Impunity, Injustice and Insecurity: What is the Role of the Law?

By

Nasir Ahmad El-Rufai

elrufai@aol.com

(Address by Nasir Ahmad El-Rufai on Thursday, May 23, 2013 at the NBA Ikeja Branch Aka-Bashorun Memorial Lecture 2013, Ikeja - Lagos State).

Protocols

1.     Introduction:

It would not be far from the truth to say that as Nigerian citizens, we are being manipulated into slowly but surely losing our humanity. Social and economic inequality manifesting in conspicuous consumption by a few,  side by side with the poverty of the many, exacerbated by infrastructure deficits and dysfunctional schools and healthcare all over the country have led to deep feelings of injustice and hopelessness among our youths. Lack of opportunity, shameless corruption and a capricious political culture have destroyed institutions and entrenched a climate of impunity. Add these together and the cocktail that results is unprecedented insecurity and an attitude of self-help by citizens.

Virtually everyone in Nigeria is taking the law into his or her own hands because the state has failed to establish the rule of law and practice its tenets. This is why I have titled my remarks Impunity, Injustice and Insecurity - What is the Role of Law? I believe strongly that Nigeria’s problem is beyond corruption – Indonesia developed significantly with massive levels of corruption under three decades of military dictatorship[1] – but the accepting impunity as a national norm. As we are forced to live near to the Hobbesian state of nature, this occasion to remember and honor the likes of Alao Aka-Bashorun and Gani Fawehinimi that lived their lives fighting for equality, equal opportunity and justice for all, deserves our collective support and commendation. I am honored and privileged to be here alongside the respected Kanu Agabi and Professor Akin Oyebode to join you in remembering this national icon. I apologize in advance for the bluntness in these remarks, but we are at a time in our nation that pretentious and sentimental interactions no longer work. It is time we speak to the truth to one another, and outside our living rooms and pepper-soup joints. In any case, I cannot but be who I am.

Nigeria today is facing an existential crisis. In the last four years or so, practically no day passes without reports of deaths, abductions or bomb attacks. As the security operatives battle a determined insurgency, thousands of Nigerians, caught up in the crossfire have lost their lives; property worth tens of billions destroyed and development opportunities worth billions more, lost. This brings to mind a local saying that roughly translated, means “Rather a pauper in peace than a prince at war”.

As the vicious cycle of killings and retributions continue, peace remains a mirage. In the end, the entire country is suffering because there can be no real winners to any armed conflict.  Those old enough to remember the travails of the Nigerian civil war know this. Those born well after the conflict beat the drums of war and pray for a bloody revolution. I recall here the words of Reggae singer, Peter Tosh:

"Everyone is crying out for peace, no one is crying out for justice!

I want equal rights and justice."

Peace and security are necessary prerequisites for social harmony as well as political and economic development. It is a truism that peace in any country is dependent on social justice and the availability of economic opportunities. Few can argue with the fact that the security challenges confronting Nigeria today are direct consequences of decades of neglect and lip service being paid to social and economic development. In our history, even when policies and programs begin to yield positive results, the culture of lack of continuity by succeeding administrations mean that policy-making and implementation in Nigeria almost always takes one step forward and two steps backwards.

This is why any discussion on the challenges of impunity, injustice and insecurity confronting Nigeria today must examine their root causes because it is only in probing the social and economic dynamics of the Nigerian society that we can find ways to justice, peace and prosperity. Law is the foundation of all these and has a fundamental role to play. I intend to look at a few of those issues today, and also discuss some of the things we need to do as we seek to witness the progress of our country and the prosperity of its people. It is my humble view that poverty, inequality, unemployment and the addiction to huge security spending that are destroying our humanity and peoples.

2.     Unprecedented level of poverty

A few months ago, I wrote that the average price of a measure (mudu) of beans had reached about N500 (five hundred naira) For most Nigerians families, beans and its derivatives like 'akara' and 'moi-moi' are the richest source of nutrients and very often the only source of proteins – meat, fish, milk and eggs having disappeared from their menus long ago. At that price, if a small family on minimum wage buys two 'mudus' or measures per week, that would spend N4,000 per month, or a staggering 20% of family income on a single food item.

