THE notion of the rule of law overwhelmed me when I was asked to deliver this lecture. At that time, a controversy had leapt on the nation’s front burner over the war on corruption. The argument of some was that no matter the rot woven around anybody’s name, and no matter how certain their culpability, we should not arrest anyone without fidelity to the law, and obedience to the courts of the land.
Prof Wole Soyinka was the first principal voice to intervene in this matter, and he weighed in on the side of the rule of law and subjection to the court.
On the other hand, the majority of Nigerians were aghast at the rapid-fire revelations of kleptomaniac filth issuing out of the vault of the Economic and Financial Crimes Commission (EFCC). Billions were ferreted out with impunity in the former President Goodluck Jonathan era.
In what may be daubed the impunity of the cookie jar, some so-called big men dipped their iniquitous hands freely and they stole freely. As the poor groveled in their carpetless hovels, and lightless homes at night, these men romped in nameless opulence. They soaredin private jets, while the poor choked in danfos that trundled on potholes. They had power from diesel-fueled, quietly whirring generators while the poor sweated at home in spite of their sputtering generators known as I better pass my neighbour.
Their children’s minds were nourished in the tony schools of the western world, while the average Nigerian could not pay fees to schools the quality of which education was sometimes only a little better than phony. And the fees the poor could not pay was a fraction of a fraction of the fees the big men hand out with flourish for their wards in Harvard, Oxford and Imperial College among others.
Between impunity and rule of law
So, if these big men stole so much and advertised it with impunity, why not yank them from their purloined palaces, and squeeze them into the few centimeters-square apartments known as the jail room. Forget the law, because the thieves, in the first case, had contempt for the law when they committed the crimes. Former EFCC chief, Malam Nuhu Ribadu once evinced his contempt for the rule of law when asked why he leapt over procedures to prosecute persons of government. He often convicted his suspects before the law took its turns. His reply was unequivocal in its contempt for the rule of law. When they stole our money, he remarked with indignant scorn – did they follow the rule of law or due process?
So, people of his tribe of thinking had no patience. They had no respect for the judges who freed the thieves and the men who invoked the law. After all, the law had no life when they stole. Why should we breathe the law into life now that they want to defend themselves?
Religion in the eye of law
That was one of the issues. Just about the same time, the Chief of Army Staff (COAS) had a run-in with an Islamic group led by El Zak Zaky – Shiite. The group, with all its fiery religious fervour, had converged for one of its sacred events and blocked a major road. When they exercised their zeal in public, they mounted human stockades on roads and dared any outsider to interfere in the majestic holiness of their rites.
Well, there was the army chief formidable with his convoy of men and arms, and he was denied his right of way. It was a parody of a religious rite against a constitutional right. There was also involved in this saga, the story of hubris. The hubris of the Army chief. The hubris of the ascetic leader. Temporal authority versus spiritual sovereignty. Spirit versus flesh. The result was a bloodbath in which the army could not yield to the subversive temerity of a mere group. The hubris of Nigeria’s army could not brook a public humiliation.
The story gained greater national attention when the President, Muhammadu Buhari, turned against the religious group in his presidential media chat, and lambasted the Shiite Islamic sect, for acting above the law. He lost his presidential detachment in his rhetoric and assumed the tainted aura of a partisan as a Sunni Muslim. His rhetoric could not disguise his partiality for the army. He projected himself as though he privileged the nobility of civil rights over an insular and sectarian rebellion. We know better.
There was a third development and it happened in Ibadan. The Olubadan in council and his chiefs had promoted some citizens as chiefs and they met a stone wall in Oyo State Governor Abiola Ajimobi. The governor asserted that the chiefs had to undergo a particular process and he had to sign on before such elevations bore any legal imprimatur. The Olubadan and his chiefs balked, and a crisis singed the city. The chief, the governor insisted, ought to have undergone medical tests and other screenings, before they could become high chiefs.
Eventually though, elders intervened, and an understanding was reached.
Well, the fourth story involved a 14-year-old known as Ese Oruru, who was whisked north by an adult. Well, maybe not whisked in a physical sense since the girl probably travelled north out of her own volition. She was illegally whisked north, a supposed nubile who should still be under the control of her parents. She was taken north without her parents’ knowledge or consent. For about six months, the mother, Rose, and father, Charles, tried in vain to see their daughter. But she was locked inside the stockade of the caliphate.
Great Nigerian institutions and big men acted without reference to the rule of law. They included the police and the Inspector-General of Police (IGP), the Director of the Department of State Services (DSS), the Governor of Bayelsa State, the village chief of Tufa, the Sharia Commission.
