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Nigeria and the Rule of Law, By Okocha Obed

By News Express on 26/05/2017

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“Being democratic is not enough; a majority cannot turn what is wrong into right. In order to be considered truly free, countries must also have a deep love of liberty and an abiding respect for the rule of law”.  — Margaret Thatcher

Whether the rule of law has sufficiently had its dominance on the Nigerian soil cannot but be answered negatively. Since the clocking of 1999, all manner of governments have given us reasons to tow the line of extra-judicial killing, modern slavery, unfettered impoverishment, and many more odds down the scale. This article submits that since the arrival of the so-called democratic dispensation in 1999, a year once witnessed in Nigeria, the rule of law has been extinguished from the feasibility region of the transformation curve. It is submitted also that the rule of law is a shadow of the intent of its framers; it is a tool the top guns have claimed as theirs. An exposition of the rule of law will now be unclothed, and the overreaching encumbrance of politics in the niche of the rule of law addressed.

A throw-back at many years of ideal definition of the controversial term, “the rule of law”, has seen the progeny of disturbing definitions, parochial lines of thought and acceptable definitions. It was a term watered by the Anglo-Americans, but not one to be sung by them solely. Since everything a government seeks is governance, its wide application is indubitable, to say the least. Scholars such as AV Dicey postulated three major bones of the rule of law: the absolute supremacy of law, as opposed to arbitrary power; the notion of equality before the law in the sense of equal subjection of all to the law; and the right of the courts to define and enforce what the law is. A juicy resolve on this definition is the fact that it is very ideal and appealing to good judgments but that it is not one to be considered a mere normative application, will be the acceptation of self-deception. From the positive approach, there is not going to be a balance of the scale, so long as the world remains designed as rich and poor. There cannot be effective applicability of the scope of rule of law in Nigeria, if the political encroachment remains steadfast or if the judicial officers are given to perversion and cupidity. Rule of law can safely be posited as a term for the idealist, highly chimerical in standard and well-seated in vacuo.

Appreciating the concept, however, if there is no law and order, there is bound to be hell on earth. In the words of Chief Obafemi Awolowo:

The phrase, The Rule of Law, is a legal denotation, both of the successive outcome of and the sacred goal for man's unceasing struggle against tyranny and arbitrary exercise of power. It is an epitome of the English Bill of Rights, and American declaration of Independence, the French Declaration of the Rights of Man and the United Nations Declaration of Human Rights. In other words, The Rule of Law is the lawyer's summing up both of man's triumph over arbitrary use of power, and an ideal for a just society.”

This goes to show that the term has gone beyond the formalistic definition of ordered structure of norms, set and enforced by authorities in a set community. It is a term that not only portrays the life and legal flesh of a country and its citizens, but one that imbibes the quest for activism and the spread to international soil. Rule of law, therefore, seeks global peace as the interest of its masses must be the goal, ultimately. Lawyers who struggled for the inclusion of profiting terms in the definition should ordinarily smile in their graves, but can the nation, Nigeria, boasts of its departure from tyrannous governments where arbitrariness is the only language? There is still a grip on every part of her administration; a grip by hirelings, the reminder of men for law now is the anthem her citizens must dance to. It can be conceived that the legal draftsmen of the Nigerian Constitution ensured that the Rule of Law be smelt, seen, and obeyed. Little wonder chapters 5, 6, & 7 of the Constitution of the Federal Republic of Nigeria (CFRN) 1999, shows the existence, scope, powers and limits of the three arms of government. To curb the greed that could naturally grow from every man in authority, S.1(1) CFRN 1999, states copiously:

“This constitution is supreme and its provisions shall have binding force on the authorities and persons throughout the Federal Republic of Nigeria.”

That it made it clearer, S.1(2) and (3) of the Constitution must be read jointly. Herein, the inconsistency of overt and covert acts paraded by any person - be it the president or the beggar –

with the clear dictates of the Constitution, will be null and void to the extent of its inconsistency. Proudly, the democratic system of government where the rule of law (not one that adopts the ideology that rule of law is any rule governing citizens, but rules that must include fundamental human rights) can work, is that practised in Nigeria. But, sadly, the extent of its practice is baffling and nonplussing, to say the least. The reasons are in legion.

In AG Lagos State v AG Federation (2005), former President of Nigeria (Chief Olusegun Obasanjo) wrote to the Honourable Minister of Finance, stating erroneously and narrowly that, since the National Assembly were yet to make the necessary consequential provisions in respect of any newly created local government areas in the country, then no allocation from the Federation Account needs be released to the newly-created local government areas in Lagos. The matter was taken to court and, in deciding in favour of Lagos State, the court stressed wittingly that the executive powers of the federation vested in the President, which is to the execution and maintenance of the Constitution, does not “extend to the President committing an illegality.” A close reading of S.162 of the Constitution allows every eye to observe that the President has by no means of express pass or implicit imprimatur, the duty to suspend or withhold the statutory allocation payable to Lagos State, in pursuant of S.162 (5) CFRN 1999. Amidst its clarity was a direct contrary action vomited by the then President.

