in this institutional set- ting but also challenge such discourses. While many scholars have associated coun- sel/witness exchanges in the courtroom with a form of power struggle or as highly embedded in power relations [2, 9, 27], the strategies that characterise this contest have largely been ignored for more detailed studies of interrogative procedures and other obtrusive linguistic patterns.
The legal matters addressed in this study relate to election petition tribunals which are increasingly becoming a regular feature of Nigeria’s nascent democratic process.
It is believed that Nigeria has the highest number of election related matters in the world [20, 38]. The specific cases under consideration in this study are the Gov- ernorship Election Petition Tribunal matters concerning the gubernatorial elections in Osun State, south-west Nigeria (2007) and Adamawa State, north-east Nigeria (2011). However, the interactions between cross-examiners and witnesses some of whom are polling supervisors and agents of the political parties involved in the elec- tions form the focus of this study. A critical discourse approach provides the veri- table linguistic paradigm to explore how courtroom discourse provides the context to highlight power relations amongst interlocutors in institutional contexts. While a host of publications exist on the use of legitimisation in political discourse and media discourse, very little seems to have been done along this line in legal discourse. Idrus and Mohd Nor [24] examine legitimisation in decision making by judges. They relied on three of the four strategies identified by van Leeuwen and Wodak [52]: authorisa- tion, moralisation and rationalisation. Chen [6] also focuses on legitimation with par- ticular interest in judges’ interaction with persecutors and defence lawyers in court.
By focusing on legitimisation in the witness examination stage of legal proceedings, the present study thus addresses both the gap in literature and absence of such studies in non-western legal-political contexts like Nigeria.
1.1 Legitimising Power Through Discourse
The exercise of power by dominant groups in institutional settings is a generally acknowledged phenomenon. It is what the society itself has come to understand and accept as part of the expected conduct in social interactions especially in institutional
contexts. Legitimisation is a host of discursive strategies adopted by social actors or discourse participants in order to make their actions or statements acceptable, ethical, understandable and necessary within a given institutional setting [46, 47, 51, 52].
Legitimation, therefore, borders on social practice and indeed on the issue of power relations. It is an attempt at achieving institutional and private discourse goals and exacting institutional influence without an apparent show of control. Legitimisation strategies, according to Fairclough [18], are semiotic elements deployed by social actors. These strategies are generally conceived as discourse resources involving both structural linguistic patterns and broader discourse features that are not gener- ally viewed as grammatical or structural categories. Rojo and van Dijk [36] identify three levels of legitimation namely: pragmatic: that is, strategies for the justification of controversial official actions; semantic: the ways a discourse represents its peculiar view of events or properties of actors as ‘true’ or as the ‘fact’, and socio-political:
the way official discourse self legitimates itself as authoritative and delegitimates alternative discourses.
But perhaps the most influential legitimation strategies are the ones put forward by van Leeuwan and Wodak [52]; they are highlighted below:
(i) Authorisation – this is making reference to tradition, law or an individual holding institutional authority;
(ii) Moral Evaluation – making references or using discourse related to the system of values, ethics or morality;
(iii) Rationalisation – references to accepted social practices, general belief or social knowledge, and.
(iv) Mythopoesis – creating narratives that connect the past or future to the present.
However, van Leeuwen and Wodak [52] have been subjected to various reviews. van Leeuwen [53] adds the sub categories of personal authority, expert authority, role model authority, impersonal authority, the authority of tradition and the authority of conformity to his modification of Authorisation as a strategy for legitimisation. Vaara and Monin [45] also introduced Naturalisation and Exemplification as legitimisation strategies in their examination of organisational action in mergers and acquisitions.
Reyes [35] proposes five legitimisation strategies in his examination of the speeches of George W. Bush and Barrack Obama on the ‘war on terror’. These strategies are a complete departure from van Leeuwen and Wodak [52]; they are psychological/
emotional state (exploiting fear); projecting a hypothetical future; rationality which is akin to van Leewan and Wodak’s [52] rationalisation; foregrounding the voices of experts to back up claims, and making altruistic statements.
1.2 Courtroom Discourse
Courtroom discourse is generally conceptualised as the use of spoken and/or written language in courtroom interactions [32]. Other scholars have emphasised the fact that it is spoken and interactive [29]. According to Cotterill [7], the courtroom is ‘a highly role and rule-governed environment. Not only are the various participants bound by the laws and protocols that govern their physical behaviour and demeanour
but there are also clearly defined controls on their language’. Courtroom discourse is one of the genres in the field of legal discourse. Many scholars have worked on legal genres [26, 29, 44]. Kurzon’s [26] taxonomy identifies the two basic genres in legal discourse as ‘language of the law’ and ‘legal language’. He further classifies
‘legal language’ into written and spoken forms from which he derives ‘witness ques- tioning’. However, Trosborg [44] amongst other categories highlights what she calls
‘language of the courtroom’ under which she categorises three associated courtroom genres – ‘judge declaring the law’ [23, 40], ‘judge/counsel exchanges’ and ‘counsel/
witness exchanges’. Of course, there are sundry works on all these aspects of legal discourse including such other areas as mediation or arbitration [15, 55]. This present study focuses on witness examination with particular attention to cross-examination of witnesses [10]. Therefore, the data fall within the spectrum of ‘counsel/witness exchanges’.
