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Tag: Rule of law

  • Osinbajo, experts: how to strengthen rule of law

    Osinbajo, experts: how to strengthen rule of law

    At the 19th AELEX Annual Lecture in Lagos, experts linked delayed justice, policy inconsistency, and institutional decay to low investor confidence. They agreed that true progress requires urgent reforms to restore trust and stability, reports UDEH ONYEBUCHI

    The rule of law must be strengthened to restore investor confidence in the economy, former Vice President Yemi Osinbajo and other legal experts, business executives, and policy experts have said.

    They warned that its erosion poses one of the gravest threats to the nation’s economic development.

    They made the call at the 19th AELEX Annual Lecture, with the theme: “The rule of law and economic development: The Nigerian experience.”

    Osinbajo joined an array of distinguished discussants who argued that the decline of legal institutions, inconsistency in policy, and the slow pace of justice are undermining the country’s economic potential.

    The event drew a packed audience of lawyers, business leaders, academics, and policymakers, all gathered to examine how Nigeria’s flailing legal system has become a chokehold on growth.

    Osinbajo: weak justice system scares off investors

    Osinbajo gave a sobering exposition on the practical links between justice and prosperity.

    Defining the rule of law as the principle that “laws are clear, predictable, and fairly applied,” he argued that economic growth cannot occur in a climate where government agencies, courts, or individuals act above the law.

    “The rule of law should give investors, businesses, and citizens the confidence that rules, not power or influence, decide outcomes.

    “When corruption and favouritism are curbed, resources flow to the most productive users, not just to the most influential or the most powerful,” he said.

    Osinbajo drew a stark picture of the dysfunction within Nigeria’s legal system, recounting data from the Justice Research Institute showing that a commercial case in Nigeria averages 13 years from filing to Supreme Court judgment.

    “These delays are disastrous for business. The English Court of Appeal referred to the delays in Nigerian courts as ‘catastrophic,’ estimating that some cases could take 20 to 30 years to conclude,” he said.

    He warned that such inefficiency raises transaction costs, discourages long-term investment, and drives capital flight.

    “Delays, corruption, and interference in arbitration are destroying investor confidence,” he added.

    He asserted: “Our problems are not of policy but of execution, weak institutions and weak will.These are human problems, and they are not insurmountable. It is us who must fix them, not spirits from somewhere.”

    When justice delays kill housing investment

    Recounting his time as Attorney-General of Lagos State in the early 2000s, Osinbajo described how slow court processes nearly destroyed the state’s housing sector.

    “Landlords lost confidence in the courts. Tenants would stop paying rent, knowing cases could drag on for years. So, people stopped investing in rental housing,” he said.

    The solution, he explained, was the creation of mediation centres that handled disputes faster.

    “Within one year, over 8,000 landlord-tenant cases were resolved, compared to fewer than 2,000 in magistrate courts. Restoring confidence in justice restored housing investment,” he said.

    Osinbajo proposed systemic reforms to digital case management, AI-assisted judgments, and strict sanctions for frivolous litigation to “make justice predictable, transparent, and swift.”

    The collapse of enforcement and criminal justice

    Beyond commercial law, Osinbajo described Nigeria’s criminal justice system as “a barometer of governance” that is now “dangerously broken.”

    Out of over 200 million Nigerians, he noted, only about 26,000 are convicted prisoners—compared to two million in the U.S.

    “It doesn’t mean that the society is better because we aren’t saints, but it means your laws and enforcement have broken down.

    “Your legal framework doesn’t exist.

    “We need to go back to basic principles that will allow us to think properly and discuss our problems,” he said.

    He warned that businesses now factor theft, police inefficiency, and weak enforcement into their operating costs.

    “When justice breaks down, the cost of doing business rises for everyone.”

    The former vice president also lamented inconsistency in judicial decisions, calling for the Supreme Court to “resolve the confusion” around federal and state jurisdictions.

    “When even lawyers cannot predict what the law says, that’s the antithesis of a rule of law environment,” he said.

    Pedro: rule of law is an economic asset

    Lagos State Attorney-General, Mr. Lawal Pedro (SAN), reaffirmed Lagos’s commitment to justice reforms as the foundation of Nigeria’s economic transformation.

    “The rule of law is not merely a lofty idea,” Pedro declared.

    “It guarantees productivity, protects property, enforces contracts, and ensures that both government and the governed are accountable to the same rules.”

    He cited Lagos’s steady institutional reforms, such as the establishment of a dedicated Commercial Division of the High Court, as proof that “reliable legal infrastructure” fuels investment and investor confidence.

    According to him, Lagos has become a preferred destination not because of its size, but because “investors know Lagos is governed by law, not by whims.”

    “Lagos remains a preferred destination for investors, not because of its size, but because of its reliability. Investors know that Lagos is governed by law, not by whims.

    “They know that contracts will be enforced, disputes will be resolved efficiently, and justice will be served without fear or favour.”

    However, Pedro cautioned against the growing culture of resistance to lawful governance, lamenting that citizens often “wait for coercion before obeying laws.” He urged voluntary compliance with taxes, land regulations, and environmental laws, warning that “where the law is uncertain, or inconsistently applied, growth stagnates, innovations devise, and trust erodes.”

    Experts call for judicial and institutional reforms

    In a panel of discussion moderated by the chairman of the national pension commission, Mr. Opeyemi Agbaje, dissected how weak institutions, inconsistent policies, and a failing judiciary have become major obstacles to Nigeria’s economic progress.

    Senior Partner at Babalakin & Co, Dr. Wale Babalakin (SAN), blamed the country’s economic stagnation on weak institutions and a judiciary that has lost its merit-based standards.

    He argued that Nigeria cannot achieve development without a judiciary led by the “most outstanding legal minds.”

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    “You can’t have a judiciary where judges are not the most outstanding lawyers. If your judges can’t follow arguments, no matter how brilliant you are, justice will fail,” he said.

    Babalakin criticised the politicisation of judicial appointments and lamented Nigeria’s deteriorating education system.

    “We’ve killed our primary and secondary schools. Without education, where do you get manpower for development?” he asked.

    He shared personal experiences of the government’s disregard for contracts, including revoked projects announced on television without due process.

    “One day, the president approved our project; three weeks later, it was revoked on TV. This is anarchy. No investor can plan under such uncertainty,” he said.

    Business leaders: lawlessness increases cost of doing business

    Director-General of the Lagos Chamber of Commerce and Industry, Dr. Chinyere Almona, said that regulatory capture, overlapping mandates, and politicised agencies were suffocating businesses.

    “What’s the point of making a contract if you can’t enforce it? Businesses face arbitrary levies, regulatory confusion, and policy reversals that make planning impossible,” she asked.

    She warned that unpredictable policy shifts were driving investors away and inflating the cost of doing business.

    “Sometimes we wake up to new regulations announced on television. That level of uncertainty kills investment,” she said.

    She called for transparent regulatory processes, proper impact assessments before policy changes, and coordination among agencies to “restore predictability to the business climate.”

