Advancing The Nigerian Demoractic Outlook Through The Law (1) By Ebun-Olu Adegboruwa, Esq.

The coinage of the word ‘Nigerian Democracy” as contained in the
above title is very intriguing indeed. You should by now be
wondering: Is there a difference between democracy qua democracy
and ‘Nigerian Democracy’? Is there a version of democracy domiciled
in Nigeria as distinct from other democracies of the world? Is the
‘Nigerian democracy’ one where the leaders lead the people to
poverty and deprivation or to prosperity? Is it the version that
flouts the law and where impunity reigns supreme? Is the Nigerian
democratic outlook the one that focuses on and benefits the leaders
at the expenses of the people? Or is the phrase so coined to
highlight the peculiar challenges associated with the process of
democracy in Nigeria? If that is the description of the Nigerian
democracy, we can as well say there is no democracy in Nigeria but
civil rule and no more. Now let us proceed to the main issue, what
is democracy?

In defining democracy, recourse is usually made to the
simplistic definition popularized by Abraham Lincoln to wit:
“democracy is the government of the people by the people and for
the people.” Does this definition not align with “Nigerian
Democracy”? Perhaps, we would need to refresh our memory, that
democracy has its origins in the ancient Greek States. In the year
507 B.C., the Athenian leader Cleisthenes introduced a system of
political reforms that he called demokratia, or “rule by the
people.” This system was comprised of three separate institutions:
the ekklesia, a sovereign governing body that wrote laws and
dictated foreign policy; the boule, a council of representatives
from the ten Athenian tribes; and the dikasteria, the popular
courts in which citizens argued cases before a group of
lottery-selected jurors. Although this Athenian democracy would
survive for only two centuries, Cleisthenes’ invention was one of
ancient Greece’s most enduring contributions to the modern
world.

Flowing therefrom, various scholars have coined various
definitions of the concept. For example, James Roland Pennock in
his book ‘Democratic Theory’ defines democracy as:

“Government by the people, where liberty, equality and
fraternity are secured to the greatest possible degree and in which
human capacities are developed to the utmost, by means including
free and full discussion of common problems and interests.”

Speaking further on the concept of democracy, Abraham Lincoln
summarizes his views on democracy thus: “As I would not be a slave,
so I would not be a master. This expresses my idea of
democracy.”
For the Professor of Government at the University of Essex, UK,
Albert Weale, democracy is a system where “important public
decisions on questions of law and policy depend, directly or
indirectly, upon public opinion formally expressed by citizens of
the community, the vast bulk of whom have equal political
rights.”

A common trend that runs through the definitions and
conceptualization of the concept of democracy, is that democracy is
a form of government, that places the people at the centre and in
which decisions by elected representatives, must reflect the wishes
of the majority of the citizens. Thus, the common description of
democracy as just a ‘government of the people’, is rather too
simplistic. Now, let us examine the features of democracy.

Put more succinctly, a society is said to practice democracy
where the following tenets exist in their practice to wit:

(i) Popular Sovereignty/Protection of minorities.

(ii) Limited Government.

(iii) Rule of law/Due process of law.

(iv) Protection of fundamental rights.

(vi) Separation/Independence of the arms of government.

(vii) Quick, efficient and fair Dispensation of
Retributive, Corrective and Procedural justice.

Let us briefly highlight some of the tenets enunciated above, in
a bid to cross-check with the “Nigerian Democracy”, with a view to
assessing how far we have fared as a people and proffer solutions
on how best to advance the Nigerian Democracy.

(i) POPULAR SOVEREIGNTY/PROTECTION OF THE
MINORITIES:

Popular sovereignty is the principle that the authority of a
state and its governments are created and sustained by the consent
of its people, through their elected representatives. The consent
of the people obtained through free, fair and credible elections,
gives legitimacy to the government in the performance of its
functions to the people. This is the expectation of the drafters of
the Nigerian Constitution when it provided in section 14 (2) thus:
“sovereignty belongs to the people of Nigeria from whom government
through this Constitution derives all its powers and
authority.”

Very germane to the practice of democracy is that the views of
the majority hold sway, however, enough space and facilities must
be afforded the minority to also air their views and have their say
in the affairs of the society. Thus, where the government is
alienated from the people, then it cannot claim to have
sovereignty. Furthermore, the exercise of such sovereignty must be
in accordance with the Constitution, as stated in Section 14 (2)
supra.

