Advancing The Nigerian Demoractic Outlook Through The Law (1) By Ebun-Olu Adegboruwa, Esq.

The coinage of the word ‘Nigerian Democracy” as contained in the above title is very intriguing indeed. You should by now be wondering: Is there a difference between democracy qua democracy and ‘Nigerian Democracy’? Is there a version of democracy domiciled in Nigeria as distinct from other democracies of the world? Is the ‘Nigerian democracy’ one where the leaders lead the people to poverty and deprivation or to prosperity? Is it the version that flouts the law and where impunity reigns supreme? Is the Nigerian democratic outlook the one that focuses on and benefits the leaders at the expenses of the people? Or is the phrase so coined to highlight the peculiar challenges associated with the process of democracy in Nigeria? If that is the description of the Nigerian democracy, we can as well say there is no democracy in Nigeria but civil rule and no more. Now let us proceed to the main issue, what is democracy?

In defining democracy, recourse is usually made to the simplistic definition popularized by Abraham Lincoln to wit: “democracy is the government of the people by the people and for the people.” Does this definition not align with “Nigerian Democracy”? Perhaps, we would need to refresh our memory, that democracy has its origins in the ancient Greek States. In the year 507 B.C., the Athenian leader Cleisthenes introduced a system of political reforms that he called demokratia, or “rule by the people.” This system was comprised of three separate institutions: the ekklesia, a sovereign governing body that wrote laws and dictated foreign policy; the boule, a council of representatives from the ten Athenian tribes; and the dikasteria, the popular courts in which citizens argued cases before a group of lottery-selected jurors. Although this Athenian democracy would survive for only two centuries, Cleisthenes’ invention was one of ancient Greece’s most enduring contributions to the modern world.

Flowing therefrom, various scholars have coined various definitions of the concept. For example, James Roland Pennock in his book ‘Democratic Theory’ defines democracy as:

“Government by the people, where liberty, equality and fraternity are secured to the greatest possible degree and in which human capacities are developed to the utmost, by means including free and full discussion of common problems and interests.”

Speaking further on the concept of democracy, Abraham Lincoln summarizes his views on democracy thus: “As I would not be a slave, so I would not be a master. This expresses my idea of democracy.”
For the Professor of Government at the University of Essex, UK, Albert Weale, democracy is a system where “important public decisions on questions of law and policy depend, directly or indirectly, upon public opinion formally expressed by citizens of the community, the vast bulk of whom have equal political rights.”

A common trend that runs through the definitions and conceptualization of the concept of democracy, is that democracy is a form of government, that places the people at the centre and in which decisions by elected representatives, must reflect the wishes of the majority of the citizens. Thus, the common description of democracy as just a ‘government of the people’, is rather too simplistic. Now, let us examine the features of democracy.

Put more succinctly, a society is said to practice democracy where the following tenets exist in their practice to wit:

(i) Popular Sovereignty/Protection of minorities.

(ii) Limited Government.

(iii) Rule of law/Due process of law.

(iv) Protection of fundamental rights.

(vi) Separation/Independence of the arms of government.

(vii) Quick, efficient and fair Dispensation of Retributive, Corrective and Procedural justice.

Let us briefly highlight some of the tenets enunciated above, in a bid to cross-check with the “Nigerian Democracy”, with a view to assessing how far we have fared as a people and proffer solutions on how best to advance the Nigerian Democracy.

(i) POPULAR SOVEREIGNTY/PROTECTION OF THE MINORITIES:

Popular sovereignty is the principle that the authority of a state and its governments are created and sustained by the consent of its people, through their elected representatives. The consent of the people obtained through free, fair and credible elections, gives legitimacy to the government in the performance of its functions to the people. This is the expectation of the drafters of the Nigerian Constitution when it provided in section 14 (2) thus: “sovereignty belongs to the people of Nigeria from whom government through this Constitution derives all its powers and authority.”

Very germane to the practice of democracy is that the views of the majority hold sway, however, enough space and facilities must be afforded the minority to also air their views and have their say in the affairs of the society. Thus, where the government is alienated from the people, then it cannot claim to have sovereignty. Furthermore, the exercise of such sovereignty must be in accordance with the Constitution, as stated in Section 14 (2) supra.

