Many Governments have failed all over the world because of substitution of autocracy for democracy. In many instances, rule of law and due process are abandoned and arbitrariness substituted thereby infringing upon the rights of the individual



Nigeria: Why Development is Tied to Rule of Law

(Lagos)

ANALYSIS
7 January 2008
Posted to the web 8 January 2008

Ishaq Rabiu
Lagos

Many Governments have failed all over the world because of
substitution of autocracy for democracy. In many instances, rule of
law and due process are abandoned and arbitrariness substituted
thereby infringing upon the rights of the individual.

The resultant effect of all this is that since the machineries of
governance - Democracy, rule of law and due process - are abandoned,
the people who are the custodians of power do not have the opportunity
to reap the fruits of democracy. A clear manifestation of this is that
people are afraid of the government in Nigeria instead of the
government being afraid of the people since government is supposed to
devise its power from the people.


In the last five decades many African countries, including Nigeria
have been under the yoke of military rule with its attendant burden of
trampling on the rights of the people. Under military regimes, the
rule of law and due process of law are abandoned through the
suspension of the Constitution. It is the Constitution that spells out
the rights of individuals and rules, regulations and methodology of
governance. In its place a set of rules codified as Decrees and Edicts
are substituted. Whereas, the provisions of the Constitution are
voluntarily representative and consensus, those of these Decrees and
Edicts are imposed and dictatorial having their origin from a small
clique who because they seize power, impose themselves on the people
and therefore not afraid of the people.

Military imposition is not the only way through which the rights of
people are infringed. Some countries of the world have had the rule of
law and due process abrogated as a result of conflicts. Such countries
include, amongst others, Bosnia, Afghanistan, Iraq and Cambodia to
mention a few. In these countries, inability to resolve conflict in
time has led to perpetual unrest and civil wars with the resultant
adverse effects on the development of such countries' economy, social
amenities and quality of life of the individual.

The consequences of these destabilising factors include flight of
investment and lack of development in the society since those who
would have invested in the development of such countries, feel
insecure and sees such ventures as taking too much risk.

Nigeria, with its huge population, abundant mineral and oil resources,
agricultural resources and manpower development should have developed
much more than we are now, but the military intervention of the '60s
to the '80s have not allowed the people to enjoy meaningful
development because their rights and activities were curtailed through
arbitrariness. The potentials were not tapped and the atmosphere did
not give confidence to foreign investors. People therefore suffered
and are still suffering till date.

Historically, Nigeria started together with, and was in fact ahead of,
countries like Malaysia, Indonesia etc. but because of the relative
conducive atmosphere for growth of democracy, a gap that would be
difficult to fill has been created between Nigeria and those
countries.

The essence of development cannot be achieved by any government in any
given society or country without law and order. How can a society
attain law and order? It can attain law and order only if the rule of
law and due process are followed. A cursory examination of the concept
of democracy, rule of law and due process reveals that they are all
tied around the people and government as it activities affect and
relate to people.

Rule of law is the "Right of the individual (people) to equality
before the Law, or equal protection of the law".

The democratic state cannot and does not necessarily guarantee that
life will treat everyone equally, and it has no responsibility to do
so. However, according to John P. frank, a constitutional law expert:
"Under no circumstances should the state impose additional
inequalities; it should be required to deal evenly and equally with
all of its people".

Due Process has been severally defined to mean, "An established course
for judicial proceedings or other governmental activities designed to
safeguard the rights of the individual"; "The state, action, or
principle of treating all persons equally in accordance with the Law"
and "The rules governing the fair practice of the Law".

The sum total of the above definitions of due process is that "Every
state must have the power to maintain law and order and punish
criminal acts, but the rules and procedures by which the state
enforces its laws must be public and explicit, not secret, arbitrary,
or subject to political manipulation by the state".

The common factor in the definition of these instruments of good
governance i.e. democracy, rule of law and due process is "the
people". Democracy is for the people and by the people. Government
therefore is supposed to protect the people so that the people can
benefit from the gains of democracy.

As stated earlier, one government after the other have failed in this
regard. Even former President Obasanjo's government which appeared to
have carried and used the phrase "due process" as if it is a new
phenomenon did not quite achieve the desired objective of restoring
the rule of law and due process as it should be in a democratic
society owing to apparent application of double standard for friends
and foes. Although a lot was done in the area of fight against
corruption by putting in place institutions to fight this disease, the
operational process of these institutions (EFCC and ICPC) are not
transparent enough and do not follow Due Process.

President Yar'Adua's government is only six months old. A lot of giant
steps have been taken in the process of the enthronement of the rule
of law and due process. Since Yar'Adua understands that the quality of
leadership and institutions are essential in the process of nation
building, the first step taken is to build himself as a good leader
whose temperament and inclination can sustain the institutions that
would propel good governance. The first bold step the president
undertook was the reversal of those decisions or actions taken in
violation of the rule of law and due process.

