A casual reflection on the relationship between law and leadership reminds me about a point. Dr. T. O. Elias (as he then was-later, Chief Justice of Nigeria) made a few years ago. He said; ‘Never before in the long history of human thought has law had to face a more challenging situation than that in contemporary Nigeria. The prevailing social and economic forces call for a type of lawyer who is at once a social engineer and an analyst, a Pericles and a plumber, capable of appreciating the values of existing institutions and mores and yet ever ready to make a dynamic contribution to the maintenance of a balance between the claims of the state and that of the individual.

Law and Society should engage in a continuous dialogue as to the choice of means, and as to the end in view. If Nigerian Law can fulfil the role of stimulating economic growth and social well being, elevate the moral tone of the community, foster a spirit of unity among the diverse ethnic groups and become a common law for the country under which no man is oppressed, it will have made an important contribution in the world of ideas for the cause of human betterment’

From the foregoing, it may be surmised that Dr. Elias’ prescription was that law, as a tool for social engineering should engage in the following: “ law and Society should engage in a continuous dialogue both as to the choice of means, and as to the end in view; “ law should stimulate economic growth and social well-being; “elevate the moral tone of the community; and “ foster a spirit of unity among the diverse ethnic groups and become a common law for the country under which no man is oppressed.

In my humble view, for our laws to be fashioned in the appropriate direction, that is, to fulfil the objectives or lofty ideals identified and set down by Dr Elias, a stimulant or catalyst is necessary. What, we may ask, is that stimulant or catalyst which will engineer good laws and drive the law towards achieving the lofty ideals enumerated above? The answer is leadership. A leader, according to the New Webster’s Dictionary of the English Language, International Edition, is ‘someone who acts as a guide, a directive head or Chief e.g of a political party, someone who, or something that leads a body of moving troops, animals etc; someone that holds first place; a counsel who leads in a case’.

The word leadership, is a noun and merely signifies the ‘position of a leader’, ‘the act of leading’. Before we dwell further on the theme of law and leadership, having at least seen the parameters, it will pay dividends to dilate, even if tangentially, on the topics which have been assigned to the main speakers in respect of which the audience will be copiously and appropriately instructed.

In line with the theme, the topics which are up for dissection include: ‘Electoral Act/Constitutional Amendment vis_a_vis Good Governance and sustainable Democracy in Nigeria’; ‘sit tight leaders and the threat to Democracy in Africa’; ‘Strategic Economic Planning and Nigeria’s Vision 20: 2020, Roadmap to Achieving Success’; ‘Practical Advocacy: Elongated Election Litigations and its effect on Nigeria’s Democratic Evolution; etc. Clearly, the organizers of this forum have identified topics that can be tied to the theme by the eminent and celebrated speakers you have chosen.

The recent amendments to the Electoral Act together with the attendant amendments to the Constitution of the Federal Republic of Nigeria, 1999 were no doubt intended to engender good governance. The Constitution, according to a well known cliché is the fundamental law of the land, the grundnorm or if you like, the fons et origo. It is the charter of government which establishes not just the arms of government but the organs through which the Constitution is interpreted and implemented for the common good.

As is common knowledge, the Constitution provides for a democratic framework for governance and empowers the three arms of government ie, the legislative and executive arms and the judiciary to translate the dry letters of the Constitution into reality. The Constitution envisages a direction for the country and thus provides a chapter in which the fundamental objectives and directive principles of state policy are enumerated and illuminated. Furthermore, in order to safeguard the rights of the governed, there is a full chapter devoted to fundamental rights in respect of which the judiciary has been given the constitutional imprimatur to enforce.

A Constitution is said to be good if those entrusted with the enforcement of its provisions are good. What this presupposes is that in the light of an ancient African proverb you cannot rightfully ask a goat to look after tubers of yam and expect to find the yam tubers when you come back. Our new mantra is ‘Good People Great Nation’. Accordingly, only good people can make a great nation.

