|
Democracy, Corruption And The Rule Of Law In Nigeria By Akintokunbo Adejumo
“We who seek to build democracy must not be bound by the false assertion that the rule of law is democratic. A re-examination of history teaches us that our powerful legal system is a massive fortress against popular sovereignty. One of our most important tasks is to revisit fundamental questions that were resolved by undemocratic means in the past”.
Doug Hammerstrom “The Rule of Law versus Democracy” in By What Authority (Vol. 5, No 1, Winter 2002)
“The more corrupt the Republic, the more the Laws”. –Tacitus
Human beings, despite all the centuries of development and progress and evolution are still somewhat rigid when it comes to issues that affect everyday existence, and this in the face of obvious knowledge. It is no fault of anybody. We are only human. Nobody has a monopoly of knowledge or wisdom in this world, and so I would like to seek the indulgence of lawyers, political commentators and jurists for venturing into an area of which I am not an expert. I have therefore endeavoured to do a little research before daring to write this article.
Democratic governance is based on the will of the people and is the form of governance best suited to allowing all people to live in dignity and freedom. This is also emphasised by the Millennium Declaration, in which the international community undertakes to promote democracy worldwide. Democracy requires a “rule of law” framework in order to govern the interaction and co-existence of all citizens. By guaranteeing civil rights, the rule of law also creates the basic conditions in which individuals can pursue their own personal development as they choose. Human rights, the state monopoly of power, the separation of powers and an independent, effective judiciary play a key role in this context.
For much of human history, rulers and law were synonymous -- law was simply the will of the ruler. A first step away from such tyranny was the notion of rule by law, including the notion that even a ruler is under the law and should rule by virtue of legal means. Democracies went further by establishing the rule of law. Although no society or government system is problem-free, rule of law protects fundamental political, social, and economic rights and reminds us that tyranny and lawlessness are not the only alternatives.
I believe, like so many other Nigerians, in the democratic institution and dispensation in the country. As a committed democrat, I believe this is the only way we can survive and progress as a nation and develop as a people. I also believe in the Rule of Law, which is defined as the “principle” that governmental authority is legitimately exercised only in accordance with written, publicly disclosed laws adopted and enforced in accordance with established procedure. The principle is intended to be a safeguard against arbitrary governance. We actually need this for our democracy to survive. I have highlighted the word “principle” because principle is in turn defined as “a general truth used as a basis of reasoning or action, or as a personal code of conduct, a scientific law shown or used in the working of something” (Oxford English Dictionary). A principle is therefore not binding on anybody except the person who holds on to that principle; it is discretionary and not to be taken as a whole truth or necessarily as a benchmark, however it is often regarded as a guide in explaining one’s actions or beliefs. A principle can be bad or good, wrong or right, depending on the circumstance or the individual. For example, Adolf Hitler’s principle of Nazism was not something that was widely acceptable, yet it remained a principle and a doctrine. Same logic goes for Communism or Marxist principles. Even, capitalism is not widely accepted.
However, we should put issues in perspective and be a bit more realistic and impartial, at least as far as Democracy, Nigerian-style is concerned. Yes, we all have our biases but sometimes we should put all these aside if we are truthful or honest about making our country, not great (I don’t care about Nigeria being great now) but a liveable, peaceful, enjoyable and progressive nation for all of us.
We must first of all recognise that despite the nearly 50 years of independence, in which we inherited a democratic system of governance from the British, and also had our own very first democratic experiment (1979 to 1984) and now from 1999 to the present, our democracy is still largely nascent and imperfect. We cannot however, but recognise that we are slowly, albeit painfully, creeping towards what a modern democratic society should be. There will be teething problems, and we have them in abundance. Rome was not built in a day, and Nigeria should be no different. Any exception to this norm will be the Eighth Wonder of the Modern World.
We should recognise that since inception, there has been arguably little or no rule of law in Nigeria, whether under a democratic dispensation or a military dictatorship. It has always been that the law was the will of the rulers. It does not matter whether those rulers were good or bad. The military ruled by decrees, and imposed whatever laws or decrees they deemed fit on us, hence those laws were made to benefit only a few of the citizenry and is at the whim of the ruler. The military even wrote our current constitution, no matter how much, as people often say, we borrowed it from the United States. Nothing is perfect or static in this world; not even laws and constitutions. The American Constitution, for example, has undergone various and numerous changes over the centuries and will continue to do so till the end of time to reflect sociological, economic, cultural and human changes as inevitably they will happen. Why then do we think that the Nigerian situation must be different? Constitutions and laws are versatile documents. They can be manipulated to suit anybody. They can be amended. They can be interpreted in very different ways to have different meaning to different people at different times. They are not rigid articles of governments and the judiciary. In fact, that is why lawyers are on opposite sides everytime in a court of law, one arguing for and the other arguing against; interpreting the law to suit themselves or a particular case. The same goes for Constitutions; legislators, supposedly versed in the Constitution will interpret it differently to suit their own political agenda. Jurists have different interpretation and opinion of same sections of the same law. This is what makes laws and constitutions very robust.
