THE RULE OF LAW – THE NIGERIAN EXPERIENCE AT FIFTY TWO : Lecturer (Akhabue D. A. Esq. Faculty of Law, Ambrose Alli University, Ekpoma, Edo State, Nigeria)

 

ABSTRACT

This paper examines the principles and practice of the Rule of Law in Nigeria since she obtained her political independence from the British Government on the 1^st day of October 1960. In an ideal society, there should be rules governing family relationships, conditions under which activities of man in all aspect of living is to be organized and regulated and the exclusion of acts which are inimical to the welfare of not only individual but the community as a whole or nation.

It also examines the culture of impunity, massive corruption and constitutional provision of immunity as a clog in the wheel of the rule of law. It brings to light the role of due process and the role of judiciary as the custodian of the rule of law.

A good distinctive feature of democracy is the observance of the doctrine of separation of powers. Under this doctrine, one arm of government should not encroach on the domain of another arm of government. Democratic institutions will not grow when one organ of government disregards the other or show disrespect for others.

 

INTRODUCTION:

From the beginning of human society, the problem of how to tame the overbearing tendencies of rulers or powerful members of the society has preoccupied legal philosophers and political theoreticians for ages. Energy has been channeled towards ensuring that the actions of these rulers and powerful members of the society are not only reasonable but also humane. This is to ensure that power is not used to the detriment of the weaker members of the society.

The only method by which this attempt has yielded success to a reasonable extent, is through the instrumentality of law. It has been shown that the best way of securing the dignity of the human person as against the excesses of rulers or those who have power over them, is by the equalization of every person within the state to a common leader imperative. This jurial equilibrium, although an ordination by God himself, has been abused by rulers over the years. Human society was run as if they were personal estate of these rulers.

During the renaissance of the early 14^th and 15^th centuries and the period of enlightenment, which was given rise to by men of great learning and inspiration, questions began to be asked of about the divine rights of kings and the inherent inequality in the society.

Since the time of the Greek philosopher, Aristotle, there has been a consistent recourse to the notion of law as a primary means of subjecting governmental powers to certain control.

In an ideal society, the law operates as a regulatory instrument for the conducts of human beings who are products of the society and subjects of the law. It is often taken for granted that in an organized society, people are expected or rather should abide by certain codes of conduct necessary for mutual and peaceful co-existence of all in the society.

When the British government formally granted political independence to Nigeria on October 1^st 1960, the politicians who took over the reins of government were well educated, experienced, sophisticated and above all very patriotic. The Rule of Law, a basic and dynamic legal concept which form the kernel of British democracy, was adopted in Nigeria. The British parliamentary system recognized the supremacy of the law. However, in 1966, the Rule of Law was forcibly replaced by the rule of force. Through hurriedly enacted military decrees, the rule of law became encumbered. Therefore each time subsequent government took over, the rulers merely paid lip service to the rule of law, as a result, democratic practice suffered inexorably, a hedonistic culture developed, corrupt practices became rife, mediocrity gained ascendancy, people whose names were very obscure and whose epicurean disposition were consummate and ill defined, became national figures. They managed to get into strategic government positions and looted the treasury.

It is a truism that a state of anarchy must exist in the absence of the rule of law. If we are to have our actions guided and restrained in certain ways, for the benefit of the society in general and individual members in particular, then whatever status, whatever post we hold we must succumb to the rule of law. The alternative is anarchy and chaos.

 

THE MEANING OF LAW:

In the field of jurisprudence it is generally regarded that the question “what is Law” and how does it come into being though apparently simple, are difficult and controversial.

The concept of the rule of Law cannot be appreciated fully without comprehending the meaning of Law.

Meanwhile, it is important to note that the very nature of Law and criteria by which one can identify it and assess its validity is an important legal topic which cannot be treated fully in this paper.

Law in its generic sense, is a body of rules of actions or conduct prescribed by controlling authority and having binding legal force. It is the feature of enforcement that distinguished Law from morality which is a body of rules which is generally accepted by the members of a state without being officially enforced. The only sanctions for the breach of rules of morality are indignation, anger, enraged and revulsion that may be aroused in the fellow members of the society.

The Law of a state (municipal Law) as distinct from Public International Law, is that body of rules, designed to regulate human conduct, which is recognized as valid within the state and which is enforced by its officials. Each individual rule is a Law as distinct from the Law which refers to the entire body of rules¹.

In a stable democracy where legislature commands great respect and the courts can adjudicate without inhibition, Law and morality are never confused as they are not coterminous.