As indicated earlier in this paper, one of the most recognisable features of the courtroom is the power differentials among its participants. Power asymmetry in the courtroom is indeed a pervasive phenomenon [25, 30, 43]. Shi [39] acknowledges that power relations in the courtroom have three major features: (i). Power is ‘hier- archical and asymmetrical’; (ii). Power is ‘largely determined by the institutional nature of the court’, and (iii). Power is ‘reflected by, and in turn affects, the linguistic features used by subjects during discourse’. Shi’s [39] postulation actually reflects the nature of power relations in the courtroom. It is generally acknowledged that wit- nesses are the non-powerful participants in any courtroom interactions while judges and lawyers are typically gatekeepers. It should be pointed out, however, that the power dynamics is a lot more complex than Shi seems to present. Though lawyers and judges reserve the rights to pose questions and witnesses are obliged to provide answers to such questions; all the participants have the opportunity of leveraging on language as a means of actualising their discourse goals in court one way or the other. While it is true that asymmetry in the courtroom tilts in the favour of judges and counsel both in language use and otherwise, this is not to say that witnesses are without the requisite linguistic resources to hold their own in such a setting. Giddens [21], in his ‘theory of structuration’, has argued that though social actors are totally subdued by the power and dominance exhibited in institutional sittings, it is his belief that institutions have both the possibilities for domination and emancipation. The enactment of power by lawyers in the courtroom and the resistance to such a move by witnesses reflect this phenomenon. Reisigl and Wodak [34] seem to acknowledge this when they opine that ‘power is legitimised and de-legitimised in discourses’.
The study therefore pays close attention to the discourse strategies adopted by these discourse participants to legitimise or delegitimise discourse goals.
1.3 The Critical Discourse Analysis Paradigm
Critical Discourse Analysis (CDA) as a discipline concentrates on unraveling the social issues embedded in discourse [16, 17, 28]. Some of the social issues that CDA addresses are dominance, discrimination, gender imbalance, dehumanisation, exploi- tation, inequality and racism. CDA, therefore, sees ‘language as social practice’ and places considerable emphasis on ‘the context of language use’ [19]. Fairclough [18]
notes that CDA focuses on two areas: social practices and how social actors employ strategies to enhance their discourse goals in specific social settings. van Dijk [49]
opines that CDA ‘accounts for the relationships between discourse and social power’, and this is accomplished by pointing out ‘how power abuse is enacted, reproduced or legitimised by the text and talk of dominant groups or institutions’. As a linguistic paradigm, CDA engages the attention of researchers on the construct of power, that is, its use and abuse as implicated in discourse. For CDA, therefore, institutional discourse is an issue of asymmetrical power perpetuated in discourse. CDA aims to show how society and discourse shape each other. For the proponents of CDA, language use is not a neutral phenomenon; it is both an instrument of coercion and control as it is of social emancipation and social justice.
2 Methodology
The dataset used for this study was collected from actual courtroom proceedings in Osun State and Adamawa State in south-west and north-east Nigeria respectively.
The data conforms to Stubbs’ [41] categorisation of usable text for discourse analy- sis. The study covers the election petition tribunal sittings on the gubernatorial elec- tions in Osun State (2007) and Adamawa State (2011). The Osun electoral dispute was between Alhaji Rauf Aregbesola (the petitioner) of the defunct Action Con- gress of Nigeria (A.C.N) and Chief Olagunsoye Oyinlola (the respondent) of the Peoples Democratic Party (P.D.P) while the Adamawa case was between Markus Natina Gundiri (the petitioner) also of the defunct A.C.N and Rear Admiral Murtala H. Nyako (the respondent) of the P.D.P. Procedures for data collection included oral recording of the proceedings which were later transcribed into written documents for archival purposes. A qualitative procedure was adopted for the analysis of the data.
For in depth textual analysis, a critical discursive approach was deployed with close attention on how texts align with power struggle in the courtroom. For the ease of analysis, a simple coding system was adopted for the discourse participants. Petitioner witnesses are tagged (PW) while respondent witnesses are (RW).The counsel has also been coded along the same line and in conformity with best practices in socio- linguistic research. Thus petitioner counsel is (PC) while respondent counsel is (RC).
The texts from the Osun State Election Petition Tribunal are coded as (OSEPT) while texts from the Adamawa State Election Petition Tribunal are coded as (ADEPT).All together, nine texts were used for the analysis: OSEPT Texts (1–7) and ADEPT Texts (1–2). In line with best practice, we have anonymised the names that appear in the data used for this study except those of the litigants (petitioners and respondents) who are known public figures. However, rather than using the sign xxxxx or leaving the places where such names occur blank, we decided to replace such names with pseudo-names because omitting them may alter the flow of the discourse. The sign * is used to indicate the instances where such pseudo-names are used.
3 Analysis and Findings
3.1 Confrontational Move: Verbal Fisticuffs
Confrontational move as a legitimising strategy is a discursive move sometimes used by counsel in the course of cross-examination. This move exploits the adversarial nature of this phase of trials where conflict, argument and disagreement are organic to the interaction [1, 22, 42]. According to Chilton [7], ‘legitimation function is closely linked to coercion, because it establishes the right to be obeyed, that is, ‘legitimacy’.
