Mahmud Mohammed. Chief Justice of Nigeria
Mahmud Mohammed. Chief Justice of Nigeria

Democracy is a limited government in which the people’s power is the central overriding variable in the election and recall of leaders, in the intent and purposes of government, and in the protection and safeguard of the interests of all and sundry; whether in the majority or minority political divide. In other words, democracy involves a process of electing leaders who would form a government of the people with a view to representing the interest of the generality of members of the society. It is aimed at realizing “the organization of people themselves, to attain the collectively self-defined, and ever improving, higher levels of civilization” (Asobie, 2007:4). This conception of democracy suggests that it is a representational government and is based on the consent and will of the people: a responsive and responsible government in which the majority upholds power without suppressing the interest of the minority.
Democracy differs from civilian rule in various aspects of governance as well as its forms and content; however, the prime mover of democracy lies in civil rule. On the one hand, democracy thrives on enabling ethos, practices and institutions that are expected to be fully or virtually matured so as to guarantee continuity through fair play, debates, compromise and opposition. On the other hand, there may be civilian rule in a country without the necessary condition for democracy to thrive. The prerequisites for a thriving democracy are abidance by certain normative principles, their internalization and acceptance as doctrines of political participation. One of such normative principles is the rule of law. Other principles are; a functional legislature; existence of vibrant political parties; periodic elections; independent judiciary; political accountability and legitimacy and; a robust civil society.
Rule of Law
The principle of the rule of law stems from the view that a democratic government, normatively and empirically, should be able to meet certain universally accepted values and norms which govern democracy. The promotion of human rights and its corollary principle of the rule of law is “nonetheless the foundation for the realization of all other elements of a functional democracy” (Kura, 2009:264). The term prescribes the limit of government and reinforces the importance of the supremacy of law. As one of its architecture, Dicey, (1959:202) aptly pointed out, the rule of law is against arbitrary power but in support of the supremacy of law; it means equality before the law and restraint on the state from absolutism and ensuring accountability by officials in the business of government. In short, the rule of law is the nerve centre of democracy because of its strict adherence to constitutionalism, the principles of the separation of powers, and human rights. It also presupposes that “ the laws are public knowledge, are clear in meaning, and apply equally to everyone” (Carothers, 1998:96). The following principles can be identified as the linchpin of the rule of law in modern democracy :
Laws are made democratically and effectively exercised freely without let or hindrance.
· That the independence of each arm of government under the doctrine of the separation of powers is preserved, respected and utilized as the major guiding principle of the public policy.
· There is not only the independence of, but also the existence of an impartial judiciary.
· Social justice governs state-society relations; arbitrariness or excessive use of power is restrained by law and practiced by the state.
· Equality before the law and equal protection by it. This can be translated to mean non-discrimination and guarantee of the dignity and worth of the human persons.
Good Governance
The term good governance has its origin in the literature of International Agencies who employ it as a basis or yardstick for measuring efficiency and effectiveness in the conduct of public affairs and management of public resources by public institutions. It focuses on the responsibility of governments and governing bodies in meeting fairly, the needs of the governed . Its basic principles of selflessness, objectivity, integrity, honesty, accountability, openness or transparency and leadership are well established.
Although the term ‘governance’ has been subjected to liberal ideological interpretations, among other things, by adding the prefix “good” and therefore, making it a normative term, it is defined for the purposes of this paper, as the process of governance that is participatory and all inclusive in not only promoting the cause of human capital development but also thriving on the basis of safeguarding the interest of the governed. This definition covers the process of policy making, implementation, and evaluation. Governance should be good and democratic; that is to say that the concept of good democratic governance is preferable to just good governance as elsewhere advocated in the literature of liberal theorists.
The above definitions point to the fact that the concept and terms so defined are mutually inclusive and reinforcing. Together, they make democracy great and help it yield greater dividends, particularly when the system is consolidated. Thus, when establishing a nexus between the concept of democracy and the principles of the rule of law and good governance, Jega (2007:162) aptly notes:
Central to democratic praxis and good governance is constitutionalism and the rule of law. Bringing about sustainable democracy and good governance must, therefore, be predicated on effective strategies for a return to constitutionalism, respect for the process, and executive-lawfulness (in contrast to executive-lawlessness)
The quest for the entrenchment of the rule of law in Nigeria predates independence; however, the practice of the principle is an integral part of the wider struggles against the arbitrariness of the Nigerian state under the military and civilian regimes the country has passed through since 1960. The colonial regime in Nigeria with its outward trappings of repressive rule had fundamentally required for Nigerians to get involved in the decision making processes of their country. In practice the proper functioning of the rule law had no space in the political vocabulary of the colonial state and this had been partly responded with open expression of grievances by the nationalists and the organized trade union movement of the late 1940s and 1950s.
