Home:: Publications

Site News --> More

Of Democracy, Law and Justice in Nigeria

Whither Democracy in Nigeria

“I cherish the idea of a new South Africa” were Nelson Mandela’s words as he cast his vote in the elections that ushered in democratic rule in South Africa in 1994. On May 29 when a new President of Nigeria is being sworn-in, many Nigerians will be expressing their revulsion of the process that has produced the in-coming government, and the idea that the state can legitimize a rogue electoral process. Regime transition has taken place in South Africa, quite credibly, while we’ve continued to treat the idea of representative democracy as an expendable idealism.

Do we completely underrate, denigrate, or misunderstand the logic of democracy? Is that why we’ve had such a foul record of organizing for electoral representation? Is our chequered record perhaps a proxy for saying that democracy is completely unsuitable for our people, while the players revel, for as long as it lasts, in the political, social and economic opportunities the “democratic system” offers them? Is there something successful democracies know, or have, that we don’t really care about knowing or having?

Nigeria would make a good case study for the debate whether a developing country should democratize or perhaps organize first. “Organizing first” would fit the ideology of colonialists and neo-colonialists, who said “that Africans were unfit to govern themselves, that they needed the civilization of colonial tutelage as their one hope of eventually achieving self-determination and development”. (Ake: Development and Democracy in Africa). In modern times, this argument is presented, not in social or cultural form, but in “development” terms. The development argument extends beyond questions of political organization, but embraces it. “Although no one is saying that countries seeking development should embrace authoritarianism, some believe that the new emphasis on development in Africa is misguided and may well be detrimental. Sometimes the discussion of the success of the East Asian countries hints at the need for a benign, efficient dictatorship, with the “appropriate” macroeconomic framework.” (Ake, op. cit.)

Did we hurry too much to democracy then? Was it better to endure the stifling repression, and (even) crushing brutalization of military rule a little longer so as to “fix things”, than accept the debasement of what was touted as the religion of political emancipation? Is it not clear, some would say now, that we are not ready for democracy, if people are repeatedly imposed on an electorate? Carothers sums up the argument made against hurried democratization thus: “[a]lthough their specific areas of focus and analytic frameworks varied, these different accounts coalesced around a central argument that appealed to what might be called the need for democratic sequencing. In this view, it is a mistake to assume that democratization –especially open national elections-is always a good idea. When tried in countries poorly prepared for it, democratization can and often does result in bad outcomes-illiberal leaders or extremists in power, virulent nationalism, ethnic and other types of civil conflict, and interstate wars. To prevent such results, certain preconditions, above all, the rule of law and a well-functioning state, should be in place before a society democratizes.” (Carothers: The Sequencing Fallacy”).

The very idea of democratic representation means that those elected as representatives are accountable to those who elected them. But where those returned as “elected” were not elected by popular vote, it is clear that they would be accountable only to those who “substituted” for the electorate. In this case, there is no bond, communion, or identity with those who constitute the real electorate. “Representation”, as James Madison, in The Federalist No. 25, would say, “as a substitute for a meeting of the citizens in person, is intended to replicate the people’s concern with their own good, as elected representatives are supposed to have “a communion of interests and sympathy of sentiments with the ruled.” (Nwabueze; Constitutional Democracy in Africa, Vol. 2).

Prof. Nwabueze puts it quite forthrightly: “When we speak of the political responsibility of government to the people in a democracy, we mean that government is subject to the authority and control of the people as the body, the ultimate repository of sovereign power in the state, from whom governmental power is derived. The concept flows intrinsically and integrally from the popular election of a person to a public office, which subjects him to the authority and control of the person whose votes put him in the office in virtue of which he exercises state power.” He continued in another place to say: “wholesale election rigging has disastrous consequences for democracy because it deprives elections of their essential purpose as a popular basis for government. In the first place, a government which, by electoral malpractices, keeps itself in office against the votes of the majority of the electorate lacks the legitimacy of the moral authority that popular mandate bestows.”

This would account for why many representatives are not preoccupied with alleviating the debilitating social and economic conditions under which daily struggles for survival are waged by the mass of our people, but in awarding, as soon as they get into office, hefty and profligate contracts to political godfathers and benefactors, to themselves and their cronies, with money that could have gone into needs as basic as paying salaries to workers. What defines our economic and social realities today, eight years after so-called democratization, to borrow the words of Justice Krishna Iyer, “is the omnipresent poverty, the rising cost of living, and the fall in the cost of life…”

Why were our representatives, over an eight year period, not concerned about the staggering deaths on our streets from police violence? Why were they not exerting energy to fighting forced evictions and homelessness for the people whose votes they say, put them in office? Why were they not legislating free and compulsory education, while providing necessary funding for it, and basic access to healthcare for a majority who cannot afford it? Today public schools are only attended by the poorest of the poor, and the quality of instruction and infrastructure that declined so piteously and deplorably, while they send their wards to elitist private institutions. Indeed, one must ask, if these people who constitute the electorate really counted, why are they treated with such contempt and disdain?

Are there Requisite Conditions for Democracy?
The on-set of democracy in Africa was not a direct response to the idea that democracy was the appropriate political vehicle for accelerated national development; instead, democracy was the ideology of political liberalization and change, and freedom from the brutal repression of dictators who had subrogated their personal interest for that of the state. Nigeria was not an exception. Besides our hugely fractured economy, there was clearly an urgency for free political space through which we could chart the course of our economic, political and social aspirations. That urgency led to the making of the fast-food 1999 Constitution, which, with its many imperfections, many could accept as a stop-gap filler.

