Rule of Law Before Democracy

guest columnist

Sam Amadi

With the conclusion of the 2023 general election, it is time to review what has happened to our democracy. Since 2015 we seem to be on a climb towards consolidating democracy. This sentiment is supported by the fact that we have completed for the first time a ‘democratic’ transition from one party to another. In Africa, democracy’s major challenge is for incumbents to be defeated and they go home peacefully. Nigeria achieved that in 2015. This achievement is not a trifle. Joseph Schumpeter considers it the essence of democracy. In his view, democracy is the reality that incumbents can be defeated, and they willingly go home. In many Sub-Saharan African countries, the reality is that attempts to defeat incumbents in elections have easily led to civil conflicts and the loss of democracy itself.

But this singular achievement, significant as it is, does not mask the fundamental flaws of Nigerian democracy. The practice of democracy in Nigeria leads objective assessors to the conclusion that Nigeria is not yet a democracy. If democracy is measured by free and fair elections that are grounded in protection for fundamental human rights and impartial working of state institutions, then Nigeria is not yet a democracy, in spite of the fact of party-to-party transition. Nigerian elections always fall far short of democratic quotients. Robert Dahl lists six conditions of democracy: effective participation, equality in voting, gaining enlightened understanding of public issues, exercising final control over the agenda and inclusion of adults. For there to be equality of votes, you must guarantee to citizens opportunities to freely form opinions, freely express those opinions and organize themselves publicly in defense of such opinions. Where there are legal or illegal prohibitions of the right to organize or where state authorities repress opponents of incumbents and confer advantages to incumbents, there is no free and fair election and no equality of voting.

Dahl admits that there is no ideal democracy where there is complete political equality yet argues that there must be sufficient institutionalization of these features in a polity to qualify as a democracy. To be a democracy it is not enough to have laws that promise citizens fundamental rights, or laws that declare equal citizenship. Those laws must be faithfully implemented. The reality of these rights and not their mere articulation in sacred texts and constitutional documents is the measure of democracy in a society.

This brings democracy closer to the rule of law. It is not a happenstance that there has been no truly democratic society that is not a rule of law society. Of course, we will continue to argue about the reality of the enjoyment of these rights as many members of the society are excluded, whether women and children, as in Athens, or women children and blacks in Antebellum United States. But until there is significant rule of law, democracy can never take shape. The struggles of many post-colonial African countries with democracy may be explained by their weakness institutionalising  the rule of law. Although these countries, like Nigeria, may have incorporated bill of rights in their constitutions, their politics lacks the effective checks and balances that undergird and define democracy. Democracy would be thoroughly lacking in a society where there is no separation between public and private spheres, where state institutions are normatively oriented to serve the political interests of the ruling elites and where the coercive force of the society is neither professionally managed nor diffused.

Democratic elections require that there is competition and contestation. Where there is monopoly of power or total control of state institutions, especially those that punish or reward, then there can be no competitive election in the real sense. If incumbents are not constrained by either administrative rules or by balance of force, it means that there would be no real competition and contestation. Therefore, there will be little prospect for effective participation and equal voting. This is the case with the 2023 general elections.

In the February 25 Presidential and National Assembly Elections, the election management body helped to rig the election for the incumbent political party by mysteriously shutting down the technological safeguard of transparent and credible election- the electronic transmission of result in real time. This undermined the integrity of the election results. Why would a commission that issued a regulation on electronic transmission of results and officially communicated to Nigerians and diplomatic community its commitment to follow through on the regulation now refused to activate that guarantee of transparency and credibility of results? In March 18 Governorship and House of Assembly Election, voters of Igbo ethnic descent were forcefully prevented from voting because the presidential candidate, the incumbent Governor of Lagos and his political surrogates accused Igbos of interfering in Lagos politics and mobilized the people to resist that. The Police did not intervene to protect the citizenship rights of Igbos.

The story above illustrates the truth of the insights from Robert Dahl who argued in his book, Polyarchy: Participation and Opposition, that democracy (polyarchy) is only possible where there is real contestation for power. There will be no contestation unless the institutions of coercion have internalized the norms of neutrality and professionalism or there is a diffusion of power such that no single person or group has overwhelming control of the economic or coercive power of the state. In the 2023 elections, we learnt a hard way that unless we can guarantee the professionalism of the security agencies and the election management body, that is ensure that they are operationally neutral of political and economic interests in the society, we cannot have any realistic prospect of having democratic election.

The rule of law approach to state building provides better perspectives to understand the failures we have suffered as a nation. Since the end of colonialism there has been a strong advocacy for democracy. The democratization movement has been largely a failure in some of the transitional and so-called emerging democracy. The problem is that democracy proponents have lost of the history democracy. Democracy is a struggle for equality. This struggle is practical but results in basic changes in law. The underlining institutions of democracy, the reason democracy works, are defined by transformations in law. Without the Magna Carta, with the Bill of Rights in the US Constitution and without the laws that expand the franchise to excluded persons, there would have been no democracy in the western democracy.

The law reform project failed in Nigeria and the rest of Africa as highlighted by Mamdani Mahmood and other African scholars. This failure, as Robert and Ann Seidman wisely noted, is the failure to use law to redefine the institutions of coercion and production and distribution in the post-colonial African states. Free and fair election requires that the security agencies are created and defined in a particular manner that guarantees that they are professional and neutral. Now professionalism and neutrality may sound like technical concepts. But they are first and foremost a matter of legal institutionalization. The manner the police, the election management body and other institutions that intervene in election matters deliver their mandates is the real determinant of free and fair election. The construction of these institutions in a manner that promote political equality is the essence of the rule of law.

After the shambolic 2007 presidential election, President Yar’Adua instituted a comprehensive review of the electoral system. This resulted in the radical propositions in the Justice Uwais report. The report was largely unimplemented. The proposals by Justice Uwais committee if fully and wisely implemented would have transformed the legal institution of elections in Nigeria. Those reforms that changed the legal relations in society are the heart of rule of law reform. As Professor Douglas North makes clear, institutions include all rules, procedures and humanly designed constraints and enablers of action. When we speak of the critical institutions of democracy, we mean those legal relationships in the society that prevent certain actions and mandate others. If such legal relations are wise, effective and make political equality a reality, then we are getting closers to democracy. If state governments can easily mobilize state institutions to work for them, then there is no rule of law. If rules and norms constrain them from so utilizing these institutions to terrorize their opponents, then that is a rule of law state that promotes electoral democracy. Rule of law has the dimension of substantial justice because it aims at the promoting civil and political as well as social economic rights of the people. If our laws do not actually protect these rights, then we cannot get to electoral democracy.

This invariably means that being truly a rule of law state precedes being a democratic state. If we don’t first ensure that our institutions work according to the principles of the rule of law, we cannot transition to democracy.