Advancing The Nigerian Democratic Outlook Through The Law (2) By Ebun-Olu Adegboruwa, Esq.

In the first series of this discourse, we examined the various
factors that seem to dictate the true practice of democracy,
examining in details, the features of genuine democratic conduct,
all of which we seek to advance further in this continuing
part.

(vi) QUICK DISPENSATION OF JUSTICE:

Justice in this sense connotes the following:

· Distributive justice: the fair distribution of the benefits
and burden of society.
· Corrective justice: fair and proper responses to wrongs and
injuries.
· Procedural justice: the use of fair procedures.

You would well agree with me that the general perception of
Nigerians is that law has failed, as many have lost confidence in
the judiciary, due to a number of factors, ranging from delay in
justice delivery, perceived corruption and general interference in
the judicial process through extraneous factors. When the courts
have ceased to be the last hope of the common people, then you
cannot claim to be operating democracy, which is anchored upon the
rule of law and due process.

NIGERIAN DEMOCRACY

We seem to have to come to some realisation that there are
certain democratic behaviours that are peculiar to Nigeria. In part
one of this treatise, I played on the phrase “Nigerian Democracy”,
which I coined from the topic of this discourse, in urging all of
us to reflect upon whether democracy in Nigeria differs from the
universal understanding of democracy.

THE ROLE OF LAW IN ADVANCING DEMOCRACY IN NIGERIA

Nigeria practices a representative democracy and a
constitutional democracy. This simply means that some persons are
elected by the majority to represent them in government and in so
doing they must operate within the confines of the Constitution.
Can there be a democracy in the absence of law? if I may ask! What
role does law play in advancing democratic ethos, values and
practice in Nigeria. To my mind, law plays the following role and
has the capacity to advance democracy in Nigeria.

1. Promoting the rule of law in governance.
2. Guarantee of the fundamental rights of citizens.

3. Checks and balance/Separation of power.

PROMOTING THE RULE OF LAW IN GOVERNANCE

The motto of the Nigerian Bar Association is: Rule of Law and
the Constitution of the NBA requires that lawyers should be
actively involved in the promotion and protection of democracy and
human rights. According to Sir Alexander Sapara Williams, Nigeria’s
first indigenous lawyer, “the legal practitioner lives for the
direction of his people and the advancement of the cause of his
country.” The basic difference between tyranny, dictatorship and
democracy in my view is the regulatory effect of law on society.
The rule of law presupposes the legal principle that law should
govern a nation, and not arbitrary decisions by individuals or
government officials. It primarily refers to the influence and
authority of law within society, particularly as a constraint upon
behaviour, including behaviour of government officials. The rule of
law implies that every citizen is subject to the law of the land,
including law makers themselves. In this sense, it stands in
contrast to autocracy, dictatorship, or oligarchy, where the rulers
are held high and above the law. The learned jurist, Obaseki JSC
(as he then was), of the great Benin kingdom in Governor of Lagos
State .v. Ojukwu (1986) NWLR (Pt. 18) 621 captured this concept
properly when he held thus:

“The Nigerian Constitution is founded on the rule of law the
primary meaning of which is that everything must be done according
to law. It means also that government should be conducted within
the frame-work of recognized rules and principles which restrict
discretionary power which Coke colourfully spoke of as ‘golden and
straight met wand of law as opposed to the uncertain and crooked
cord of discretion.”

With the promulgation of the Fundamental Rights (Enforcement
Procedure) Rules, 2009, the key of locus standi in fundamental
rights actions and pro bono cases, have been broken forever and it
is the duty of lawyers to deploy law for the advancement of
democracy. Given the illiteracy level of our people, especially in
the hinterlands, lawyers have a duty to deploy law for social
engineering, through proactive litigations. We must question the
status quo, even where there is no precedence to guide us. As
stated by Lord Denning, Master of the Rolls in his book, The
Discipline of Law, if we do not do what has not been done before,
then the world will become static and we will not move ahead.

SAFEGUARD OF THE FUNDAMENTAL RIGHTS OF
CITIZENS

The United General Assembly High-level Meeting on the Rule of
Law, held on September 24, 2010 declared thus:

“Human rights, the rule of law and democracy are interlinked and
mutually reinforcing and that they belong to the universal and
indivisible core values and principles of the United Nations”
Indeed, government responsiveness to the interests and needs of the
greatest number of citizens is strictly associated with the
capacity of democratic institutions and processes to bolster the
dimensions of rights, equality and accountability.”

The above declaration captures the essence of protecting the
fundamental rights of citizens in a democracy. Thankfully, the
Nigerian Constitution has also attached the needed importance to
same, with its devotion of a whole chapter i.e. chapter IV for this
purpose. This is an important function of law in a democratic
society. For in the absence of law mechanism in this regard,
society slides to the Hobessian state where might is right and
where life is nasty, short and brutish in the words of the English
philosopher Thomas Hobbes.

CHECKS AND BALANCES/SEPARATION OF POWER

The modern idea of separation of powers is to be found in one of
the most important eighteenth-century works on political science,
the Baron de Montesquieu’s The Spirit of the Laws (1748), which
states that “There can be no liberty where the legislative and
executive powers are united in the same person, or body of
magistrates … [or] if the power of judging be not separated from
the legislative and executive powers.” In Federalist No. 47 (1788)
James Madison, commenting on Montesquieu’s views and seeking to
reconcile them with the Constitution’s provisions, states that “The
accumulation of all powers, legislative, executive, and judiciary,
in the same hands, whether of one, a few, or many, and whether
hereditary, self-appointed [sic], or elective, may justly be
pronounced the very definition of tyranny.” From Baron de
Montesquieu’s titling of his work “spirit of law”, it leaves no one
in doubt that it is the law that separates, shares and limits the
various powers of the three arms of government. This is a veritable
ingredient of democracy and same must be jealously guarded.

CHALLENGE OF LAW IN ADVANCING DEMOCRACY IN
NIGERIA

Without prejudice to the limitless potentials of law being an
instrument for advancing democracy in Nigeria, it is pertinent to
inquire whether the nation-state Nigeria in her practice of
democracy, has taken advantage of law to advance and grow this
democracy, in a manner that it works for her people? I would invite
you to reflect on this while we go along this journey.

I have in my engagements in civil-society activities, the
practice of law and my faith, identified some stumbling blocks in
the way of utilization of law, towards advancing democracy in
Nigeria. A few of these would be discussed herein thus:

ELECTIONS OF INCOMPETENT PERSONS:

The foundation of every democracy is the ability of the majority
of the citizens to freely elect those who they consider fit, to
manage the enterprise of state for the good of all. In so doing,
the elections must be conducted in a free, fair and transparent
manner. Where this done, it is likely to throw up capable men and
women with the requisite intellectual, moral and character credit,
to steer the ship of State.

On June 12, 2019, Nigerians led by the government of the day
rolled out the drums to celebrate the heroic and democratic
success, recorded by Nigerians on June 12, 1993, where the
electorates freely elected Chief MKO Abiola as President, even
though same was to be later annulled by Gen. Ibrahim Babangida.
Whilst we commend the government of the day for proclaiming June 12
as the real democracy day, it would seem that the elections so
conducted by successive governments thereafter, are a betrayal of
the ideals of June 12 in many respects.

Subscribe ToNairalaw News!