Secondly, why should the rule of law apply to people who had flouted the rule of law in the first place to get where they are today? Ninety percent (and this is my own guesstimates) of people holding political positions today in Nigeria got there by committing electoral fraud or corruption. They therefore do not have the moral right to shout that the rule of law is being flouted when they see things not going their way. People seem to forget this fact, as well as the fact that we have, according to our constitution, an “Executive President” and the word “Executive” means a “person or group with managerial powers, with authority to put government decisions into effect”. The populace has shown confidence in such a person or group of persons by electing(?) him or them to be at the helms of their or national affairs and vested in him or them the authority to do what he or they think is best for them, and in their best interest.
When Governor Ladoja of Oyo State was unconstitutionally and illegally impeached, he fought by, invoking the rule of law, and finally got justice by adhering to the rule of law. But incidentally, everybody forgot that a few years before then, Governor Ladoja himself deliberately failed to obey a court order directing him to recognise and swear in a Local Government Chairman who had won the election, but was wrongly barred from taking office. It was, ironically, Gov Ladoja’s deputy who took over from him, who finally obeyed the court order. So we see how convenient it is to use the phrase “rule of law” to suit particular situations and circumstances.
When things were going on swimmingly well for these corrupt politicians, nobody ever said anything about the rule of law. Everybody had a field day in Nigeria dipping their hands in the federal, state and local government treasury. The common fraudsters, “419ers” were being picked up by the EFCC by the hundreds. Our people were applauding Mr Nuhu Ribadu. Suddenly, the lights were turned on the nefarious and genocidal activities of the politicians and so-called leaders, and suddenly, all hell broke loose and we keep hearing that the Presidency and the EFCC have no regard for the rule of law. Accepted that a lot of these “execu-thieves” and other politicians are still wandering around and carrying on business as usual, and the Presidency and EFCC seem to be selective in hounding them and justice is perhaps slow, what we have seen in recent times about tackling corruption in Nigeria has never, in the annals of Nigerian history, happened before. It is a start. Those who escaped now, whether by design or due to negligence or perhaps by simple default of Obasanjo and the EFCC will not escape tomorrow. As fat as I am concerned, Nuhu Ribadu and the EFCC are the best thing to have happened to Nigeria for a very long time.
Again, at the risk of being labelled an anarchist, I submit that as far as Nigeria is concerned, taking into consideration how deep the hydra-headed monster, that malignant tumour called corruption, has eaten deep into the Nigerian psyche and polity, the rule of law cannot effectively tackle it, unless we are not serious about this war. To people shouting rule of law, I don’t think they realise that Nigeria is not what one will call a “normal” country for now. As I have said in previous articles, Nigeria is an Aegean stable. It will take a Hercules to cleanse it. A bad disease requires a bad medicine; that is what our elders used to say. This is applicable to getting rid of corruption in Nigeria for the next 10 or 20 years. Believe me. There has to be a time when we call a spade a spade, but people who are benefiting from this corrupt system, who are now finding it really hard to contemplate alternative means of income are shouting wolf and scare-mongering and professing to know about rule of law, which they do not even comprehend.
So the menu of the day is that the Obasanjo Administration is not adhering to the rule of law. Yes, I agree. Ideally, any democratic government should adhere to the rule of law, but we all know that the Nigerian democratic situation and circumstances is far from ideal. So if we know that, why do we want an ideal situation now, within such a short time? A child must first learn to crawl before it can walk. No Sir, while I much admire the rule of law, I do not prescribe it for Nigeria now. When corruption in Nigeria has been reduced drastically to a manageable level, maybe in the next 10 to 20 years, then we can start applying the rule of law. Even in the more civilised societies, law is not about truth. It is about negotiations, amelioration, manipulation and circumstances. With a society as corrupt and complex as ours, the rule of law alone cannot solve our problems now. Some people might argue that we must start somewhere or now or we won’t start at all. Yes. Agreed. But the whole society is corrupt. The people entrusted to ensure that the rule of law is adhered to are part of a corrupt society, so we need to tackle these areas first – the governments, the judiciary, the legislators, the Police – all of them are products of a corrupt and lawless society and system.
We keep on talking about the rule of law. Have we considered applying the same principle to the plight of the people of the Niger Delta, whose land produces ninety percent of the income of Nigeria? What about the injustice meted out to the Ogoni, Ijaw and the rest of them in that area by both the Federal Government, their respective state governments and local governments? What does the common man on the streets of Lagos, Aba, Ibadan, Onitsha, Kaduna, Jos, Benin, Warri, etc have to say about the rule of law when they are being terrorised on a daily basis by both the police and the armed robbers? Rule of law hell !!. Where is the rule of law when the guardians of the treasuries and our political leaders are busy stealing from us, neglecting us, oppressing us, ignoring us, killing us directly and indirectly, and a lot of them are getting away with murder and genocide? Don’t talk to me about Rule of Law. Talk to me when all these are over.