In spite of the efforts by the parents and civil society organisations, the girl was still held hostage by the man with the connivance of the institutions against every instinct and letter of the law. It took the fulmination of the media for the Emir of Kano to erupt from his palace to “order” his subjects to release the girl to the police. All of the institutions thought there were colliding laws. The laws of the emirate, the Islamic law, the law of the republic. Where, in this instance, is the rule of law? It was decided in favour of the constitution, but it was not automatic. The interesting paradox of the narrative was that each party in this conflict could have claimed allegiance to the rule of law. The question is, what law? It was a case of conflicting “righteousnesses.” It was also the paradoxes of conflicting citizenships under a specific geographic construct.
When I wanted to title this paper, I was caught between calling it “The rule of law in an age of impunity” or, to flip it over and call it “impunity in an age of the rule of law.” I thought the latter was more expressive of the turbulent reality of our contemporary history. But, the former was more urbane. Since the university ambience is a haven of even temper and genteel culture, I chose the former. In reality though, impunity has preceded law, and we seem as a people to be more fascinated with subversion than subjection when applying the law.
Impunity
I will start by interrogating the meaning of impunity. It means exemption from punishment or loss or escape from fines or taxes. It also means a sense of entitlement that makes a person or group defy law or order. It can also mean that an individual can decide arbitrarily what order is and impose it at will on others without consequence, of fear of it.
The United Nations Commission on Human Rights (UNCHR) defines impunity in the following words:
“The impossibility, de jure or de facto, of bringing the perpetrators of violations to account – whether in criminal, civil, administrative or disciplinary proceedings – since they are not subject to any inquiry that might lead to their being accused, arrested, tried and, if found guilty, sentenced to appropriate penalties, and to making reparations to their victims.”
The commission also explains that “impunity arises from a failure by states to meet their obligations to investigate violations; to take appropriate measures in respect of the perpetrators, particularly in the area of justice, by ensuring that those suspected of criminal responsibility are persecuted, tried and duly punished; to provide victims with effective remedies and to ensure that they receive reparation for the injuries suffered; to ensure the inalienable right to know the truth about violations; and to take necessary steps to prevent a recurrence of violations.”
Simply put, the rage of impunity implies the atrophy of the rule of law.
Rule of law
Now, what is the rule of law? On the surface, the phrase is very deceptive and apparently contradictory. When the word rule is put side by side with law, it inspires the image of a despot. But, it is the case of negative with negative giving us positive. So, the rule of law simply means, no one is above the law. Whatever the estate of the person or the majesty of their position, the president is equal to the door keeper.
The phrase rule of law was first used in a petition in England during the reign of James I in about 1610. But the man who popularised the phrase was the Scottish theologian, Samuel Rutherford. He used the phrase as a polemical onslaught against the old fortress of the divine rights of kings, which advanced the power of the individual monarch as coming from the diktat of the Almighty God.
But, the concept did not begin with him. Aristotle had earlier posited that the law should govern rather than men. Rutherford, who believed in the liberty of conscience, influenced John Locke’s “The Second treatise of government”, and Montesquieu’s “The spirit of the Laws”. Sometimes the argument for the rule of law could also be an advocacy for tyranny. If it is a monarchical or theocratic law, it could breach the liberty of conscience. It could enthrone the obsequiousness of a mass or the despotic insolence of a wayward prince.
Rutherford introduced what he called “Lex, Rex,” which meant the law is king, as against the phrase popular to the advocates of the Divine rights of King who brandished the phrase, “Rex, Lex,” which meant the king is law. We know that both in England and in France, the concept of monarchical superiority has given way to the supremacy of the law. From the times of the beheading of the Stuart King Charles I under the ruthless Cromwellian aegis and the surge of parliamentary democracy and the majesty of the prime minister, we have seen England evolve. This meant that the feudal bulwark would slide aside as the greater virtues of democracy take a prime of place. In France, the French Revolution turned a feudal state into a cauldron of riots and republican upheavals into the birth of democracy that has evolved over two centuries.
Even in France, the republic has continued to engage in self-doubts and internal wrangling that flirted almost inevitably with tyranny. In the Napoleonic era, France was the beach head of culture and war and politics. But, Napoleon, with all his swagger and imperial demons, had to quit the stage for the country to engage in the proper search for an equalitarian society fantasized by the revolutionaries. Robespierre, Danton and even Diderot all dreamed of the two E’s and F of the revolution: Equalite, fraternite, egalite. In reality though, what prevailed was eerie.
