AN essential attribute of democracy, which makes it a beauty to behold, is its reliance on the Rule of Law as its major pillar. That it is inexorably anchored on the Rule of Law as its fulcrum makes it the best and most attractive form of government known to mankind. Aristotle drew home the importance of rule of law when he said, “the Rule of Law is preferable to that of any individual.”  This is because it is about absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power and excludes the existence of wide discretionary authority on the part of the government. The snag however, as once observed by Prof Itse Sagay is that the question of the observance, enforcement and maintenance of the Rule of Law in the 3rd world countries, lacking in democratic and human rights culture as they are, has always been a challenge to the Judiciary of these countries. In most of such countries, the Rule of Law does not exist at all, and arbitrariness, executive lawlessness, oppression and anarchy reign supreme. This may not necessarily be so in Nigeria while admitting that there are instances of impunity on the part of those who hold the reins of government.

The case of Military Governor of Lagos state v. Ojukwu is a classical historical illustration of the low esteem the Rule of Law is subjected to in Nigeria. In that case, although the position of the law is that no person shall be ejected from a piece of land or building without a court order to that effect, the military governor of Lagos State deployed his men to dislodge Ojukwu from Villaska lodge, which according to the government was illegally occupied by him. It was an opportunity for the supreme court of Nigeria to espouse the ideals of the Rule of Law and to bemoan the fundamental breaches it had suffered in the hands of the powers that be. Hear the Supreme Court per Obaseki JSC as he then was: “The Nigerian Constitution is founded on the rule of law, the primary meaning of which is that everything must be done according to law. It means also that government should be conducted within the framework of recognized rules and principles which restrict discretionary power which Coke colourfully spoke of as ‘golden and straight metwand of law as opposed to the uncertainty and crooked cord of discretion founded on the rule’….”.

The Ojukwu example was a child’s play compared to what happened in Odi when a whole community was sacked by the military in the most horrendous and lawlessness manner that made a mockery of the concept of rule of law. Interesting enough, this happened under a democratic government. And only recently was the Rivers State House of Assembly sealed up in the most barbaric manner and the activity of a local government council completely paralysed by the massive deployment of policemen and other security agencies in such a way that employees are denied access to their offices.

This prologue is to justify the conclusion that Nigeria’s problem as a nation revolves around its scant regard for the laws of the land. Few Nigerians feel obliged to obey the law. We do so only when it is convenient. This explains why 80% of motorists go about without driver’s license and vehicle particulars, drive against the traffic at will and in defiance of road signs. This also explains why pedestrians would choose to risk their lives by running across the highways when there are pedestrian bridges to take them across. Worst culprits are our leaders at all levels of government who have become so bloated and larger than life in a manner that leaves no one in doubt that power corrupts, absolute power corrupts absolutely. Although the machinery of the offices they occupy has sufficient in built mechanisms against arbitrariness, our leaders are known to ride rough shod on these mechanisms in order to please themselves alone as if their relationship with the people is not that of social contract rooted in law. To them, the law should be the least obstacle on their way to fly off at a tangent.  They cannot imagine the law sharing the same space, influence and prominence with them after having obtained the mandate of the people. Just like Louis IV of France, who often glamorized himself with the statement “letat cest moi” literarily meaning “I am the state” they see themselves as the law before who all must bow. But then what is the difference between some of our leaders and Louis IV whose conduct prepared the way for the notorious French revolution? Who can stand up to them when they run foul of the law? Don’t they get away with even blue murder regardless of the protestations of the ordinary citizens who more often than not are the victims of their atrocities? How do those in government perceive public protests against their policies? In most cases such protests are dismissed as the ranting and chanting of an ant or worse still campaign of calumny orchestrated by the opposition. This is the standard reaction to expect from Dr. Doyin Okupe, the presidential spokesman. But that is because Rule of Law still remains largely a figment of imagination in Nigeria. Sad enough, it is the bane of our development.