 

WHAT IS THE RULE OF LAW:

The rule of law is the supremacy of regular power as opposed to arbitrary power. The phrase can be traced back to the 17^th century and it was popularized in the 19^th century by British jurist A. V. Dicey. The rule of law implies that every citizen is subject to the law. It stands in contrast to the idea that the ruler is above the law for example by divine right.

Despite the wide use by politicians, judges and academics, the rule of law has been described as an exceedingly elusive notion giving rise to a rampant divergence of understanding… every one is for it but have contrasting convictions about what it is².

For the United Nations, the rule of law refers to a principle of governance in which all persons, institutions and entities, public and private, including the state itself are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency³.

The rule of law is an ambiguous term that can mean different things in different context, in one context, the term means rule according to law. No individual can be ordered by the government to pay civil damages or suffer criminal punishment except in strict accordance with well-established and clearly defined laws and procedures. In a second context, the term means rule under law. No branch of government is above the law and no public official may act arbitrarily or unilaterally outside the law. In a third context, the term means rule according to a higher law. No written law may be enforced by the government unless it conforms with certain unwritten, universal principle of fairness, morality and justice that transcend human legal systems⁴.

Nevertheless, the rule of law is a system in which the following four universal principles are upheld:

1. The government and its officials and agents are accountable under the law.
2. The laws are clear, publicized, stable and fair and protect fundamental rights, including the security of persons and property.
3. The process by which the law are enacted, administered and enforced is accessible, efficient and fair.
4. Justice is delivered by competent, ethical and independent representatives and neutrals who are of sufficient number, have adequate resources and reflect the make up of the communities they serve.

 

ESSENTIAL FACTORS IN A SOCIETY GOVERNED BY THE RULE OF LAW. In a society governed by the rule of law the following factors are essential:

1. Limited government powers: In a society governed by the rule of law, the government and its officials and agents are subject to and held accountable under the law. Modern societies have developed systems of checks and balances both constitutional and institutional to limit the reach of excessive government power and to subject the government power or ruler to legal restraints.
2. Absence of corruption: The absence of corruption is one of the hallmarks of a society governed by the rule of law, as corruption is a manifestation of the extent to which government officials abuse their power.
3. Order and security: Human and security is one of the defining aspect of any ruler of law. Protecting human security, mainly assuring the security of persons and property is a fundamental function of the state.
4. Fundamental Rights: Under the rule of law, fundamental rights must be effectively guaranteed. A system of positive law that fails to respect core human rights established under international law is at best “rule by law”.
5. Open Government: Open government is essential to the rule of law. It involves engagement, assess, participation and collaboration between the government and its citizens.
6. Regulatory Enforcement: Public enforcement of government regulations is pervasive in modern societies as a method to induce conduct. A critical future of the rule of law is that such rules are upheld and properly enforced by authorities.
7. Civil and Criminal Justice: An effective civil and criminal justice is a key aspect of the rule of law as it constitute the natural mechanism to redress grievances and bring action against individuals⁵.

 

DEMOCRACY AND THE RULE OF LAW, THE NIGERIAN EXPERIENCE

Nigeria has had a hallow experience with both democracy and the rule of law. While the immediate post colonial period can generally be described as a period during which democracy and the rule of law generally thrived, the seizure of the country’s political space by the military, in effect, bade goodbye to the fine points of elected government and due process of law, heralding the years of the locust, characterized by autocracy, arbitrariness, executive recklessness and impunity.

The hallowed principles of separation of powers, division of powers and judicial supremacy were peremptorily cast into limbo as the military foisted its own notion of government on a reluctant populace. The age of decrees which operated with immediate effect emasculated an otherwise proud and assertive judiciary.

Apart from the fact that ballot-box democracy was an anathema to the military dictators, they felt perfectly free to suspend the cherished values of free choice, federalism and respect for the sanctity of due process, which had served as the lubricants of democracy and the rule of law in Nigeria.

What is even more galling to the people was the subversion of the values of honesty, integrity and frugality which had informed the socialization process and political education of the entire country in the immediate post colonial generation. The settlement syndrome introduced by the military resulted in entrenching corruption as the fundamental objective and directive of state policy in Nigeria.

Some fifty two years after independence, it is a matter of common knowledge that democracy is yet to take a firm root in the country. This explains why Nigerians themselves are ever so quick to employ the use of varying adjectives to qualify the country’s democracy. They words or adjectives include “fledging” “nascent” “young” to mention but a few.