    Rewane: no development without rule of law

    Economist and Financial Derivatives boss Mr. Bismarck Rewane offered a macroeconomic perspective, linking Nigeria’s stagnation to moral and institutional decay.

    “The opposite of the rule of law is the rule of the jungle,” he declared.

    “And the rule of the jungle guarantees anarchy.”

    Rewane distinguished between “growth” and “development,” noting that Nigeria often confuses infrastructure spending with true progress.

    “Development requires institutions and moral order. Investors won’t bring money into a jungle,” he said.

    He emphasised that the government should adopt a mixed model which will both drive investment and grow the economy.

    “Nigeria should adopt what they call a mixed model, both investment-driven and government-driven economic growth strategies, as long as investors, both domestic and international, believe in the rule of law, they will not invest”

    He urged that justice is the backbone of prosperity: “If justice is denied anywhere, injustice is guaranteed everywhere. Without it, you are stamping on investment and, by extension, stamping on growth.”

    Rule of Law: the bedrock of progress

    Senior Partner at AELEX, Theophilus Emuwa, explained that the lecture series, now in its 19th yea,r was designed to foster national dialogue on issues that shape the profession, business, and society.

    He recalled previous discussions on corruption, corporate governance, power, taxation, politics, democracy and ethnicity, but stressed that the rule of law remained the “unseen infrastructure on which every thriving society is built.”

    Emuwa said: “There are various thoughts on this point, but many believe that if you don’t pay attention to the rule of law, it discourages the growth of the business world.”

    His comments prefaced what would become a recurring theme throughout the event: that the law, when weak or inconsistently applied, drives away investment, breeds impunity, and deepens underdevelopment.

    Ecobank Managing Director, Mr. Bolaji Lawal, agreed that the partnership reflected the bank’s commitment to fostering conversations that drive reform and sustainable growth.

  • EFCC: Judiciary gets kudos on rule of law

    EFCC: Judiciary gets kudos on rule of law

    Journalists Against Corruption (JAC) has hailed judiciary for upholding the rule of law and saving democracy from “desperate political predators”.

     JAC spoke against the backdrop of Supreme Court’s decision to dismiss the suit by 19 states challenging constitutionality of laws that established EFCC, ICPC and NFIU.

    All seven justices, led by Uwani Abba-Aji, ruled the suit lack merit, and affirmed laws setting up the agencies.

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    JAC’s Programme Coordinator, Kehinde Osifisan, in a statement, said: “The judiciary has risen to the occasion as stabiliser of our democracy and saved the nation from political predators.”

     “A silent revolution took place last Friday when Supreme Court upheld laws setting up EFCC, ICPC and NFIU.

     “That decision showed it is stabiliser of democracy…’’

  • Lagos committed to rule of law, judicial reforms

    Lagos committed to rule of law, judicial reforms

    Governor Babajide Sanwo-Olu of Lagos State has reaffirmed  the commitment of his administration to  upholding the rule of law and advance judicial reforms.

    He also reaffirmed his dedication to making the work of the judiciary easier, their environment better and  mission stronger.

    He said this has become necessary in recognition of the critical role of the judiciary in maintaining justice and order.

    Governor Sanwo-Olu gave the commitment in his goodwill message delivered by the Deputy Governor, Dr Obafemi Hamzat at the prayer to mark the commencement of the 2024/2025 New Legal Year, held  at the Lagos Central Mosque, Nnamdi Azikwe Street, Lagos.

    In line with this, the governor promised completion of all projects related to the judiciary in the state.

    He said: “as we begin this new legal year, we look forward to the completion of important projects, such as the Commercial Court in Tapa, and to the renewed efforts of the judiciary to ensure that Lagos State continues to be a model of progress, justice, and modernity in the legal sphere.

    “As we come together in prayer, we ask for Allah’s continued blessings and guidance for the three arms of government.

    “Let us work hand in hand to ensure that the judiciary remains a pillar of justice and hope for all citizens of Lagos State.

    “The Executive arm remains steadfast in its support and will continue to collaborate closely with the judiciary to ensure justice is delivered swiftly and fairly”, he assured.

    The governor argued that the judicial arm of  government hold a vital responsibility in interpreting the laws, adjudicating civil and criminal matters,  and providing mechanisms for alternative dispute resolution.

    “Your hard work has sustained the integrity of our legal system, ensuring that the Lagos State Judiciary remains a beacon of hope for our citizens.”

    He  recalled that over the past year, the judiciary has undertaken significant reforms to strengthen our legal system and listed these to include the establishment of the Small Claims Court, the Special Offences and Sexual Offences Courts, and the introduction of e-probate services.

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    He also noted that the ongoing review of the Administration of Criminal Justice Law, along with the digitalisation of court processes, has also greatly enhanced the efficiency and accessibility of justice through innovations like remote court sittings and e-filing.

    He said this would further solidify Lagos’ reputation as the commercial capital of Nigeria, ensuring the swift resolution of business-related matters.

    “As we come together in prayer, we ask for Allah’s continued blessings and guidance for the three arms of government. Let us work hand in hand to ensure that the judiciary remains a pillar of justice and hope for all citizens of Lagos State.

    “The Executive arm remains steadfast in its support and will continue to collaborate closely with the judiciary to ensure justice is delivered swiftly and fairly,” he said.

    The Chief Judge of the state, Justice Kazeem Alogba, in a vote of thanks, promised that the judiciary in the state would continue to ensure justice and uphold the rule of law in the state.

    Justice Alogba commended President Bola Timubu for his efforts to improve the judicial system and lives of the judges and justices.

    “The President has the interest of the judiciary close to his heart. He started by building houses for judges in Lagos State when he was the governor so that when they retire, they have a house of their own.”

    He prayed for the President to succeed in office .

    “It is rough, it is tough. But we pray almighty Allah to guide him to success in office”, he said.

    Delivering lecture on exploring the roles of the Judiciary in revitalising Nigeria’s economy through an Islamic Lens in Yoruba language, Imam Majeed Eleha emphasised that Allah will give special recognition to every righteous judge on the day of resurrection as well as grant them save passage to Al-janaat because of their stewardship.

    He urged judges, magistrates and lawyers not to be biased in discharging their duties to upholding justice among mankind’s without fear or favour, noting that they are Allah’s representative on earth.

    He pointed out that it is when the judicial sector has righteous people presiding over it’s affairs that the society will develop tremendously and this will affect economy positively.

    In his contribution, the Sheikh who delivered lecture in English on Justice as a Catalyst for Economic Recovery and Political Stability in Nigeria, Dr Rahman Lawal while quoting Quran Chapter 4 verse 135, noted that Allah detests injustice as well as condemns justice delay.

    Dr Lawal urged judicial officers to stand out firmly for justice as done by the prophets.

  • Making Lagos investments destination through enhanced rule of law

    Making Lagos investments destination through enhanced rule of law

    Lagos State, through its Ministry of Justice, has held a justice reform summit. The two-day event  attracted Justices of the different levels of court and major stakeholders. Part of the discussions were on how the justice system can boost investments, reports ADEBISI ONANUGA

    Lagos State, as Nigeria‘s economic and commercial hub, has seen significant growth and development. This vibrant metropolis with its diverse population faces numerous legal challenges, from civil to criminal justice issues, particularly and commercial disputes which is affecting investments in the state.