The legitimising content in this strategy is derived from the ideological or hegemonic tendencies associated with legal practitioners especially the belief that they have the liberty to say whatsoever they wish to say in court and that they must be obeyed as gatekeepers in this institution. While it is impolite to become suddenly confronta- tional in the normal course of events, lawyers think it is something to be excused in the courtroom, at least, something they can do and get away with under the cloak of institutional rules and norms. The confrontational strategy simply echoes the coer- cive nature of counsel/witness interactions.
It is pertinent to note that cross-examiners adopt this strategy in order to achieve desired discourse goals which may among other things include; to reveal the attitude, character and inner disposition of the witness; ruffle and generally unsettle the wit- ness resulting in unguarded utterances due to provocation. Of course, the unwary or unschooled witness is usually tempted to retort in an aggressive manner thereby committing some judicial blunders e.g. uttering statements that may either implicate them or do serious damage to the pleadings of their legal team.
OSEPT 1.
PC (1) Can you tell this tribunal if you voted on April 14, 2007?
RW (2) Yes, I voted.
PC (3) In your words, you are a powerful man in Osun State.
(4) Can you name three people you met when you went to vote?
RW (5) I don’t know anybody.
(6) I went there to vote and I left.
(7) I didn’t go there to know anybody.
PC (8) When you got to the Polling Unit, how many people did you meet there?
RW (9) I met about 8 people.
PC (10) Do you know any other Cornelius Adetumibi*?
RW (11) I don’t know any other one
PC (12) Were you registered to vote in that election?
RW (13) Yes.
PC (14) How many Olatunji Adetumibi* do you have on that document?
RW (15) There are two.
PC (16) Show him item 484 and read the VIN number out to the tribunal.
RW (17) 9080020062, Regina Adetumibi*; Gender: Female; Age: 60; Occupa- tion: Trading.
PC (18) Can you go to item 490 and please read out the details?
PW (19) Regina Adetumibi*: Occupation: Trading; Age: 60.
PC (20) As a law abiding man, which you deposed to in your witness statement on oath, do you know it is an offence to be registered twice in an election?
RW (21) I don’t know.
PC (22) Finally, I put it to you that you were indeed a General on the day of the elections as you went round the wards to cause mayhem and indeed you caused may- hem and maimed people?
RW (23) I never expected the language from a learned person.
PC (24) Primate ….
RW (25) Say what you want to say.
PC (26) This is the attitude you were displaying on the day of election?
RW (27) It was not so,
(28) Because you are a lawyer, you can insult me.
PC (29) If I was not a lawyer, you could have dealt with me.
RW (30) My daughter is a lawyer.
PC (31) Thank God for you, but you want the tribunal to believe that you do not know Oluwa Rabiu* and all others who wrote petition against you and came here to give evidence?
RW (32) I don’t know them.
This extract shows a combustive exchange between a prosecuting (petitioner) counsel (PC) and a respondent witness (RW). The PC delves into meta-commentary when he observes that the witness had referred to himself ‘…as a powerful man in Osun State’ (3) perhaps in the witness’ statement on oath. That phrase sets the tone for this particular cross-examination as it signals the fact that the witness is a man of interest. What follows was an attempt by counsel to establish a case of double registration against the witness. After presenting some exhibits to establish a case of double registration against the witness (14–19), the PC, once again, resorts to meta-commentary, ‘As a law abiding man, which you deposed to in your statement on oath…’ before putting forth an accusation well coached in the yes/no question,
‘…do you know it is an offence to register twice in an election?’(20). The ‘I don’t know’ (21) response from the witness seems to be the trigger of the confrontation that ensued. Those words apparently show that the witness was unwilling to co-operate.
It would seem that counsel decided to be deliberately confrontational in order to get past an uncooperative witness. The adoption of a confrontational strategy by counsel becomes more explicit in line (22). Completely deviating from his former line of questioning on the double registration for the election, the PC accuses the witness of being a ‘General’ on the day the election was held. This metaphor is instructive, the word ‘General’ was simply aimed at linking the witness to acts of violence per- petrated at that election. In line 22, using the formulaic expression, “I put it to you”, counsel alleges that the witness ‘caused mayhem and maimed people’. It is interest- ing to note that the witness tries to reply in kind even within his limited discourse space. Getting rather livid, he accuses counsel of inappropriate use of language (23).
The short vocative interjection from the PC, ‘Primate…’ (24) seems to indicate that there was an outburst from the witness. He was ruffled and totally unsettled.
What is however intriguing about this exchange is that the witness even though displeased with the action and language of counsel seems to excuse it. He legiti-
mises the discourse of counsel with the statement ‘say what you want to say’ (25) and ‘because you are a lawyer, you can insult me’ (28). These utterances show the witness’ concession to the fact that he cannot control this particular situation due to institutional constraints. The witness’ utterances give a feeling that this is what law- yers do in court so it is the right of counsel to act the way he did. But such attitudes simply show how power is unwittingly conceded to dominant groups in institutional settings. van Dijk [50] puts it quite pungently when he opines that:
The (dominant) group or institution seeking to legitimate itself through approval from the dominated, and the dominated group legitimating the dominant group or institution through various forms of more or less active agreement, accep- tance, compliance or at least tacit consent.
