Introduction
In the preceding instalment of this piece, we assessed the changes brought by 1957, and 1958 constitutional changes as well as the 1960 and 1963 Constitutions. We also assessed the far-fetching impact of the military incursion in government, in 1966 and the Constitution which ushered in the return to democracy in 1979 as well as the extant Constitution of 1999. Today, we shall x-ray politices and the Nigerian Constitution, and the rule of law as it pertains to the Nigerian Constitution. Read on.
Politics And The Nigerian Constitution
A Constitution is an outcome of political activity, and at the same time, it constitutes rules and arenas for politics, establishing the boundaries of all branches of government, including the Executive, the Legislature and the Judiciary. Politics plays a significant role, as modern political systems combine constitutionalism and democracy to accord primacy to the will of the majority of the people through free and fair elections. In these systems, political parties are key institutions, as they are the agencies by which the majority opinion is expressed.
The Nigerian Constitution seeks to ensure good governance through these political parties. However, less attention has been paid to ‘who becomes a political leader’ and the aims and proposals the political party seeks to achieve. Rather, popularity of the party or its ‘promises’ is the sole factor that many Nigerians consider before become card-carrying holders of political parties. Political leaders are no longer willing to serve the public’s interest and promote good governance; rather, they are more pre-occupied with personal projects and siphoning tax-payers’ monies.
Whilst good governance depends on building strong institutions, it also depends on choosing competent and trustworthy politicians with the strength and character to uphold values, of such institutions. The Constitution itself seeks to establish strong institutions through well-functioning public management systems, accountable organizations, a strong legal framework, an independent judiciary, and a vigilant civil society. However, Nigeria has witnessed, and still witnesses, strong men in the place of strong institutions. This should not be so.
Strong institutions must be put in place to ensure a proper working nation and Constitution. Institutions must work within the confines of the law to achieve their objectives. Obedience to court orders should be mandatory, as well as the practice of rule of law, checks and balances and separation of powers. Law enforcement agents must also deploy technology to patiently monitor any corrupt judges, legislators, executive members and any other corrupt individual, irrespective of status, political party or wealth. This, however, must be done with recourse to the law and citizens’ fundamental rights.
Elected leaders are no longer accountable to the people. Why should they afterall, when elections are constantly rigged these days and politicians can easily remain in power. If Nigerian politicians knew that retaining their position was based on actual performance, there would be greater incentives for effective behaviour, good governance and accountability. However, politicians are more concerned about politics and elections, than they are in the welfare and security of their citizens.
The failure of politics also manifests in the declining capacity of elected leaders to recognize systemic risks such as terrorism, herder-farmer conflicts, police brutality, kidnapping, election fraud, armed banditry, armed robbery, lack of federal character and inter-ethnic wars. Whilst positions are created to tackle some of these cankerworms, there is no accountability for failure to achieve such goals. Military leaders are celebrated despite their consistent failures in the war against terrorism. Police officers are protected and not prosecuted when they brutalize citizens, even to death. Till date, there has been no accountability for the security operatives who opened fire on the #EndSARS protesters. Rather, implicated parties are openly protected and excused by politics, regardless of ethics and morality. Thus, even after the Judicial Panel’s report. Whilst politics was intended to have a positive impact on the Constitution, it has maintained a negative role, constantly battling (and most times, successively overpowering) the principles of rule of law and democracy.
The Nigerian Constitution And The Rule Of Law
Talking about constitutionalism, to mind the doctrine of Rule of Law. The concept of the ‘Rule of Law’ is a paramount benchmark of constitutionalism in a civil, democratic system of government, or any civilized society. This concept is traceable to theories of early Greek philosophers, who understood the notion of law as a primary means of subjecting governmental powers to control. One of them, Aristotle, summed it up by saying that:
“The rule of law is preferable to that of an individual and it is propagated in the politics and international relations to promote individual liberties and decry dictatorship.”
Similarly, Bracton, writing in the 13th Century, in his write-up, the Thorne edition: English. Vol. 2, page 33, adopted the theory which was generally held in the Middle Ages, to the effect that the world was governed by law, human or divine, and theorized that:
“The king himself ought not to subject to man, but subject to God and to the law because the law makes him king”.
This concept was further espoused in the modern day by Albert Venn Dicey, Vinerian professor of English Law at Oxford in the late 19th century. Dicey in his book- the Law of the Constitution (1885), categorized the doctrine into three aspects, but only two are apposite to the Nigerian polity.