    These challenges demand a modern, agile, and responsive justice system that ensures equitable access to justice, safeguards fundamental rights, and protects property and investments, while meeting the evolving needs of its residents, hence the  Justice Reform Summit 2024. The theme was “Enhancing The Administration of Justice For Economic Growth, Investment Protection and Security in Lagos State”,

    How the idea was conceived

    Pedro said the idea of the  Justice Reform Summit, was conceived in 2023 following his assumption of office with the approval of Governor Babajide Olusola Sanwo-Olu. He said the idea stems from the recognition that an efficient and effective justice system is a cornerstone of a well functioning society and a catalyst for economic growth and social stability, noting that government efforts to attract both foreign and local investors will be futile if our justice system remains weak, inefficient, and ineffective.

    Governor Sanwo-Olu’s administration understands that a justice system perceived as fair, transparent, efficient, and accountable will inspire trust and confidence among citizens, stakeholders, and investors. The link between a robust justice system, economic growth, societal wellbeing, and community stability is profound. Therefore, the protracted nature of litigations and the inefficient enforcement of law and order in the state are no longer acceptable.

    To tackle these issues, he said government, through the Ministry of Justice, agreed to organize a Justice Reform Summit with the theme: “Enhancing the Administration of Justice for Economic Growth, Investment Protection, and Security in Lagos State”  and gathered stakeholders to address challenges, propose solutions, and highlight the role of a fair and efficient justice system in attracting investments.

    Vision of the Justice Reform Summit

    Lagos State Attorney and Commissioner for Justice, Lawal Pedro(SAN), said the state’s  Justice Reform Summit, aims to address some of the most pressing challenges facing our justice system, which impact our economy and society.

    Objectives

    The Summit’s objectives include addressing inadequate enforcement of laws, highlighting the justice system’s role in attracting investments, appraising the causes and consequences of delays in the justice system, exploring innovative strategies to expedite legal processes, fostering collaboration among justice sector stakeholders, and rebuilding public and investor confidence in the administration of justice.

    The event which featured Judges, scholars, the Nigerian Bar Association, police, correctional officers, lawmakers, private sector representatives, and others evaluated the past, assessed the present, and charted a new course for the future of the state.The focus on civil justice administration, addressing issues like delayed justice and case management. On the second day, discussions will cover law enforcement

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    Difference between past and present summit

    Pedro said dispensation of justice and the need to ensure an effective judicial system is a paramount role that all stakeholders in the Justice system must strive to achieve if the State and the country must achieve the desired development.

    He said the focus this time around was not only on access to justice for all but also to enhance administration of justice for improved economic activities, investment protection and security in Lagos State.

    Expectations

    In his welcome address at the summit, Pedro said expectations are high that  at the end of the Summit, stakeholders will recommend lawful ways and means to address delayed justice. To underscore the objectives of this summit, Pedro said the State Ministry of Commerce, Cooperatives, Trade and Investment just revealed that in the last one year the State government successfully attracted about investment in both foreign and local direct investment.

    “Therefore, in case of any dispute, the investment should not be unduly tied down by protracted litigation. He said while deliberate efforts are being made to continue to safeguard the rule of law and promote access to justice, the administration of justice should be used for enhancement of economic growth, investment protection and security and to improve and transform the justice system in the State to meet the needs of our people and restore the public trust and confidence in the judiciary and the rule of law.

    Safeguard rule of law, promote access to justice

    Pedro told stakeholdes  that to transform the justice sector and everything connected to it, stakeholders must safeguard the rule of law and promote access to justice.He said that the state is working towards reforming some of its laws to engender economic growth and developments.

    Lagos must be safe haven for investment

    Governor Sanwo-Olu, while declaring open the Justice Reform Summit,  reiterated his commitment to make the state a safe haven for investments through the reform of the justice sector.

    “We are planning to make Lagos an international financial center. We want to make Lagos the choice destination for investment and a safe haven for investment worldwide. But for us to do that, we need a strong judicial system for that to exist because that will be one of the strongest points that investors will be looking for. That will be one of the strongest protections that will be required and will be needed,” he said.

    Drawing lessons from Singapore which he said have been able to revolutionise its justice system to attract global investments, the  Governor acknowledged that Lagos has made significant milestones in justice sector reforms but needs to do more.

    He said: “We cannot sit back and expect that because we are the best in our country, that equates us to being one of the best in the world. Singapore has less than 6 million population today, and we are 24 million. They don’t have two heads.

    ‘They don’t have the kind of minds and strength that we have in this state and in this country. So the question is, what is wrong with us? There is no nation that wants to end its brief anywhere, and  doesn’t have a rule of law as one of the beacons of deciding how it engages.

    “We said that we’re the commercial economic center. It’s because it’s been built by people. But we cannot sit back and hope that that is the best of what we can do. We must do more.”

    How rule of law grew Singapore’s economy

    Reiterating lessons from Singapore, the keynote speaker, Gregory Vijayendran, a former President, the Law Society of the Republic of Singapore, said that the rule of law was the foundation of the economic growth of his country and which made her investments destination for many businesses.

    He highlighted this in his presentation of lessons Lagos can learn from the island country and city-state.

    According to him, “The moment we know there is a trend changing in the world, we change and very forward looking, business centric outlook.”

    He cited a link between access to justice, the rule of law, economic outcomes, facts and figures and zero tolerance for corruption.

    He also stated that world class judiciary, strong local legal talent, is supplemented by global talent, dispute resolution institutions with strong governance.

    Position Lagos as destination for investment

    Attorney General of the Federation (AGF) Prince Lateef Fagbemi (SAN) who was the Special Guest of Honour said Lagos must position itself as a competitive and attractive destination for investment.in today’s globalized economy, where capital flows seamlessly across borders. He said this would require the State to continuously evaluate and reform its legal and judicial systems, ensuring they are aligned with global best practice and capable of meeting the evolving needs of the business community.

    Fagbemi said that for Lagos State to continue to sustain this commendable status and further its advancement, there is need for a continual review and reform of its legal system, structures, as with its system of administration of justice.

    “Accordingly, it is imperative that the State has a robust, efficient, and transparent legal system that not only seeks to close observed regulatory and implementation gaps, but also fosters a conducive environment for business and investment.

    “The Summit presents an opportunity to engage in meaningful dialogue, share experiences, analyze the strengths and weaknesses of the system, and collectively make informed decisions about reform and a new course towards a more efficient, transparent, and accessible justice system in Lagos State and beyond.

    “I have consistently reiterated that an effective and impartial justice system is the bedrock of any thriving economy. It provides the necessary safeguards for property rights, contract nforcement, and the resolution of commercial disputes; all of which are critical components for fostering a business-friendly environment.

    “Furthermore, a fair and accessible justice system instils confidence in investors, both domestic and international, reassuring them that their interests will be protected and their grievances would be appropriately addressed”, Fagbemi remarked.