The political process after independence did not fundamentally change the character of the Nigerian state as an overwhelming agency that controlled, sometimes unconstitutionally, some spheres of public life. The nature of the struggles for power and cut throat competition for the ascendency of the central government by the regionally dominated political parties and political elites reinforced arbitrariness of some sorts. Indeed, if one is to cite a single reason for the failure of the first and the only parliamentary system of government in Nigeria what comes to mind is the non observance of the rule of law through the failure to conduct free and fair elections and the resultant dissent which was overtly manifested in the breakdown of law and order in the 1964/65 general elections, particularly in the Western region of Nigeria. The principle of the rule of law and constitutionalism was relegated to the background and democracy was profoundly devoid of one of its expected virtues – good governance.
The thirteen years of military interregnum in Nigeria (1966-1979) were devoid of the practice of the rule of law nay its relevance recognised in politics and administration by the authoritarian governments. By the time the return to civilian rule in 1979 heralded a new democratic process with presidential system of government put in place, the new regime under President Shehu Shagari inherited a political environment replete with a political class whose understanding of the rudiments of constitutionalism was grossly deficient. Consequently, between 1979 and 1983 the pattern of party politics and democratization were characterized by the near absence of adaptation to the principle of the rule of law as the government’s human rights records was unsatisfactory (Mailafiya 1992:152). Some of the infamous actions of the government which breached the principle of the rule of law and human rights are the use of excessive force by the police in quelling the Bakalori Dam crisis which led to the loss of lives of over a hundred peasants, and the “Shugaba Darman” case of illegal deportation to Chad on January 24, 1980. This is not surprising because a democratic system that has not been nurtured on the principle of internalizing a political culture of tolerance, accountability and public trust only counts its days of exit. As expected and as in the downfall of the First Republic, the Second Republic met its cul de sac largely arising from the failure of the political class and the ruling national party of Nigeria (NPN) to embrace the tenets of the rule of law as once again the electoral process was grossly mismanaged, and given that the system had failed to engender the spirit of sportsmanship in political contests, grave dissent arose , leading to another military coup in December 1983.
It was against the background of nearly thirty years of military rule that the current democratization process in Nigeria was brought to life in 1999. Central to questions on the lips of Nigerians today is: to what extent have the fourteen years of the return to civilian rule with its successful transition from one civilian regime to another given birth to the era of observance of the rule of law which translates into good governance? This question is not the type that can be quickly answered with “yes” or “no” because the underlying difficulties are enormous considering the difference between the perception of the Nigerian state and that of the society about what constitutes the rule of law. However, from the simple logic of contradictions between theory and practice, and between statement and reality on ground, the answer to the poser is not farfetched given the fact that the Fourth Republic has passed through different trials and tribulations that expose the class character of the political elite as preservers of their power and hegemony, and as guarantors of their political control of democratic institutions.
On the question of executive lawlessness, in some cases leading to crisis of dashed hopes, the period between 1999 and 2007 which covered the administration of President Olusegun Obasanjo has been described as “the worst when it comes to compliance with the rule of law “ (John, 2011;212). In principle, the Nigerian government after the end of military rule in 1999 claimed the observance of the rule of law, but steadily the regime in question contrived the political space and usurped the powers of both the legislature and the judiciary posing a grave danger to the democratic content of the toddling democracy. Although some institutional and administrative principles and agencies were upheld and established like the Economic and Financial Crimes Commission (EFCC) to check corruption, and the principle of due process was adopted to safeguard public trust and accountability in the award of contracts and other related public procurements as well as consistent and persistent proclamation on the independence of the judiciary, the score card of the first four years of Nigeria’s democracy was spotted with executive arbitrariness. The mass killings of innocent civilian in what has become popularly known as the Zaki Biam and Udi massacres were sore points of human rights abuse during the period. Most of the claims of the government on gains in the area of the rule of law turned out to be political gimmicks, as they were clearly unfounded and merely designed to create the impression that it was no longer business as usual in Nigeria after the prolonged military authoritarian rule This has tempted some scholars to characterize Nigeria’s democracy between 1999 and 2007 as an “authoritarian civilian rule” or “garrison democracy” (Bako, 2007; Sani, 2008, Momoh 2009) the situation has remained the same even after the Obasanjo’s regime, with marginal improvements in the gravity or enormity of disrespect for constitutionalism and the rule of law.
