By Henry Ojelu

Professor Sam Erugo (SAN), in this interview, lists the greatest challenges to rule of law in Nigeria to include corruption, arbitrariness, impunity and failed values.
Excerpts:

Let us get a clear definition of rule of law and why is it important in a democratic setting Rule of law is simply an ideology that has come to describe organized society under a system of laws where all citizens and government, including institutions, operate under the supremacy of laws, are equal and accountable to the laws, as opposed to man in nature with arbitrary power and unrestrained freedom of action.

It presupposes equality, and with “no one is above the law’, and where the laws are fair and just, meeting basic of tenets good law, to public knowledge, clear in meaning, and apply equally to everyone without untoward influence. According to Aristotle, “the rule of law is preferable to that of any individual” and this is the basic character of the concept.

Most authors usually identify with Dicey’s elucidation of three aspects of the doctrine of rule of law: the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness, of prerogative, or even of wide discretionary authority on the part of government; a citizen howsoever powerful or otherwise would be punished only for a breach of the law, but for nothing else; equality before the law, or the equal subjection of all without discrimination, and finally it indicates that the Constitution and regulations or rules represent not the source but the consequence of the rights of individuals, as defined and enforced by the courts.

Rule of law suggests that laws (and not men) rule, and this is anchored on the Constitution as the grundnorm to which everyone, and the government, and institutions must surrender to. For the citizen, this assurance of rule of law translates to civil and political liberties, crime and punishment, transparency and accountability, etc., and the concomitant right of access to remedy or justice, in the pursuit of guaranteed rights.

These rights and freedoms are reflected in constitutional guarantees of fundamental human rights in Chapter IV of the Nigerian Constitution and include: right to life, right to dignity of human person, right to personal liberty, right to fair hearing, right to peaceful assembly and association, right to freedom of movement, right to freedom from discrimination, etc. This entails that the laws are intended to serve the public good rather than private interests, and to protect the citizens from arbitrariness. By strengthening the rule of law, we protect the rights of all people/s, advance inclusiveness, and limit the arbitrary exercise of power, which are the cornerstones of modern democracy.

Unfortunately, this is not the case in Nigeria; but we must admit that there is some semblance of rule of law amongst the masses of our people, which is why the Nigerian society has maintained some social equilibrium and stability.

The challenge remains the government and government institutions, those in power or authority, and certain elite, who exhibit arrogance of power, arbitrariness and impunity in the face of hapless government institutions and a failed value system.

Can we look at how rule of law operates with examples from across the world?

Historically, ideas about the rule of law have been central to political and legal thought since the 4th century BCE when Aristotle distinguished “the rule of law” from “that of any individual.” The rule of law was first codified in the Magna Carta, 1215, when English nobles demanded that King John’s powers to arbitrarily arrest or imprison them be curtailed.

The charter states that even the King had to follow the law. Since then the King’s right to arbitrarily arrest and imprison citizens without observing the rule of law has seized. In his 1776 pamphlet Common Sense, American founding father Thomas Paine wrote that the law itself ought to be more important and more powerful than any individual, including a King.

In the 18th century the French political philosopher Montesquieu elaborated a doctrine of the rule of law that contrasted the legitimate authority of monarchs with the notion of autocrats.

Following these developments the rule of law has become the dormant feature in constitutions of most countries of the world and shaped the human rights of citizens against the arbitrariness of rulers.

The current charges against the immediate past President of the USA is a current example of the tenets of the rule of law, regards being had of equality before the law and crime and punishment. The former Presidents of France and South Africa were also recently tried for various offences.

How do we distinguish rule of law from rule of man?

Rule of man refers to the arbitrary use of political authority in impunity at the expense of others and without regards to law.

In contrast, the rule of law is clear, reasonable and stable laws consistently applied across society without discrimination; and anchored on the fundamental rights of citizens.

These rights have become international human rights norms to access development of nations.

Let us look at the sections of our Constitution and relevant laws that guarantee the rule of law and the intendment

Basically the Constitution as the grundnorm is central to rule of law in Nigeria, and completely guarantee the totality of basic tenets of rule of law. Section 1 of the 1999 Constitution is emphatic on this point.

Accordingly, the section provides as follows:
(1) This Constitution is supreme and its provisions shall have binding effect on all authorities and persons in the Federal Republic of Nigeria.

(2) The Federal Republic of Nigeria shall not be governed, nor shall any persons or group of persons take control of the Government of Nigeria or any part thereof, except in accordance with the provisions of this Constitution.

(3) If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall, to the extent of the inconsistency, be void.

Much as all the provisions of the Constitution are essential, specific reference must be made to section 6(6) which vests the judicial powers, including all inherent powers and sanctions of a court of law, in the Courts established by or pursuant to the constitution.

This shall extend, to all matters between persons, or between government or authority and to any persons in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person.

Sections 4 and 5 of the Constitution vest the legislative and executive powers respectively.