(ii) LIMITED GOVERNMENT:

This presupposes that the powers of the government are limited by law. Specifically in constitutional democracies, the powers of a government are circumscribed by the Constitution of the land. For instance, the Nigerian Constitution in section 1 (2) of the 1999 Constitution provides thus: “The Federal Republic of Nigeria shall not be governed, nor shall any person or group of persons take control of the Government of Nigeria or any part thereof, except in accordance with the provisions of this Constitution.”

What all the above simply means is that the concept of absolute powers, ascribed to leaders, does not exist in modern democracy. It is thus a total misnomer and an erroneous interpretation of law to interpret section 5 of the 1999 Constitution for instance, as conferring upon the executive arm of government through the President, absolute powers.

(iii) RULE OF LAW/DUE PROCESS OF LAW:

The rule of law presupposes the supremacy of law in the state. This means that law, and nothing else, counts in the society, as everything, everybody is subject to the same law. Both the ruler and the ruled, or the ruler and the subjects, are not only subject to the rule of law, but are also equal before the law. I cannot agree less with Massimo Tommasoli, in his analysis of the United Nations General Assembly High-level Meeting on the Rule of Law declaration on democracy, where he stated thus:
“If considered not solely an instrument of the government but as a rule to which the entire society, including the government, is bound, the rule of law is fundamental in advancing democracy. Strengthening the rule of law has to be approached not only by focusing on the application of norms and procedures. One must also emphasize its fundamental role in protecting rights and advancing inclusiveness, in this way framing the protection of rights within the broader discourse on human development.”
As its name implies even from its simple description, it is a ‘Rule’, meaning that it has established patterns and procedures, which cannot be derogated from, in preference for impunity. The reason for emphasising this is simply at the root of most problems in our present day Nigeria, as if everyone agrees to abide by the rule of law, to be subject to it and to obey it, then no one will be encouraged to bypass established procedures, without the fear of any consequence. Thus, once the rule of law is firmly established and obeyed, all other things will fall in place.

Let us take the example of the primaries of the political parties, conducted to chose their representatives. At the last count, over 1,000 cases are pending in various courts across the land, dealing with or relating to the said primaries, all resulting from a departure from the rule of law, specified in the Constitution of the political parties.

(iv) PROTECTION OF FUNDAMENTAL RIGHTS:

A common denominator for accessing democracy is the freedom guaranteed for the citizens and this includes but not limited to freedom of expression, freedom to protest the actions of government et al, freedom of association, freedom of movement, right to privacy, etc, as enshrined in Chapter IV of the Nigerian Constitution.

You would well remember the history of how Chapter IV was enshrined in our Constitution, coming all the way from the report of Sir Henry Willink Commission. That report was instigated by the fears expressed by the minority ethnic groups, on the consequence of independence and the withdrawal of British personnel from Nigeria. Those fears have remained with us, even after independence and even assumed more dangerous dimensions.

Thus, unless the rights and freedoms of the citizens are guaranteed, the ruler would most probably run amok and clamp down on all forms of opposition to his programmes and policies, thereby compromising or jeopardizing democracy.

(v) SEPARATION OF POWERS/INDEPENDENCE OF THE ARMS OF GOVERNMENT:

A key component of democracy is the separation but sharing of powers between the executive, legislature and judiciary. It is the belief of Baron de Motesquieu that this would prevent tyranny, ensure checks and balances and create an egalitarian society. The caution in this regard, from our own democratic experience, is upon the executive arm of government. This concept is made plain in sections 4, 5 and 6 of the Constitution, respectively, but the whipping dog of the other arms of government has always been the judiciary, from experience. And this accounts primarily for the necessity of including section 287 in the Constitution, as a safeguard to guarantee the independence and functionality of the judicial arm, being the only organ of government that depends upon the other arms for its effectiveness. If you flout any law made by the legislature, the consequence is already prescribed in that same law; if you violate any policy of the executive, you are dealt with almost instantly, but you need the executive (police) to enforce the order/judgment of the court, at times even against the executive, such as when in garnishee proceedings against government, you need the approval of the Attorney-General. That is not proper.