A closer examination of the actions and inactions of the government since 1999 shows that the rule of law has been relegated to a mere declaration in conformity with the ideological smokescreen of the government. For example, one illustration of the Achilles heel in the act of strangulating the rule of law is the failure in recognising and respecting the constitutional roles of the three main institutions of State namely the Legislature, the executive and the Judiciary. The political imbroglio between the Lagos State government and Federal Government over the failure of the latter to remit funds allocation for local government councils in Lagos following the State Governor’s creation of some additional council is a case in point of bizarre executive lawlessness on the part of the executive arm of government in Nigeria. Despite the judgment of the Supreme Court on the matter the federal government turned deaf ears on the ruling of the highest court of the land that the Lagos state should be remitted all the statutory allocations due to LG councils in the state. Indeed it was the late Yar’Adua regime in 2007 that enforced the Supreme Court ruling and ordered the immediate release of the funds to Lagos State amounting to 10.8 billion naira (Adeniyi, 2011:5).
While the judiciary suffered tremendously in the hands of the executive as a result of disrespect of court orders, rulings and injunctions, the legislature could be characterized as the battle ground for the enforcement of due process in its relationship with the executive. In most cases, as in the period of Obasanjo and to a lesser extent, Yar’Adua/Jonathan and Jonathan administrations, the constitutional provisions regarding the power of the purse and appropriation are overlooked in contravention of the principle of the separation of powers and checks and balances. This was the case in the controversies over the implementation of the 2005, 2011 and 2012 Appropriation Acts. Indeed the legitimate performance of its constitutional duties by the legislature tends to be perceived in the executive circles and even some sections of the public as legislative meddlesomeness in governance. In such instances, most often than not, the divide and rule tactics are employed against the legislature. Calls for the impeachment of President over an allegation of breach of the constitution as in the case of the 2005 Appropriation Bill not only created discontent within the national Assembly but also a political divide among its members. In the seventh Assembly today, the employment of espirit de corps and an all inclusive approach by leadership since 2011 have gone a long way in keeping the House strong and intact even in the face of simmering attempts at dividing members on issues of national importance.
The 7th National Assembly, and I speak more authoritatively of the Green Chambers, recognises that the hangover of colonial repression and military arbitrariness at the foundation of our polity which unleashed inexplicable myopia on successive democratic regimes in recognizing and respecting democratic ethos must begin to be addressed frontally lest the system forfeits completely, the principle of the rule of law before long. We hold the firm persuasion that therapy, however painful must be administered on the patient to ensure that the ultimate object of proper cure is accomplished.
It is our conviction that the three arms of government must be allowed to operate optimally and constitutionally without let or hindrance as evidence of true entrenchment of the rule of law and that good governance will result thereby. That is the true path to deepening democracy. Therefore, when we intervened in the saga of the unilateral increase in the pump price of petroleum products, it was merely in answer to the call of constitutional duty to ensure the participation of the people in governance in accordance with Section 14 (2)(c) of the constitution, when we make appropriate adjustments to the appropriation bill to ensure that all sections of the country are patronized in the nations development programme, it is to ensure planned and balanced economic development that targets the common good and avoids the concentration of wealth and means of production in the hands of few individuals or groups to the exclusion of others, in obedience to section 16 (2) of the constitution and when a Maina coverts billions of naira of public funds for pensioners thereby causing the deaths of these Senior citizens in the streets of our cities and the legislature insists that he must be subjected to accountability, it is in the exercise of public duty. I am confident that overtime these realities will be understood and appreciated by the majority of the Nigerian people.
I have said at several fora before that of the three arms, the Legislature is the most misunderstood because of the obscurity thrust upon it by the many years of military regimes. It therefore behoves it to bring itself to be understood by all and sundry within the polity. Why for instance does the society accept a death sentence upon a criminal by a Court of competent jurisdiction as Justice but react with hostility against the legislature when it merely proposes impeachment which is the sanction placed at its disposal to deal with gross malgovernance? As it is, the death sentence by the court terminates human life while impeachment merely terminates a mandate tenure of the individual. Lady justice does not hold the sword in vain and thus those who presume that the constitutional provision for impeachment, for instance, is for aesthetics are grossly mistaken. A true peoples legislature shall be abdicating its responsibility if it fails to employ even the maximum sanction where circumstances so demand.
Nonetheless, I should emphasise here that the contemplation of the Nigerian constitution is that the relationship between the arms of government should be mutually complementary, mutually reinforcing and mutually constructive. We have sworn to uphold the constitution so have the executive and judiciary. We are determined to be true to our oath of office because it is a duty and the failure to perform a legal duty attracts sanction. The sanction of impeachment and recall are twins: the one for the executive and the latter for the legislator.
It is pertinent to note that disrespect of the rule of law in Nigeria has opened up another debate on the legitimacy of the public officers at the national, state and even the local governments in the federation which led an analyst to conclude comparatively that “In fact, civilian administrators seem to surpass the military in their open disrespect to the rule of law” (John 2011:212) One of the areas in which arbitrariness of the political class is pronounced at the onset of any democratic process is in the process of election in which , in several cases, the votes of the electorate often do not have any bearing on the outcome of the election. As civil society is disenfranchised the conduct of public affairs by the public officers tend to be invariably informed by their whims and caprices at all levels of governance and legitimacy is thereby questioned. We look forward to building on the marginal improvement recently recorded in the electoral process.
