By Awa Kalu
In a short while, the election calendar will be activated having regard to the fact that the Anambra state gubernatorial elections will be held next year. By the time that election is concluded, politicking and election campaigns would be hotting up in all parts of the country in preparation for legislative, gubernatorial and presidential elections.
Bearing in mind that there is sustained agitation for transparent elections in the country at the moment, the attempt here will be aimed at isolating the hallmarks that will assist the layman in discerning the inevitable points that are relevant for the conduct of elections.
Our first assignment in treating this topic is to give you an idea of what people (great men and laymen alike) think about the law. The Italian theologian Thomas Aquinas (1225-74) in â€˜Summa Theologiaeâ€™ was of the view that â€œhuman law is law only by virtue of its accordance with right reason, and by this means it is clear that it flows from Eternal Law.
In so far as it deviates from right reason, it is called an unjust law; and in such a case it is no law at all, but rather an assertion of violence,â€™â€™ Solon, an Athenian statesman who lived in the 16th century said that â€œLaws are like Spiderâ€™s webs: if some poor creature comes up against them, it is caught; but a bigger one can break through and get awayâ€™â€™. Again, Jonathan Swift (1667-1745) Irish-born Anglican priest and writer noted that â€œlaws are like cobwebs, which may catch small flies, but let wasps and hornets break through.â€™â€™
Horace Walpole (1717-97), a well known British writer in his letter to Horace Mann (1883-1930), who himself was also a British novelist said that â€˜â€™ Everybody talks of constitution, but all sides forget that the constitution is extremely well, and would do very well, if they would but let it alone.â€
Before l take you through other non-pessimistic views of the law, let it be noted at this juncture, that democracy is also a term of uncertain dimensions. Thus, according to Thomas Atlee (1883-1967), British statesman and Labour prime minister, â€˜â€™ Democracy means government by discussion but it is only effective if you can stop people talkingâ€™â€™.
G.K. Chesterton (1874-1936), another British writer, in an article published in New York Times of 1 Feb.1931 lamented that â€˜â€™Democracy means government by the uneducated, while aristocracy means government by the badly educatedâ€™â€™. Dean Inge (1860_1954), British churchman, thought that â€œDemocracy is only an experiment in government, and it has the obvious disadvantage of merely counting votes instead of weighing themâ€™â€™.
More recently, Lyndon B. Johnson (1908-73) US statesman, in an address on signing the Voting Rights Bill on 6th August 1965, argued that â€œThe vote is the most powerful instrument ever devised by man for breaking down injustice and destroying the terrible walls which imprison man because they are different from other menâ€.
Abraham Lincoln, whose idea of democracy has till this day remained acceptable in a speech (19th Nov.1863) while dedicating the National Cemetery on the site of the Battle of Gettysburg hoped prophetically â€œâ€¦that government of the people, by the people, and for the people, shall not perish from the earthâ€. But nearer home, Ernest Ojukwu, presently deputy Director-General of the Nigeria Law School, Enugu Campus, thinks of democracy as â€œthat form of government in which the sovereign power resides in and is exercised by whole the body of free citizens directly or indirectly through a system of representation which ensures that no one person or organ combines all the functions of the executive, the legislature and judiciary or any two of themâ€. (See Nigeria Bar Journal, 2001, p.21).
In order to draw the curtain on the inevitable definitions of democracy, it appears prudent to ask why democracy is thought of as an essential form of government. Reinhold Niebuhr (Quoted by Anthony Wedgwood in The Times 18 July 1977) offers the thoughtful insight that â€œManâ€™s capacity for evil makes democracy necessary and manâ€™s capacity for good makes democracy possibleâ€.
There is no doubt that human experience clearly vindicates Niebuhrâ€™s position. Several forms of government ranging from autocracy, theocracy, communism, socialism, fascism, and even totalitarianism have made itself evident that democracy in its different designs and structures, offers mankind the loudest voice in the management of human affairs notwithstanding the regrettable strands of democracy that have sprouted in certain corners of the universe, more particularly in Africa. It is our view that in so far as democracy offers a given society the chance to elect those who manager their affairs, it is preferable form of government.
In this country, despite the fact that democratic norms are still being experimented on, it is the belief of many that given a chance, democracy may indeed be able to flourish in our land. We believe as does Loveland in his book â€˜Constitutional Law, Administrative Law and Human Rightsâ€™, that the claim by the US Declaration of Independence that governments â€˜
â€˜derive their just powers from the consent of the governed.â€™â€¦ Is one most people consider fundamental to any democratic societyâ€. It will be part of our legitimate concern in this enterprise to determine the legal framework through which the consent of the governed is given due weight in the democratic process.
To that extent, Loveland, while commenting on the electoral system quotes with approval Butler D Penniman H. and Rannay Aâ€™s survey in Democracy at the polls and concludes that â€œa recent survey of electoral laws in modern societies identified six fundamental characteristics of democratic systems.
Firstly, that virtually all adults may vote; secondly, that elections are held regularly; thirdly, that no large group of citizens is prohibited from fielding candidates; fourthly, that almost all places in the legislature are contested; fifthly, that elections campaigns are conducted fairly and honestly; and sixthly, that votes are secretly cast and accurately countedâ€.
As we proceed, it will be seen that all areas covered by this survey have been adequately taken care of by our own electoral process through the law. The only problem we have had so far, is to fashion the will to ensure that the rule of law, and not the will of man, prevails in the conduct of all strata of elections in our land. Were the rule of law to prevail, the present pressure on the electoral process would have been eliminated.
These issues aside, what does the law have to do with democracy, we may ask? Hon. Prince Bola Ajibola, SAN, erstwhile Hon. Attorney General of the Federation and Minister of Justice, former Nigerian High Commissioner to the United Kingdom, offers an inescapable insight.
In his cerebral essay, Law Reform in a Military Era (see Nigerian Essays in Jurisprudence, MIJ publishers, 1993) notes that â€œlaw it must be conceded performs the essential functions of defining relationships among members of a given society, delimits what types of conduct or activities may be permitted and sustains the corporate status of the society in which it prevails.
In the case INEC v. Musa (2003) 13 NWLR (Pt.806)72 in which the question was whether or not the Independent National Commission had the power to impose additional conditions aside from those contained in the 1999 Constitution for the formation and registration of political parties, the Supreme Court of Nigeria had the opportunity to articulate the partnership between law and democracy, in a sense, Ayoola JSC (as he then was) stated forcefully that: â€œâ€¦ by Section 14(1) of the Constitution the Federal Republic of Nigeria shall be a state based on the principles of democracy and social justice. Political parties are essential organs of the Democratic System.
They are organs of political discussion and of formulation of ideas, policies and programmes. Plurality of parties widens the channel of political discourse, engenders plurality of political issues, promotes the formulation of competing ideas, policies and progammes and generally provides the citizen with a choice of forum for participation in governance, whether as a member of the party in government or of a party in opposition, thereby ensuring the reality of government by discussion which democracy is all about in the final analysis. Unduly to restrict the formulation of political parties or stifle their growth, ultimately weakens the Democratic culture.
However, to leave political parties completely unregulated and unmonitored may eventually make the Democratic system so unmanageable as to become a hindrance to progress, national unity, good government and the growth of a healthy democratic culture. Between the two extremes over-regulation and complete absence is the need for a balanced regulationâ€.
What the Supreme Court was called upon to examine is the philosophical underpinning of the right to freedom of association. Apart from the right of persons to associate through political parties, it ought to be noted that freedom of association as guaranteed by the Constitution is solely for the purpose of enabling a person to associate with others for â€œthe protection of his interestsâ€.