Restoring Rule of Law in Nigeria

By

Mamman Lawan Yusufari

yusufaari@hotmail.com

 

 

Three things are central to the development of every nation. They are material resources, human capital and the rule of law. Nigeria can boast of the first two but certainly not of the last one. She has ‘law’ but it does not ‘rule’. Lawlessness is so pervasive that it is not only a feature but another name for the country. But unfolding events are rekindling hope that the rule of law may be restored. They give positive signs that Nigeria could be a great country where resources, people and rule of law converge to create development. There are many of these signs. Interestingly, they cut across the three arms of government: the executive, the legislature, and the judiciary.

 

The judiciary functions as the custodian of the rule of law. As Nnamani JSC (as he then was) reminded us, it is “the guardian of our Constitution, the protector of our cherished governance under the Rule of Law, the guardian of our fundamental rights, the enforcer of all the laws without which the stability of society can be threatened, the maintainer of public order and public security, the guarantee against arbitrariness and generally the only insurance for a just and happy society.” It means therefore that a functioning judiciary is necessary for rule of law. In England for instance, the definition and enforcement of the rights of individuals by courts was the source, rather than the result, of the rule of law.

 

Though Nigerian courts are manned by people from the same generally degenerated Nigerian society, they (particularly the appellate ones) have over years proved to be relatively better than the other arms of government. From a number of decisions, they have safeguarded the supremacy of the Constitution; upheld the principles of separation of powers among the arms of government and the division of powers among the tiers of government; protected the fundamental rights of citizens against state infringement; etc. Save that they are, with due respect, not strict in checking political corruption. Despite the brazen disregard for electoral laws and the consequent widespread electoral malpractices in Nigeria, our courts seem to handle election petitions too softly. The nullification of few state (including House of Assembly and Local Government) elections in the past, though welcome, did not, with due respect, match the scale of the malpractices.

 

However, there is now evidence of change of gear by the courts. Recent decisions of the election tribunals give some solace. They present strong evidence that the rule of law has not eluded Nigeria for good. The courts seem to have realized that political corruption is worse than a crime. It is a mother of crimes. It deprives a nation of quality leadership and denies people the right to self-determination. It makes nonsense of the social contract which found a place in our Constitution. Condoning political corruption is aiding it and this would lead the nation to a total collapse. Thus to stem the tide, the courts have come up with courageous decisions. The decisions on the Governorship seats in Kogi, Kebbi, and more recently Adamawa States show that the judiciary could defend the rule of law come rain or shine.

 

More cheering news comes from the decision of the Supreme Court in Amaechi v. Omehia. The Court sacked Celestine Omehia as Governor of Rivers State and ordered for the immediate swearing-in of Rotimi Amaechi in his place. Ordinarily, because Amaechi was not in fact the PDP candidate during the lections, what lawyers expected at most was ordering for fresh elections with him as the candidate. Technically, he could not be declared a winner of an election in which he never participated. Interestingly, the Court dumped technical justice in favour of substantial justice. It reasoned that equity demanded that Amaechi should be the Governor since his party had won the election and he was wrongly disqualified as its flag bearer. By the doctrine of judicial precedent, this decision is now law. Lower courts are bound to apply it in appropriate cases. The Supreme Court too is bound by the decision unless if there are recognised reasons for reversal. With it, we hope to see a change in the attitude of our lower courts towards technical matters which often stand in the way of justice and equity.

 

From the ‘Ettehgate’ scandal in the legislature, we got another sign of hope. The award of the contract at an inflated rate and without due process of law was an appalling abuse of office and indeed a cause for consternation for all well-meaning Nigerians. But in the end, it has become a source of positive legislative history, making the House of Representative a better body. The insistence of some of its members that the allegations must be investigated and that Etteh must vacate the office of the Speaker was rule of law in action. The House has now set a standard based on which it would hopefully work in the future. Nigerians can now count not only on a Group, but also on a House, that stands for Integrity. It is amazing that such a wonderful thing is coming at a time when honesty, transparency, due process, and other sister virtues have virtually lost a place in the Nigerian polity; and that it is coming from unexpected quarters – few were optimistic that the Nigerian legislature would stand for the rule of law. This development is a positive sign for the rule of law not least because the House is a symbol of democracy.