Apart from beans, the price of virtually every food item has gone up while the purchasing power of most families has gone down. The worst kind of deprivation is ‘food poverty’, when parents watch their children starving. In 2011, there are over 112 million Nigerians living in poverty and can barely afford to feed. Nigeria is ranked a very poor 80 out of about 200 countries in terms of food security. Can we really expect security and stability in a country where government policies and failures have needlessly forced tens of millions of citizens into totally avoidable hunger?

Food poverty aside, other basic amenities that are required to make life bearable remain out of reach for the majority; massive shortage of housing and transport infrastructure mean that in addition to rising food costs, many Nigerian families spend nearly 80% of their income on accommodation and transportation. What would be left for other essentials of life? What about healthcare, education, clothing and others? Is it any surprise that Nigeria remains in the list of top 15 places with the highest incidence of poverty? Is it shocking to the authorities that The Economist Intelligence Unit ranked Nigeria as the worst place to be born in 2013? At current rates, it is estimated that by 2015, Nigeria will have more poor people than India and China who have more than a billion people each, while we would have less than 200 million inhabitants then.

3.     Growing Social Inequality

In societies where law and order reign and elections truly matter, governments make deliberate effort to reach out to the deprived and vulnerable members of society through various safety nets. It is not by accident that even the capitalist economies like the UK and USA build social housing to cater for millions of citizens who would otherwise be unable to afford mortgages to acquire homes. Part of the goals of such social policies is to narrow the gap between the rich and the poor and mitigate possibilities of societal disruption. After all, in African parlance, we all know that you cannot sleep well at night ‘belle-full’ if all your neighbours are hungry!

In Nigeria however, our elites have forgotten that, and not only is the gap between the classes growing wider, it seems that the country now has two economies – one for the majority that have to scrounge just to put food on the table, and an exclusive economy for the less than 1% of the population that comprise public servants and their hangers on who live in a different Nigeria – of private jets, exclusive estates, international schools, German healthcare at public expense, dedicated water supply systems, private security guards and imported champagne. 

While most Nigerians are hardworking people, willing to work to earn legitimate livelihoods, the behaviour of public servants, especially politicians in power who misappropriate public funds to sustain their lifestyles of conspicuous consumption have led to growing socio-economic inequality in Nigeria. Of the over 100 million Nigerian poor, 80 million are dependents. This leaves approximately 20 million “working poor” with jobs but whose income is barely enough for a hand-to-mouth existence. Inadequacy of basic amenities like clean water, basic education, and health care which ought to be either accessible or practically free further compounds the situation.

To take just one instance – education. According to a study by the British Council, Nigeria was meant to have 16 million students in secondary schools in the year 2008, but the number enrolled was 5.8 million, which suggests that only 36% of the age cohort was accommodated, and more than 10 million are out of school. Also, out of the 1.7 million candidates that sat for the Unified Tertiary Matriculation Examination (UTME) last month, at best, 10% will secure university admission. What happens to the remaining 1.5 million, or the 2 million who may write the exams next year?

At a Pan Africa Investor Conference in Lagos in February this year, the Minister of Finance, Ngozi Okonjo-Iweala said that about 80% of Nigerians hold 35% of the nation's wealth while 20% hold 65%. Therefore, 20% of Nigerians are in the upper classes, and 80% in the lower classes. In practically every aspect of life, the growing inequality is evident and escalating. If ever there was a trigger for social unrest, it would be to allow this gap to continue to widen. As it is, most Nigerian elites hardly venture outside major urban centres for fear of kidnapping, robbery or danger of falling victim to any of the many communal crises that often break out without warning. With this kind of uncertainty, is it really rational to ask the question whether the law is playing any role in our land?