Logically therefore, good leaders must make a great nation. The Electoral Act contains prescriptions which are designed to elaborate on a scheme for implementing the democratic agenda outlined in the Constitution. The Electoral Act therefore can neither be in conflict with the Constitution nor can any of its provisions be allowed to subvert the tenets of democracy contained in the Constitution see Attorney General Abia State v. Attorney General of the Federation [2002] 6 NWLR (pt. 763) 264. Accordingly, the Electoral Act and the Constitution, desirably, must set the tone for good governance through democracy.

At a Roundtable on Democracy and Good Governance organized recently by the dynamic and able leadership of the Nigerian Institute of Advanced Legal Studies, Professor Etannibi Alemika, an eminent and erudite social scientist noted that the critical components of democracy are choice and consent, participation, accountability, rule of law, human rights and freedoms. His submission was that democratic governance entails the following principles and conditions:

“ Sovereign State power belongs to the citizens rather than elected officials; “ Only people elected through free and fair electoral rules and processes by citizens to represent and serve them constitute a legitimate government; “ Elected officials are required to exercise governmental power in accordance with the provisions of a subsisting constitution or law; “Governments constituted in contravention of subsisting constitution or law, either through coups or massively rigged elections do not represent the will or consent of the people and therefore have no legitimacy;

Prof. Alemika further indicated other indices of democracy and good governance to be that: “ The rights of citizens to life, dignity, security, freedom of religion, conscience, association, assembly, movement, due process and equal protection of law, etc are guaranteed; “ The nature and extent of power of government official and agencies are determined by constitution or law- this distinguished a democratic society with limited government from a totalitarian or undemocratic society with a government that exercises arbitrary and unlimited power; “ Guarantee of political chances. There are competing political parties and politicians with varying ideologies and policies that enable each citizen to vote for the party and politicians he/she perceives as representing his/her interests;

“ Public scrutiny of elected officials. Those who seek to govern must submit themselves to the scrutiny, acceptance or rejection of citizens;

“ Citizens have the right to participate in the affairs of their government through such diverse measures as voting and contesting for electoral offices; engaging in non-violent rallies; demonstrations, and processions in support of or protest against the policies and decision of government (without molestation from security and law enforcement agencies).

“ Citizens are entitled to information about how they are being governed, and as a result democratic governments have a responsibility to explain and justify their actions failing which they are liable to various sanctions, including being voted out of power;

“Rule of law-powers of government as well as rights and duties of citizens are governed by and are exercised in accordance with explicit and published/publicized constitution and/or laws, thereby limiting arbitrary exercise of power;

“ Guarantee of alternative sources of information on governance (e.g. free press, free-associational life) in society.

Upon the above indices, the well informed Professor concluded that ‘if these factions or expressions of democracy are absent in the daily experience of citizens in a nation, then there is no democracy even if the government provides infrastructure and facilities. Democracy rests first and foremost on the recognition of the liberties and equal dignity and worth of every citizen’.

The indices of good governance are participation ie the involvement of all segments of society in the governance of society. Participation leads to consensus and which implies deliberation and tolerance and further requires that leaders should not impose policies and decisions. Apart from consensus building, good governance also embraces accountability which is said to be the other side or opposite of impunity and corruption. Good governance also embraces transparency which signifies openness. Professor Etannibi Alemika holds the view that transparency implies the availability of clear rules and guidelines for actions and decisions in specific aspects of governance. The principal goals and benefits of transparency are the existence of explicit and publicised rules of action and the observance of the rules by those who enforce or apply them, and as a result, the absence of arbitrary exercise of power. The opposite of transparency is secrecy, which allows for arbitrariness and corruption. The other indices of good governance are responsiveness; effectiveness and efficiency; equity and inclusiveness; and the rule of law.