    He said the choice of the theme of the Summit is not only timely and appropriate, but most instructive. Lagos State, often referred to as the economic nerve centre and commercial capital of Nigeria, continues to play a pivotal role in driving the nation’s economic growth and development. Lagos State accounts for a significant portion of the country’s industrial and commercial activities, attracting both local and foreign investments.

    Land documentation, registration

    Prof. Olanrewaju Smith (SAN),  paper titled, Safeguarding Property Rights And Investment In Lagos State”  was focused on Land Documentation and Registration for economic growth; Mortgage Law and Loan Recovery; Combating Land grabbers activities; Physical Planning and Building Collapse; Tenancy Law — Recovery of rent and possession.

    Insecure property rights weaken incentives long-term capital investments

    Burrowing a leaf from South Africa, the property Professor described land titling as an effective way of attaining an all inclusive economy. He also made reference to a South American, Hernando De Soto (1989, 2000) who said “Give the poor a property title, then they will have credit and escape from poverty”. The learned property professor said insecure property rights weaken the incentives for owners to make long-term capital investments and hinder the ability of owners to use their property as collateral to secure loans to finance capital investment. He said without access to credit and investments in the future, capital formation and economic growth are hindered.

    To achieve secure property rights, he advised that it is necessary to incorporate the informal, unarticulated rights into a written, formal, legal property rights system.

    On efforts of government in Brazil on land, he listed these to include functional and open-access land registration. digitization of land titles for ease of investigation of title, the use of Blockchain Technology in land transactions and its positive impact on investments.

    Making registration affordable.

    He advised that payment of compensation to victim of the negligent act or omission of the real estate staff along with rectification of the

    Foreclosure rights in mortgages

    He noted that foreclosure proceedings are not captured under the MPL. He therefore advised that Judicial foreclosure must be governed by statutes; court rules and legal principles.

    He noted however that the rules are susceptible to some challenges. He said the processes are not only tedious but also time-consuming and sometimes complicated.

    Prof. Smith said reopening of foreclosure proceedings should be  possible even by a third party. He said non-judicial foreclosure should be governed by statutes such as the Mortgage and Foreclosure Law of Kaduna and Ekiti States or by agreement of the parties.

    He said this is advantageous because it allows private parties to divest the debtor of title via a deed of transfer.

    Challenges facing judicial foreclosure of mortgages

    He said foreclosure processes are tedious, time-consuming, and sometimes complicated. According to him, before the conclusion of the process of foreclosure, the foreclosed property may suffer from devaluation due to lack of maintenance. To prevent devaluation, he said foreclosure proceedings may be re-opened even against by a third-party purchaser.

    States lack foreclosure mechanism

    He lamented that to date, no effective foreclosure mechanism has been put in place by many states in Nigeria including Lagos State.

    Model Mortgage Foreclosure Law and Non-Judicial Foreclosure

    Citing Mortgage Foreclosure Law of Kaduna State 2017 (s. 78) and Mortgage and Foreclosure Law of Ekiti State 2020 (s. 82) he under  both laws, the mortgagor may sign a deed instead of a foreclosure conveying all interests in the mortgaged property to the mortgagee adding that this eliminates the difficulty associated with going to court to obtain a foreclosure order.

    Failure to access court demoralizes society

    Professor of Environmental Law and Vice-Chancellor of the Lagos State University, Olanrewaju  Fagbohun (SAN) in his paper titled, “Civil Justice Administration In Lagos State ~ Enforcement Of Laws For Sustainable Growth”

    The report assessed six key indicators environment, transparency and access to information, skill and labor, and economic opportunity  that influence state rankings. An effective and efficient justice system, characterized by swift resolution of civil and commercial disputes and a manageable proportion of pending cases relative to the population, is essential for fostering a business-friendly environment conducive to entrepreneurship and instilling confidence in economic agents to undertake risks.

    His paper illustrated the consequences of societal demoralization regarding access to the court system. This demoralization stems from justice being overlooked, rights trampled upon, and wrongs prevailing due to delays, unprofessional conduct of counsels, excessive workload on judicial officers, and inadequate working conditions amongst others.

    Courts must address requests for injunctive relief promptly

    He said if the courts promptly address citizens’ and businesses’ requests for injunctive relief and punitive damages against local government officials or other state officials within a reasonable timeframe, the pervasive flagrant disregard for clear legal provisions, as witnessed in Lagos, could be curbed.

    He said the enforcement of property rights and commercial litigation, where fraudulent and corrupt defendants exploit the legal system to delay proceedings. Lingering court cases force businesses to allocate resources for such transactions in their financial statements, impacting their ability to access financing. Ultimately, business failures contribute to  unemployment rates, potentially leading to increased crime rates. Additionally, this situation exposes the state economy to the heightened risk of capital flight.

    The road to Reform

    Prof Fagboun advised that the road to reform must embrace finding answers to the three critical factors undermining the administration of civil justice

    *.How can we shield judicial officers from the burden of defending against frivolous petitions at their own expense, thereby empowering them to effectively manage their courtrooms?

    If a petition has merit, the judicial officer should face sanctions. Conversely, legal practitioners responsible for frivolous petitions should face disciplinary action by the Legal Practitioners Disciplinary Committee (LPDC).

    Moreover, judicial officers who discharge their duties diligently and appropriately should be reimbursed for expenses incurred during the defense process. It is imperative for our courts to adopt a zero-tolerance approach towards incompetence and dilatory tactics, irrespective of counsel’s seniority.

    *The award of costs is a huge deterrence against frivolous litigation. What is the challenge with Order 53 of the Higher Court of Lagos State (Civil Procedure) Rules 2019, and why is its provision on Costs not being put to maximum use to curb manipulative, mischievous and hostile litigation tactics? Do we need to upskill the knowledge of Judges on the use of Order 53 and similar provisions such that the processes of Pre-Action Protocol, Case Management, CMC and LMDC can become meaningful? Can we review Order 53 Rule 9 for unpaid costs or security to accrued interest as against stay of proceedings which can be misconstrued to put the sub-Rule in conflict with Section 36 of the 1999 Constitution of the Federal Republic of Nigeria? Effective utilization of Order 53 would compel lawyers to cooperate with Case Management procedures, CMC, LMDC, and other ADR processes, guiding clients truthfully when a case lacks merit. Exempting the SCC from full or substantial indemnity costs could address concerns for the poor and vulnerable.

    *Is it viable to establish court monitoring mechanisms to oversee aspects such as the regularity and promptness of court sessions, efficient scheduling of cases to optimize time for the court, attorneys, and litigants, respect for participants’ rights, adherence to legal procedures, provision and upkeep of basic amenities like restrooms, consistent power supply, arrangements for virtual hearings, and access to essential courtroom technology? To preserve judicial independence, it’s crucial that the executive refrains from direct involvement in monitoring. Instead, partnerships should be forged with entities like the Nigerian Bar Association and institutions such as the Justice Reform Project and the Lagos Courtroom Monitor to supervise the process. Regular monitoring reports should be submitted to the heads of the Court and the Ministry of Justice.