So, the rule of law does not necessarily mean the reign of democracy, but it implies it. That, however, depends on what the laws are and how they were made. If the laws are minted by the people’s representatives, then the concept of the rule of law becomes sustainable. But it also depends on the quality of the democracy. Democracy can be, as a writer described Poland’s parliament at one stage of its history, as a “divinely ordained confusion.” If the law is made in a feudal setup, it means an oligarchy set the statutes and it implies the same aggressive few can change the laws. There will be no reference to the people. It is against this superior air that the French thinker Abbey Sieyes, whose phrase, “power from above, confidence from below,” cannot pass muster in a contemporary world.
Jean Jacque Rousseau coined the phrase, “collective will or general will.” It was romantic until the French saw how a sometimes simple phrase can put our imagination in the heavens but in reality, we are mere butchers of our fellow humans.
The communist era was a great example of such lost and fatal idealisms. Shakespeare in his play, King Lear coined the phrase, “that distribution undo excess and each man have enough.” That phrase in itself could have ushered in human equality. But, as we have seen in that play and in George Orwell’s Animal Farm, the laws may be an excuse for a few to become lords over us.
One of America’s founding fathers, John Adams, expressed American sense of the rule of law in the following words – the United States (U.S.) ran “a government of laws and not of men.” In his popular pamphlet titled: “Commonsense”, Thomas Paine, wrote, “In America, the law is king. For as in absolute governments the king is law, so in free countries, the law ought to be the king; and there ought to be no other.”
Why rule of law is problematic
In our society – Nigeria, the notion of the rule of law is problematic for historical reasons. One, we have had monarchy among us for centuries, and the monarchical sensibility is still resonant and potent. We have been reluctant to do away with the monarchs. In fact, we are unable to dispose of them because inside us grovels still a subject. We love our Obas, Olus, Emirs and Obis. The politicians need them for endorsement. The businessman needs them for chieftaincy titles. The villagers still want them for order, however dubious.
Two, we have had military dictatorship since independence, and its martial impulses are still undeniable in spite of our strong claims to the republican spirit.
Military incursion
The military came as a messianic institution but in the decades when they held us under their hold, we began to act like them. They (military personnel) imposed their lack of grace and impunity in our ways of life. We respected their laws. Children loved their power and craved to enlist in the army. There was something even romantic about their register. Murtala Muhammed’s “with immediate effect” haunted the nation as a kind of national refrain of sublime discipline. Idiagbon’s unsmiling visage was embraced as a sort of emblem of gravity. For a while, we mocked civilian democracy as the devil’s kingdom where uncouth, ununiformed men and women grinned like hyenas after dipping hands in our money pot.
When Gen. Yakubu Gowon was ousted as the Head of State, many mourned the exit of the meek general until we embraced the brash uprightness of a Murtala Muhammed. The President Ibrahim Babangida years were seductive for their false promise of a civilian-style ambience that masked the bestiality of a charming brute. All gloves were off when civilians knew that the repudiation of the June 12 election eventually exposed the lie of his high-handedness.
But, after the fall of Abacha, we became hostage to the IBB men and followers as well as other soldiers of influence who took special places in fashioning for us a democracy. It was hard for the democracy not to bear the marks of its makers.
Hence, we had an Olusegun Obasanjo as President presiding over a constitution fashioned under the shadow of the gun. Hence the 1999 Constitution became a sort of construct of a school master for a crowd of rascals.
The law still has to come to terms with some of the sources of law like faith, tribe and monarchy in a republican setting. The issue of individual liberties can still conflict with institutional headaches as we have demonstrated in some examples. Obasanjo presided in the executive and David Mark in the legislature. What followed in a society with weak institutions was that strong men dictated the course of history. They were soldiers who had not learned to subject themselves to democratic ethos. When soldiers took over in the western world, namely Britain as in Winston Churchill, or France as in Charles de Gaulle, or the U.S. as in Dwight Eisenhower, they met stout values of civil superiority over individual will.
Between impunity and change
Ours was different. Our people had imbibed the impunity and so accepted it and even acted it. That explained why a people could line up behind a governor who rallied policemen against opponents even under the eyes of a court of law. That explained why a president could allow a minister to cart away billions and defend him in public and still be defended by people of his party and region.
Third, we had operated under a colonial thralldom for about a century and have had to live with reference to a so-called higher and outside authority, that is the British and white man. We say we are neo-colonial enclave, and that is true since we have yet to come into our own in terms of devising a system with distinctive glories.