It is our humble view that the recent amendments to the Electoral Act and the constitution can be harnessed as handmaidens for the achievement of democracy and good governance. This view it may be argued arises from the fact that the 1999 Constitution was made in a hurry and handed over to a civilian administration by a military government. Consequently, opponents of the 1999 Constitution argued consistently that the original text was not in tune with the tenets of democracy and so the amendments that came later did not surprise anyone. The same argument applies to the Electoral Act 2006. Is it not surprising that since 1999 we have scrapped three different Acts ie. The Electoral Acts of 2001, 2002 and 2006. The Act of 2001 was disabled by the Supreme Court decision in Attorney General Abia State v. Attorney General of the Federation supra, and after the application of the blue pencil rule to sections which were considered unconstitutional the Act was supplanted by the 2002 Act which was lampooned in diverse decisions of the Supreme Court notably, Buhari v. Obasanjo [2005] 13 NWLR (pt 941) 1, following which the Act also became untenable and had to give way to the 2006 enactment. This is what Belgore JSC, said in the decision: ‘The petition perhaps holds record for its number of respondents, witnesses, exhibits and length of time taken to hear and determine it. I think this is due mainly to the Electoral Act, 2002 riddled with absurdities and anomalies, and several inconsistencies making it the clumsiest Electoral Act ever in the history of this country’. Acholonu JSC, of blessed memory, hinted that: ‘We may have to evolve any methodology in framing future Electoral Acts to make trials very short otherwise we risk having the present state of affairs coming up all the time. This would of course necessitate an amendment of the Constitution. A situation where an election petition lasted more than 2 years for a 4 year Presidential term leaves very much to be desired. It is an affront to the rule of law seen from an activist and progressive viewpoint or mind’ He then lamented that: ‘The very big obstacle that anyone who seeks to have the election of the President or Governor upturned is the very large number of witnesses he must call due to the size of the respective constituency. In a country like our own, he may have to call about 250,000_300,000 witnesses. By the time the Court would have heard from all of them with the way our present law is couched, the incumbent would have long finished and left his office and even if the petitioner finally wins, it will be an empty victory bereft of any substance’. Now, there is a brand new Act of 2010 which already has become ‘amended’. The point about the 2010 Electoral Act which merits a short comment is section 87 (10) thereof which now throws the gates of the Courts open to areas previously thought to belong to the domestic domain of political parties. Whether this development is salutary or not remains to be seen.

Having paid attention to the dimensions of democracy and good governance our next port of call is the issue of ‘sit tight leaders’ and the threat to democracy in Africa. There can be no doubt that sit tight leaders cannot satisfy the hallmarks of democracy and good governance identified above. The clearest testimony to the danger posed by sit leaders is the conflagration in Zimbabwe, Kenya, Cote D’lvoire, Algeria, Tunisia, Egypt and Libya. Sudan is an entirely different ball game. As a guide, President Robert Mugabe has been in power in Zimbabwe since the country’s independence in 1980 and despite his advanced years is still in power. Zimbabwe is neither an example of stability nor of economic prosperity. Libya, at the moment is not at peace with itself. Colonel Gaddafi has been at the helm of the country’s affairs since the past 42 years and has vowed to crush his opponents. Who are those opponents? Amazingly, they are people who say, Oga, go, you have tried! Libya is now the subject matter of a United Nations resolution. President Mubarak stepped aside from the management of the affairs of the ancient State of Egypt after 32 years and sustained protests from the common man. The situation in Cote D’lvoire is one which challenges all lovers of freedom and piques those who imagine that democracy can only flow or thrive from the ballot box. Alas, after winning a free and fair election, Mr. Quattara has been denied access to power by the man he defeated, Mr. Gbagbo who is sitting tight despite international criticism. The country is burning and the inevitable conclusion is that sit tight leaders are no good and their presence is antithetical to the growth and sustenance of democracy.

Guided by the fact that a strong economy is the foundation of happiness in a democracy it is clear that the topic ‘Strategic Economic Planning and Nigeria’s Vision 20: 2020, Roadmap to Achieving Success’ is very close to the pith and substance of the theme of this event. It has been said that the vision has ‘a social dimension of a peaceful, equitable, harmonious and just society; an economic dimension of a resilient, diversified and industrialised economy; an institutional dimension of a stable and functional democracy in a market friendly and globally competitive business environment and an environment dimension of environmental consciousness and sustainable management. The realisation of the vision is hinged on creating the platform for success by urgently and immediately addressing the most debilitating constraints to Nigeria’s growth and competitiveness; forging ahead with diligence and focus in developing the fabric of the envisioned economy and developing and deepening the capability of government to consistently translate national strategic intent into action and results by instituting evidence based decision making in Nigeria’s policy space’.