Had the law ruled, the checks and balances put in place by the constitution are potent enough to prevent the excesses of our leaders; the president and the governors would have had the legislative houses to contend with and it probably would have been difficult for the profligacy we see in government today, which makes the presidential air fleet to have up to 25 aircrafts and governors going about in private jets in the midst of harrowing poverty suffered by the people, to happen. It is also unlikely that our governors will drive about town recklessly in a manner that endangers the live and property of the ordinary citizens. Had the law ruled, the office of the first lady in the way it exists today will be a ‘peculiar mess’, an illegal contraption and a serious embarrassment to the first citizens by whom the offices are held or created? It will be obvious to the illegal occupant of those offices that they are mere impostors, busy bodies and meddlesome interlopers, out to squander our scarce resources and flaunt the ill gotten wealth and power of their husbands. We have watched helplessly for too long the ridiculous extent to which their abuse of state power has degenerated. Air traffic had been shut down, roads have been closed and economic activities totally paralysed because a first lady wanted to go on a jamboree or visit party associates of her husband? That is the tragedy of a country where there is no law or where individuals tower above the law and where its citizens are in bondage. It is the symptom of a big malaise, a recipe for eternal backwardness.

The expectation of the concept of the Rule of Law is that all must be equal before the law and that the law is no respecter of any one. That is what it is in every civilized democracy. And that was why Silvio Berlusconi, a former Italian PM was prosecuted by his country for what would have counted for nothing in Nigeria. That was also why a big time US Senator was convicted in connection with bribery scandal in the Pentascope case involving several Nigerian accomplices who were not even interrogated at all let alone being tried.  In other words, our own law is a major respecter of the high and mighty in the society who in most cases take delight in committing heinous crimes knowing full well they will readily get away with their iniquity. It is the reason why corruption and other vices are taking roots in the polity. While the man who stole a tuber of yam obviously because of the hardship and penury which the economic policy of government imposed on him gets sentenced to 5 years imprisonment “to serve as a deterrent,” the heavy weight in government, responsible for the economic woes that made a thief out of a family man or woman is sentenced to 2 years imprisonment or less for stealing billions of Naira. In some cases he is made to release a fraction of what was stolen to stave off a day’s sojourn in prison. Lucky Igbinedion and his ilk belong to this category. Similarly, the trial of a ‘big man’ is conducted with so much courtesy to him that you can hardly tell that he is a major economic saboteur. In fact he has nothing to fear by his arraignment. He looks forward to it with relish and without the slightest apprehension of any harm. He knows his trial or supposed trial will take eternity to decide. And for as long as it lasts, he is presumed innocent and ipso facto entitled to keep his loot and aspire to any office of his choice from where he is further insulated from the pangs of the law, the breach of which he is standing trial. He has enough money to dig deep and entrench himself in the corridors of power. Had the law ruled, he would have been tried within a reasonable time and he would have been convicted early enough to prevent him from getting into another office with the potential of foisting a greater calamity on the citizenry? The result of this lopsidedness is that the ‘big man’ does not see the law as enough disincentives for the crime of milking the nation dry. The casualty in all of this, in the first instance is good governance and in the final analysis, the citizenry. The scenario on ground conduces to the recycling of criminals and charlatans in political or high government offices and position of responsibility. Had the law ruled, this will never have been possible. The criminals will be locked away in prison and thereafter from public office by law and subsequently from the public space by moral inhibition and societal indignation.

To show the inequality in the system, in a manner clearly offensive to the rule of law, while the oil subsidy thieves and bank fraudsters are driven to court in an air conditioned government vehicle in a dignifying manner on the day of arraignment and until the perfection of their bail, the man who allegedly stole 50 litres of diesel belonging to his employer is ferried to court in a Black Maria. Although the rule of law demands that an accused person shall be presumed innocent until he is proved guilty, this only applies when the ‘big men’, the big looters are involved; it doesn’t when petty thieves are involved. They are presumed guilty until they prove their innocence. The court before which they are arraigned treats them immediately like a hardened criminal and Imposes condition of bail that will keep them in prison custody for a long time due to inability to perfect the condition. While the subsidy thieve is obliged to sit down in the dock, the man standing trial for stealing 50 litres of diesel amounting to N5, 000 must remain standing through out. He faces all sorts of ignominy and embarrassment in court as though he is already a convict. Had the law ruled, every defendant shall be treated equally; only in the manner prescribed by the law, not the whims and caprices of the adjudicating officer.

That the running of our country is largely a function of the whims and caprices of individuals manifests itself in the way and manner every one jostles for the attention of the president and his protection. He must not be offended like the gods of old. To offend him is to bring adverse consequences on one’s self. No one can make a better presentation on this topic than Governor Rotimi Amaechi of Rivers state. He has a forerunner in Atiku Abubakar who as Vice President of Nigeria received the greatest vilification of his life for daring to look President Olusegun Obasanjo in the face. Ditto Audu Ogbe whose house was cordoned off by police and military men to the point that his children were denied entry to the house simply because his criticism of government’s economic policy was considered embarrassing to former president Obasanjo. This would not happen in the U.S. because it is founded on the rule of law. And that is why it is often said that Nigerian president is more powerful than US president. Why; because he can operate outside the law; what is law are his wishes. US president cannot. This is why we are backward; one step forward, two steps backward.