What this means is that although it is clear that the rule of law upends the Islamic or Christian law, or the traditional law, or the rules of monarchs, the tensions always exist. The reason it exists is rooted, among other things, in the variegated ethnic profile of this country. Great democracies often thrive on consensus, and these panoply of voices have encouraged tribal and regional loyalties that tend to undermine the exigency of national sensibility. That explains why the El Zak-Zaky group thinks its law supervenes that of the country. When the collision between the Shiite group and the army lit a tinder up North, some of the persons in that region applauded the bloodshed. They hailed the army for humiliating a group they accused of operating with impunity. In fact, a governor in the North was reported to have been humiliated with its convoy yielding out of fear to the dictates of the group. The sect thought it had its own loyalties outside the constitution.
That explains why the Fulani herdsmen kill, maim and rape and think they can get away with it because their fellow tribes men tell them they have a right to graze another’s farm, pull down their huts, rape their women and feel no compunction afterwards. In the Middle Belt of the country, the bloodbath has become dangerously routine. The onslaughts are sporadic, unpredictable and inevitably fatal. They attack whole communities and make wanton plunder of lives and properties.
It is the same sense of parochial entitlement that encouraged a man to ferret away a 13-year-old through a 15-hour journey to Kano from Yenagoa.
So, we live in a conflict of legal universes in which on the surface we pledge allegiance to the superiority of the constitution, which is the only body of laws that bind us together whatever our tribes, faiths, regions or kings. But, because of our parochial fidelities, the constitution is abstract. We regard it as a law that matters only when it comes to such matters that do not conflict with the mores and dictates of our tribes or faiths or monarchy.
At heart and by temperament, our people prefer what theorists call legal positivism over natural law. The former, advanced by Jeremy Bentham and John Austin and more potently later by H.L. A. Hart, subscribes to the superiority of the source of the law over the concept of right and wrong or natural rights. To the positivists, it does not matter if it is a bad law. For instance, some lawmakers caviled at the bill on Gender Equality because it is religiously odious. In their own lights, women in Islam are subject to men, so it is in Christianity, so it has no place in the logic of human equality.
As the Sanford Encyclopedia of Philosophy notes, “the fact that a policy would be just, wise, efficient, or prudent is never sufficient reason for thinking that it is actually the law, and the fact that it is unjust, unwise, inefficient or imprudent is never sufficient reason for doubting it. According to positivism, law is a matter of what has been posited (ordered, decided, practiced, tolerated, etc); as we might say in a more modern idiom, positivism is the view that law is a social construction.”
So, if my culture supports what the law describes as pedophilia, it does not make sense if the constitution forbids it. Man, as writer Oscar Wilde posits, is not a creature of reason but of sentiment. That lies at the core of the Ese Oruru story.
Scholars have identified three variants of the rule of law. The first is the formalist or “thin” aspect. The second is the substantive or “thick” view. The third is the functional view of the rule of law. The formalists stick to the letters of the law, or what some call strict constructionists. In the U.S., Justice Antonin Scalia, who just passed on, was a typical example of such persons. Thomas Jefferson was one of the strict constructionists in the early years of the U.S. Constitution. In the battle against corruption, some who have called for treating the corrupt politicians according to the law irrespective of the gravity of their crimes, fall into this category. In the same breath, a certain point can be made that those who have called for the prosecution of Yunusa, who abducted the girl, can also fall into this bracket.
The other category, which is the substantive view of the rule of law, believes that the law only makes sense in the context of fundamental rights and wrongs, and that the intendment of the law takes precedence over the so-called letters of the law that Apostle Paul describes as a killer. Sometimes, as in the case of those who are calling for the prosecution of Yunusa, both formalist and substantive categories collapse.
The functionalist viewpoint is the pragmatic, and looks at what works for the society. In the war against corruption, some analysts have called for the functionalist. In order words, we all know we want the criminals punished. We all know they stole our money. So, why wait? Why immerse ourselves in the niceties of the law?
Today, in the U.S., the case between multinational tech firm – Apple – and the Federal Bureau of Investigation (FBI), has brought to the fore the conflict of general interest and that of personal liberties and security. Many are saying that the tech company should de-crypt the i-Phone used by the San Bernardino terrorists, Tasheen Malik and Syed Rizwan Farook, in order to give the country information on who the man called in order to access the network the terrorists worked with. This will afford the FBI and security agents information on the modus operandi and degree of deadliness of his operation. It will help the larger society against further threats. It will also help to understand clues for arresting budding dangers.
But, that will be at the expense of personal safety or liberty. Yet, the FBI and their advocates say it is a one-off thing. Here the formalists, represented by the i-Phone company, Apple, is pitted against the substantive viewpoint or functionalists who claim they want to safeguard personal liberties and privacy rights.