The lexical items van Dijk [50] chooses here are quite instructive; the words “agree- ment”, “acceptance”, “compliance” and the phrase “tacit consent” invoke the notion of control and some form of struggle for power. The dominant group creates the impression that their action or text and talk flow from the natural course of events and that it should be accepted as such.
So, even when this confrontational strategy leads to a verbal face-off or some form of altercation as is evident in this particular instance, the witness still exercises some measure of restraint. However, on his part, counsel accomplishes his discourse goal quite productively and satisfactorily. Having provoked the witness into a heated argument where the latter makes unguarded utterances, counsel simply consolidates his position by declaring that the attitude the witness just demonstrated in court was exactly what he did on the day the Osun State governorship election was held. The witness quickly counters this observation by declaring that that was not so. Unfortu- nately, the damage has been done through the uncivil utterances. Counsel’s provoca- tive and confrontational strategy proved to be very effective. He actually succeeds in provoking the witness and, in effect, shows that the witness is indeed capable of committing the electoral crimes he is alleged to have committed – line (31).
3.2 Authorisation Through Referencing Higher Authority
Authorisation as a legitimisation strategy is the act of referencing a higher authority as a means of legitimising discourse [52–54]. Appealing to a higher authority as the basis for one’s action, reaction, ideas, utterances or statement is basically a form of justification strategy.It provides some form of legitimacy to an utterance made within the context of the discourse. In this instance, lawyers or cross-examiners legitimise their own discourses by referencing legal instruments or statues such as laws, edicts, bills, the constitution, laws or rules of evidence etc. what van Leeuwen [53] calls
‘impersonal authorisation’. However, it was discovered that in this study, witnesses also use authorisation to legitimise their own discourse thereby delegitimising the discourse of counsel during cross-examination. This strategy may be described as a counter-authorisation device. They do this by referencing the authorities in their political parties e.g. party Chairman, elected members of the party e.g. governors, legislators etc., election supervisors and so on, that is, ‘personal authority’ in van
Leeuwen’s [53] taxonomy of legitimation strategies. At other times, these witnesses reference the political parties in what may be termed ‘institutional authority’ [53].
OSEPT 2.
RC (1) Which polling unit did you visit?
PW (2) Atakumose Unit 4
RC (3) You also visited the unit twice.
PW (4) Yes, in the morning and when the problem also started in the unit.
RC (5) You did not write report in respect of these events?
PW (6) The report is with my party chairman.
ADEPT 1.
RC (1) All your agents signed the result sheets?
PW (2) Yes.
RC (3) Were they bribed to do so?
PW (4) No.
(5) The party told them to sign.
RC (6) The reports you received from your agents are in writing?
PW (7) Yes.
RC (8) You have not brought to this court any of such reports, why?
PW (9) Yes, I took it to my party.
These extracts feature instances where witnesses deploy authorisation as a legiti- mising strategy with the aim of delegitimising the text and talk of counsel. In the two examples above, the witnesses make reference to their political party or party chairmen in their attempt to justify their action or explain why they acted the way they did. In OSEPT 2, the cross-examiner challenges the witness on his failure to make or write a report on the anomalies he observed on the day of the election (5) but the witness quickly justifies himself by referring to a higher authority when he asserts that the report is with his party chairman. This is to say that a higher author- ity not only knows about the incident but is also in possession of the report. A more pungent instance of counter-authorisation is seen in ADEPT 1. Here, the witness on two instances lays claim to following instructions from the party. First, counsel seeks to know whether the agents of the witness’ political party who went ahead to sign the result sheets in spite of claims of irregularities were financially induced or ‘bribed’
to do so (3). This is a highly sensitive question because by signing the result sheets, at the various polling centres, the agents had unwittingly authenticated the electoral process as well as the results that emanated from it. The witness, of course, could easily deny the fact that the agents were bribed which he quickly did. But how can he explain the fact that his agents signed the result sheet, something he himself has already acknowledged (line 2). He found a way out with the discursive strategy of authorisation – ‘The party told them to sign’ (5). This presents an apparently unassail- able reason for the action of the agents who signed a document which authenticates the election result and process their party is challenging in a court of law. Qvarfordt et al. [33], in their examination of legitimisation in text related to anti-doping agen- cies, observe that the construction of the authorisation strategy revolves around ‘a powerful supervisory authority which is vested with institutional power, and which
is ‘intangible’ and ‘unassailable’. Thus by claiming that his political party ordered or authorised its agents to sign the result sheets, the witness forecloses the notion of financial inducement and the contradiction of endorsing a process the party is at variance with. It is now left to the conjecture of the judges to unravel why the party instructed the agents to sign the result sheets. The cross-examiner boxes the witness to a corner again when he asks why the reports were not brought to the tribunal (lines 6 and 8). But once more, the witness uses the strategy of authorisation to surmount this challenge. He simply counters counsel by declaring that the reports were taken to the party, in other words, the party secretariat (line 9). Invariably, the witness secures a reprieve for himself as his answer seems to suggest that further questions on the issue should be directed to the secretariat of his political party.