No. I don’t want the rule of law to apply to disqualified politicians who have been either indicted, or impeached or even suspected because of corruption. They do not have to be convicted until we know they are corrupt. We know they are corrupt even just by watching them behave. If the rule of law is applied to them, many of them will escape justice, because they are very clever; they can bribe judges, they can make witnesses disappear, they can cause evidence to disappear by putting fire to government buildings, they can run out of the country, they can cause civil unrest, just name it.
"Rule of law" is one of the much said but little understood concepts in the popular press and daily conversations in Nigerian political scene today. What is rule of law? What is its significance? Does rule of law mean that there is no "rule of person?" What are the institutional conditions and cultural content of rule of law? How do we achieve rule of law? I do not intend to go into a discourse in this article, however I will focus on the meaning of the rule of law and its values as quoted by eminent political and legal analysts.
According to Bo Li, (What is Rule of Law ?– Perspectives, Vol. 1, No 5 (undated), “when we say "rule of law" these days, we mean something different from the instrumentalist conception of "rule by law" of the legalist philosophers in ancient Chinese history. When we say "rule of law" today we intend to describe a key component of the social and political orders found in the United States and other liberal democratic states of our time. In other words, by "rule of law" we mean a western tradition that can be traced back to the Roman republics and was fully developed by the liberal constitutionalism. It is characterized, in the words of Max Weber, by "legal domination."
The difference between "rule by law" and "rule of law" is important. Under the rule "by" law, law is an instrument of the government, and the government is above the law. In contrast, under the rule "of" law, no one is above the law, not even the government”.
Bo Li continued “Promoting rule of law does not mean that we should, or can, eliminate rule of person. Literal rule of law has its own costs (such as rigidity) and in some cases it can conflict with our sense of justice. In addition, it is probably impossible to eliminate rule of person completely. After all, laws are not given; they have to be made by certain people. Laws' applications are not automatic; they have to be applied by certain people. Even in the most advanced liberal democratic countries of our time -- the countries that are regarded as having the most developed systems of rule of law -- human factors play important roles in shaping traditions, customs and institutional cultures that are integral parts of the liberal democratic machinery. The real question is not whether we should eliminate or keep rule of person. The real question is about how to strike a balance between rule of law and rule of person so we can achieve liberty, equality, and justice. In this regard, liberal constitutionalism has been the only successful system”.
"Liberal constitutionalism is the technique of retaining the advantages of [rule of law as well as rule of person] while lessening their respective shortcomings" (Sartori, 1987, p. 308).
Politicians like to say that the rule of law is a feature of democracy. The implication is that law is an unchanging set of principles that resolves conflicts impartially. But law is not impartial; it reflects the political and social biases of the legislators and judges who make it. Furthermore, law is not unchanging or rigid. An examination of world legal history shows not only rapid changes but the reversal of many previously held long-standing legal principles.
Therefore, if law is immutable, how could these significant changes occur? To idealists, law is about justice. But to most attorneys, law is a business and justice is a commodity sold to the most active bidder. Whatever positions their clients’ desire is the interpretation of the law argued by most lawyers in court. As a result, the law changes to provide for the needs of those who can afford to be clients.
We hear daily the hollow rhetoric that we live in a democracy, but an examination of the legal history of the world exposes just the opposite. The people who fashioned out the various Nigerian Constitutions succeeded in their goal of creating Constitutions that protects the elite from the common man. They were less successful at protecting political and human rights. The task of nurturing and sustaining democracy remains for us. Part of that task must be to recognize the political nature of law. We must not let the changes we seek be constrained by believing that the law that does exist is the only law that can exist. That is the change throughout the centuries in all parts of the world. Law, like any other discipline or profession is subject to the forces of change as dictated by an ever changing world and society.
Corruption, in all its ramifications, is the one single factor that has been holding our country back for decades; that has not let Nigeria and Nigerians fulfil their God-given potentials; that has not let our enormous wealth and resources work for or benefit all of us, but a few rapacious, evil clique. Corruption it is that has contributed to our underdevelopment, lack of progress and underachievement, poverty, high infant and adult mortality rate, etc. Corruption is the reason why we do not have good leaders (and even worse ones are battling to replace them), good roads and transportation systems, good water, good medical and health care, good food, good education system, good foreign policies, excellent sports facilities and great sportsmen, a fair judiciary and efficient police and security systems and good governance in general. Corruption also breeds tribalism, nepotism, favouritism, injustice, mismanagement, neglect, etc. It is the reason why millions of Nigerians are living in abject poverty and why more millions of Nigerians are living outside Nigeria today. My problem with Nigeria is not the “Rule of Law”, it is with corruption and what it has done to our lives. That is why the leaders who perpetrate corruption in Nigeria must be tackled not by the rule of law, but by the most heavy-handed, maximum-possible force of law. And I am not talking about courts here. Jungle justice? Don’t quote me.
God Bless and Guide Nigeria. God Bless and Guide Nigerians.
Postscript:
This article was written well before the just concluded Nigerian General Elections.
|