THE RULE OF LAW AND CONSTITUTIONAL DEMOCRACY IN NIGERIA

 A democratic state under the rule of law is a state where citizens elect their own leaders, and the government itself is bound by law, writes Nicholas Ebehikhalu

The rule of law was instituted by God himself in the Garden of Eden. When God created man and woman, He placed them in the Garden. God gave them rules on how to live in the Garden. God said to them: “You may eat the fruits of any tree in the garden, except the tree that gives knowledge of what is good and what is bad. You must not eat the fruit of that tree….” This rule was violated by them.When they had violated the law, God did not move directly to pass sentence upon them, rather, God called upon or summoned them, and gave them the opportunity to defend themselves. That was an opportunity of fair hearing. God knew where Adam was, yet he asked; Adam where are you? In spite of the fact that God also knew that Adam had eaten the fruit, God still asked. Did you eat the fruit that I asked you not to eat? The same question was put to Eve. It was after the opportunity of fair hearing that God pronounced judgment on them and punished them accordingly, and thereafter sent them out of His beautiful Garden of Eden. God did not spare the snake when he passed the sentence because snake was involved in the violation of the law and God did not also waste time in the trial of all of them. 

What is most significant in the foregoing is that from the beginning, God instituted what is today known as the rule of law and the principles of the rule of law. The principles God established include the supremacy of the law, the equality before the law, fair hearing, and speedy trial with a just procedure. God established the rule of law as a fundamental law to organize man and guide the ways and life of man in the society, and therefore, the rule of law is not a phrase imported by man from any geographic jurisdiction but a law which predated and existed before any politically organized society. In the words of Prof. Abiola Ojo: “the rule of law is not a western idea, nor is it linked up with any economic or social system. As soon as you accept that man is governed by law and not by whims of men, it is the rule of law….”

The development of the phrase “the rule of law” can be traced to Professor Albert Venn Dicey who wrote a book in 1885, titled: “Introduction to the Law of Constitution”, where he stated that the concept of the rule of law means that the state is governed, not by the ruler or the nominated representatives of the people but by the law and that government must be based on the principles of law and not of men. A. V. Dicey stated that the doctrine of the rule of law operates with three principles. According to him, the first principle is the supremacy of the Law of the land. This means that everybody in a society must be ruled by the law of that society and by the law alone and not by the arbitrary or discretionary powers of the government. The second principle is the equality before the Law of the land.  This means that all categories of people in the society irrespective of their ranks, status, whether rich or poor must be subjected equally to the same laws of the land. The third principle is the predominance of Legal Spirit. This means that the constitution is the synthesis or collation of the laws of the land; that the fundamental rights enjoyed by the people in the society preceded, predated or existed before any civilized existence or political society and that they are only entrenched in the constitution for protection and to have the force of law. So, it is important to take notice that all these principles are constant any time one tries to comprehend the intrinsic nature of the doctrine of the rule of law, and up to this present time, they remain very verifiable.

The point that is derivable from the foregoing is that rule of law is instituted for the purpose of governance and governance is about the people. That has been captured succinctly in the definition of democracy by Abraham Lincoln and in the 1999 Constitution of the Federal Republic of Nigeria. Thus, on November 19, 1863, at the official dedication ceremony for the National Military Cemetery at Gettysburg in Pennsylvania, Abraham Lincoln, the 16th President of the United States of America defined constitutional democracy as “the government of the people, by the people, for the people.” On this foundation, the 1999 Constitution of the Federal Republic of Nigeria has made it intelligible that the government is all about the people, hence, under section 14(2), it provides: “it is hereby, accordingly, declared that – sovereignty belongs to the people of Nigeria from whom government through this constitution derives all its powers and authority; the security and welfare of the people shall be the primary purpose of government; and the participation by the people in their government shall be ensured in accordance with the provisions of this constitution.” The corollary of these provisions is that the people are the reason government exists, thence, without any equivocation; the people are the principal while the government is a mere agent. Thus government is expected to do the will of the people and a government that is not doing the will of the people is like a rampaging army of conquest that has conquered the people.