If diligently followed and vigorously pursued, the vision aims at making Nigeria a member of the twenty most developed and economically empowered nations in the world by the year 2020. How can this vision be achieved? Through good leadership, period. The other vexed issue arises from the topic, ‘Practical Advocacy: Elongated Election Litigation and its Effect on Nigeria’s Democratic Evolution. This being a gathering of lawyers, it is difficult to run away from telling ourselves some home truths. It is my belief that the spate of sustained litigations which attend elections of all sorts is inimical to the orderly evolution of democracy in Nigeria. My view is guided and bolstered by personal experience as a lawyer in practice having been engaged in election disputes at various levels over the years. There are pre_election disputes over the choice of party candidates and our law reports are replete with a plethora of cases of which Onuoha v. Okafor, Ehilanwo v. Oke, Ugwu v. Araraume, Amaechi v. INEC are but a few examples. Had we learnt that election petitions or disputes weaken rather than strengthen the pillars of democracy and overheat the polity politicians would have become better able to manage a loss at the polls. A hand shake by the winner and loser alike will be of advantage to our electoral process. Unfortunately, each available elective office generates at least one petition. As a matter of fact, the higher the office sought, the larger the number of petitions such that a gubernatorial election may attract as many as ten separate petitions or so. The near crippling effect of petitions on the judicial apparatus of the States from which the personnel who man the various election tribunals are drawn is no trifling matter. Election appeals similarly have a debilitating effect on the case flow management of the Court of Appeal because several members of the Bench of that Court are moved from one Division to another for the effective hearing and determination of the appeals. More devastating to the judicial process is the fact that election matters are decidedly political in nature both in form and in substance and are thus highly explosive. By ordinary statistics it is clear that apart from the 36 States’ governorship positions, there are a minimum number of 24 members of a State House of Assembly and each is capable of generating a petition. The House of Representatives comprises 360 members while the Senate has 109 members. Each of these positions is often the object or centrepiece of multiple petitions. At the end of each election period, the victors from the judicial process go away in jubilation but the losers belly ache and generate heat in the process. They also generate petitions of a different type_to the National Judicial Council if they are civil and if not, the pages of Newspapers will suffice. At the end of the day, petitions achieve nothing other than lowering the judiciary in the estimation of right thinking persons even though the legitimating influence of well reasoned judgment on the outcome of electoral contests has been overwhelming.

It is in that context that we need to approach the other issue of prolonged litigation. As we speak, there is a presidential election petition that is awaiting a retrial even though elections are a few days away. One of the petitions arising from the Delta State governorship election in 2007 was recently settled and resulted in a rerun election. The incumbent Governor won that election rerun and a new challenge for the judiciary arose thereby. What is the tenure of the Governor after the rerun? The Federal High Court sitting in Asaba, has held that the Governor will continue from where he stopped before the rerun election. This decision presents acute problems for the jurisprudence of election cases, to put it mildly. An election for a political office is a mandate seeking venture embarked upon every four years for the purpose of revalidating the mandate of the office seekers. An exception is the bye election envisaged in the case of a legislator, for instance, where the incumbent dies or resigns or otherwise ceases to hold office. If, as is presently the case, the Constitution and the Electoral Act direct a Governor whose previous election was nullified but wins a rerun election arising therefrom, to serve out his previous term arising from the prior election, what is the message of the legislature? Having regard to the fact that the reward would be different if victory was awarded by the electorate to the opponent, can it be conjectured that the law would have created two consequences for the same event? Let us take it to the brass tacks. A and B contest election for the governorship of C state. A wins and B files a petition. In the final result, despite the number of years A had governed, the Court holds that A was not the lawful winner of the election but B, then A bows out as an ex_governor and B is then sworn in to start a fresh tenure of four years. This is the Obi v. Ngige scenario. On the other hand, if Mr. A’s election is nullified and a rerun is ordered by the Court, then A and B will return to the polls within 90 days. This is Delta scenario. If A wins again he will complete his previous tenure of four years even if he is left with a few days. However, if B defeats A at the rerun, then B starts a tenure reckoned from the date of subscribing the Oath of allegiance and the Oath of office. Have A and B been treated as equals in the eyes of the law? Can it not be argued that if A wins a rerun after having his previous election nullified, the electorate is confirming that he performed well even though he did not win lawfully in the first election? What if in the face of B’s victory in scenario 2, A files a petition and wins? The calculus is endless and this is a catch 22 situation _ head or tail, problem! This is only a way of providing a key and a note for the theme of this law week.