 

From the executive side, the President’s adherence to the rule of law is a good sign. He has spoken several times on the resolve of his administration to uphold the ideal. Among these encouraging statements was what he said during the last Bar Conference in Ilorin:  “It is a  self-evident fact that the more a society has the respect for the rule of law, the more civilised that society is. The more justice, the rule of law and fairness thrive in a society the more stable, developed and prosperous that society is.
As a nation, one of our greatest challenges has been the evolvement of a culture of disrespect for the rule of law, unbridled corruption, endemic crime, violence, infrastructural deficit, and general malaise in the polity, these all constitute a direct manifestation of disrespect for the rule of law.” One could not agree more.

 

He did not merely speak about rule of law. He acted it as well. For instance, he allowed merit to play a greater role in the constitution of his cabinet; he did not shield his former Governor-colleagues from prosecution on various charges of corruption-related offences; he overturned sale of some public enterprises; he ordered the immediate execution of the Supreme Court judgement on Rivers State (could he have done otherwise?); he refrained from interfering in the ‘Ettehgate’ scandal allowing the principle of separation of powers to operate; and he more recently revoked improper allocations of some Abuja plots to some ‘untouchables’ including himself.

 

Though these are undoubtedly giant strides some of which are unprecedented in recent history, we must pause to ponder over some more recent happenings. Perhaps worried that in handling the election petitions the courts really mean business, the President recently described some of their decisions as ‘sentimental’ and ‘unacceptable’. He also acquiesced to PDP’s call on its members having pending cases to ‘reach out’ to the tribunals to avert further nullifications of elections. This new stand raises doubt as to whether he truly embraces the rule of law. He seems to be U-turning, taking a posture inconsistent with the rule of law.

 

That notwithstanding, one must not forget the work of the EFCC as one other sign of the return of rule of law. One element of the ideal of rule of law is equality before the law. In other words, all citizens must be subject to the ordinary laws of the land and must be subject to the jurisdiction of the ordinary courts. It is one of the ordinary laws of Nigeria that stealing is an offence triable by the courts. Thus whosoever is suspected of stealing should be prosecuted. Until recently when some former Governors were arraigned before courts by the EFCC, the norm was that Governors could impoverish the nation through theft of public funds with impunity.

 

Surely, the Constitution clothes Governors with immunity against civil and criminal proceedings during their terms of office except in their official capacities or as nominal parties. Experts say this is not inconsistent with the equality principle of the rule of law since other sanctions, like impeachment, apply to them exclusively. But things happen in Nigeria as if the immunity was for life. The fact that EFCC now ambushes Governors with compiled dossiers and charges them to court immediately after they leave office is one great sign that business is no more as usual. Instead of bagging traditional titles or other political offices on leaving office, suspected former Governors (and their likes) who are found guilty would now bag what they deserve – prison sentences. It is a clear message that nobody is above the law. This effort, if continued, would facilitate good governance.

 

All the evidences are strong and desirable. But their sources are unequal. The judiciary is a reliable source of rule of law because it is apolitical.  Because of the nature of politics, one cannot vouch for the political class. Like a drowning man who would clutch at straws, politics is about survival. The method is immaterial. Virtues are invoked only if they pay. If they don’t, they get replaced with vices. The name of the game is Machiavellianism. Restoring rule of law requires a genuine commitment from all the three arms of government and the civil society. It is the judiciary which bears the heaviest burden and it must not fail the nation. It has a good opportunity for discharging this obligation in the pending election petitions. This opportunity should be seized to the maximum please.

 

 

Mamman Lawan wrote in from the University of Warwick Law School, England.