Nigeria is a country that is running democracy. Section 14(1) of the Constitution of the Federal Republic of Nigeria has made it lucid and comprehensible that Nigeria is a state based on the principles of democracy and social justice. At this juncture, one question is germane: is Nigeria running democracy in accordance with the rule of law? A democratic state under the rule of law is a state where citizens elect their own leaders, and the government itself is bound by law, while also helping to ensure that the law is respected by the citizens of the state. A country that qualifies as constitutional democracy is a country where there is a sound system of government with checks and balances, an independent judiciary whose decisions are enforced, independent electoral commission, independent media, and a country where civil rights and basic political freedoms are respected. That is why a Nigerian constitutional lawyer, Dr. Mike Ozekhome stated in one of the interviews that: “in a functional democracy, there are basic elements or principles referred to as irreducible minimums that must exist in order to have a democratic government. These include: participation of the people either directly or indirectly, the respect for fundamental human rights, Independence of the judiciary, separation of powers, free and fair elections, freedom of the press, accountability and transparency of government officials and economic freedom”.

The question that is again closely related, relevant and appropriate now is; can it be said that Nigeria has these irreducible minimums in its democratic practice? The answer is NO. Every day the governments trample upon these irreducible minimums. Anybody who wants to be truthful will agree that the relationship between and among the three arms of government that are supposed to be coequal and complementary have been unconstitutional. In the circumstance, we have the executives dominating the political space over and against the other arms of government. They portray themselves as demigods and minor deities, and want the people to see them as mortals raised to divine rank. Consequent upon this are the weaknesses and failings in the legislature and judiciary. The legislatures are weak because of the overbearing and the domineering influence of the executive arm of government. The legislatures continue to concur and acquiesce, consent and assent to anything before it with the belief that if they do not, access to the piece of the gateau will be a mirage. Judgments in courts are disobeyed in a conspicuously or obviously offensive way with freedom from the injurious consequences of an action. This has continued unabated and not only unabated but gets worse by the day. The governments still wallow in the mud of ignorance of recognizing the fact that the court is the bastion through which the hope of a common man can be realized and that the courts have nothing more than the orders they give and when the orders are not obeyed, the very reason for the existence of court is totally defeated. In the twenty first century of avant garde, intimidation and harassment are still deliberately used to cow the masses, so that they can continue to exploit them and the economy for selves’ aggrandizement. The media, the fourth estate of the realm is still being intimidated to the extent that it cannot hold the governments accountable and responsible to the people. What then is democracy when the government is not accountable and responsible to the people? The democracy becomes just an improved version of authoritarianism because the political leaders are still acting like emperors over a conquest like in the antiquity. That is why Dr. Mike Ozekhome in one of the national programmes, “Nigeria right now” described the governments’ attitudes in terms of governance, transparency, and accountability to the people as very primordial, antediluvian and pristine. It is as a result of these that there is poverty, widespread corruption, nepotism, electoral malpractice, cronyism, prebendalism, across the country.

Progress and development of a country or nation are dependent on good governance and rule of law. This has been asserted once again by President Barack Obama in his remarks to the Ghanaian Parliament, in Accra International Conference Center, Accra, Ghana, on 11th July 2009, when he stated: “…development depends on good governance or rule of law…. Governments that respect the will of its own people, that govern by consent and not coercion are more prosperous, they are more stable and more successful than governments that do not…. No country is going to create wealth if its leaders exploit the economy to enrich themselves, or police can be bought off by drug traffickers. No investor wants to invest in a place where the government skims 20 percent off the top, or the head of port authority is corrupt. No person wants to live in a society where the rule of law gives way to the rule of brutality and bribery. That is not democracy; rather, that is tyranny…”

Nigeria must take notice that the rule of law is the soul of a constitutional democracy and development. Until this is realized, Nigeria will continue to wheel or turn around in a circle like a barber’s chair – all motion but no movement.

Dr. Ebehikhalu is Associate Professor of Urban and Regional Planning, University of Abuja