By Ise-Oluwa Ige

Using South Africa and Uganda under Idi Amin as a launch pad, a former Attorney-General of Rivers State and one-time President of the Nigerian Bar Association (NBA), Chief Onueze Chukwujinka Joe Okocha, SAN, in this interview, argues that the rule of law goes beyond having in place constitution and other laws for regulation of lives in any society.

He is also of the view that notwithstanding the separate promulgation of the 1960 Independence Constitution, the 1963 Republican Constitution, and both the 1979 and the 1999 Constitutions, history has shown that Nigeria has not fared well in its observance of rule of law, a development that has fundamentally limited its growth. Exuding hopes that President Tinubu would make a difference, he dropped some hints during this interaction to guide his administration.

Of what value is the rule of law to any society?

The rule of law is a principle that basically means that every state, every country, every nation as a political entity must operate in accordance with law. Law is the general term that includes first, the basic law of the land, which in Nigeria is the Constitution. The constitution we have now is the Constitution of the Federal Republic of Nigeria, 1999.

It sets out the principles upon which government will be administered; the structure of government itself, the various arms of government, and so on and so forth and then outlines the principles upon which those arms of government will be operated. In Nigeria, we have what we call the presidential system of government and power is shared among what they called the three arms of government. When I say power, I mean political powers.

The three arms of government include: the executive which is personified by the President of the Federal Republic of Nigeria and all other subordinate officers, and administrators under him; the legislature which is ostensibly said to be the most powerful because it makes the laws by which government’s operations are articulated and can even change the constitution because the constitution itself is a law. It is represented by the National Assembly at the Federal level which comprises the senate and the House of Representative level while at the state level, we have the houses of assembly. They personified the legislature. And then, the third arm of government which is the judiciary. It is constituted by the courts.

The function of the judiciary is to interpret the laws made by the National Assembly and the state assembly. Of course, there is another level of government known as local government. It is also provided for by the constitution. So, basically, the rule of law implies that every one of those arms of government including the local governments must be operated in accordance with the law.

Does operation of a constitution and other laws amount to observance of rule of law?
Merely codifying laws may not necessarily give you the rule of law if you codify laws that offend the principle of natural justice, equity and good conscience. I earlier told you that the 1999 Constitution stipulates the structure of the government of the Federal Republic of Nigeria, its organs and other agencies. I also said it is your observance of the rules and regulations instituted in the constitution that indicates that the rule of law is in operation.

Anything contrary is said to be anarchy and lawlessness because the constitution is the grundnorm—the law that stipulates what other laws should be, the law that governs every other laws. Any law that is contrary to the constitution is null and void. It is stated there in the constitution itself. This is so because anybody can wake up and make his own laws.

However, in jurisprudence, somebody says the rules under which the apartheid government in South Africa was being organized is also constitutional. But we said no. We said that the constitution of the apartheid South Africa is contrary to natural justice, contrary to equity, contrary to good conscience. So, everybody opposed that.

The law under which the Hitler administration in Nazi Germany was operating the government of Germany that led to the killing of fellow human beings, particularly Jews, was a law but yet it was not a law that accorded with natural justice, equity and good conscience. And you know, so many people were exterminated under the Nazi government and then the leaders of other government of the world came together and restored a proper law in Germany which was what led to the world war fought between 1939 and 1945.

It is therefore my view that merely codifying laws may not necessarily give you the rule of law if you codify laws that offend the principle of natural justice, equity and good conscience.

How well have successive administrations succeeded in enforcing the rule of law from 1960 till date?

From 1960 when we became independent until we converted from doing parliamentary system of government in 1963 to what was then called republican system of government, we had the regions as federating units in Nigeria until January 15, 1966, the rule of law did not fare too well. Yes, it fared well for some time and everybody was living in accordance with the constitution that we had in 1960 which was the independence constitution. For the 1963 which was the republican constitution, things went on well to some reasonable extent in accordance with the constitution.

But the problem was that the institutions to uphold the rule of law did not too do well. It was during that time that nepotism and tribalism became the order of the day. And people were generally not satisfied, having gained independence, our government tended to become too parochial. And that was why the military in January 1966 found reason to overthrow the elected government at the time headed by Prime Minister, Alhaji Abubakar Tafawa Balewa.

Military rule itself though came promising this and promising that, the rule of law certainly did not fare well under the military government. This is because the ills in the society which the military claimed they came in to correct, they themselves worsened those ills and they suspended the constitution. To put it mildly, the rule of law suffered a lot under the military.

A lot of people were thrown into detention without trial; a lot of lives were lost at some point. All these went on until 1979 when civilian administration had returned with the introduction of 1979 constitution. That operated for less than four years. In 1983, the civilian administration headed by President Sheu Shagari was also overthrown by the military again. We went under military rule intermittently until 1999 when a new constitution was brought and civilian government returned. The 1999 Constitution has its own difficulty because it was imposed on us.

It was not the peoples’ constitution. It was imposed by the military upon us but we tried to manage it. And that was when President Olusegun Obasanjo came on board as a civilian president. But under him, we had difficulty of obeying the rule of law, particularly regarding obeisance to court judgment and orders.

The government wasn’t obeying court orders and decisions. Even though we had a semblance of civilian administration, rule of law was not faring very well. And since then, we have had successive governments. Yar’Adua succeded Obasanjo. Yar’Adua died in office and Jonathan came on board. Even at that, the way and manner Jonathan came on board was contrary to the rule of law because he was not given a say until the National Assembly came up with this principle of the Doctrine of Necessity since nobody knew the truth about the health status of Yar’Adua until he died in office.

Under Jonathan administration, we thought we had a semblance of civilian administration because Jonathan administration, I must admit may perhaps be the most peoples’ friendly government but perhaps the government that obeyed the constitution more than the rest. But again, it was voted out of office, and then on board came Muhammadu Buhari in 2015. Again the same problem persisted: Government’s disobedience to court orders, government’s disobedience of laws, ruling as if it was not bound to observe the law. This, again, gave us difficulty. Now we have Bola Ahmed Tinubu. We are all hoping that a true civilian has come on board and things will be better under him. Those who ruled before him save for Yar’Adua and Jonathan, were all from military extractions. And you know military training is such that they the rule of command is what they operate from. Like I have always been saying, the National Assembly and all of us agree that the 1999 constitution was not the best. It was not the peoples’ constitution. And that is why they have continued to tinker with it. They came up with amendment. I think the National Assembly should pass a law to convoke a national conference so that all Nigerians, all ethnic nationalities may be adequately represented in that constitutional conference so that peoples of Nigeria will be said to have truly made and given to themselves the constitution for the people of Nigeria. That is my take. And we can only hope and pray for the best.

What do you make of the attitude of President Tinubu to rule of law and what advice do you have for it?

Well, I will say that so far so good, we have not seen any excesses yet on the part of his government. He has come on board and tried to address the problem of government frontally. Look at the problem of fuel subsidy, the removal of subsidy on petroleum products which has resulted in astronomical increase in the prices of petroleum products. He has done it by taking a bold and courageous decision. And Nigerians must come to term with it. The government should however explain it to its citizens so that they can be well aware of the situation.

But we expect that having done that, he will proceed to ensure that the prices of petroleum products are such that they will be affordable by every citizen of the country. That can only be done by making the products available to everybody. One, it is by making sure that the refineries that are in existence are in operation to their maximum capacities. Two, by building more refineries and three by allowing these people they called unlawful and illegal petrol refiners to be given licence