3.3 Forgetfulness: A Convenient Alibi
One of the ways by which witnesses delegitimate the discourse moves of counsel during cross-examination is by claiming forgetfulness. While many works have been done on the issue of memory or memory loss especially in the legal context, Drabble et al., [14] consider ‘forgetting as a discursive resource’. In this paper, we contend that pleading forgetfulness in courtroom interactions could be a discourse strategy through which witnesses legitimise their discourse goals of not cooperating with cross-examiners. Where such is the case then such witnesses could simply be said to have ‘feigned amnesia’ [8]. There are instances in courtroom interactions when witnesses claim to have forgotten pieces of information especially during the process of cross-examinations. These occasions are marked by such responses as ‘I cannot remember’, ‘I don’t know’ etc. There are, however, situations in which forgetful- ness or inability to recall incidents or information become a delegitimising discourse strategy. In such instances, the witnesses use forgetfulness as a convenient alibi not just to avoid implicating themselves but also as a means of challenging the unequal power in this discourse event. The response, ‘I don’t remember’, therefore, becomes a covert way of saying ‘I can’t release that information …’, ‘You won’t hear that from me….’, or ‘I am unwilling to tell you or give you that information’ etc. The point being made here is that these utterances offer the witness an almost unchallengeable line of defence. It often appears so innocuous that one may not be really able to tell whether the claim is genuine or feigned. The cross-examiner may either choose to challenge it or simply let it go.
OSEPT 3
PC (1) Even though you cannot remember that you were a public servant but you cannot forget the process of voting?
RW (2) Yes, I can remember the voting process.
PC (3) Estimate the time it took from verification to actual voting.
RW (4)I cannot estimate.
PC (5) Would it be about 8 min?
RW (6)I cannot say.
PC (7) What were you in the unit?
RW (8) I was the party agent.
PC (9) Would it be 30 s or 1 min?
RW (10)I cannot say the time.
PC (11) Would you say it took you how many minutes, 3 min, 5 or 8 min?
RW (12)I cannot say the time it took me.
PC (13) Can you say how long verification took you?
RW (14)I cannot say.
The extract above clearly illustrates the deployment of forgetfulness as a dele- gitimising strategy in courtroom interactions. It is indeed interesting to note that the extract begins with an acknowledgement by counsel (PC) of the fact that forgetful- ness is a tool at the disposal of the witness. The sarcastic statement, ‘even though you cannot remember that you were a public servant’ (1), seems to imply that coun- sel realises the fact that this particular witness has been feigning forgetfulness all along. So when counsel brings up the issue that demands the witness’ ability to recall events concerning the voting process, it is quite apparent that thewitness has already made up his mind not to co-operate: a clear indication that he has something to hide.
Though he earlier affirmed that he could remember the voting process but when counsel began to pick on the specifics or details of what transpired in the witness’
polling unit on the day of the election, he quickly relapsed into the constant repeti- tion of statements that he cleverly prefixed with the negating phrase, ‘I cannot …’
to stave off the questions put to him. Minarova-Banjac [31] opines that ‘deliberate or intentional forgetting’ leads to subversion, denials, suppression, mythmaking and trivialisation. The witness’ repetition of ‘I cannot ….’ (4, 6, 10, 12 and 14) only goes to show that he is strategically avoiding going into certain details in order to circumvent further questionings from counsel. Even when counsel deploys alternate questions (lines 9 and 10) in order to elicit some form of concrete response from the witness, he remains uncooperative. This strategy delegitimises counsel’s discursive cues especially his line of questioning.
3.4 Moralisation: Echoing Social Norms and Values
Moralisation as a legitimising strategy draws from the natural tendencies in human societies to evaluate action and talk on the basis of ‘value systems’ or social norms [53]. Moralisation strategy is actually based on evaluation, analogies and abstrac- tions. Ethical and moral standards are societal values that people strive to relate to either consciously or unconsciously as they are seen as the written or unwritten ground rules for social engagement. Drawing from the society’s code of good and bad is therefore a strong legitimising strategy in any form of public discourse [13]. This is because moral standards still remain to a very large extent sacrosanct. As a discourse strategy for the legitimisation of power, moralisation resonates with the power hold- ers. This is even truer in the legal context where discourse gatekeepers – lawyers and judges – easily wield the stick of morality because of the interconnectivity of the law and morals. As representatives of institutional authority, they naturally earn the respect of other participants who are bound to comply with their directives. Since the primary aim of the court is to ensure that social order is maintained in society [12], the issues of social norms and values are at the centre of judicial thinking and pro- nouncements. Instances of moralisation strategies are illustrated below:
OSEPT 4.
PC (1)You said you have retired?
RW(2) Yes, I have retired.
PC (4) When did you retire?
RW (5) I retired on first June, 1983, at Ataoja High School as a Busar, Grade two.
PC (6) You retired at what age?
RW (7) Voluntarily for politics.
PC (8) What was your age when you retired?
RW (9) I was 44 from 1983.
(10) I was 39.
PC (11) You said you were born in 1944?
RW (12) Yes.
(13) That is my official age.
(14) I was born on 4th December 1939.
PC (15) My Lords, he was born in 1944.
(16) He has been lying since he was born.
(17) I don’t know of an official age.
(18) It is the first time I am hearing of this.