(ii) LIMITED GOVERNMENT:

This presupposes that the powers of the government are limited
by law. Specifically in constitutional democracies, the powers of a
government are circumscribed by the Constitution of the land. For
instance, the Nigerian Constitution in section 1 (2) of the 1999
Constitution provides thus: “The Federal Republic of Nigeria shall
not be governed, nor shall any person or group of persons take
control of the Government of Nigeria or any part thereof, except in
accordance with the provisions of this Constitution.”

What all the above simply means is that the concept of absolute
powers, ascribed to leaders, does not exist in modern democracy. It
is thus a total misnomer and an erroneous interpretation of law to
interpret section 5 of the 1999 Constitution for instance, as
conferring upon the executive arm of government through the
President, absolute powers.

(iii) RULE OF LAW/DUE PROCESS OF LAW:

The rule of law presupposes the supremacy of law in the state.
This means that law, and nothing else, counts in the society, as
everything, everybody is subject to the same law. Both the ruler
and the ruled, or the ruler and the subjects, are not only subject
to the rule of law, but are also equal before the law. I cannot
agree less with Massimo Tommasoli, in his analysis of the United
Nations General Assembly High-level Meeting on the Rule of Law
declaration on democracy, where he stated thus:
“If considered not solely an instrument of the government but as a
rule to which the entire society, including the government, is
bound, the rule of law is fundamental in advancing democracy.
Strengthening the rule of law has to be approached not only by
focusing on the application of norms and procedures. One must also
emphasize its fundamental role in protecting rights and advancing
inclusiveness, in this way framing the protection of rights within
the broader discourse on human development.”
As its name implies even from its simple description, it is a
‘Rule’, meaning that it has established patterns and procedures,
which cannot be derogated from, in preference for impunity. The
reason for emphasising this is simply at the root of most problems
in our present day Nigeria, as if everyone agrees to abide by the
rule of law, to be subject to it and to obey it, then no one will
be encouraged to bypass established procedures, without the fear of
any consequence. Thus, once the rule of law is firmly established
and obeyed, all other things will fall in place.

Let us take the example of the primaries of the political
parties, conducted to chose their representatives. At the last
count, over 1,000 cases are pending in various courts across the
land, dealing with or relating to the said primaries, all resulting
from a departure from the rule of law, specified in the
Constitution of the political parties.

(iv) PROTECTION OF FUNDAMENTAL RIGHTS:

A common denominator for accessing democracy is the freedom
guaranteed for the citizens and this includes but not limited to
freedom of expression, freedom to protest the actions of government
et al, freedom of association, freedom of movement, right to
privacy, etc, as enshrined in Chapter IV of the Nigerian
Constitution.

You would well remember the history of how Chapter IV was
enshrined in our Constitution, coming all the way from the report
of Sir Henry Willink Commission. That report was instigated by the
fears expressed by the minority ethnic groups, on the consequence
of independence and the withdrawal of British personnel from
Nigeria. Those fears have remained with us, even after independence
and even assumed more dangerous dimensions.

Thus, unless the rights and freedoms of the citizens are
guaranteed, the ruler would most probably run amok and clamp down
on all forms of opposition to his programmes and policies, thereby
compromising or jeopardizing democracy.

(v) SEPARATION OF POWERS/INDEPENDENCE OF THE ARMS OF
GOVERNMENT:

A key component of democracy is the separation but sharing of
powers between the executive, legislature and judiciary. It is the
belief of Baron de Motesquieu that this would prevent tyranny,
ensure checks and balances and create an egalitarian society. The
caution in this regard, from our own democratic experience, is upon
the executive arm of government. This concept is made plain in
sections 4, 5 and 6 of the Constitution, respectively, but the
whipping dog of the other arms of government has always been the
judiciary, from experience. And this accounts primarily for the
necessity of including section 287 in the Constitution, as a
safeguard to guarantee the independence and functionality of the
judicial arm, being the only organ of government that depends upon
the other arms for its effectiveness. If you flout any law made by
the legislature, the consequence is already prescribed in that same
law; if you violate any policy of the executive, you are dealt with
almost instantly, but you need the executive (police) to enforce
the order/judgment of the court, at times even against the
executive, such as when in garnishee proceedings against
government, you need the approval of the Attorney-General. That is
not proper.

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