4.     Youth Unemployment

I began this address by talking about mounting poverty which has led to social inequality. The major factor behind Nigeria’s poverty and inequality is unemployment and under-employment. Can we really talk about law and order in the country when we have tens of millions of idle hands with nothing to do? From data available from the National Bureau of Statistics, the unemployment rate for both sexes is 29.3%. Other estimates suggest that that at least 20 million (or 42%) of Nigerian youths between the ages of 18 and 35 are unemployed.

Some estimate that only about 20 million Nigerians have jobs of any kind, out of a population of nearly 170 million. Many young people do not have jobs and have little hope of finding one. I get approached by many young graduates to help them find jobs, and I do my best. When they get impatient at the lack of progress in getting the job offers, I share with them the fact that I have two daughters with masters’ degrees and unemployed as well, and then they understand how bad the situation is. This state of affairs causes the country a loss of several trillions of naira annually from the absence of commercial activities that ordinarily should have taken place but did not. The social cost is unquantifiable but has short and long term consequences on the security and stability of the country.

Can we truly expect peace when several years after graduation and already in their 30s, we have millions of young men who have to ask their parents or relatives for money to pay for a haircut? Can we really expect a secure society when millions of our young ladies, despite graduating with good grades, remain unemployed or unmarried simply because the basic ingredients for settling down – a job and a home are not only unobtainable, but way out of reach? Can we truly expect peace when our pensioners – who dedicated their lives to serving Nigeria – collapse in the hot sun waiting for their dues, while those that embezzle pension funds get a slap on the wrist?

Have we studied the implications of our population growth along with the nearly 30% unemployment rate? Nigerians make between 6 and 7 million babies every year. At least 3 million new people join the ranks of the unemployed every year. This means that even if by some miracle, government and businesses manage to create one million new jobs a year, it would take 20 years to close today’s existing job gap. Except that by that time, at least 60 million more Nigerians would have joined the labour force, but would have no jobs! We are sitting on a demographic bomb, and with the visionless leaders we now have, it is bound to explode sooner rather than later!

5.     Addiction to Security Spending and Amnesty Regimes

About two years ago, I raised an alert that the federal government was spending an average of N2bn each day on security without commensurate returns. Instead of denying or even explaining its position, the government had me arrested. Since then, the situation has actually become worse. This near, nearly a quarter of the entire budget, that is, over N1 trillion is be spent on defence and security translating into some N3bn daily. The question is, are Nigerians better secured now than in 2011, or has security spending joined the ranks of fuel subsidy as another annual trillion naira fraud?

Nigerians must begin to question whether the huge fiscal allocations to security and amnesty programs have any significant benefits beyond lining the pockets of a few defence contractors, civil servants and top military brass. Has the N100bn annual amnesty program really developed any long term solutions to the major issues of the Niger Delta region? Is crude oil theft and pipeline vandalization not at its highest today – even higher than the pre-amnesty levels? Have the killings and kidnappings in the region stopped?

This brings me to one issue that has remained in public discourse in the last month or so; the proposed amnesty for members of Boko Haram. Before I talk about this new amnesty proposal, it would be fruitful to look back at the amnesty given to the Niger Delta militants which was launched and backed with a blank cheque book in 2009 by late President Umaru Yar’Adua.

Government tells us that due to the success of the amnesty program, Nigeria’s oil production has grown and that the country now earns more revenues from oil exports. Of course, this is another false assertion, as our oil production is now at its lowest level in four years. According to Reuters, Nigeria’s oil exports will fall to a four-year low as a result of crude oil theft and resultant facility closures by some oil companies. Quoting the shipping lists, Reuters says Nigeria will now export 1.76 million barrels per day, the lowest since August 2009. Assuming that the claim of government is true, one is tempted to ask, why is it that despite the increased government revenues, poverty and unemployment have worsened? 

However, let us remain on the issue of amnesty for Niger Delta militants and ask a few posers: How come, despite the advertised success of the Amnesty program that the destruction of oil pipelines still prevalent, thus prompting government to propose the creation of a new agency  (with another huge budget) to protect pipelines? How come oil theft has reached high historic levels? Are security agents still not routinely killed without consequence? What about the hundreds of illegal refineries ‘discovered’ every day?