The use of moralisation in the excerpt above hinges on the fact that the witness has two dates of birth. While the date of birth which reflects the witness’ official age is predicated on 1944, the unofficial one is based on 1939 (lines 8–14). The counsel attempts to moralise the entire duplicity by emphasising the fact that the witness has been lying about his age ‘since he was born’ (16). This is a clear moral evaluation.
Björkvall and Nyström Höög [4] note that through the use of moral evaluations, legitimisations are connected to discourses of moral values’. Counsel’s declaration in line 17 echoes the rampant practice of age falsification in the Nigerian civil service where personnel generally alter their age in order to stay a little longer in the service.
This socio-cultural background provides a legitimisation plank for the counsel’s dis- course here as it hinges on challenging a trend that goes against moral standards or ethics. By making very categorical statements on the witness’ conduct, counsel puts forth a moralisation strategy that not only confronts the witness directly and frontally but also presents him as morally deprived and as such his testimony in the trial can- not be trusted.
ADEPT 2.
RC (1) The people who were financially induced were they A.C.N members?
PW (2) No.
(3) I did not know who voted for whom.
RC (4) Can you receive bribe for your party?
PW (5) No.
RC (6) You said the attempt to induce voters failed?
PW (7) Yes.
RC (8) So, the decision was not affected by that attempt?
PW (9) (silence).
RC (10) All your agents signed the results sheets?
PW (11) Yes.
RC (12) Were they bribed to do so?
PW (13) No.
(14) The party told them to sign.
In this extract, the counsel legitimises his discourse through moral analogy [37, 54]. It can be gathered by inference that the witness (PW) had alleged that his politi- cal party lost the 4th February 2011 Adamawa State governorship election because some people were financially induced to vote against his party’s governorship candi- date. While not exonerating those who were supposedly financially induced during the election, a practice in Nigeria known as ‘vote buying’, counsel pins the issue of bribery down to the witness (PW) himself when he asks, ‘can you receive bribe for your party? (4). By asking this question, counsel seeks to draw an analogy on the action of those whom the witness alleged to have been bribed to either vote or falsify results and what the witness himself would have done under such circumstances. It is moralisation via comparison [53]. Of course, because giving and receiving bribe is generally against the moral code of society and the electoral law, the witness could not but provide a negative response hence he says “No” (5). As though to reinforce this response, counsel asks the witness whether the agents of his political party who signed the result sheets that he and his party are challenging at the tribunal were bribed to do so (12). Again, the witness answers in the negative (13). The discourse goal achieved by counsel through the responses elicited from the witness is that it is unethical to ‘receive bribe’. It is an unacceptable practice even though everyone knows it is rampant. Thus, through the legitimising strategy of moral evaluation and analogies, counsel in the two extracts examined in this section legitimises their own discourses while delegitimising those of the witnesses.
3.5 Rationalisation: Making Sense of Discourses
According to van Leeuwen [53], rationalisation is a form of legitimisation strategy in which references are made to ‘the goals and uses of institutionalised social action and to the knowledge that society has constructed to endow them with cognitive validity’. It is classified into two broad categories: instrumental rationalisation and theoretical rationalisation. The former revolves round goal orientation, means orien- tation and outcome orientation while the latter is predicated on definition, explana- tion and prediction [54]. As was mentioned earlier, discourse participants sometimes try to legitimise their stance by appealing to rational thinking or basic logic. To this end, they make references to some widely accepted social practices, general beliefs and social knowledge [52]. It is a strategy used to strengthen the speaker’s argument and sometimes to unravel the underlying motivation behind an action or utterance.
In legal pleadings, it is generally sensible to base arguments on logical or rational thinking since the court or judges are generally on the lookout for common sense and /or the intentions or motives behind actions. In this study, counsel and witnesses use rationalisation to suit their own intended discourse goals. While counsel deploys questions that seek to probe and thereby provide the rationale behind a witness’s action or statement, witnesses on their own part often use rationalisation in their responses to nullify or delegitimise the assumptions behind counsel’s utterances.
OSEPT 5.
RC (1) You were unhappy because P.D.P defeated your party?
PW (2) Yes, I am not happy because it did not go as it should.
RC (3) It was the defeat that made you unhappy?
PW (4) It was because it did not hold as it should that was why I was unhappy?
In the excerpt above, counsel (RC) tries to tie the witness’ motive for challenging the outcome of the election at the tribunal to the fact that his party was defeated at the polls (1). Counsel adopts theoretical rationality here seeking to define the basis of the legal action of the petitioner witness (PW) as merely sentimental; the use of the lexical item ‘unhappy’ (lines 1and 3) is pivotal here. The idea behind counsel’s line of questioning is that it exploits the emotional impact of the defeat suffered by the politi- cal party of the petitioner witness at the polls and this is then presented as the basis or rationale for the present action of the witness. It is a truism that defeat in any endeav- our whatsoever generally results in unhappiness, sadness or ill-feeling. The judges are therefore being made to see that the witness is merely reacting to the fact that his party lost the election and not because there are any discrepancies or anomalies that he can adduce to in court. This way, counsel successfully legitimises his discourse. It is interesting to note, however, that while admitting that he is really “unhappy”, the witness attempts to link this to the fact that the election was not properly conducted (2). This response prompts counsel to reformulate his question (3) but the witness still insists that the election “did not hold as it should” (4) hence he ‘was unhappy?