Despite Yar’Adua’s early track record of supporting the cause of rule of law in Nigeria his administration was unfortunately misguided and appeared running counter to the precepts of the principle owing for instance to the conduct and utterances of his Attorney general of the federation (AGF) and minister of Justice, the Ibori saga remains a destructive reference point. According to Adeniyi:
While Yar’Adua openly proclaimed that his administration would be guided by the rule of  law, throughout his tenure, there was a gap between the rhetoric of the president and the action of government, especially with regard to decisions emanating from the office of the AGF, who is constitutionally recognized as the chief law officer of the federation (2011:9)
The judiciary has not escaped the vagaries of the abuse of the rule of law. In fact, since the return to democracy in 1999, the judiciary has been under attack by the general public for its breach of public trust by judicial pronouncements that tend to appear externally influenced. This is to say that the independence of the judiciary as one of the institutions of horizontal accountability has been questioned. The other issue is the persistent accusations of corruption against judges. Only recently some judges were removed from office on corruption charges while several others are facing disciplinary procedure of the regulatory authority. The situation has become more alarming with the recent admission by the Chief justice of Nigeria that public confidence in the judiciary had sharply nose dived and her threat of strict measures.
In all, it can also be said that there is a connection between the disrespect of the rule of law in a democracy and the general insecurity in our society. Democracy is ideally meant to provide maximum security for the greatest number of people as well as the improvement of their welfare. When injustice and brute repression of the civil society is carried out in the name of maintaining law and order, as exemplified by extrajudicial killings, crackdown on journalists, illegal arrest, kidnapping or assassination of opposition politicians and their harassment or detention, banning of popular organizations, repression carried out by the police and other security apparatuses of the state, the gap between the state and civil society is nauseatingly aggravated. This state of affairs has negatively impacted on the principle of good governance in Nigeria since the restoration of democracy 2009. Undoubtedly, good governance, as Muhammed (2009:16) pointed out “is dependent on a responsive and responsible, transparent and accountable leadership and the flourishing of the rule of law” Considering the notion of democracy as social contract between the people and the state, good governance presupposes that legitimacy is enhanced when a broad spectrum of a society supports governmental institutions and policy. The experience of Nigeria’s democracy thus far has shown that as a result of the failure of the state to provide an enabling environment for the flourishing of the rule of law, political apathy has set in and the political legitimacy is in acute deficit at all tiers of government and the accompanying institutions of horizontal accountability.
As one of the benchmarks for the assessment of the performance of democracy and its consolidation, the rule of law principle is easier proclaimed than established in a democracy whose major edifices are shaky. Therefore, there are numerous challenges in the path to establishing a virile culture on the premise of the rule of law in Nigeria. These challenges or inhibitors are products of the country’s experience with the military authoritarian practices, the nature of elite struggles for power, the politicization of public policy making and implementation, corruption and unending competition for material benefits from the public offices occupied by the public functionaries. At the heart of these challenges is the weakness of the institutions of horizontal accountability to discharge their functions effectively in line with the provisions of the relevant laws of the country.
In summary, these challenges can be encapsulated into five major areas:
Firstly, executive overbearance which impacts negatively on the other arms of governments; the legislature, the judiciary and other independent agencies. This domination has over the years further weakened non-state actors including civil society organizations (CSOs) and the media due to poor access to information necessary in investigating government’s action, notwithstanding the passage and  signing into law of the Freedom of Information Act.
Secondly, lack of independence of the judiciary to perform its legal functions as the watchdog against arbitrariness in order to autonomously bring the executive and legislature in check, particularly on matters of inter-governmental and state-civil society relations.
Thirdly, there is the challenge of corruption and its permeation of democratic institutions. The case of Nigeria represents the erosion of the capacity of institutions such as legislature, judiciary, police, other security agencies and society to adapt to a democratic culture of accountability with responsiveness to the larger society.
Fourthly, the society is seriously questioning the nebulous scope of the doctrine of immunity in our constitution as it relates to the principle of equality before the law encapsulated in the doctrine of the rule of law. Whereas immunity may not be condemned in its totality, there is urgent need to review it’s scope.
Fifthly,, free, fair and credible elections would engender legitimacy of the government. Political legitimacy being the willingness of the people to accept leadership and abide by its rule. This is achieved when the people’s choice is the main determinant of who should rule. Election rigging as the main source of disenfranchising a large segment of people in a polity deprives the resultant leadership of this essential elements of legitimacy.