In the first series of this discourse, we examined the various factors that seem to dictate the true practice of democracy, examining in details, the features of genuine democratic conduct, all of which we seek to advance further in this continuing part.
Quick dispensation of justice:
Justice in this sense connotes the following:
- Distributive justice: the fair distribution of the benefits and burden of society.
- Corrective justice: fair and proper responses to wrongs and injuries.
- Procedural justice: the use of fair procedures.
You would well agree with me that the general perception of Nigerians is that law has failed, as many have lost confidence in the judiciary, due to a number of factors, ranging from delay in justice delivery, perceived corruption and general interference in the judicial process through extraneous factors. When the courts have ceased to be the last hope of the common people, then you cannot claim to be operating democracy, which is anchored upon the rule of law and due process.
We seem to have to come to some realisation that there are certain democratic behaviours that are peculiar to Nigeria. In part one of this treatise, I played on the phrase “Nigerian Democracy”, which I coined from the topic of this discourse, in urging all of us to reflect upon whether democracy in Nigeria differs from the universal understanding of democracy.
The role of law in advancing democracy in Nigeria
Nigeria practices a representative democracy and a constitutional democracy. This simply means that some persons are elected by the majority to represent them in government and in so doing they must operate within the confines of the Constitution. Can there be a democracy in the absence of law? if I may ask! What role does law play in advancing democratic ethos, values and practice in Nigeria. To my mind, law plays the following role and has the capacity to advance democracy in Nigeria.
- Promoting the rule of law in governance.
- Guarantee of the fundamental rights of citizens.
- Checks and balance/Separation of power.
Promoting the rule of law in governance
The motto of the Nigerian Bar Association is: Rule of Law and the Constitution of the NBA requires that lawyers should be actively involved in the promotion and protection of democracy and human rights. According to Sir Alexander Sapara Williams, Nigeria’s first indigenous lawyer, “the legal practitioner lives for the direction of his people and the advancement of the cause of his country.” The basic difference between tyranny, dictatorship and democracy in my view is the regulatory effect of law on society. The rule of law presupposes the legal principle that law should govern a nation, and not arbitrary decisions by individuals or government officials. It primarily refers to the influence and authority of law within society, particularly as a constraint upon behaviour, including behaviour of government officials. The rule of law implies that every citizen is subject to the law of the land, including law makers themselves. In this sense, it stands in contrast to autocracy, dictatorship, or oligarchy, where the rulers are held high and above the law. The learned jurist, Obaseki JSC (as he then was), of the great Benin kingdom in Governor of Lagos State .v. Ojukwu (1986) NWLR (Pt. 18) 621 captured this concept properly when he held thus:
“The Nigerian Constitution is founded on the rule of law the primary meaning of which is that everything must be done according to law. It means also that government should be conducted within the frame-work of recognized rules and principles which restrict discretionary power which Coke colourfully spoke of as ‘golden and straight met wand of law as opposed to the uncertain and crooked cord of discretion.”
With the promulgation of the Fundamental Rights (Enforcement Procedure) Rules, 2009, the key of locus standi in fundamental rights actions and pro bono cases, have been broken forever and it is the duty of lawyers to deploy law for the advancement of democracy. Given the illiteracy level of our people, especially in the hinterlands, lawyers have a duty to deploy law for social engineering, through proactive litigations. We must question the status quo, even where there is no precedence to guide us. As stated by Lord Denning, Master of the Rolls in his book, The Discipline of Law, if we do not do what has not been done before, then the world will become static and we will not move ahead.
Safeguard of the fundamental rights of citizens
The United General Assembly High-level Meeting on the Rule of Law, held on September 24, 2010 declared thus:
“Human rights, the rule of law and democracy are interlinked and mutually reinforcing and that they belong to the universal and indivisible core values and principles of the United Nations” Indeed, government responsiveness to the interests and needs of the greatest number of citizens is strictly associated with the capacity of democratic institutions and processes to bolster the dimensions of rights, equality and accountability.”
The above declaration captures the essence of protecting the fundamental rights of citizens in a democracy. Thankfully, the Nigerian Constitution has also attached the needed importance to same, with its devotion of a whole chapter i.e. chapter IV for this purpose. This is an important function of law in a democratic society. For in the absence of law mechanism in this regard, society slides to the Hobessian state where might is right and where life is nasty, short and brutish in the words of the English philosopher Thomas Hobbes.
Checks and balances/separation of power
The modern idea of separation of powers is to be found in one of the most important eighteenth-century works on political science, the Baron de Montesquieu’s The Spirit of the Laws (1748), which states that “There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates … [or] if the power of judging be not separated from the legislative and executive powers.” In Federalist No. 47 (1788) James Madison, commenting on Montesquieu’s views and seeking to reconcile them with the Constitution’s provisions, states that “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed [sic], or elective, may justly be pronounced the very definition of tyranny.” From Baron de Montesquieu’s titling of his work “spirit of law”, it leaves no one in doubt that it is the law that separates, shares and limits the various powers of the three arms of government. This is a veritable ingredient of democracy and same must be jealously guarded.
Challenge of law in advancing democracy in Nigeria
Without prejudice to the limitless potentials of law being an instrument for advancing democracy in Nigeria, it is pertinent to inquire whether the nation-state Nigeria in her practice of democracy, has taken advantage of law to advance and grow this democracy, in a manner that it works for her people? I would invite you to reflect on this while we go along this journey.
I have in my engagements in civil-society activities, the practice of law and my faith, identified some stumbling blocks in the way of utilization of law, towards advancing democracy in Nigeria. A few of these would be discussed herein thus:
Elections of incompetent persons:
The foundation of every democracy is the ability of the majority of the citizens to freely elect those who they consider fit, to manage the enterprise of state for the good of all. In so doing, the elections must be conducted in a free, fair and transparent manner. Where this done, it is likely to throw up capable men and women with the requisite intellectual, moral and character credit, to steer the ship of State.
On June 12, 2019, Nigerians led by the government of the day rolled out the drums to celebrate the heroic and democratic success, recorded by Nigerians on June 12, 1993, where the electorates freely elected Chief MKO Abiola as President, even though same was to be later annulled by Gen. Ibrahim Babangida. Whilst we commend the government of the day for proclaiming June 12 as the real democracy day, it would seem that the elections so conducted by successive governments thereafter, are a betrayal of the ideals of June 12 in many respects.