    *How can the state enhance awareness regarding the available mechanisms for public complaints, ensuring that citizens can effectively utilize them to address instances of improper administrative treatment? This is particularly crucial given the widespread exploitation experienced by citizens and businesses on a daily basis dispatch riders are burdened with obtaining up to 35 different permits and approvals while on duty.How can we address this challenge to enhance the ease of doing business?

    *What ongoing training initiatives are in place for Bailiffs, Sheriffs, Registrars, and other judiciary support staff to help them understand the significance of their roles in ensuring the smooth functioning of the system? Such training must be of high quality and tailored to the needs of the staff. To optimize resources, the system could consider adopting a train the-trainer approach.

    Lagos State Administration of Civil Justice Law 2022

    The Lagos State Ministry of Justice introduced the Lagos State Administration of Justice Bill as part of efforts to enhance the effectiveness and efficiency of the civil justice system. The Bill, among others, aimed to address procedural technicalities that hinder the determination of cases on their merits, promote the adoption of pre action protocols, encourage greater use of electronic filing and digital service (except in originating processes), expedite the hearing of objections to a court’s jurisdiction, enforce strict timeliness for submission of processes with minimal tolerance for extensions, empower courts to convene on weekends, public holidays, and during industrial actions for urgent or personal liberty related matters, prohibit stay of proceedings pending interlocutory appeals, eliminate oral hearings in non-contentious applications, advocate for the adoption of virtual hearings. and introduce more definite provisions on costs to deter frivolous adjournments and improper conduct in filing actions and defenses.

    While commending the initiative, he stressed that addressing the three pivotal factors previously mentioned, which have historically undermined reforms, is essential for the state to fully harness the potential of this Bull once it is enacted into law.

    Benefit of effective justice system

    He emphasized that an efficient and effective civil justice system not only bolsters security and social protection but also fosters economic growth. Conversely, a substandard system undermines citizen confidence and jeopardizes the state’s reputation in attracting both indigenous and foreign investors.

    He said some insights presented  may call for legislative changes for implementation, while others may require a reevaluation of current practices to enhance best practices. He said effective implementation will also entail monitoring to ensure compliance with regulations, capacity building to deepen understanding and competence, and the use of practice directions to introduce procedural innovations.

  • Rule of law under attack

    Sir: On September 23, when Nigeria’s Chief Justice, Honourable Justice Tanko Muhammad was called to the microphone to give a speech at the special session which marks the beginning of the 2019 to 2020 legal year in Abuja, his words fired the audience into an enthusiastic euphoria of change.

    He said: “The rule of law must be observed in all our dealings and we must impress it on the governments at all levels to actively toe the path.

    The rights of every citizen against any form of oppression and impunity must be jealously guarded and protected with the legal tools at our disposal”.

    His most charismatic words: “All binding court orders must be obeyed. Nobody, irrespective of his or her position, will be allowed to toy with court judgments….As we know, flagrant disobedience of court orders or non compliance with judicial orders is a direct invitation to anarchy in the society.”

    Little would the CJN have known that in less than 24 hours, in the same city where he made the proclamation, his words would be put to test by those whose expertise rely only in disobeying court orders. A Federal High Court in Abuja ordered the immediate release of social crusader; Omoyele Sowore from DSS facilities on September 24. Days after, the DSS is yet to obey the order of Court for the immediate release.

    There are obvious intertwines among the rule of law, democracy, and the independence of the judiciary. For example, when the DSS arrested Sowore on August 3, the agency believed it acted pursuant to a law- rule of law. After detaining Sowore for some days, the agency thought to further detain him by relying on another law and it approached a law court to obtain prolonged detention order – again, rule of law came to play. Now that the same court which granted the initial detention order has ordered the release of the defendant, rule of law becomes useless.

    When orders of courts are flouted with loose-regard as we have today and when human rights abuses are replete in a government’s affair- the Nigerian government, the judiciary and indeed democracy are at the receiving end.

    Nigeria’s government may not be a high-performer in providing quality education for its citizens, poverty indices may be on the negative rise under Nigeria’s government watch, the government may be failing in adequate protection of lives and properties of its citizens, but one distinguishable hallmark of excellence which the government possesses, and which admits of no controversy is that no nation in the world beats Nigeria to the game of flouting court orders.

    It is established fact that well-settled laws, fair trials and enforceability of court orders enhances the stability of democracy and instils confidence in the common man of a sure hope that justice would be obtainable in court.

    There is a need to call a spade a spade and bring sanity aboard. The CJN needs to bring his words of September 23, to life. He needs to make a public statement on this attack on the rule of law being perpetrated by “serial rapists”- who are taking no chance to rape the life out of the Nigerian constitution. The CJN needs to act now; act fast.

    • Tope Akinyode, Esq. Ikeja, Lagos.

  • Ain’t the ‘rule of law’ a bitch? (II)

    I have attempted to use the rules of ‘International Humanitarian Law’ and those of ‘Diplomatic And Consular Law’ to illustrate the fragility of that all-important principle called the ‘rule of law’ -especially when weighed against the exigencies of ‘national security’, or the less hideous term ‘public interest’, or even the more omnibus one, ‘national interest’. Unlike the aesthetic art which exists solely for its appreciation, the ‘law’ does not exist merely for its own glorification. Aesthetic art does no more than just exist to enchant and to sooth the senses –which is why it is described as ‘art-for-art’s-sake’. But law must do more than just exist, enthral or fascinate the senses of man. It must demonstrate a utilitarian value. The law must work justice. It must establish order; else the law cannot be said to effectively rule, as the term ‘rule of law’ implies.

    And which raises the ‘chicken and egg’ question: ‘which should come first, between ‘national security and the ‘rule of law’? The latter is the means by which to achieve a just and ordered society. But there cannot be a just and ordered society except that it is also secure. Thus ‘national security’, is about the most fundamental object of law. It is what the law must strive always to achieve. In that guarantee alone lies the terra-juris or the environment that the ‘rule of law’ itself requires to thrive. But the object of ‘national security’ although it is also to establish order among others things, it is not necessarily to enforce the ‘rule of law’ –even though doing so may be incidental to it. If ‘national security’ is in jeopardy in spite -or because- of the ‘rule of law’, then the ‘rule of law’ is of no consequence.

    The debate about whether or not ‘national security’ should be superior to the ‘rule of law’ is a needless one. Because, in actual fact, it is not so much about the superiority of one over the other as it is about the exigency inherent in ‘national security’ in relation to the abject tardiness of the rule of law. Said the British Prime Minister, Benjamin Disraeli “Protection is not a principle, (as the ‘rule of law’ is) but an expedient”. Yes, the rules of war are imposed on combatants by law, but expediency alone governs when to shoot and how to avoid being shot. The concept of ‘national security’ supersedes the principle of ‘rule of law’ to the extent that the demands of ‘national security’ often cannot brook the lethargy of the ‘rule of law’. It is incumbent on ‘national security’ sometimes to assert itself outside of the due process of law in much the same way that in war situations, the laws are ‘silent amidst the rumblings of arms’.