While we respect the rights of all citizens, militants included to demand for better governance and their fight to protect the environment from the activities of predatory oil companies, should we condone brazen theft, criminality and violence while rewarding the conduct with cash hand-outs? Government must not reward criminality with a blanket amnesty that only serves a few people for whom the amnesty fund has become a source of easy monies to be pilfered. Any society that chooses to reward bad behaviour or bribe those that take up arms against the state with a blank cheque book should expect to see more and people doing the same. The fundamental issues that spurred the militancy still remain unresolved; unemployment, environmental degradation, poverty, lack of basic amenities and social injustice.

In what ways has the amnesty program resulted into better living conditions for the many millions who did not take up arms against the instruments of state and did not vandalize public property? In the end, the amnesty program has been transformed into slush funds to induce and convert a few outspoken militants while the unfortunate squalor in the Nigeria Delta remains, even with unprecedented revenue flows into the region.

As to the issue of amnesty for Boko Haram, the two sets of circumstances are not related, thus a similar kind of cash-backed amnesty, flawed as it is, may not work. For many of us, what the government should do is not talk about amnesty but simply implement the recommendations of the many committees (led variously by Galtimari, Monguno, Sheikh Lemu and the Borno Elders) that it initiated and were submitted as far back as 2010. To take just one instance, in June 2011, before it started its bombing campaign, Boko Haram reportedly gave the federal government some relatively easy conditions to facilitate a ceasefire, which at any rate, should be a precondition for negotiations before any issue of amnesty can be put on the table. What were those conditions?

Boko Haram claimed that their leaders had been arrested and executed in cold blood and therefore demanded an apology from government. They asked that the families of their executed leaders be compensated and those responsible for their execution be put on trial. They also asked for the release from police custody of their wives and children who had been detained for months (now years) without trial. In other words, the group initially demanded justice for the murder of their leaders and their family members being unlawfully detained, which is what our legal system owes every citizen, immaterial of whatever crime he or she is accused of.

One does not agree with the doctrinal philosophy if any of Boko Haram, but few can deny that their demands were not extraordinary; what is wrong in admitting that the extra-judicial murder of their leaders was wrong? Is it beyond government to prosecute those that gave the orders and those that carried out the executions? Even our legal system demands that. What is the point of detaining women and children for years without evidence worthy of admission in a criminal trial? Is that too, not a breach of our own constitution and laws?

If the Jonathan government had taken steps in response to the above two years ago, many lives would have been saved. Cases like the Baga massacre and the Bama retribution might not have occurred if government had taken a sensible approach to the BH-related crises. The government did not because it did not believe any Nigerian life to be sacred and worth saving. It is a silent policy of the Jonathan government, recently made official by one of its surrogate mouthpieces that some people from a part of Nigeria are considered parasites that can therefore be killed without consequence!

The point must be made that Boko Haram militants do not appear to have the same economic objectives like the Niger Delta militants and there are fears that they may not react to the cash-called offer of amnesty in a positive light. Those pushing for amnesty for the group are perhaps angling for a monetary arrangement similar to the Niger Delta amnesty program so as to get access to whatever funds that would be released for the programme. Government must have the courage to resolve the fundamental issues of unlawful killings, detention of women and children and human rights violations in battling the BH insurgency, and not attempt to sweep them under the carpet of amnesty or any state of emergency proclamation.

6.  The Country We Live in:

Our people have been successfully divided by our elites along ethnic, religious and regional lines. This chasm has been so deep and successful under Jonathan that it is impossible to have any sensible discussion with most people in Nigeria about any issue without the intervention of these evil lenses. One needs to spend some time on social media to appreciate how bad the situation is. What is even scarier is that the division and bigotry is more intense amongst young people thus ensuring a bleak, divisive and violent future for our nation. Our governments are incompetent, incapable and lacking in vision, and therefore rely solely on these chasms to justify their occupation of public offices.