The reasons for this sorry pass are not difficult to decipher. From 1960, when Nigeria became independent and began to hold elections, the country’s democracy has been interspersed with military dictatorship. Hardly had a democratically elected government been put in place, than one military coup or another is staged to upturn it.

It is important to state, that even for the few times that democracy has been enthroned in the country, it has always been as a result of deep and intense struggle by the citizen, at colossal cost in terms of lives and resources.

A visible fallout of the incessant interruption of the country’s democratic experience is the military mentality of the political class, who whilst pretending to be democrats are nothing but autocrats and dictators whose only claim to democracy is the fact that “elections” were held one way or the other to bring them in.

If this is the position of our democracy, then the story cannot be different for the all important rule of law. It is the absence of adherence to rule of law that gives vent to the identified aberrations in our democracy. Where there is the reign or rule of law, the usual cutting of corners and the attendant chaos, confusion, violence that have characterized our democratic experience will be non-existent. This is to say that, were each organ of government or government official is prepared to keep within the roles specifically created for it by law, and not indulge itself in usurping the functions of other organs or officials, then there will be peace and little or no room for conflict.

It is to avoid this conflict that the Court of Appeal held inter alias in the case of Commissioner for Local Government Anambra State v. Ezemokwe⁶,

that under the 1979 constitution, a state executive has its constitutional duties just as the judiciary has its own duties. The judiciary ought not to interfere with the right of the executive to perform its duties. Therefore, the executive cannot be inhibited from performing its duties by the judiciary simply because the judiciary is also called upon to perform its own functions in similar circumstances. No arm of government is entitled to infringe on the functions of the other, except in recognized situations where one branch of government exceeds or abuses its constitutional powers.

 

CULTURE OF IMPUNITY: A CLOG IN THE WHEEL OF RULE OF LAW IN NIGERIA

One major problem in the Nigerian polity is the syndrome of “sacred cows”. Those who believe they are part of the “sacred cows” see themselves as above the law or put the other way round, not subject to the law. It is on this score that most highly placed individuals in Nigeria can do anything they wish and get away with it. These highly placed individuals cut across all strata of the polity. They could be in politics or business.

The foregoing is what is referred to as the culture of impunity. The government itself is the worst culprit of this culture of impunity. Over the years, since the beginning of the current democratic dispensation, which was started by the former president Olusegu Obasanjo, the practice has been the total disregard to the principles of separation of powers and those of the rule of law.

The events of the last few years in Nigeria reflect internally induced major attack on the constitution, the deflation of the rule of law and entrenchment of impunity.

We are witnessing something historic, the federal executive has launched a compound coup against the rule of law and judicial integrity. This is manifested in the subtle assumption of a power the presidency does not properly wield in the suspension of Justice Ayo Salami, the president of the Court of Appeal. The refusal of the president to re-instate him as recommended by the National Judicial Council smacks of a culture of impunity. Under the law of the land, the president has no substantive function in the matter. Salami re-instatement is not dependent on the presidency. His re-instatement begins and ends with the NJC.

It is humbly submitted that the power to suspend a judge is given to the National Judicial Council and not the President. We are in the era of substantial justice as technicality has sunk into the limbo of forgotten issues.

The flagrant refusal by the executive to re-instate Justice Ayo Salami as the President of Court of Appeal  despite the recommendation of the NJC to re-instate him speaks volume of the culture of impunity in Nigeria. The spirit of the law requires that the president should act automatically on anything recommended by NJC. But what they are doing now is that they are violating the spirit of the law and it is not good for the rule of law. It is a sad omen for the rule of law.

Here, Nigerians are confronted with a frightening trend in which our democracy and country are in danger. An elected president who himself has been a beneficiary of the protection of the legal protection under the doctrine of necessity that paved his way to the presidency, now leads a power cabal that is disrobing Nigerians of their rights and denying them justice.

The special adviser to the president of the Federal Republic of Nigeria on media and publicity, Dr. Reuben Abati said that the president had no regret over the state pardon he recently granted his political benefactor former Governor of Bayelsa State, Diepreye Alamieyeseigha who was convicted of corruption despite the public outcry that trailed the exercise since it was within the purview of his constitutional power⁷.