Rationalisation therefore is open to challenge in spoken discourse as the other party or the hearer is right at hand to present a counter opinion or contradict the notion put up by the speaker. This is quite unlike written discourse where the voice or opinion of the other party is generally shut out since the avenue for spontaneous rebuttal is extremely limited especially in the print media. The face to face nature of spoken discourse, as is the case in the tribunals and law courts generally, affords the interlocutors the leeway to assess utterances and make rejoinders immediately except where the affected party simply chooses to ignore certain issues or is constrained by overwhelming institutional regulations that are quite strenuous to navigate.
OSEPT 6.
PC (1) Do you remember you led thugs to snatch ballot boxes at Nawar-ud-Deen unit?
(2) You led thugs there really but officially, you may not?
RW (3) My Lords, I was 70 last December.
The encounter above presents a clear case of rationalisation as used by a witness in the course of cross-examination. Counsel (PC) accuses the witness (RW) of leading thugs to snatch ballot boxes at one of the polling units during the Osun State Gov- ernorship election held on 14th April 2007. To underline his attachment of serious- ness to the allegation, counsel reformulates it in (2). However, in responding to this allegation, the witness resorts to rationalisation. He retorts that he was 70 years old in December of the previous year (2006). The logic or rationale here is that a 70 year- old man is not expected to be involved in the kind of activity he is being accused of.
The witness is therefore making a veiled reference to the general belief that old age takes away some practices and or behaviour because the physical strength for such actions may no longer be present. Counsel’s line of reasoning and his discourse are thus delegitimised by the theoretical rationality adduced by the witness.
3.6 Circumlocution: Attempting to Outwit Cross-examiners
One other way by which witnesses delegitimise the power of counsel in courtroom interactions is by providing circumlocutory responses to questions. In other words, they choose not to answer questions in a direct, clear and straight forward manner.
It is generally acknowledged that circumlocution is an integral feature of legal lan- guage [3, 11]. But while it is often associated with the written genre, it can also be deployed in the courtroom to fulfill desired discourse goals. Verbosity in witnesses’
response to questions usually paints the picture of pettiness or an unserious disposi- tion which in turn seems to trivialise the judicial process. The effectiveness of this discursive strategy lies in the fact that it easily frustrates, infuriates and even dis- organises the unwary and unprepared cross-examiner. If this happens then the wit- ness’ discourse goal of distorting counsel’s pre-planned cross-examination strategies would have been achieved or accomplished.
Essentially, this strategy can be construed as an attempt by witnesses to lessen the impact of counsel’s power of advocacy in the course of cross-examination. The strategy undercuts counsel through responses that seems to minimise the impact of the interrogations or simply trivialise the issues brought up for scrutiny. Of course, for a witness to do this effectively they must be confident and perhaps knowledge- able in the rules of the courts especially the examination phase of legal proceedings.
It is not surprising, therefore, that expert witnesses are more disposed to adopting such delegitimising discourse strategy. Unlike lay witnesses, expert witnesses are sometimes regular visitors to courts so testifying in court to some of them is just part of their routine.
OSEPT 7.
RC(1) Before you were engaged for the analysis you carried out, you were aware by the Independent National Electoral Commission (INEC) information that Aregbe- sola lost the election?
PW(2) I was aware by public information that PDP won Osun State governorship election because that information was listed along with other result on all public electronic and print media.
RC (3) When was the governorship election held in 2007 in the whole of Nigeria?
PW (4) I was aware that may be one or two did not hold that day but all the others held on 14th of April 2007.
RC (5) You are from which state of Nigeria?
PW (6) My parents, my Lords ….
RC (7) (Cuts in) Mr. Sumade*, it is too early to be tangling ….
PW (8) I was born in Lagere, Ile-Ife, Osun State.
RC(9) I am not referring to where you were born, (10) You are from what part of Nigeria?
PW (11) I am from the South-West.
RC(12) Which State?
PW (13) All the document relating to my life show that I am from Ile-Ife, Nigeria.
RC (14) Which State?
PW (15) My parents are from Oyo State, precisely, Ibadan.
RC(16) In essence, you are from Osun State or rather Oyo State?
PW (17) Yes
RC (18) Mr. Lafiaji Sumade*, on April 14th 2007, when the governorship elec- tion was held, where were you?
PW (19) On that day, I was in one of my laboratories in Anthony Village, Lagos.
RC (20) Performing miracles?
(21) By virtue of the fact that you were in your Anthony Village, Lagos labora- tory, you did not have personal experience of the election in Osun State?
PW (22) No, my lords.
(23) I was not physically present in Osun State.
This extract reveals the exchanges between an expert witness and a respondent counsel (RC). The sparring opens with counsel seeking to establish the point that the defeat of the petitioner, Alhaji Rauf Aregbesola, at the polls was officially announced by the electoral umpire, the Independent National Electoral Commission (INEC). But the witness retorts that he only learnt of it by ‘public information’ through electronic and print media. Here is the first in the series of battles of wit that characterised the encounter between these two interlocutors. Perhaps thinking that acknowledging that INEC pronounced Aregbesola the runner up in the poll will give counsel an edge, the witness decides to present a contrary view – he learnt of the result informally or unofficially – thus minimising the impact of counsel’s question. The witness’ use of circumlocution as a tool for minimisation comes up in line 4 when in answering counsel’s question on the date of the governorship election in Osun State (line 3), he begins by saying he was aware that the election did not hold in one or two states before declaring that the election was held on April 14th 2007.