Should professionals remain silent when the Bauchi state governor budgets more money for his “security vote”, that is his more like his personal pocket money - than education and health in 2012? What about a president that hands over our maritime security to an ex-militant while the Nigerian Navy looks on helplessly? Would Gani Fawehinmi and Alao Aka Bashorun not have approached the courts for a judicial review of such executive actions? Would not the naming and shaming of some of these officials and their decisions not advanced our legal and social development? It looks like apart from Femi Falana, Bamidele Aturu and our Abuja-based Ajayi Olowo, very few lawyers are doing these pieces of ‘pro bono’ national service!

While most of the world moves forward, we are moving backwards by not investing in physical infrastructure and human capital, but giving birth to an army of under-educated, entitled, angry and bigoted youth brought up to believe that cutting corners is the roadmap to success. As professionals and elites, many of us have succumbed to these chasms and failed to stand up for what is right as Aka Bashorun would have done. I will give specific examples relating to the legal profession later in these remarks. I would like to observe that similar observations can be made for other professions, but it is the primacy of the law as the foundation of societal order that makes yours of greater concern than others.

What should the legal profession say or do in the light of our current situation? What should it do? As a law student, my favourite subject was jurisprudence. I found connection with the legal philosophies of Ronald Dworkin. Dworkin in analyzing what value is the most important in organizing society amongst equality, liberty, democracy and law concluded that:

"No government is legitimate unless it subscribes to two reigning principles. First, it must show equal concern for the fate of every person over whom it claims dominion. Second, it must respect fully the responsibility and right of each person to decide for himself how to make something valuable of his life."

These have implications for distributive justice, policy and law, and Dworkin posits that equality is the most important value that determines everything else. By Dworkin’s standard, is our government legitimate? Is the legal profession standing up to be counted in making our society saner, safer and secure?

7.  Is the Silence of the Legal Profession Golden?

Gani and Aka-Bashorun did not see the law as a source of bread-and-butter. They went beyond just earning a living from it by pursuing social justice, constitutional, legal and moral fidelity for every citizen as a matter of principle and reason for being lawyers. I am going to challenge you all at this point by reminding us of a few incidents that required not silence on the part of the legal profession but lots of voices, action and litigation.

(1)    Extra-judicial Killings: It is well-known that our law enforcement and security agencies routinely execute robbery ‘suspects’ in their custody. The killing of BH leaders in 2009 is one of the remote causes of the current insurgency. More recently, Maiduguri residents have witnessed the continuation of these killings by the JTF which considers every young man a BH suspect that is first arrested, detained and killed. These days, parents in Borno and Yobe States check the mortuary when their sons go missing for days instead of reporting to the Police as ‘missing’.

(2)    Aluu-4 and Self Help: As the justice breaks down, and law enforcement officers kill suspects in custody, it is inevitable that it will permate to the rest of the society. Some seven months ago, Tekena Elkanah, Ugonna Obuzor, Chiadika Biringa, and Lloyd Michael all students of the University of Port Harcourt were killed by a mob in Umuokiri-Aluu community in Rivers State on Friday October 5th 2012. We are still waiting to see if someone will be held responsible for their murder.

(3)    Awaiting trial suspects in Nigerian Prisons: In Ghana, only 30% of the prison population is awaiting trial. In South Africa, it is only 30%, Even Tanzania and neighbouring Cameroon are doing better at 50% and 58% respectively, compared with our disgraceful 71% in 2009! If our criminal justice system works better, we should expect to see more convictions and a rise in the ratio of convicts to total prisoner population.[2]

(4)    Consistent Violations by the President: In addition to the example of the State of Emergency mentioned above, President Jonathan has consistently violated the constitution by signing money and non-money bills ‘into law’ after the constitutional 30 days to assent have passed. It is curious that the legislature, the media and legal profession have remained silent in light of the lack of fidelity to basic rules of constitutional order.