The first aspect concerns, “the absolute supremacy or predominance of regular law as opposed to the influence or arbitrary power, and the existence of arbitrariness, of prerogative or even of wide discretionary authority on the part of government.” There is here a recognition that the supremacy of the law excludes not only arbitrariness but also special privileges, advantages and wide discretionary authority in government.
The second aspect of Dicey’s theory concerns, “equality before the law or the equal subjection of all classes to the ordinary law of the land administered by the ordinary law courts” (ibid). This excludes the idea of any exemption of officials or others from the duty of obedience to the law which governs other citizens or from the jurisdiction of ordinary tribunals.
The rule of law thus envisages the existence of the Constitution or some sort of law which shall be bestowed with absolute supremacy over all persons, whether governor or governed, so as to check the whimsical or the capricious acts or arbitrary existence of power. Likewise, Sir Ivor Jennings theorizes that:
“In proper sense rule of law implies a democratic system, a constitutional government where criticism of government is not only permissible but also a positive merit and where parties based on competing politics or interest are not only allowed but encouraged. Where this exists, the other consequences of rule of law must follow”.
As early as 1969, in the case of RE: MOHAMMED OLAYORI (SUIT NO. M/196/69 (UNREPORTED), a judge of the Lagos State High Court had occasion to expound the concept of the rule of law in flowery terms. He stated that:
“…if we are to live by the Rule of Law, if we are to have our actions guided and restrained in certain ways for the benefit of the society in general, individual members in particular, then whatever status, whatever post we hold, we must succumb to the Rule of law. The alternative is anarchy and chaos…”.
The concept of the rule of law in its modern form is entrenched in section 17 of 1999 Constitution, which provides thus:
“(1) The state social order is founded on ideals of freedom, equality and justice.
(2) In furtherance of the Social Order:
a. Every citizen shall have equality of rights, obligations and opportunities before the law;
b. The sanctity of the human person shall be recognized and human dignity shall be maintained and enhanced;
c. Governmental actions shall be humane;
d. Exploitation of human and natural resources whatsoever for the reason other than the good of the community shall be prevented and;
e. The independence, impartiality and integrity of court of law, and easy accessibility thereto shall be secured and maintained”.
In accordance with section 1(1) of the Constitution of the Federal Republic of Nigeria 1999, as altered. The Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria. As section 1(3) provides, any law that is inconsistent with the Constitution shall be void to the extent of the inconsistency.
The application of these provisions has been exemplified by the Supreme Court of Nigeria in the several cases, including ONAGORUWA v. I.G.P (1991) 5NWLR (PART 193) P.593; OBABA v. MILITARY GOVERNMENT OF KWARA STATE (1994) 4NWLR (PART 336) P.26; EREKANURE v. STATE (1993) 5NWLR (PART 294) P.385; etc.
In the case of GOVERNOR OF LAGOS STATE v. OJUKWU 1986) 1NWLR (PART 18)P. 621 AT 639, the apex court warned about the importance of the observance of the rule of law. It held thus:
“…if governance treats court order with levity and contempt, the confidence of the citizen in the courts will be seriously eroded and the effect of that will be the beginning of anarchy in replacement of the Rule…” Per UWAIS, JSC.
Thus, it is no question that the Rule of Law is significant to the effectiveness of the Nigerian Constitution. However, the concept of Rule of law had been assailed on all sides and from time to time, especially by the constant emasculation of the Judiciary. It is no news that the Independence of the Nigerian Judiciary is nothing but a folklore told to children. Of course, the Judiciary is not independent; it is not free of external control and influence, nor is it financially independent.
The unjust removal of Hon Justice Walter Onnoghen over funny and phoney charges, and the recent attack on Hon Justice Mary Peter-Odili, shows the constant emasculation of judicial officers. Judicial officers are constantly being berated and threatened with ridiculous charges, whenever and wherever they speak truth to power. “Favourable” Justices are assigned “special” cases, with some even elevated way before their time or position.
It has now become a norm for judicial orders and judgements to be blatantly disrespected by members of the government. While EFCC can be seen to be working, their operations are specifically targeted at members of the opposing party, whilst members of the reigning party enjoy an unconstitutional immunity from prosecution. Moreover, they are accustomed to working ultra vires and violating individual rights in the process of their operations. These constant acts have dehumanized Nigeria and has significantly eroded the principle of Rule of Law from its ambit. (To be continued).
Thought for the week
“Drafting a Constitution is only the first step. The Constitution has to be granted legitimacy by open discussion and a fair, representative referendum”. (Emma Bonino).