To show the level of political influence in the Nigerian state, upon the rightful arrival of sound judgment by the Supreme Court, it was still of inexorable mannerism as it detained yet unreasonably, the funds. That the Federal Government thought it right to impliedly interpret an unambiguous proviso alarms a balanced cerebellum. Providing that an Accountant-General of the Federation have in his letters condition precedent before a passage of funds was unfounded in legal letters and common sense — especially in the arena of clearness and definiteness. To stretch it even further, same old man on his 93rd trip abroad, on June 2002, was the leading flash in ThisDay Newspaper. His trip was summarised as not simply unjustifiable but frivolous. The secret behind the trip was to be exposed by mid-day news. But, Baba, against all sound advice, had a crackdown on the journalists, forgetting quickly S.22 CFRN 1999. Or who forgets so soon the clash of interest between NASS and the Federal Government on implementation of the 2005 Appropriation Law. It was one smudged in defects in procedure, the Federal Government embraced a disturbing effrontery to considering and looking at a budget, without transference to appropriate authorised hands. Democracy is, without error, a tale to be told to kids seeking mythical or fantastic fable. If we can, at present, have laws like Public Officers (Special Provisions) Act, Cap 381, LFN, 1990, particularly S.3 (3), where it stressed accordingly:

“No civil proceeding shall lie or be instituted in any court for or on account of, in respect of any act, matter or thing done or purported to be done by any person under this Act, and if any such proceedings have been or are instituted before, on or after the making of this Act, the proceedings shall abate, be discharged and made void.”

This proviso has allowed an aloud racket in the sphere of practicability; if a public officer can err in the slightest bit or highest cliff and goes without a redress or a shot in court for grounds of jurisdiction, then what is and must be is the case of superiority over the grundnorm shamefully.

It needs not be assumed wholesomely, that it is only the executive arm and the legislative arm that are principal offenders of the practice of rule of law. The judiciary has its hands dirty. It has been rationalised copiously and transparently that it should not be submitted that a judge should be deemed apolitical. It is suggestive to pen that there cannot be a figure-head serving as a bulwark of the Constitution, if it has its hands zeroed from political matters when in fact and in truth, that is mainly the contention in court. Verily, this is submitted and unanimously adopted by legal jurists and scholars, but an abuse has not been without. The gross covetous nature of these judges have seen the masses resorting to extra- judicial killings that justice, albeit mob, be done. It is not incorrect that the executive kill extra-judicially, but should they go scot-free? It is true that it is for the lawyers to draw justice from his rhetoric, but can it be conveniently said that our judges never get biased or bought over once Santa gives them a million dollar goody? The judiciary has not till today explained the extra-judicial killing at Gbaramatu (Delta State), Odi (Bayelsa State), Zarki-Biam (Benue State), and the secret trial of Henry Okah. That this is sickening is an understatement. The practice of the rule of law thus decays at its infancy or nascent stage.

It is no untruth that a mere stating of a problem without a pattern of solutions will be a work of chicken scratches and no more. Solutions in spectrum will run under practicable and hopeful measure. As Dr Gabriel Omo Arishe has underscored, it is only right for the precepts governing locus standi to lose its grip. Many persons in recent times cannot have their matters addressed for want of locus standi, thus a judicial review is key on this front. Even, judicial review on the type of judge to warm the bench should be looked at and considered. Arishe failed not to expound that an activist judge is one who is presumed to have a clear direction of the ideal society and a belief in the mission to use the courts’ powers to implement that vision. A look at the injustice and corrupt practice of the justices is also a look at the penury that is in them on a daily basis — assuming, but not conceding, that the substratum behind the prejudice in dispensing justice is due to hunger. It is just ideal that the judiciary be no longer frustrated by the Federal Government. That the rule of law must grow, there need to be a means of battling the limitation of laws — of course, we have laws, but we do not have a platform to creating awareness of such laws to the average man or masses. A tightening of the security in the Constitution is good for the masses, the journalists, and the independence of the judiciary. In a world of lawlessness, the savagery of man is inevitable. It is either AV Dicey lied, or our knowledge of applying his wisdom died.

•EDITOR’S NOTE: This is an occasional column. ©Legalwatchmen,

Source News Express

Posted 26/05/2017 12:36:29 PM





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