    National security is a veritable sanctuary for all –including for the ‘rule of law’. Everything including the ‘rule of law’ bleeds when the security of a nation is put in harm’s way. But the ‘rule of law’ itself can afford to bleed without occasioning harm to ‘national security’. And so, for all that jurists care, let the ‘rule of law’ forever remain supreme, but let the ‘rule of law’ –the way that in war situations it has accepted to be ‘silent amidst the rumblings of arms- even so, let the ‘rule of law’ keep its reverent peace in the heat of every executive fury to secure the nation. If the exigencies of ‘national security’ must wait on the tardiness of the ‘rule of law’, then it is the law that is served by man and not the other way round.

    If the ‘law’ had been allowed to take precedence over the exigency of ‘security’, masterminds of the abduction, in 1984, of fugitive Umaru Dikko, would successfully have brought the former Shagari minister to Nigeria concealed in a ‘crate’ under the ‘inviolable’ cover of ‘diplomatic immunity’. But the British Police at the Stansted Airport in London, did not, in deference to the due process of law, go first to the courts to secure an order permitting the revocation of ‘immunity’ from the diplomatic ‘crate’, before opening it to expose a most unusual ‘diplomatic item’, in an abduction gambit never contemplated by the wildest stretch of the imagination of those who conceived the laws of immunities and privileges in international law. Yes, the courts are to determine what should constitute threat to ‘national security’; but the executive arm, upon which the duty to secure the nation rests, cannot afford to be in court always, seeking judicial leave to deal even with existential threats to national security that require expedient action. Nor are those affected by executive actions denied the right to challenge them in court.

    But on-duty British police officer Yvonne Fletcher was not that lucky. She was, in 1984, murdered in London, by a person shooting from inside the Libyan embassy on St. James’s Square, during a protest mostly by anti-Gaddafi Libyans resident in London. And even as the Libyan sniper had a field day shooting, the British Police, in strict compliance with the Vienna Conventions on Diplomatic and Consular relations, restrained itself from violating the diplomatic sanctity of the Libyan building. Meaning that if the sniper had had enough rounds of ammunition to shoot all day, the premises of the embassy would still have remained inviolable and the British Police would be acting contrary to ‘rule of law’ if they had rushed in to stop him. Besides, even the person of the shooter too, was immune from arrest, detention or prosecution. And so, two weeks after the incident, all personnel of the Libyan embassy were safely escorted by the British Police to the airport and allowed to leave London, with all their belongings, including the weapon used in the shooting.

    Said Lord Denning, in his book ‘Landmarks In The Law’: “All the ordinary people in England were astonished. Why, why were these murderers allowed to go free?” Denning before the House of Lords on May 16, 1984 cited several grounds upon which he thought that the ‘rule of law’ should have taken the back seat in favour of national security or public interest. He argued that although the Vienna Convention makes ‘inviolable’ the premises of the embassy and the person of the diplomatic agent, such inviolability cannot be without exception, because Article 41 of the Convention stipulates that “the premises of the mission must not be used in any manner incompatible with the functions of a mission”. The use of the Libyan mission to shoot and kill was not only ‘incompatible with the functions of a mission’, the British Police would’ve been justified to enter the premises to restrain the sniper.

    He also cited Article 29 of the Convention on the inviolability of the person of the diplomatic agent, arguing that since the host state is obligated to ‘take all appropriate steps to prevent any attack on his person, freedom or dignity’, there has to exist inherent in that law a corresponding “correlative” to the effect that “If we are to protect him from any attack, surely he (too) is not allowed to attack us; (or) our personal freedom or dignity by firing weapons and guns from the embassy”. Denning also cited the exception of emergency (exigency), asking rhetorically whether a “drunken diplomat with a loaded gun in a public square” is to be left to harm society because not letting him be offends the ego of the law. Again Denning wondered, hypothetically ‘if the premises of the embassy is inviolable, should it retain that inviolability even in the event that it is on fire and that the fire was “likely to spread to adjoining premises unless firemen and or police go in to the embassy and tackle the source of the inferno?

    By this implying that a gun man shooting sporadically from within a diplomatic building is as dangerous as a fire outbreak and that if it has to take violating the law to restrain him, so be it!

     

    • To be continued…

  • Ain’t the ‘rule of law’ a bitch? (I)

    I am currently almost half way through my LLM Programme in the area of ‘International Law And Diplomacy’. Quite an interesting area of law, you should know. And I love the most the aspect of it called ‘International Humanitarian Law’ – otherwise referred to as the ‘Law of Conflict’. Or the ‘Law of War’. Yes, you heard right; the ‘law of war’! As if war itself is a legal necessity. You wonder why the ‘rule of law’ is so ‘bitchy’ it superintends even over such obnoxious blood-letting and life-wasting phenomenon called war. But soon you’ll see how cowardly even the ‘rule of law’ is, that although it purports to regulate such undesirable phenomenon, yet as soon as hostilities commence, even the ‘rule of law’ spinelessly comes down from its high reverent horse, covers its frightened ears, and with a bent vertebrate run for its dear life. Meaning that it is not us alone, humans, who scream ‘for the life of me!’ when trumpets and the bugles of war are sounded. The almighty law itself takes cover!

    Under the subject of ‘International Humanitarian Law’, you get to know the rules governing the declaration and the conduct of war; and the consequences, thereafter, of breaches by state and by individual actors, of the established rules of engagement during the conduct of war. Meaning that violations of the laws of war are not remediable while the war rages on. They are paid for only after the restoration of peace and normalcy. The law, for all its vaunted might, has to wait for the breakers of its rules first, to do their worst and, maybe even to wear their belligerence out, before it acts, first by punishing belligerents who may have declared war without a justifiable casus belli, and those who may have conducted the war outside of the rules of. It is the reason that a principle of international humanitarian law says: ‘the laws are silent amidst the rumbling of arms’ (or ‘silent legis inter arma’). And yes, the ‘rule of law’, for all its vaunted charge is muted, shushed and has to take the back seat whenever guns and cannons emit their wrath. And if, like the ‘Punic wars’, a war chooses to drag forever, the ‘rule of law’ has no option but to tarry as long, in hibernation; until reprieve comes its way and belligerents either sheath their swords or are vanquished.

    And so like Shakespeare’s dig at ‘the old father antiquing the law’, it is in ‘peace time’ that, that once shriveled, terror-stricken persona of the ‘rule of law’ remounts its throne on the high horse, and like the proverbial ‘Jove’, the Roman god Jupiter, it may now resume its pelting petty right to roar and to thunder! This has been the nature of this bitchy, cowardly concept called ‘rule of law’; so much that at the Nuremberg trial (one of the earliest international ad hoc tribunals set up to punish state and non state actors of the Second World War), there were in fact no precedents in law to deal with the alleged offenders. Those who were brought before the tribunal were virtually prosecuted retro-actively for breaches of laws that did not, ab initio, exist. This was a violation itself, of one of the most fundamental principles of the ‘rule of law’ namely that no one must be punished for a conduct at the time of the commission or omission of which there was no law written prohibiting such. The ‘rule of law’ has not always ruled the human space absolutely. Nor has it always dealt with the human kind with substantial justice. When the laws are silent amidst the rumblings of arms, everything is fair game: rights, duties, freedom, liberty, and all. In fact even tenement rates due to property owners are suspended sine die!