We must note that our instances of impunity do not always derive from the loyalties to tribe, region or religion, or even to our benighted monarchical past. One example is the wanton violence on the streets, or say, on campus. In Abia State University, a cult group beheaded two rival gang members and hung the heads on goalposts. Or, shall we say the militants of the Niger Delta decided to act as alternate governments because of ethnicity? They ostensibly fought for rights of the region. But, they were cynical platforms to make a living, and perpetrate a variety of actions defiant of the law.
Up till now, they still argue that they were interested in the progress of the region. Yet, during the Dr. Jonathan administration, they never held their own to account for neglecting the infrastructure, education and even in a suffocating milieu of poverty and want.
Whatever we do, we have to be careful not to make the law a scapegoat, and if we do that we install anarchy. We must always know that law will haunt us once we treat it with contempt. But is the law always right? No. As Aristotle noted, it is better to make a mistake on the side of the law than to err on the side of a lawgiver. In the age of the Medes and Persia, the laws were described as unchangeable. Once a law was made, it was irrevocable. The rulers often used the phrase, “so let it be written. So, let it be done.” But, that was not a democracy.
A true democracy affords us the opportunity to learn from the errors of its execution. Hence, when the U.S. formed its laws, the founding fathers asserted that they would alter it as they moved along. Experience, as in other aspects of life, is the law’s best teacher.
So, when the majority of Nigerians did not care what the law said and merely wanted the criminals to be punished, they did not understand the power of precedent. If we neglect the law to catch a true thief, a murderer will refer to that example to escape justice.
Shakespeare gave us a good story in the Merchant of Venice to delineate the power of the rule of law. Both Shylock and the judge wanted to respect the law, whatever the consequence. The shylock thought his pound of flesh was all he needed, but did not understand that a single drop of blood shed was even more dangerous to his case. It was a case of the law winning for justice.
That exactly is what we should pursue: how to make law and justice meet. Henry David Thoreau said, “The law never made anyone a whit more just.” It is often the task of the political leadership to negotiate the confluence of law and justice. Nazi Germany under Adolf Hitler and Spain under Francis Franco and Italy under the sawdust Caesar, Benito Mussolini, saw the conjunction between law and injustice until the whole ideological edifice came crashing down.
In the U.S., law saw racial injustice as ally. While it took the behemoth of a global coalition to bring Hilter’s machine and its allies to its knees, it took decades of relentless struggles and pressures on the law for the U.S. to bring the law in rhythm with racial justice. To achieve that a war was fought, riots erupted, slaves were set free, writers fulminated, icons like Martin Luther King were born and killed, churches were burnt, people were executed as public fare, etc. A law eventually got passed. A law is not necessarily right, so the formalists can be dangerous. Some laws are so bad, that even the substantivists may find themselves seeking the virtues of a deviant legislation. But, the functionalists create lee ways and help to redefine the law in the context of freedom and justice. Even they too fall into the quicksand of appropriating the meaning of justice.
Law, lawyers and judges
That is why I always believe that the rule of law is important. But first, let us get the right laws and the right lawyers and judges. We can have the right laws, but if we have the wrong lawyers and judges, we fulfill the words of Thoreau who said the law never “made anyone a whit more just.”
It is sometimes argued with validity that some of the tribunal judgments and Supreme Court verdicts for governorship and presidential elections have little to do with the law but with the perversity of the judges and lawyers, especially the so-called senior advocates of Nigeria. The Rivers State verdicts are an example. They verdicts have been seen as excuse for banditry and anarchy.
Hiller Liman, a former Ghanaian leader once asserted, “No law and no document can rule a people unless they are ready to rule themselves.” This boils down to the political leadership. They help by personal example to build the right institutions. It is the chicken and egg question as to what is better: rational choice or institutionalism. Well, if we have great institution it has to be based on individuals, but the values have to shape the individuals and values do not erupt from the air.
I believe that the law is as important as the gravitas of the leadership and how they carry the mass of people on the wave of their moral high values.
That will transcend any parochial or primordial loyalties like tribe or faith. But, we have not reached that pedestal yet, and that is why we can have an El Zak Zaky roil, or a pedophile snort under the shadow of a caliphate, and there is ambiguity as to how to convict an obvious thief.
Those who say we need to build an institution mean the same thing. But, it is still not even morning yet on creation day, and we are bound to the violence of the pedophile, the religious bigot, the impunity of the public thief, and all of that until we have the sort of political elite that can coalesce for a one Nigeria and enact a cohesive body of laws.