Agreed that it was within his power – but considering the public outcry in Nigeria, U.S. and other countries in the world particularly those that are funding the anti-graft agencies in Nigeria such as Economic and Financial Crime Commission (EFCC) and Independent Corrupt Practices Other Related Offences Commission (ICPC), it is humbly submitted that he would have had a re-think on the matter or apologise to the world most especially when he is still being hunted for in Britain for money laundering and a letter was written to the Nigerian Government for his extradition.

Also criticism trailed the recent appointment of a former speaker of the house of Representative – Salisu Buhari on the governing board of the university of Nigeria Nsukka. Buhari was removed from office haven been convicted for forgery and perjury, but apologized to his colleagues on the floor of the house and was granted pardon by the administration of former president Olusegun Obasanjo⁸.

As in the words of Ubaezonu JCA⁹.

“An order of court must be obeyed, even if such an order is perverse; until such a time that the order is set aside by a competent court. The executive, the legislature and the judiciary are partners in the due governance of the country each performing its functions, clearly defined by the constitution of the land. A flagrant flouting of an order of the court by the executive is an invitation to anarchy.

Wali J-SC in the case of Ezekiel-Hart V. Ezekiel – Hart¹⁰ observed as follows:

To allow court order to be disobeyed would be to tread the road towards anarchy. If orders of court can be treated with disrespect, the whole administration of justice is brought to scorn… if the remedy that the court grant to correct… wrongs can be ignored, them there will be nothing left for each person but to take the laws into his hands. Loss of respect for court will quickly result in the destruction of our society.   

Virtually, more than fifty percent of the states in Nigeria sack the democratically elected chairmen and councellors of the local government council and in their place appointed caretaker committee during President Goodluck Jonathan administration. In Edo State, the court ruled that the caretaker committee appointed by the executive governor to run the affairs of the local government council was illegal and so be dissolved and that the committee should handover to the Head of Service. All in the name of going to the Court of Appeal, the executive governor disobeyed the order of the court. However, not mindful of flagrant violation of the order of the court by executive arm of the government, the judiciary has not relented in her effort to come with bold and radical judgment.

A Lagos High Court, Ikeja has refused former Managing Director of Intercontinental Bank Plc, Mr. FESTUS Akingbola opportunity to travel abroad for treatment. Justice Adeniyi Onigbanji in a ruling said Akingbola who is standing trial for allegedly stealing about N47.1bn failed to provide sufficient proof that his condition needs urgent attention and cannot be treated in Nigeria. The rule of law is higher than anybody which must be upheld by the third arm of the government which is the judiciary, especially with regards to fundamental rights of the citizens¹¹.

To detain a person out of his house without his consent and take him to a different town, without informing him of the offence he has committed, a person of the applicant standing, who was once a minister of the federation of Nigeria, a legal practitioner and president of the Nigeria Bar Association is a breach of his right to dignity of person. It does not necessarily mean that he has to be tortured or beating before this right can be violated¹².

The National Judicial Council handed down one year suspension without pay to a judge of the Federal Capital Territory (FCT), Justice Abubakar Mahmud Talba who handled the police pension fraud case for what the council described as improper exercise of discretion in granting Mr. John Yakubu Yusuf #750,000 option of fine in place of a two-year jail term upon confession that he stole #32 billion police person fund¹³.

The council after considering a petition against Hon. Justice Okechukwu Okeke of the Federal High Court who is due for retirement on May 18^th, 2013 decided to seriously warned him¹⁴.

The decisions were reached at the end of a two-day meeting of NJC held on April 24^th and 25^th under the chairmanship of the Chief Justice of Nigeria, Hon. Justice Aloma Mariam Mukhtar under the 1999 constitution of the Federal Republic of Nigeria as amended in 2011.

 

MASSIVE CORRUPTION AND CONSTITUTIONAL PROVISION OF IMMUNITY – A CLOG IN THE WHEEL OF RULE OF LAW IN NIGERIA¹⁵.

 

According to the United States Department of State, Government officials and agencies in Nigeria, frequently engage in corrupt practices with impunity.

In the report; the judiciary and security agencies, especially the police were said to be lacking in transparency.

The law provides criminal penalties for official corruption, however, the government did not implement the law effectively and officials frequently engaged in corrupt practices with impunity. Massive widespread and pervasive corruption affected all levels of government and the security forces.

The constitution provides immunity from civil and criminal prosecution for the President; Vice-President, Governors and Deputy Governors while in office.

There was a widespread perception that judges were easily bribed and litigants could not rely on the courts to render impartial judgments. Citizens encountered long delays and alleged request from judicial officials for bribes to expedite cases or obtain favourable ruling.