    Studying ‘International Law and Diplomacy’ you also get to know –under Consular and Diplomatic Law- another bitchy side to the concept of ‘rule of law’ –in this case, the aspect dealing with the rules of international law governing the conferment and the waiver of diplomatic immunities and privileges -especially to two categories of people, namely ‘diplomatic agents’ (of a Diplomatic Mission) and consular officers (of a Consulate). Here, the rule of international law is that for all intent and purposes and in virtually all circumstances, diplomatic agents are immune to the national (i.e. local or domestic) laws of the state they have been accredited to operate from. But the immunities and privileges of consular officers are enjoyed only to a limited degree. These rights are grounded in the provisions of two international conventions, namely the ‘Vienna Convention on Diplomatic Relations and the ‘Vienna Convention on Consular Relations’.

    Diplomatic agents enjoy immunity from criminal responsibility even when they kill recklessly or even premeditatedly. Diplomatic agents are also immune from civil suits except in quite few circumstances where the level of their personal involvement in private business outside of their strict diplomatic brief, is deemed sufficient to vitiate their immunities and privileges. Many local property owners have been victims of diplomatic agents accumulating huge rent dues over their private residences or even whole diplomatic missions blatantly refusing to pay their annual rent dues for the diplomatic premises that they occupy -so much that in exploring ways to strike a balance between maintaining broad immunity and providing victims with means of redress, some states now consider the possibility of establishing a claims fund to compensate such victims.

    It is not that diplomats are exempted from observing the local laws of their serving states; the problem is that they are immune from the jurisdiction of the domestic courts of those states. And so here too it can be said –as in the ‘rules of war’- that ‘the laws are silent amidst the rumblings of diplomacy’. Or ‘silent legis inter diplomatique’ (my creation). Unless a ‘sending state’ (i.e. a diplomat’s home country) voluntarily waives the immunity of her criminally-offending agent, so that the ‘receiving state’ (or the state in which he operates) can now proceed to prosecute him, the only remedy available to that ‘receiving state’ is a resort to the use of another weapon of diplomacy, namely declaring such erring diplomat ‘persona non grata’. It is a euphemism for expulsion, and which may lead to physical deportation where expelled diplomats fail to leave within reasonable time.

    To round up my course work, I have just done my last but one joint class presentation with Abubakar Kanti on the subject of ‘Re-thinking and Reviewing Remedial Approaches to Addressing the abuses of Diplomatic Immunities and Privileges’. This paper in a nut shell is asking to know: ‘in spite of the seemingly un-navigable hyacinth of rules in this delicate area of international law, how can the diplomatic agent be made criminally responsible especially for his deliberate criminal actions?’ And herein lies the significance too, of a review of the concepts of ‘public interest’ and or ‘national security’; so that even more definite questions can be asked, like: ‘should the ‘rules of international law’ operate above all other considerations including those germane to ‘public interest’ and ‘national security’ or should they operate in deference to them -so that in all circumstances no one, whether diplomat or plebian, is allowed to get away with crime?’ Or ‘is it in the interest of the public, or of national security that a national of a foreign country should, under the cover of immunity and privilege, brazenly kill a citizen of the host nation and get away with it?’

    The answers to some of these questions provided by Lord Denning in a third of his famed trilogy ‘Landmarks In The Law’, are of interest to this article because they prove not only that the ‘rule of law’ often constitutes itself into a bitch, but that man also has no inhibition, whenever necessary, to treat the ‘rule of law’ as such –if that is all that it takes to overcome its bitchy side.

     

    • To be concluded    

  • Merkel extracts rule of law promise from Buhari

    LESS than one week after President Muhammadu Buhari controversially declared before legal experts in Abuja that the rule of law must be subordinated to national security, he gave a promise to visiting German Chancellor, Angela Merkel, that he would in fact respect the rule of law. In a statement issued by one of his spokesmen, Garba Shehu, the president hinged the preservation of societal unity and harmony upon the rule of law. The president, according to the statement, further suggested that the rule of law contained all the relevant mechanisms for conflict resolution. Hearing the president speak that way, his audience might be tempted to think he was walking back on his earlier controversial statement.

    But given his attitude since he made that declaration before members of the Nigerian Bar Association at their annual meeting, there is nothing to indicate that the president’s opinion of the rule of law has changed either superficially or fundamentally between when he spoke at the NBA meeting and when he received the German chancellor. The attitude of the Buhari presidency, as embodied in the president’s own statement and his Justice minister’s July declaration that the rule of law could not be applied at certain moments, is that the executive branch had the prerogative to determine when the rule of law should be constrained and when it should not.

    If indeed the president was walking back on his controversial assault on the rule of law, he would have long since taken steps to remedy the instances when he wilfully and whimsically subordinated the rule of law to his government’s uncertain and unreliable definition of national security. Two of these instances are his government’s disobedience of court orders in the trials of former National Security Adviser, Sambo Dasuki, a retired colonel, and Ibrahim El-Zakzaky and his wife, both of the Islamic Movement in Nigeria (IMN), aka Shiites. At bottom, the Buhari government has never felt comfortable with the rule of law. It is uncertain that his statement to the contrary before Mrs Merkel would be sufficient to prove that he had become born again on the matter of the rule of law. Worse, until he satisfies himself, he is unlikely to feel constrained by the law and the constitution to do what is morally and legally right.

  • PMB vs. rule of law advocates

    President Buhari is very stiff. He is set in his ways. He believes his, is a messianic mission. He is therefore not out to please anyone including his party men, political foes or even the electorate. It is not he but others that lose sleep over his shooting of himself in the legs most of the times. Buhari doesn’t appear to give a hoot about winning or losing elections. If any proof was needed, his last week’s ‘the rule of law must be subject to the supremacy of the nation’s security and national interest’ provided that. A man who is thinking of an election in less than six months would have avoided such self-inflicted controversy.

    And come to think of it, the president no doubt knows that ‘rule of law’ is a department in which he is most vulnerable. He is the author of decrees two and four of 1984, through which journalists were jailed for reporting the truth. He has not been forgiven by patriots like Pa Ayo Adebanjo whose colleagues such as the late Professor Ambrose Alli, Olabisi Onabanjo and Pa Adekunle Ajasin were jailed like common criminals for deploying state resources to build universities and provide other welfare packages for their people without making a distinction between their noble objectives and those of their NPN and NPP colleagues who diverted foreign loans towards setting up private banks and marrying new wives. And worse still, back in 1984, he had a strong personality like Gani Fawehinmi who was prepared to swim against the tide by pointing out the hypocrisy within his legal profession to justify his support for Buhari’s abridgement of rule of law. Today, Buhari has few sympathisers.