All that remains is for us to tie the law to leadership in the context of what has been said so far. Although there is no agreement on the definition of law, we shall rest on the definition provided by the authoritative Black’s Law Dictionary, 8th edition. It is to the effect that law is ‘the regime that orders human activities and relations through systematic application of the force of politically organized society, or through social pressure backed by force, in such a society’. It is also said to mean ‘the aggregate of legislation, judicial precedents, and accepted legal principles; the body of authoritative ground of judicial and administrative action: esp. the body of rules, standards and principles that the Courts of a particular jurisdiction apply in deciding controversies brought before them’. From the foregoing, and this is inspite of any school of jurisprudence to which we may individually belong, it is easy to say that only good leaders can make good laws. It is good leaders who apply what the Dictionary above refers to as the regime that orders human activities and relations through systematic application of the force of politically organized society.

It is our view that the systematic application of the force of politically organized society can only be done through the legislative, executive and judicial branches of government _ mainly. For, while the legislature makes the laws in question, they are executed by the executive. The interpretation of the law, in the main, falls within the purview of the judiciary. It ought to be noted that if the making or execution of the law is faulty, the judiciary has the constitutional authority to correct them. If the law is ambiguous, the judiciary can render an interpretation, when called upon to do so, that remedies the situation and clarifies the ambit of the law. The interpretative jurisdiction of the Courts, in our milieu, provides the fertile ground not just for clarity in the law, but defines the signpost for future activity. It is for that reason that Sir Udo Udoma, JSC, in Nafiu Rabiu v. The State, advised that;

“……the function of the constitution is to establish a framework and principles of government, broad and general in terms intended to apply to the varying conditions which our general communities must involve, ours being a plural, dynamic society, and therefore mere technical rules of interpretation of statutes are to some extent inadmissible in a way so as to defeat the principles enshrined in the constitution ……”

The Chairman, distinguished ladies and gentleman, let us take refuge in the words of the erudite but late American Jurist, Benjamin Cardozo, who said;

‘The final cause of the law is the welfare of society. The rule that misses its aim cannot permanently justify its existence; ethical considerations can no more be excluded from the administration of justice…. than one can exclude the vital air from his room and live”. Logic and history and custom have their places. We will shape the law to conform to them when we may; but only within bounds. The end which the law serves will dominate them all….. I do not mean of course, that judges are commissioned to set aside existing rules at pleasure in favour of any other set of rules which they hold to be expedient or wise. I mean that when they are called upon to say how far existing rules are to be extended or restricted, they must let the welfare of society fix the path, its direction and distance…..’

It is not only Judges who should be affected by Justice Cardozo’s words. All our leaders should know where to set aside the existing rules.

On a final note, guided by the definition of ‘leader’ and ‘leadership’, there is no doubt that each person in this hall is a leader of some sort. If you are not a family leader, you may be a leader in your community, a leader in your church, a leader in your prayer group or at best an opinion leader and at these levels it is not too difficult to make things happen. It is our responsibility as leaders at our different levels to team up with the aid of the law and elevate the society along the path illuminated by Hon. Dr. T.O Elias. As was said by a well known philosopher, ‘if you are not a part of the solution, you must be a part of the problem’. Which one are you? Thank you.