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The struggle with the rule of law in Nigeria 09 Feb 2023

The scale of power and wealth wielded by governments, business corporations, and wealthy individuals have grown in leaps and bounds in the modern world. Governments are increasingly wealthier and more powerful, nevertheless many non-state actors still control remarkable power and wealth, either legitimately or otherwise.

The world's total net wealth is currently at $431 trillion. About 25 percent of this is owned by high-net-worth individuals (HNWI) – people worth at least a million dollars. The economic growth, and wealth creation that has fuelled it, has been enabled by the rule of law as it fosters property rights, sanctity of contracts, political stability, trade (international and intranational), mediation and arbitration, security, and the protection of individual rights and freedoms.

A society's commitment to the rule of law tends to positively correlate to its socioeconomic wellbeing. But as always, success tends to bring its unique challenges. The powers of state and non-state actors have tested the capacities of the systems that underpin the rule of law – which serves to hold individuals and public and private institutions accountable to the justice system. This is a growing global challenge, but one that is more acute in underdeveloped countries such as Nigeria.

The rule of law subjects everyone and everything to the supremacy of the law. But many entities, individual or corporate, and governmental or non-governmental, are making themselves less accountable because of the wealth they control and the power they wield. This makes the legal process unfair to the other parties.

The people whose actions tend to put them above the law in Nigeria include government officials, successful businessmen, and those with the lever to foment violence, including militias. By their modus operandi – which is sometimes harmonised among the conniving groups – it is challenging to have a sense of equality by law-abiding citizens. For example, in the South-East of Nigeria, the Indigenous People of Biafra (IPOB), a separatist group that has placed an entire region under a de facto law that forbids going outdoors to work on Mondays, has commanded the compliance of over 22 million people. In this regard, it is evident that the country is struggling with protecting rule of law.

IPOB is also inhibiting the functioning of the democratic process by its hostility towards elections. Its operatives have been attacking the offices of the Independent National Electoral Commission (INEC). In the gubernatorial election in Anambra State in 2021, voter turnout was suppressed. The APGA candidate, Charles Soludo, won by polling just 10 percent of the 1.6 million voters in the state – in a race between no more than three frontline candidates. In places where insecurity is not being fomented by separatist or terrorist groups, politicians still routinely enlist thugs to unleash violence as an integral strategy for electoral victory.

When election to political offices are secured this way, the government may lack legitimacy and would definitely struggle to get the rule of law and the justice system that drives it to function well. The citizens would also be less encouraged to be law abiding.

The rule of law primarily refers to a system where everyone is governed by the law and not by the whims and caprices of individuals in government, and those responsible for dispensing justice are also under – and not above – the law. It increasingly appears like Nigeria is not even aspiring to improving its justice system in any genuine way anymore. But the country is not alone in this regard.

The 2022 World Justice Project’s Rule of Law Index shows that the rule of law is declining around the world for a third straight year. Majority of countries, across the regions of the world and income groups, are having declining scores on the index. Nigeria's position on the latest index leaves cause for concern. Globally, the country ranks 118th out of 140 countries surveyed. Even sadder, Nigeria ranks 24th on a list of 34 countries in sub-Saharan Africa.

Nigeria's rule of law situation is largely symptomatic of the culture of its leadership for much of its history, post-independence. The country got its independence in 1960, but out of the 62 years since then, it has been governed by military dictatorship for 28 years. In the remaining 34 years of civilian rule, former military dictators have been president for almost 16 years. Thus, the Nigerian democracy has been ‘militarised’.

In Nigeria, coup d’etats, which ushered the military rules, came with the announcement of the suspension of the constitution. Indeed, the military government would suspend the existing law-making organ of the democratic government its sacked – that is the legislature. The military therefore ruled by decrees and the force of arms.

During a nominal existence of the rule of law as has been the case under the current democratic system since 1999, the country has experienced better economic performance. But ex-military dictators that have been president in the Fourth Republic have sanctioned extra-judicial killings, like the Odi massacre under President Olusegun Obasanjo and the brutality meted to the Shiite sect under the current administration of President Muhammadu Buhari.

Even more pervasive are instances when law enforcement agencies are involved in torture, extrajudicial killings, and stifling of the media establishment – with media outlets dealing with forced closures, punitive fines, and overbearing attempts by the Federal Government to dictate what media houses should report to the Nigerian public.

It is positive, though, that the presidential election this month does not have a former military dictator as a candidate. This is considering the tendency to less impunity by the civilian administrations since 1999 where the president did not have a military dictatorship background. The administrations of Presidents Musa Yar'Adua and Goodluck Jonathan are in reference here. Hopefully, the 2023 presidential election will produce a president with a personal disposition that lends itself to improving in rule of law in the country.

Cheta Nwanze is Lead Partner at SBM Intelligence.