Rule of Law and Democratic Process in Nigeria: Contemporary Issues
There is no gainsaying the fact that the status of law in the society is expedient and paramount. As pointed by Thomas Hobbes, “In the time of nature, life was brutish, short, nasty, “hellish”(emphasis mine). It is in view of this that Aristotle proclaimed “the rule of law is preferable to that of an individual. Though, strictly speaking, Aristotle’s epoch precede that of Hobbes. In this primitive society, the might ruled. Oppression and arbitrariness was the order of the day.
As the society burgeoned, the need for a body of rule to regulate human conduct surfaced. The law was made by man and for his good. The ruled appointed the king according to the law. As written by Henry De Bracton in the 13th century, “The king ought not to be subject to man but to God and the law, for the law makes him king.”
The modern concept of the rule of law can be traced to the writings of A.V Dicey, a British philosopher. He divided the rule of law into three components;
First, Absolute supremacy and predominance of regular laws as opposed to the influence of arbitrary power and excludes the existence of arbitrariness, of prerogative, or even wide discretionary power on the part of the government. A man with us may be punished for breach of the law and for nothing else.
This, in Nigeria is embodied in the constitution. Section 1(1) and section 1(3) proclaim its supremacy. It provides thus;
“This Constitution is Supreme and shall have binding force on all persons and authorities throughout the Federal Republic of Nigeria”
“If any other law is inconsistent with the provisions of this constitution, this constitution shall prevail and that other law shall to the extent of the inconsistency be void”
The Courts have made pronouncement on the supremacy of the constitution in plethora of cases. In A.G (Abia) v. A.G (Federation), Niki Tobi, JSC echoed;
“The constitution of a Nation is the fons et origo of the law of the land not only of the jurisprudence but of the legal system. It is the beginning and the end. In Greek language, the alpha and omega. It is the barometer with which all other laws are measured. In line with its kingly position, the three arms of government are servants to the constitution, not in the sense of slavery and servitude but in the sense of total obeisance and loyalty to it…”
In the land, the constitution holds a position of legal sanctity; every subject must be in the habit of obeying it.
Secondly, equality and equal subjugation of all classes before the ordinary laws of the land as administered by the ordinary law courts. The law is a respecter of none. This is not devoid of exceptions. Even among equals, there are first, which is represented in the Latin maxim “primus inters pares”. It is not the person that is revered but the position or office occupied. In all, the exceptions include executive immunity, judicial immunity i.e. a judge is not liable for what he says in the court, parliamentary immunity and so forth
Lastly, the protection of the citizen’s inalienable right. It is pertinent to state at this point that the constitution gives no right but the consequence of nature. The constitution protects those rights only. Those rights help to prevent and curtail the tyrannical, arbitral and despotic power of the ruler over the populace or citizens.
The Constitution of the FRN provides for Fundamental Human Rights in Chapter 4. These rights are not absolute. They are limitations to those rights. It is within the ambit of the rule of law that where a person’s right end, another person’s right begin. Section 33-44 provide for those rights. Right to personal liberty, right to freedom of movement, right to life and so forth are enshrined in it.
The Court (judiciary) is the defender and upholder of the constitution. This is evident in the writing of Nnamani,JSC where he wrote;
“It has been generally acknowledged that the judiciary 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 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”
To what extent is the judiciary performing the above task? This and more will be unveiled later.
What then is Democracy?? In this write up, we will adopt the “Lincolsian” definition. It is defined by Abraham Lincoln as the government of the people, by the people and for the people. In Nigeria, does the government represent the people?
The truth however, is that neither can exist without the other. There can be no Rule of Law without democracy and there can be no democracy without the Rule of Law.
The tasky question now is, to what extent is the rule of law obtainable in Nigeria? Are all this components of the rule of law in play in Nigerian democratic process? Giving a “No” to the answer is not right, because even though there is no perfect play of the rule of law in our democratic processes as will be seen later, there is no doubt that in our polity, there still exist, a quantum and reasonable level of operation of the rule of law.
In Nigeria, the function of the rule of law is performed by a supreme constitution which ensures fair hearing of trials in all cases, and guarantees the preservation of rights(except where deprivation is allowed under the provisions of the constitution).
It is disheartening and worrisome the rate at which executive lawlessness, mediocrity and impunity has eaten deep into the fibre of our polity. The law which is the upholder of accountability, order and good governance has bequeathed it. Many, if not all, uses the law as hide out and shield on or after committing all forms of misappropriation, embezzlement and transfer of public funds into personal coffers.
The Dasukigate, the immigration scandal, the case of Stella Oduah, the then Minister of Aviation, who was alleged to have purchased two multi-million dollar armoured car for personal use, the missing 20billion dollar crude reserve and so forth are cases of corrupt practices which have been lend deaf ears by the executive and legislature. Till date, none has being indicted by the National Assembly in the above cases. What we see are kangaroo committees.
The unconstitutional sack of vice-chancellors of some federal universities, the suspension of the C.B,N Governor, Sanusi Lamido and appointment of the Service Chiefs are to mention but a few the exhibition of lawlessness on the part of the executive.
Some intelligent and dogged Benchers like Justice Ayo Salami, among others rose to defend the rule of law. To this, the judiciary through the National Judicial Council (NJC) played quite a mischievous game. This game led to the evil and unconstitutional suspension of Justice Ayo Salami. He was an ardent defender and upholder of the rule of law and a bulwark against the incessant malpractice in elections. To the critical mind, there was a blow on the independence of the judiciary. It must have being the interference of the executive.
In the Apex court today, a crop of courageous, enlightened and upright Judges who stand for truth, justice and excellence have emerged. Some of them are great scholars who have written outstanding books. All are full of courage, honour and integrity. All are enlightened jurists of the highest calibre. Could we be seeing glimmerings of a future constellation of judicial stars who will rekindle and rediscover the lost and lamented golden age in a future Supreme Court? Let us keep hope alive.
To the present government, the fight against corruption, impunity, executive recklessness and bringing forth adequate security, equality, liberty and abundance to the populace should be its starting point and watchword, if truly the mantra of change has come to stay. More so, it can be garnered from recent policies of the “change” government, elements of impunity and utter disregard to court orders and rule of law vis-a-vis the “eternal” detention of Nnamdi Kanu of the Biafra Uprising. It is highly envisaged by the writer that with time it will rise to fight the corrupt bandwagon. What is visible today is just a media trial of “alleged” looters.
Until the law rise to its peak to punish, apprehend and convict these so-called “cabals”, the polity will not achieve its end and it will remain uncertain, betterstil, disastrous. I will submit with the statements of Lord Alfred Denning MR in Gouriet v. Union of Post Office Workers(1977) 1 QB 729 and his book “Freedom under the Law” respectively.
“To every subject in this land, no matter how powerful, I will use Thomas Fullers words over 300years ago; ‘Be you never so high, the law is above you’
“The Freedom of the just man is worth little to him if he can be preyed upon by the murderer or thief. Every society must have the means to protect itself from marauders. It must have power to arrest, search and to imprison those who break the law. So long as those powers are properly exercised, they are themselves the safeguards of freedom”.