In line 5, counsel asks the witness to tell the court his state of origin. Again, the witness begins on a broad and perhaps irrelevant note when he declares “My par- ents, my Lords …” (6). Beginning to feel irritated by the witness’ diversionary or circumlocutory responses, counsel cuts in with a reprimand – “It is too early to be tangling” (7). However, this rebuke did not deter the witness as he puts his strategy to full effect in the next set of responses. Thus, without waiting for counsel to repeat the question, the witness quickly states that he was born at Lagere, Ile-Ife in Osun State.
At this point, counsel clarifies the question. Actually, it is not a question of ‘where’
(line 9) the witness was born but ‘which’ state does he belong to in Nigeria. There is a clear difference, at least by Nigeria’s skewed federal structure, between where one is born and one’s state of origin. So, counsel then states more clearly in line 10 – ‘You are from what part of Nigeria’. The witness’ penchant for circumlocutory responses shows up once more when he declares that he is ‘from the South-West’. It may be assumed that the witness is also using this strategy to resist power and take control of the discourse in his own way thereby dousing the anticipated tension that may result from the proceeding. By responding the way he did, the witness completely ignores the expected answer by stating the region he belongs to in the country rather than the state. But unwilling to give in to the witness, counsel quickly quips ‘Which state?
(12); and with that echo-question, he emphasised the fact that his question (10) has not been answered.
Interestingly, the witness redoubles his effort at undercutting counsel’s discursive power in this cross-examination by constantly minimising the impact of the question put to him. Thus, instead of providing a straight answer to counsel’s question in line 12, he delves into yet another spate of circumlocution as he claims that all his docu- ments indicate he is from Ile-Ife which is one of the foremost cities in Osun State.
The battle of wits between the two interlocutors thickens as counsel insists on elicit- ing a direct response from the witness when he simply repeats his question – ‘which state? (14). But apparently undaunted and unyielding, the witness backtracks to the response he earlier began with in line 6 before he was interrupted by counsel for “tan- gling” (7). He says his parents are from Ibadan in Oyo State. Surprisingly, counsel refuses to pursue this line of questioning any further; instead he simply sums up with a declarative question that still begs the question – ‘In essence, you are from Osun State or rather Oyo State?’ To which the witness responds affirmatively but the point is which of the two states is he claiming as his state of origin: is it Osun State or Oyo State? Counsel side-steps the indeterminacy of the response as he proceeds to another topic (line 18) in the cross-examination of this expert witness.
Circumlocutory responses by witnesses in the course of cross-examination as a discursive strategy are a bit different from indirect answers. While the former hides the appropriate answers in a labyrinth of relevant and irrelevant words, the latter simply involves using antonyms, for example, Question: ‘Are they your friends?
Response: ‘They are not my enemies’. Besides this, circumlocution injects some sense of humour into the interaction while indirect answers often thrive on sarcasm.
Though this strategy heightens the tension in counsel/witness courtroom exchanges, the humour is never lost. The whole scenario thus provides an interesting piece of studying how discourse can become the instrument of legitimising and resisting power in the courtroom setting. The cross-disciplinary dimension of the study, strad- dling between political and legal contexts and putting lay and professional experts at the centre of the whole interactions, makes this study very significant.
4 Conclusion
The legitimisations of power in courtroom encounter are apparently subtle and, some- times, not too subtle linguistic strategies that judicial officers deploy in order to foster their own views on witnesses especially during cross-examination. This paper has largely attempted to bring these strategies to light within the context of election peti- tion tribunals in Nigeria. The discourse structure of cross-examination – the question and answer adjacency pair amongst others – confers discursive power on counsel and they often leverage on this at the detriment of witnesses. While most cross-examiners may avoid or try to conceal these advantages in order not to appear as bullies in court, it is a privileged position which generally put witnesses at a disadvantageous posi- tion. However, the findings from this study seem to contradict a unipolar delineation of power in discourse events where the non-powerful participants are perpetually portrayed to be at the losing end of the power divide.
Discursive strategies such as confrontational moves, authorisation, moralisation and rationalisation are apparently power projecting legitimisation cues. In the mean- ing making process of trial argumentation, lawyers are sometimes acutely aware that they must hold the ground in order to achieve their intended discourse goals [5]. In this light, challenging witnesses in the witness stand by being overtly confrontational may appear very effective and therefore unavoidable. It is a strategy that enables the lawyers to exert their power in the discursive process and one that witnesses can neither challenge nor reduplicate due to institutional constraints. Nevertheless, as this paper, authorisation, moralisation and rationalisation are strategies that can be deployed for the dual purpose of legitimisation and delegitimisation. On the other hand, circumlocution and pleading forgetfulness are discursive strategies squarely within the discourse precinct of witnesses allowing them to evade questions or sim- ply minimise the discursive power of counsel. It suffices to say that language or dis- course might be seen to have availed all the participants with the requisite resources to negotiate their way through the intractable murky waters of legal disputation.
Funding The study was not funded by any organisation.
Declarations
Conflict of Interest There is no clash of interest.
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