Highlighting events that occurred in the country in the last year that portrayed lack of transparency and probity, the U.S. government listed the escape of the suspected mastermind of the Boko Haram 2011 Christmas Day bombing from custody noting how the police commissioner, who aided the suspect went unpunished, the conviction of former Delta State Governor, James Ibori in the Southwark Crown Court in London of charges of money laundering and other financial crimes totaling N12.4bn, after he was acquitted by a Nigerian court and the N1.067 trn fuel subsidy fund lost to endemic corruption and entrenched inefficiency as examples.

It stated that in July 2012, the government released a list of those who had benefited illegally from the subsidy program, which included relatives and colleagues of key government officials. In late July, the EFCC began arraigning suspects, first with a group of 20 indictments, including six oil companies and 11 individuals. EFCC initiated prosecutions of approximately 50 cases related to the subsidy scam, sadly investigations and trials had not produced any convictions by year’s end.

The report also rated the anticorruption efforts of ICPC as largely ineffectual, adding that despite ICPC’s wide mandate, it had only achieved 60 convictions since its inauguration in 2000.

It also listed a number of cases being handled by the EFCC that have remained inconclusive, including the case of alleged misappropriation of N1bn against former speaker of the House of Representatives, Dimeji Bankole and N40bn against his deputy, Usman Nafada and the cases against four former governors, Ggbenga Daniel, Adebayo Ako-Akala, Aliyu Akwe Doma and Muhammed Danjuma Geje for allegedly misappropriating N58bn N25bn, N18bn and N12.8bn respectively.

 

CONCLUSION AND RECOMMENDATIONS

Evidence from this research work has confirmed that the rule of law is a means of building strong democratic institutions in Nigeria. The legislature, the executive and the judiciary are partners in the due governance of the country each performing its functions, clearly defined by the constitution of the land. A good distinctive feature of democracy is the observance of the doctrine of separation of powers. Under this doctrine, one arm of government should not encroach on the domain of another arm of government. Democratic institutions will not grow when one organ of government disregards the other or show disrespect for others. It is humbly submitted that while the legislature and judiciary played a vital role in this present democratic dispensation in Nigeria the executive leaves much to be desired. Loss of respect for the court by the executive as evidenced in this article will result in the destruction of our society.

To this end, some radical reformations are necessary. For the purpose of this article the following measures shall be suggested.

Immunity for the President, Vice-President, Governors and Deputy Governors is an affront to the principles of the rule of law. To this end, it is recommended that S.308  of the 1999 constitution of the Federal Republic of Nigeria as amended in 2011 be further amended to make the immunity for President, Vice-President, Governors and Deputy Governors to cover only civil proceedings and not criminal offences.

Furthermore, the enormous power wielded by the 36 states governors of the federation should be reduced drastically by approving full autonomy for the 774 local councils in the federation. Indeed the local councils be granted financial autonomy, abolishment of the joint state local councils account so that allocation due to the local councils can be paid to them directly. Again the local councils should be accorded the status of a third tier of government and the local councils be denied revenue allocation if unelected local council chairmen are at the helm.

It is also recommended that state independent electoral commission be abolished in order that all elections are conducted by the Independent National Electoral Commission (INEC) as well as granting financial autonomy to the State House of Assembly as in the case with the National Assembly.

Specific provisions in the constitution be made to take care of the interest of persons with disability.

Indigeneship of an area should be defined to include persons who have resided in an area for a continuous long period and therefore be entitled to accruing rights, duties and privileges.

 

REFERENCES

1. Newton, C.R; General Principles of Law (McGraw-Hill) 3^rd Edition p. 1
2. en.wikipedie.org/wiki/ruleoflaw.accessed15^th april,2013
3. www.un.org/en/ruleoflaw/accessed15^thapril,2013
4. legal.dictionary.thefreedictionary…accessed15^thapril,2013
5. www.lexisnexis.com/../ruleoflaw
6. (1991) 3 NWLR (Pt. 18) P. 615
7. Punch Mobile Sunday 14 April 2013.
8. Ibid
9. Nigerian Army V. Mowarin (1992)4 NWLR (Pt. 235) P. 345
10. (1980) A-C 952
11. Dalhatu V. Federation (2007) 5 E.F.C.L.R. P. 1 at P. 7 R.5
12. Ibid
13. The Sun-Voice of the National Saturday 27 April 2013; Guardian Saturday 27 April 2013.

14.    Ibid.

5. Punch Mobile Sunday 21 April 2013.