A look into those reversals would convince any doubting Thomas about
Government's resolve to sanitise the system.


The reversals cover and have advantageous effects and implications on
very many institutions of government as analysed below:

JUDICIARY

Upholding judgment in Andy Uba's case; upholding judgment of the
Supreme Court in NJC's suspension of Justice Selong & Co.; upholding
all the tribunal verdicts eg. Amaechi's case

Democracy recognises three arms of Government which must be
independent of each other and free to perform their duties as
specified and enshrined in the Constitution. It was common in the past
for the Executive to interfere in the conduct of the Judiciary. We
often had cases of disobedience of judgment and rulings of court.
Their orders were never obeyed. This government has demonstrated its
respect for the Judiciary by obeying its judgments and orders and by
allowing the Judiciary to enjoy the constitutional independence
granted it by the Constitution. The Judiciary would therefore have
unfettered power to adjudicate on matters before it as it deems fit in
the eyes of the law. Government has given sanctity and respect to the
judiciary.

LEGISLATURE

Ettehgate:

This is another demonstration of respect for the separation of powers.
The requirement of the Constitution is that just as the Executive and
Judiciary are in charge of their affairs, the Legislature should also
be allowed to be in charge of its own affairs. The practice in the
past was for the Executive to use its big hammer to override and force
the legislative arm of government into submission. This led to
conflicts between the then president and the legislative arm of
government in the immediate past. Many Senate presidents and Speakers
were shown their way out. The development then did not help democracy.
Allowing parliament to take independent decisions of their own
following the rule of law and due process as contained in the Act
establishing it in Etteh's matter was a giant step in restoring order
and should be commended.

ELECTORAL REFORMS

There were a lot of controversies surrounding the conduct of previous
and particularly the last elections in Nigeria. Even where the
President did not believe that inadequacies in the last general
elections did some damage to the substance/result of the elections, he
nonetheless believes in reforming the "form" of the body of the
electoral authority.

Many weak leaders would have run or shy away from this type of reform
but because of his leadership qualities and regard for the tenets of
democracy he took the risk of setting up the Electoral Reform
Committee to correct whatever problems that may have arisen from the
previous electoral practices with a view to evolving an electoral body
as an institution that would permanently trails all election results
in Nigeria leading to unending litigation and poor performance of
those elected.

Criminal Justice and Social Order

Revisiting Abandoned Murder Cases

Many people were murdered in cold blood in the last 8 years without
any clues being found about those behind the murders. As a result,
majority of members of the society believe there was a cover up. Such
murders include Bola lge (the AGF) Dikibo in Rivers, Funsho Williams
in Lagos, Dr Daramola in Ekiti, etc. Since the apparatus of government
appear not to be sharp enough to unravel perpetrator of there gruesome
crimes, such perpetrators would now start thinking that the arms of
the law can no longer reach them. Opening up there cases would reform
our criminal justice system and bring confidence to the generality of
the populace that social order can still be restored and justice
obtained in this country.

The essence of governance is to have good leadership. Who is a good
leader? A good leader is a person who is not afraid to lead and
prepared to pay the price of leadership. He is ready to lead by
example putting the interest of those he is leading before his
personal interest. He does not care about the consequences of his
actions because of his belief in his set goals as a positive means of
influencing the society.

Umaru Yar'adua, the President and Commander-In-Chief of the Armed
Forces of Nigeria, has demonstrated these qualities. He has shown
himself as a good manager since leadership entails sound management
skills.

A weak leader would not have thought it wise to make those reversals
when he considers the relationship between him and the immediate past
president of Nigeria. He took the risk because he believed that it is
the best interest of the country whose people had given him their
mandate and on behalf of whom he took an oath of office. Incidentally,
in reversing policies promoted by the establishment but which are
detrimental to the economy and Nigerian masses, Yar'Adua is treading a
familiar path. Upon being elected the Governor of Katsina state in
1999, he went against the expectation of the establishment in Katsina
state to review and verify contracts for eight months before new
contracts were awarded. No wonder, Mr. President left Katsina state a
better place for the masses with a whooping six Billion Naira in
reserves when he was departing as Governor in May, 2007.

The reversals and the seven-point of agenda of wealth creation and
poverty alleviation through declaration of energy emergency,
revitalisation of the agricultural sector, massive human capital
development, transport sector reform and compulsory education for all
complement each other to the extent that the reversals tie into the
seven point agenda. The seven point Agenda would therefore not allow
there reversals to be in vain.

- Mr. Rabiu is a Port Harcourt based legal practitioner
.



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