    Meanwhile the constituency of his political foes has been enlarged with the coming of age of those who were neither born in 1984 nor can today articulate the battle Buhari is waging on their behalf. The enemy camp has been made more formidable with the intervention of some genuine pro-rule of law advocates who have nothing but contempt for military dictators. Of course, there are also the crooks and brigands, the target of Buhari’s anti-corruption war who are trying to use rule of law as excuse to evade prosecution for massive corruption. Added to the list  are also some institutions of state such as the legislature, the judiciary that habour not a few thieves  that have in the last three years deployed self-help tactics  to slow down his anti-corruption war.

    For President Buhari, Wole Soyinka, the conscience of the nation has a short advice. “The rule of law, he says, outlasts all ‘subverters’, however seemingly powerful”, adding that President Buhari has obviously given deep thought to his travails under a military dictatorship, and concluded that his incarceration was also in the ‘national interest’.  But for Pa Ayo Adebanjo, “For his statement that the rule of law is under the state security, it is time to tell the president that the statement is treasonable”. Like his fellow lawyers, Femi Falana insists, national security is subject to rule of law. He however admitted that “it has however  to be conceded that under a democratic dispensation the fundamental rights of individuals may be suspended in certain circumstances, citing  section 45(1) which says that “Nothing in sections 37,38,39,40 and 41 of this Constitution shall invalidate any law that is reasonably justifiable in a democratic society:(a) In the interest of defence, public safety, public order, public morality or public health; or (b) For the purpose of protecting the rights and freedom of other persons.”

    Of course for the NBA, “Any national security concerns by the government must be managed within the perimeters and parameters of the rule of law”, while for the body’s newly elected president, Paul Uzoro, “The NBA’s significant role is “to serve as the watchdog of society and, in the process, call the government to account.”

    And finally, there is the PDP, the patron of those charged with corruption whose intention is to use the bogey of the rule of law to escape justice. The party has no restraint in making wild and unproven claims of “documented disobedience to court orders, extra-judicial and arbitrary executions, unlawful arrests and political detentions, killing of persons in custody, torture and excessive use of force by security forces on innocent citizens.”

    But I sympathise with those uncompromising rule of law idealists. As an ideal, rule of law has many advantages according to “The World Justice Project (WJP)”, an independent, multi-disciplinary organization working to advance the rule of law worldwide. It says “effective rule of law reduces corruption, combats poverty and disease, and protect people from injustice large or small. It is the foundation of communities of equity, opportunity and peace-underpinning development, accountable government and respect for fundamental rights”.

    But that is only if we view rule of law as work in progress. For even in no one is above the law America where Thomas Paine as far back as 1776 boasted “in America, the law is king” and where by 1780, John Adams was already seeking for the establishment of “a government of law and not of men”; rule of law cannot be said to be a concluded enterprise. This was perhaps why the late Gani Fawehinmi who fought along Buhari in 1984 defying his professional colleagues had no illusion. For him “strengthening rule of law is a never ending process; no society ever attains let alone sustain a perfect crystallisation of rule of law”.

    Were he to be alive today, perhaps a more compelling reason why he would have pitched his tent with Buhari is our failure to meet up with “four universal principles, adopted by The World Justice Project, a body in which he played an active role when he was alive, for measuring the effectiveness of rule of law. They include: accountability of government as well as private actors under the law;  just and evenly applied laws; accessibility of the  processes by which the laws are enacted, administered, and enforced; and lastly,  timely deliverance of justice by competent, ethical, and independent representatives and neutrals who are accessible, have adequate resources, and reflect the makeup of the communities they serve.

    Unfortunately, of the four pre-conditions, all those bitten by the ‘rule of law’ bug have focused only on the sovereign and his human frailties to drive fears into our minds. They conveniently ignore the other three variables without which rule of law remains what it is, an ideal. How can we talk of rule of law within the framework of the 1999 constitution described by some eminent lawyers as Abdulsalami’s Decree 24 which arbitrarily created more LGAs to be funded from the federation account for a geographical zone at the expense of the areas that generated the revenue? How just are the new rules on revenue allocation instituted by the dominant ethnic groups that had insisted on revenue allocation based on derivation before oil became the mainstay of the nation’s economy?

    Obasanjo in office tampered with rule of law in order to confront crooks and miscreants. China and Singapore and many developed nations before them temporarily abridged rule of law to liberate their poor from those who want freedom for themselves but demand for a state cover to preside over empire of slaves. We cannot eat our cake and have it.

    That we agreed in the first place to give up our freedom and liberty for the protection of an elected sovereign presupposes he is better placed to articulate the national interest during his limited reign. Crooks and brigands are not in a position to tell us if ours is a state of lawlessness.  In less than six months we will have an option to choose between an unrepentant Buhari who strongly believes he has a date with posterity and his current political foes.

     

  • National interest versus rule of law

    Since President Muhammadu Buhari posited that for national security, individual liberty must give way, bang at the Nigerian Bar Association (NBA) conference, the polity has been in a whirr — torn between the lobbies of security (the law and order ensemble) and the lobbies of liberty (press your freedom and the heavens won’t fall).

    Both however would appear to hug the extreme, the fantastic black-or-white.  Much –if not all — of life is the ordinary grey.

    For starters, pristine government came with some surrender of individual rights, to a common collective.  To checkmate the strong from rolling over others, the collective craved a Leviathan, surrendered some of their rights to this all-powerful juggernaut, so the Leviathan be a protective shield for all.  It was the original “social contract”.

    But down the ages, that contract had somewhat been abused: first, by the absolute monarch, by the so-called divine rights of the king, put in place in concert with rogue priests; then some rogue theocracy itself, with the church or mosque, grabbing power; then by feudalism, in which the quickest to seize the means of production crowned themselves the lords the land must worship; down to the tragedy of military rule, where the gun, and absolutely nothing else, shot up the wielder!

    Still, all through the ages, something has stayed constant: the imperative to balance the security of the collective with the liberty of the individual.  That ding-dong is not about to be settled.

    But while this tension rages, there is always the penchant, by both sides of the divide, to wax emotive, abuse the process and swing the balance to their side.

    A law-and-order government would often wave the security imperative; and why, before it, every knee must bow — and be slaughtered.

    But that is not the only guilty party as, from the citizen liberties front, smart crooks often forge citizens’ right as shield against just comeuppance, waxing lyrical and romantic over the rule of law, even if their motive is to escape due and fair sanction.

    With the British Common Law legal system without the British ethos that makes it work, it is natural for frustrated governments, who want to do good, getting justice for the majority but being pecked back by legal technicalities, to flip; and show their frustration by waving the security imperative.

    But the good thing is for the courts to be alive to their responsibilities, to interpret the law, fair and square.

    Rule of law, though a right, comes with grave responsibilities.  That is why a convicted criminal, once in gaol, loses the most basic of citizens’ rights: liberty.  Even pre-conviction, it is trite that personal liberties are subject to collective security — and no amount of poetic gushing on the rule of law can wish that away.

    But then again, it is the courts’ bounden duty: to push back a government gung-ho on the security imperative but also hold to account lobbies that seek undue advantage, by crass abuse of the rule of law, to corral illicit gains.

    The courts therefore hold the ace to maintain this delicate balance, of personal liberty and security.  They must never surrender it, no matter what.