Complexity of facts, technicalities of law: Dilemma of leadership

Lagos State University (LASU) Vice-Chancellor Prof. Lanre Fagbohun presented this paper at a birthday lecture organised by former students of former Nigerian Institute of Advanced Legal Studies (NIALS) Director-General Prof. Epiphany Azinge (SAN) in Abuja.

Introduction and context

In 1988, I had the good fortune of reading the Nigerian Merit Award Winners Lecture pre-sented by Honourable Dr. Timothy Akinola Aguda. He made a statement that caused me to reflect then on his mood, memories, emotions and frustrations. The learned jurist of distinction noted:

As you know the subject of this Lecture is: “The Challenge for Nigerian Law and the Nigerian Lawyer in the Twenty-First Century”. The question which you will be entitled to ask is why the 21st Century? Why must I ‘hop and jump’ over the remaining twelve years of this Century? My answer is simple: In the period of over 40 years since I have been a student of law and the practice of law, I have come to the sad but incontrovertible conclusion, that neither the law nor those of us who administer it have attained the goal that I had hoped was attainable and that would be obtained. What I believe is left for me at the moment is to put in a few words; may be – and I emphasize the words “may be” – they will fall on fertile lands in the minds of this and the coming generation of the law givers and those who administer the law in the hope that both the Nigerian Legal System and its practice will be able to catch up with the rest of mankind, and very importantly create a united, free and happy society. There can be no greater unifying force in this as in any other human society than the law, and the system for the administration of that law.

The lofty aspirations of the exemplary Aguda was a wake-up call that was made twenty-eight years ago. Sadly, an honest reflection on where Nigeria is today, and an appraisal of the several conflicting structures that are in place for moving her forward will give an impassionate observer muted enthusiasm. Perhaps, the only thing we can effectively say that Nigerians have been awake to is the profound gap between what the Honourable Dr. Aguda envisaged and prayed for, and the reality of today. As we know, the formulation of law or policy and their consequent administration are critical to the survival of any nation. Consequently, when we ruminate over critical issues such as free elections, rule of law, protection of human rights, corruption, incompetent leadership, indolent followership, peace and security, poverty, brain drain, misuse of power, ineffective service delivery, food security, economic and political instability, unemployment, lack of basic and essential services among several other challenges, the dislocation is traceable to either formulation and/or implementation of laws and policies.

With particular reference to Nigeria’s crisis of development, not many will deny that the country has been a victim of a number of poorly informed decisions by her leaders from early in the process of project Nigeria till date. In this respect, I must hasten to add that the concern of this paper is not so much that poorly informed decisions have been made; it is more about the structures on ground for correcting such decisions. This is at the heart of what I refer to as the conundrum and dilemma of leadership in Nigeria.

The day before yesterday, the media was agog about President Obasanjo and what he should or should not be doing; yesterday, it was the turn of President Umar Musa Yar’Adua and thereafter President Jonathan to worry about the dilemma of leadership in the context of the Nigerian situation. Today, it is with accelerated tempo that President Mohammadu Buhari is being criticized for failing to effect desired changes despite the change mantra of the ruling party.

Permit me to make myself clear: it is not the case that leaders in developed nations are not confronted with the dilemma of leadership; far from it. The fundamental difference is that most of these leaders have the benefit of accountable and effective institutions overseeing the formulation and implementation of laws and policies. This is why the cliché that “nobody is above the law” has a meaning in these systems.

In Nigeria, violators and mischief makers (leaders and followers inclusive) have become more adept in making effective use of government institutions to undermine good governance than the effort of government in using these institutions to enthrone good governance. I am not making reference here to those who carry placards to support inequities. I am making reference more to insufficient checks and balances, and the rigidity of our system (or the lack of it when necessary) to nip iniquity in the bud. Our institutions are so vulnerable to manipulations that they are constantly being used to perpetrate and promote a culture of illegality. Thus, when a man says a particular act or decision is not in accord with due process, one needs to critically examine his standpoint. Is it a situation where due process will expose or comfortably shield illegality? If we agree that an inefficient legal system is a stimulus for impunity, the fundamental question for all of us is how effective is our legal system?

I will for a moment leave my distinguished audience with their answers to the above poser. I will, however, come back to remind us of how mischief makers have effectively adapted to the legal system. I will also remind us of several debates the conclusions of which have been that illegality has afflicted our culture and ethics, and become the efficient means for fulfilling selfish agendas or achieving personal goals. Yet, Nigerians want a “robust”, “brave”, “powerful” leader who will in a “focused” and “consistent” manner drill down and solve the problems. He is expected to deal with the long-term, well entrenched and successful violator who has gotten so accustomed to illegality as a way of life. I am not sure how easy this would be. It is pretty much the same as going to meet the best specialist doctor to treat your ailment when you know and remain committed to your faith which forbade you from taking medical treatment.

Few examples of the worrisome scenarios will suffice to make my position clearer on the nightmares that leaders in Nigeria are constantly confronted with in moving forward. It is acknowledged that the Biometric Verification Number (BVN) which gives each Bank customer a unique identity across the Nigerian Banking system has significantly assisted to reduce fraud and curb illegal banking transactions in Nigeria. The BVN process was implemented as a policy of the Central Bank of Nigeria pursuant to the powers of the CBN under its enabling Act.

What if a new law was required to implement the BVN scheme? The chances are it may have had to do the same long walk of the Freedom of Information Bill. The journey of the Freedom of Information Bill started in 1993 before it was finally signed into law in May, 2011. Yet, we all know the importance of the right to information, particularly, the right to access to information held by public authorities in the fight against corruption and impunity.

To be continued