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Rule of law before democracy 05 Apr 2023

With the conclusion of the 2023 general election, it is time to review what has happened to our democracy. Since 2015, we seem to be on a climb towards consolidating democracy. This sentiment is supported by the fact that we have completed for the first time a ‘democratic’ transition from one party to another. In Africa, democracy’s major challenge is for incumbents to be defeated and they go home peacefully. Nigeria achieved that in 2015.

This achievement is not a trifle. Joseph Schumpeter considers it the essence of democracy. In his view, democracy is the reality that incumbents can be defeated, and they willingly go home. In many Sub-Saharan African countries, the reality is that attempts to defeat incumbents in elections have easily led to civil conflicts and the loss of democracy itself.

But this singular achievement, significant as it is, does not mask the fundamental flaws of the Nigerian democracy. The practice of democracy in Nigeria leads objective assessors to the conclusion that Nigeria is not yet a democracy. If democracy is measured by free and fair elections that are grounded in protection of fundamental human rights and impartial working of state institutions, then Nigeria is not yet a democracy, in spite of the fact of party-to-party transition.

Nigerian elections always fall far short of democratic quotients. Robert Dahl lists these conditions of democracy: effective participation, equality in voting, gaining enlightened understanding of public issues, exercising final control over the agenda, and inclusion of adults. For there to be equality of votes, you must guarantee to citizens opportunities to freely form opinions, freely express those opinions, and organise themselves publicly in defense of such opinions. Where there are legal or illegal prohibitions of the right to organise or where state authorities repress opponents of incumbents and confer advantages to incumbents, there is no free and fair election and no equality of voting.

Dahl admits that there is no ideal democracy where there is complete political equality yet argues that there must be sufficient institutionalisation of these features in a polity to qualify as a democracy. To be a democracy, it is not enough to have laws that promise citizens fundamental rights, or laws that declare equal citizenship. Those laws must be faithfully implemented. The reality of these rights and not their mere articulation in sacred texts and constitutional documents is the measure of democracy in a society.

This brings democracy closer to the rule of law. It is not a happenstance that there has been no truly democratic society that is not a rule of law society. Of course, we will continue to argue about the reality of the enjoyment of these rights as many members of the society are excluded, whether women and children, as in Athens, or women, children, and blacks in Antebellum United States. But until there is significant rule of law, democracy can never take shape.

The struggles of many post-colonial African countries with democracy may be explained by their weakness institutionalising the rule of law. Although these countries, like Nigeria, may have incorporated bill of rights in their constitutions, their politics lacks the effective checks and balances that undergird and define democracy. Democracy would be thoroughly lacking in a society where there is no separation between public and private spheres, where state institutions are normatively oriented to serve the political interests of the ruling elites and where the coercive force of the society is neither professionally managed nor diffused.

Democratic elections require that there is competition and contestation. Where there is monopoly of power or total control of state institutions, especially those that punish or reward, then there can be no competitive election in the real sense. If incumbents are not constrained by either administrative rules or by balance of force, it means that there would be no real competition and contestation. Therefore, there will be little prospect for effective participation and equal voting. This is the case with the 2023 general elections.

In the 25 February presidential and National Assembly elections, the election management body helped to rig the elections for the incumbent political party by mysteriously shutting down the technological safeguard of transparent and credible election – the electronic transmission of result in real time. This undermined the integrity of the election results. Why would a commission that issued a regulation on electronic transmission of results and officially communicated to Nigerians and diplomatic community its commitment to follow through on the regulation now refused to activate that guarantee of transparency and credibility of results? In the 18 March governorship and state House of Assembly elections, voters of Igbo ethnic descent were forcefully prevented from voting because the presidential candidate, the incumbent Governor of Lagos, and his political surrogates accused Igbos of interfering in Lagos politics and mobilised the people to resist that. The Police did not intervene to protect the citizenship rights of Igbos.

The story above illustrates the truth of the insights from Robert Dahl who argued in his book, Polyarchy: Participation and Opposition, that democracy (polyarchy) is only possible where there is real contestation for power. There will be no contestation unless the institutions of coercion have internalised the norms of neutrality and professionalism or there is a diffusion of power such that no single person or group has overwhelming control of the economic or coercive power of the state.

In the 2023 elections, we learnt a hard way that unless we can guarantee the professionalism of the security agencies and the election management body, i.e., ensure that they are operationally neutral of political and economic interests in the society, we cannot have any realistic prospect of having democratic elections.

This invariably means that being truly a rule of law state precedes being a democratic state. If we don’t first ensure that our institution work according to the principles of the rule of law, we cannot transition to democracy.

Sam Amadi, PhD, a former Chairman of the Nigerian Electricity Regulatory Commission, is the Director of Abuja School of Social and Political Thoughts.