(5)    Justice Salami’s suspension and aftermath: The many ramifications of this misfortune in our polity require no comment as it is ‘sub judice’. What is clear is that it is unlikely that any presidential candidate or party will submit to any election tribunal in the future. How future election disputes will be settled will be anyone’s guess, with serious consequences on the legal profession and the polity. The endless trial of the fuel subsidy thieves side by side with plea bargains for treasury looters while thieves of goats and cellphones get quick convictions with harsh sentences have created the impression of two legal systems – an easy one for the rich that can afford senior advocates, and a hard one for those that cannot!

(6)    Governmental capture of civil society: this manifests in not just the registration, funding and promotion of all kinds of rogue CSOs to challenge genuine ones like the case of Save Nigeria Group, but attempts to corrupt electoral processes in organizations like the NBA, the Nigerian Labour Congress and even Student Union Governments all across the country. If the NBA allows its elections to be influenced by the government in power, what hope is there for it to be a voice of the oppressed? How then can it sanction members that engage in professional misconduct if and when that happens?

The foregoing examples and more are partly responsible for the increasing resort to self-help by citizens and organizations, and decreasing reliance on the legal system and practitioners.

Just last week, a distinguished lawyer, member of National Executive Committee of the NBA and chairman of the National Human Rights Commission raised the alarm about the near-death of the legal profession in the North-East. In the areas under BH insurgency, lawyers have been harassed for representing people arrested and detained by the JTF. Many have left the region for safer climes, leaving a vacuum that all of us can appreciate, while the Abuja and Lagos-focused profession has remained silent. The question that should occupy our minds is for how long will the legal profession remain relevant in the face of these onslaughts? Will you have jobs when most people resort to self-help?

8.  What Can Lawyers and Citizens Do?

Standing up for what is right for its sake is in our overall self-interest as elites. I think the starting point is to wage war on the forces and voices of division. Here I am referring to those bigots that promote a ‘Them vs. Us’ lens and mentality in approaching every situation and human interaction in a manner that only animals do. We should recognize that that there are only two types of people in the world – good and bad, and these are found in every ethnic, religious and regional group. They are found in every family, clan and community.

There is no group of people that are entirely good or totally bad. It is that common thread of humanity and diversity that God willed in us as He created this world and those that will inhabit it. Sentiments and bigotry can take us some distance in the short term but no nation has been built and developed without objective visioning, merit-based leadership and equal concern for the progress of all citizens in the long term.

I believe we must, as a country and citizens, reject the current regime of division, bigotry and group hatred and instead focus on a handful of priorities - good governance, competent leaders, clean elections, and an accountability framework based on the rule of law. In my humble opinion, good governance is the foundation of everything, and manifests in the election of competent leaders. It is my strong view that it is good people that are competent and focused that transform societies for the better, and in the process, entrench the rule of law assuring everyone of equal concern for welfare and progress.

The legal profession can and must do more. For instance, expunging some provisions in our Constitution relating to appointing an “indigene” from each state as minister would be one of the right steps in getting rid of   geographic and demographic sense of entitlement over the ability to perform in public leadership selection. Criminalizing ethnic, religious and regional hatred by legislating curbs on ‘free speech’ is urgently needed in our country today to ensure that we focus on the handful of priorities I referred to. The Bar should be at the forefront of standing up for these and other reforms.

9. Conclusion

In conclusion, I must state categorically that even in these difficult times,  re-establishing security, law and order is possible and is indeed, the only way forward for Nigeria. There is no doubt that each and every Nigerian should and must embrace peace. But peace is not simply a word. It is a living and breathing concept that must be exercised to be attained. Peace is only possible where there is justice, where there is respect for the rule of law, where impunity has no place, and where citizens have the power to determine who represents them in free and fair elections. Insecurity will reduce in Nigeria if we reduce corruption and nepotism and focus on the key challenges of eradicating poverty, managing the growing social inequality in our society and creating opportunities for all Nigerians to become stakeholders in the country. 

Once again, I thank Chima Ubani and the Ikeja branch executive committee for giving me this opportunity to share my views and hope that through occasions such as this, we can join hands in building a better country where peace and security reign based on social justice, mutual respect and understanding amongst all the people of our potentially great nation.

Thank you once again for the honour and opportunity to be with you, and God Bless.