It is also because the rule of law is in abeyance that makes the national assembly to hold the executive to ransom at will. Had it not been so, the constitution has clearly delineated the boundary of each arm such that there is scarcely any need for the meaningless confrontation that takes place between the two arms often provoked by legislative braggadocio.  Today, an important victim of this braggadocio is Arumah Oteh whose SEC is vindictively threatened with extinction due to the ego of the National Assembly which is demanding her sack for her effrontery of demanding from the House, proper parliamentary behaviour regulated by the law. Yet her tenure of office is secured by the law meaning that to demand for her sack is a total aberration.

The lot of Oteh is a study on how our institutions suffer from our failure to accord the rule of law a pride of place. Disrespect for rule of law occasions the failure or weakening of the institutions. For example, the law that sets up Nigerian Communications Commission (NCC) makes it a regulatory agency for telecom service providers. Its powers are crafted in such a way that consumers of such services are meant to be adequately protected; not to be ripped-off. But are the laws being enforced? Are those in charge of the commission mindful of their responsibility under the Act? What about the service providers; are they not aware of their obligation under the Act and the Regulations made pursuant to the Act? Are Nigerians not being seriously ripped-off? Can it be worse than what we presently have now?  Nigerians are being ripped- off largely because of the failure to apply the law by those who are running the commission. It is either they are afraid to avail themselves of their statutory powers or they have compromised their position. Whatever it is, it is a sad commentary on the state of the rule of law. Where institutions are run according to the whims and caprices of individuals, such institutions will lack character or attitude. Sustainable development or programme will be difficult to achieve because the success of a programme and/or its durability is tied to the personality in charge of the institution. And once the personality leaves office, it may be the end of the effectiveness of the institution. This is the sorry state of National Agency for Food and Drug Administration and Control (NAFDAC) today. Dora Akunyili was a colossus that bestrode the regulatory firmament in Nigeria. She fought the fake drug cartel like a Trojan and made the business highly dangerous. But the reforms she wrought on the system were not institutionalized.  And so once she left, the mileage she covered suffered serious reversal.

In other words, the impetus that produced the momentum gathered by NAFDAC at that time was that of the person occupying the office of the DG; not that of the law. That is not how it is supposed to be were there to be rule of law. Rule of law would inevitably usher in an entrenched system that will enhance the sustainability of the reform. This is why we have become notorious as a country that takes a step forward and three steps backward. This is not the case in the civilized countries where the rule of law is deeply entrenched. In those countries, it is not the sheer strength of the operatives that determines the success of the institution; it is the mechanisms put in place by the law outside of which no one is permitted to operate. And that is why our men, including those who have challenges at home, perform very well, when they go outside the country. This explains why our policemen on peace keeping assignment outside the country have always won accolades, even though back at home, they are object of scorn and ridicule for their excesses and abuse of power.

One can go on and on to show how in various degrees we are all part of the tragedy that has weighed the country down. The glorious days of Nigeria were the days of strict observance of the rule of law. Our society grew in leaps and bounds. Our economy boomed; there was security of lives and property; there was rapid development. It was the era of life more abundant. Then the white men were in charge. There was no collapsed building, no infrastructural decay, no poor standard of education, and no exam malpractices. Government agencies such as Public Works Department (PWD), Electricity Corporation of Nigeria (ECN), Post and Telegraph (P&T), Railway Corporation lived to their billings. There was little or no corruption. Everyone was alive to his/her responsibility. Society had values, ethos and norms. That was the colonial era. The farther we move away from the era, the worse our situation and circumstances have been; the deeper we sink into the abyss of anomie, the cesspit of ignominy and infamy. As we celebrate yet another democracy day is there enough to cheer about? What does the future hold in stock for us? Will our tomorrow be better than today? I thought so yesterday. I changed my mind when I saw what happened at the Nigerian Governors’ Forum, the echoes of do or die politics that attended its chairmanship election. I began to wonder whether it will ever be Uhuru in Nigeria.

*Kunle Fadipe, a legal practitioner wrote from College Road, Ogba, Lagos.