The Role of Law in Maintaining Sanity and Preventing Impunity in a Democratic Setting (Part 8)

Introduction

In our last outing, we examined impunity and disobedience to court orders as affronts to the rule of law. In this feature, we shall focus on enhancing the role of law in maintaining sanity and forestalling impunity in a democracy, with special emphasis on the anti-graft agencies. Enjoy. 

Enhancing the Role of Law in Maintaining Sanity and Preventing impunity in a Democratic Setting

Independence of the Judiciary

In the quest of successfully fulfilling its role in maintaining sanity and preventing impunity in a democratic setting, an independent Judiciary must be guaranteed. By independence of the Judiciary, we simply mean that the Judiciary is free from all negative influences, that may act as hindrances to clog the wheels of justice. Ibrahim Abdullahi defines it as, the ability of a Judge to decide a matter free from pressures or inducement. The Judiciary is very important in maintaining sanity and preventing impunity; therefore, Section 4(8) of the Constitution provides thus:

“Save as otherwise provided by this Constitution, the exercise of legislative powers by the National Assembly or by a House of Assembly shall be subject to the jurisdiction of courts of law and of judicial tribunals established by law, and accordingly, the National Assembly or a House of Assembly shall not enact any law, that ousts or purports to oust the jurisdiction of a court of law or of a judicial tribunal established by law.” (See Section 4(8) of the Constitution of the Federal Republic of Nigeria, 1999 as amended).

In furtherance of establishing an impartial Judiciary, the Constitution of Nigeria also provides that:

“The independence, impartiality and integrity of courts of law, and easy accessibility thereto shall be secured and maintained.” (See Section 17(2)(e) of the Constitution of the Federal Republic of Nigeria, 1999 as amended).

In light of this, therefore, it is very important in the appointment of Judges that only honest, diligent, competent, ethical and highly trained and qualified people are appointed as Judges. The importance of the sanctity of the process of appointment of Judges is so important, because if the process is not properly handled, people with impediments in their character and without merit will be made Judges, the consequence being that justice suffers. Chief Afe Babalola, SAN states it thus:

“When appointment of men and women to the Bench is premised on extraneous considerations such as god-fatherism, political connections, religious leanings, “federal character” (without any regard for merit and competence) and monetary inducements, the ultimate victim is Justice. The society is bound to suffer, and bear the brunt of the consequences of having incompetent Judges on the Bench.

So also, the tenure and remuneration of Judges should be guaranteed, as this will spur them to uphold the Constitution and do justice always. The Executive must further strive not to impress upon the Judiciary its will, without recourse to justice. In the recent past, there has been a great onslaught against the Judiciary as the executive have attempted to intimidate the Judiciary howbeit unjustly, to cow the Judiciary and cause it to succumb to its will and jail indicted persons without due process of law. Lastly, the  Executive must obey court orders; if this is not done, impunity will continue to reign.

Independence of Anti-Graft Agencies

In maintaining sanity and preventing impunity in a democratic setting, the independence of anti-graft agencies must be guaranteed. Since, 1999, anti-graft agencies such as EFCC and ICPC have always been used as an instrument of witch-hunt, to clamp down and hunt opposition or perceived enemies. Selective prosecution has made the fight against impunity vindictive and an abuse of the rule of law, for example, when the Nigeria’s EFCC was set up by the Obasanjo Government in 2003 to investigate and prosecute financial crimes, including fraud and corruption. 

The EFCC earned plaudits from many Nigerians and from the international community in its first few years, for aggressively pursuing corruption allegations against a range of prominent government officials, including several sitting Governors. One of the EFCC’s greatest and most unprecedented successes came in securing the conviction of former Inspector General of Police, Tafa Balogun on charges of corruption in 2005 (See “Nigerian ex-Police Chief Jailed,” BBC News Online, November 22, 2005, http://news.bbc.co.Uk/2/hi/africa/4460740.stm (accessed July 12, 2007)). In the months leading up to the 2007 elections, the EFCC quickly snowballed into a handing instrument of manipulation, in enforcing the will of those in power against perceived opponents.

This was done so openly, that it destroyed much of the institution’s credibility and effectiveness as both a deterrent and a mechanism of accountability.

Conclusion

In conclusion, the sanity of any setting is largely a product of the law in place. Law curtails the excesses in human behaviour, and prevents rule by the whims and caprices of those in authority. Strict obedience to the rule of law is, and will remain a prerequisite to the existence of a democratic setting, free of impunity. This is so, since the rule of law is the linchpin for the protection and/or preservation of the rights of the citizens from tyrannical and anarchical governments, by providing guiding principles and checks to those in power.

There is therefore, no doubt that the role of law in maintaining sanity and preventing impunity in a democratic setting cannot be over-emphasised. Where there is no law or obedience to rule of law, impunity will surely take the centre stage. As observed by Professor Chidi Anselm Odinkalu, (Professor of Practice in International Human Rights Law at the Fletcher School, and currently the Chairman of Truth, Justice, and Peace Commission, a transitional justice initiative established to address the crises of violence and agitation in the States of South-East Nigeria), in the absence of obedience to the rule of law, rule of war is enthroned at the expense of the economy, as the atmosphere will be unconducive for investment. This, of course, depicts an undemocratic setting.

Democracy floats on the rule of law, which provides the general framework for a democratic setting. A State where the rule of law is lacking, is bound to degenerate to dictatorship and authoritarianism, which of course connotes grave impunity and abuse of power by the government, to the oppression of the masses. 

Moreover, it is through the instrumentality of cardinal principles, such as “separation of powers and ultimately, “checks and balances” that the rule of law achieves its role of maintaining sanity and preventing impunity in a democratic setting. Under the relevant principle, while the Legislature makes laws, the Executive implements policies across the State, and then, the Judiciary undertakes the critical role of holding both the government and individuals accountable to the rule of law.

In Nigeria, there are adequate and germane provisions in our laws, that would ensure that those in power conduct the affairs of government within the bounds of law, and that our democracy is rid of impunity and abuse of all kinds. In other words, the problem with our democracy practiced in Nigeria is not the absence of laws, but the absence of the enforcement of same with all sense of responsibility. 

This article, therefore, concludes that, to a large extent, Nigeria has in place, adequate laws to maintain sanity within its democratic setting. However, that not notwithstanding, successive governments have been found guilty of impunity of one kind or the other. This no doubt, has a lot to do with some structural and institutional problems, as well as poor enforcement of our laws, that have bred strongmen rather than strong institutions. The trend of “strongmanism” and weak institutions has made it difficult if not impossible to hold some individuals, especially those in the corridors of power, accountable for their deeds and actions.

There is, thus, an immediate need to overhaul our institutional structures and enhance our law enforcement system, to ensure the existence of strong institutions capable of holding both the government and individuals accountable to law, otherwise our dream of a democracy free of impunity or abuse of powers, will remain a pipe dream. (The end)