The incoming administration, it was expected, would convoke a sovereign national conference, and through that platform, negotiate a more enduring and authentic charter of government. Those hopes, it turns out, were completely misplaced in the Obasanjo government. For someone who has been gratuitously touted as the father of modern Nigeria, President Obasanjo squandered an unparalleled opportunity to remake the Nigerian nation, and rebuild faith in the Nigerian project, all of which begged, to bleeding point, for urgency of purpose. When President Obasanjo convened what beguiled many as a meaningful debate, it was only a subterfuge to achieve a sinister project to elongate his tenure of office, and when that plot failed, the initiative fell through.

Did we hurry too much to democracy, the question is posed again. Perhaps not! If we have not gained much, we’ve learnt a useful lesson. In checking President Obasanjo’s lusting and longing for continued power, that tragic obsession that repressed development and sparked many catastrophic conflicts in many African countries, democracy self-justified itself, as a government for the people, based on the rule of law. Our “democracy”, as fledging, and immature as it is, stipulated the conditions for the exercise of power, and democracy sustained adherence to those conditions.

Autocracy reborn as Democracy
We certainly have substantial mileage to cover to practice a meaningful concept of constitutional democracy, and the forces of authoritarianism are still menacingly ubiquitous, proving so over the eight years of President Obasanjo’s government. Under military rule, juntas used decrees to curtail citizens’ rights and deprive judicial access. Under a supposed system of constitutional democracy where courts have power of judicial review, the government and its agencies ignore, episodically, court decisions and resolutions, or stipulate arbitrary conditions for their obedience. Out-going Federal Attorney General, Bayo Ojo, SAN, who started out perhaps hopefully, has, over a short period, stripped from the courts, and misappropriated to the executive, control over powers to enforce court decisions. This came nearly as close as it could, to the arrogance, not infrequently exercised by the military, of ignoring judicial decisions, or decreeing their nullification by legislative edict.

A beneficiary of the new powers the executive branch had aggrandized to dictate the terms under which court decisions would be enforced was Prof. Maurice Iwu, chairperson of the Independent National Electoral Commission (INEC). Prof. Iwu took liberty to decide the courts whose orders he would obey, and those he would not, and that freedom gave him enough facility to control the range of choices the electorate would have in competitive elections across the country, while creating clear electoral advantages for those he was reportedly beholden to. In his case, his impudence and indiscretion came at such a remarkable cost: reprinting presidential ballot papers to accommodate the name of vice president Abubakar Atiku, something various courts had charged him to do well before the elections – and which he refused to do until the Supreme Court said so on the eve of the elections – reportedly cost the nation’s treasury fifteen billion Naira, money that could have been put to more prudent, responsible use.

Where the confrontation is not direct, it is indirect, but no less invidious. On April 17 th and 18 th, law enforcement agencies blocked access to the courts in Ekiti State on the pretext of a likelihood of destruction of public property, while a controversial holiday declared by the Federal government was widely speculated to have been calculated to frustrate the hearing of a decisive case against INEC. Compare these tactics with those employed by the military. In November 1994, for instance, the Supreme Court’s premises were sealed off by armed security men the day the Supreme Court was to deliver judgment in Abiola’s case following the cancellation of the 1999 elections.

Malam El Rufai, Minister in charge of the Federal Capital Territory, has repeatedly disobeyed court injunctions stopping forced demolitions or evictions. Once, a court threatened to commit him to prison for contempt. El Rufai immediately caused a notice of intention to demolish the buildings of the Federal High Court in Abuja, saying the buildings contravened building regulations, and had since been marked for demolition. The case was subsequently amicably settled, and El Rufai has relented. Under military rule, Judges security details were withdrawn, Judges were dismissed or compulsorily retired, or even prosecuted when they issued adverse orders against the government or its agencies.

Long Way Ahead to Real Democracy
In many ways therefore, we are still locked in a struggle for real freedom - political, social and economic freedom. A transition from military rule, alongside a constitution and a Judiciary has helped the fight against a full-blown autocracy, but there’s such a long way ahead for genuine, participatory, and constitutional democracy. Yet, we are not alone in this struggle. “With a few exceptions” Claude Ake wrote years ago, “the democratization has been shallow [in Africa]; typically, it takes the form of multiparty elections that are really more of a democratic process than a democratic outcome. Authoritarian state structures remain, accountability to the governed is weak, and the rule of law is sometimes nominal. More often than not, people are voting without choosing.”

 

During last month’s elections, many Nigerians did not exercise even the right of casting the ballot. Human Rights Watch, wrote, after observing elections in Rivers State that they “observed the open rigging of an electoral process that deprived voters of the opportunity to cast their ballots in many areas”. They said “voting failed to take place in many areas where Nigeria’s Independent National Electoral Commission (INEC) later reported voter turnout in excess of 90 per cent.”

Conclusion
Tuesday, May 29 should have been a really epochal event; but that sit-at-home protest will objectify the disillusionment that the Nigerian people feel about the progress we have made since May 29, 1999. Many will keep asking the same questions, or variations of the questions: is it clear that we can practice democracy? The mood will of course be different from that of May 29, 1999, which brought with it a spark of faith, and hope. For many, May 29 2007, will symbolize, not their faith anymore in the promise of democracy, but their despair and despondence in the “democratic” process.

Yet all hope cannot be lost. If we defend the judicial space well, we can look to that province for some form of redemption. If our Judiciary does not say, “justice is dead, long live the law” as they often did with the cases following the 2003 elections, there perhaps will be salvation ahead of us. For as Earl Warren, former Chief Justice of the American Supreme Court said “Our judges are not monks or scientists, but participants in the living stream of our national life….”

Joseph Chu’ma Otteh
Executive Director, Access to Justice.