Defining ‘the rule of law’, has suddenly become akin to the job of coaching our national football team. Some Nigerians, particularly, sympathisers of the bandit-elite, that has serially raped our national treasury, have turned budding experts. For this group, granting of bail on liberal terms, as a lawyer would urge the court in favour of a client, is their measure of the application of the rule of law. Probably because, many in the past had brazenly stolen from the public purse, without paying any price, the effort by President Muhammadu Buhari’s government, to get people to account for their action, is strange. And so, these Nigerians, psychologically deflated over the years, are involuntarily siding those on trial, against the state.
Tragically, even those now scandalized by the contents of the can of worms, that we are daily assailed with, may eventually show little patience, as the marathon effort through the courts, to clean-up the can of worms, begin to drag. The Vice President, Professor Yemi Osinbajo, vividly put it in grim perspective, when he compared the number of Nigerians in jail, with that of the United States. As he remarked, it is either Nigerians are not engaged in as much criminal activities as that other country, or that our system is just plain ineffective. I guess, our system is infective, and our treasury looters, know as much.
But what is the rule of law? According to one of the earliest authority on this subject, A. V. Dicey, the rule of law, means, first, “the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power… a man may with us be punished for a breach of the law, but he can be punished for nothing else”; second, “equality before the law, or the equal subjection of all classes to the ordinary laws of the land administered by the ordinary courts”; and thirdly, “a formula for expressing the fact that the law of the constitution … are … the consequence of the rights of individuals, as defined by the courts”.
So far, the Buhari administration has not shown any predilection for breach of the rule of law, in the fight against corruption; as it cannot be accused, fairly, of having breached any of the encompassing definition by A. V. Dicey. The error that some Nigerians have fallen into, is to equate the rule of law, with ineffectiveness and lackadaisical attitude of state officials, in the fight against corruption. Those in this category, for instance, prefer that the federal government lay all the charges against former National Security Adviser, Col. Sambo Dasuki and the spokesman of the Peoples Democratic Party, in a single information-sheet, so that once the accused secures a bail, which the court is constitutionally enjoined to grant; predictably, the accused, his family and well-wishers will start a procession, singing and dancing back home, to mock our ineffective legal system.
Surely, that expectation is not one of the requirements of the rule of law. I mean a requirement that the state, should make the prosecution of an alleged felon, as easy and as comfy as possible, for the felon. The rule of law envisages that the law be absolute, that it should be clear and unequivocal, that no person should have arbitrary power, whether express or discretionary, that one can only be punished for a breach of the law, that all men are equal before the law, regardless of class or social standing, and that the constitution is autochthonous and enforced only by courts.
While chapter IV of the 1999 Nigeria’s constitution, as amended, the Universal Declaration of Human Rights, 1948, the European Convention on Human Rights, Rome, 1950, the African Conference on the Rule of law, Lagos, 1961, and the African Charter on Human and Peoples Rights, Banjul, 1981, all sought to engrave in laws, the fundamental principles enunciated by A. V.Dicey; none I dare say, envisaged the level of depravity and savage ransacking of a national treasury, that has regrettably become the lot of Nigeria.
But even while tasking the patience of the long suffering Nigerians, by waving the flag of the universal basic human rights, albeit, without the corresponding inherent universal basic human behaviour, the rule of law do not expect, the state authority, in its fight with any alleged felon, to be a light-hearted contest. The state without gain saying, is at liberty to apply all the tricks within the books, to reign in gross impunity, especially where the alleged grand larceny and malfeasance is such that if unchecked, could torpedo the state, the very custodian and protector of the universal human rights.
In essence, when the state decides to severally arrest and charge Patrick AKpobolokemi, the former boss of NIMASA, or any of his kind, for multiple act of malfeasance, instead of a one-off arrest, and a single information sheet, that would have made it easier for him; the charge of breaching ‘the rule of law’, is borne out misrepresentation of law and facts. Indeed, to make it easy for him and his comrades-in-arm, who have allegedly looted out common treasury, is to breach the rule of law; particularly the provision that a man should be punished for a breach of the law.
While Nigerians should be active, and on the watch, to ensure that under President Buhari’s government or any other, that no man is “punished for nothing”, that no person because of class, religion or ethnicity is treated differently before the law, and that no extraneous standard apart from the constitution or other laws, is used in the exercise of public power; nobody should misconstrue the decision by a prosecution agency, to file multiple charges for multiple offences, or the excise of the discretionary powers by a Judge, to grant stringent bail conditions, for grievous allegations of malfeasance against the state, as a breach of the rule of law.
Listening to Mr Ibrahim Magu, the acting Chairman of the Economic and Financial Crimes Commission (EFCC), the penultimate Wednesday, as he boldly laid his plan of action, against the vampires and marauders that has raped our national treasury, during his visit to The Nation Newspaper, I got the hunch that Nigeria needs to expand her prisons. But of course, successfully prosecuting many of the cases won’t be easy, with the strict legal requirement that all allegations must be proved beyond reasonable doubt; and with many of the stealing orchestrated through third parties, labyrinths of companies, and what have you.
I am sure many Nigerians are looking forward to, how much can be recovered from the looters of our national treasury. While naming and shaming looters, also helps to soothe our traumatised society, there has to be a multifaceted approach to deal with this national crisis. Such approach should include a transparent resort to section 270 of the Administration of Criminal Justice Act 2015, which makes provision for plea bargain, albeit advisedly. With our prisons severely congested with only 56,785 inmates, out of which 38,734 persons, are awaiting trial (2014), the challenge facing PMB’s government in its effort to return Nigeria, to a sane part, is egregiously enormous.