Again, worthy of special mention are the fundamental human rights provisions contained in sections 33 to 46 of the Constitution which are critical in protecting the citizens from arbitrariness of government, government institutions and officials, and other powerful persons or individuals. Perhaps the most commonly used section is Section 36 on the right to fair hearing.

Fundamentally section 36 (1) provides that ‘In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.’ This subsection enables the citizen to challenge government actions, among others.

Section 36 (12) is also noteworthy because of its implication in abuses related to crime and punishment, and allegation of crime which could be used to punish the weak and poor. It provides thus:

Subject as otherwise provided by this Constitution, a person shall not be convicted of a criminal offence unless that offence is defined and the penalty therefor is prescribed in a written law, and in this subsection, a written law refers to an Act of the National Assembly or a Law of a State, any subsidiary legislation or instrument under the provisions of a law.

Intendment of relevant statutory provisions on rule of law

The intendment of the statutory provisions is principally to provide a legal framework for the rule of law in a democracy, supremacy of law against arbitrariness and impunity, as well as ensure that government, government officials and persons and individuals observe the rule of law. Essentially the idea is to control government, government officials and persons and individuals by laid down laws and procedures.

Another intendment is to make the law certain and known to all, and to protect the fundamental rights and freedoms guaranteed by the Constitution as important tenet of the rule of law. Access to justice and judicial remedy in cases of breach are equally implicated.

What institutions enforce rule of law and how have they fared since 1960 when Nigeria attained independence?

The institutions that enforce rule of law include the Court, Police, Economic and Financial Crimes Commission, National Drug Law Enforcement Agency, Nigerian Immigration, Nigerian Customs, National Agency and Food Administrations Agency, Independent Corrupt Practices Commission, Nigerian Security and Civil Defence Corps, Standards Organisation of Nigeria. These institutions have fared fairly well in enforcing the laws, particularly the Courts and Police.

There is no doubt that the institutions are bedeviled and hampered by basic challenges, including poor remuneration and low morale. However, the greatest challenges are corruption, arbitrariness and impunity as well as failed values. Consequently, they have poor ranking in terms of observance of rule of law.

People say strong institutions as against strong individuals are vital to the rule of law. To what extent would you say this applies to Nigeria?

Strong institutions are the backbone of every democracy. Institutions are the governmental systems entrusted with making and enforcing the rules of society, as well as regulating relations with other societies.

Democratic institutions are in essence, a set of arrangements for organising the political competition, legitimating rulers, and implementing the rule.

Unfortunately, in Nigeria, what we see are individuals, sometimes strong individuals who make institutions strong and vibrant while they are in charge; and the institutions go under on their exit.

We have generally weak institutions traceable to corruption, nepotism, ethnic profiling, and generally poor governance.

We have had several administrations in Nigeria since the nation attained independence in 1960 beginning from the Tafawa Balewa government. How do you think rule of law fared under each administration?

Of course, rule of law fared better under civilian regimes than dictatorships, that is, military regimes. The Shagari government did not do well because of political contests. For instance, Shugaba, of the Great Nigerian Peoples Party, an opposition party to the National Part Party of Nigeria, the ruling party, was deported by the Federal Government. However, the deportation order was quashed by the Borno State High Court and later affirmed by the Federal Court of Appeal (in Shugaba Darma v. Fed. Minister of Internal Affairs & Others). The Tafawa Balewa government had imprisoned the opposition leader, Chief Obafemi Awolowo.

If one is to rate, the Goodluck Jonathan regime would appear to be the best so far, while the Buhari/Idiagbon would take the lead in poor observance of rule of law. Essentially, the military has no business with the rule of law in terms of constitutional democracy as we have it today. However, the military still had to rule by law in literary terms and their own imagination since there were laws and courts for the citizens, but not the government.

How do we fix the challenges?

The greatest challenge in Nigeria today is the failed value system. We need ethical re-orientation, starting from the head down. Only adherence to ethical values will change the system of leadership and followership to observe the rule of law, and do the right things. Then other things will follows when the leadership is right and ethically responsible. Poverty, ignorance, and illiteracy are major hindrances to the operation and practice of rule of law in Nigeria.

It is an established fact that most Nigerians do not know their right. A lot of them are too poor to fight for their rights and consequently, at the mercy of the wealthy and corrupt politicians. But with the resources and obvious wealth of the Nigerian nation, our challenges could be fixed. We need ethically responsible leadership that will shun corruption, nepotism and bias, to harness the nation’s wealth for the good of all without discrimination. So, the challenge is ethical!

How does the country gain from the rule of law?

In the short term, I doubt if we can. But in the long run, we either change our ethical values to do the right thing and particularly observe and protect the rule of law for all, or there is no future. The former President of Nigeria one said that ‘it is either we kill corruption, or corruption will kill us’.

After eight years as President, the general consensus is that the corruption is pushing further and stronger to kill. Methinks that if the right things are done with ethically oriented leadership and followership, the rule of law could usher in fast development, socio-political and economic stability, and peace, security of life and property and improved standard of living. Then, Nigeria as a polity will enjoy true dividends of democracy if and only the above tenets of the rule of law are judiciously observed and protected by government.