By Abraham Ogbodo
I am trying to understand where we are with democracy in Nigeria. I have searched through the books to find a version of democracy that can be practised without the parliament. That is, to see if democracy can hold together its ingredients without parliament. Something like, a non-parliamentary democracy which might not have been contemplated when the Great Greek thinkers sat at the foot of Mount Olympus to invent the concept aeons ago.
Yet, operating democracy outside parliament is a prospect that stares us in the face. Every day that passes brings this country closer to reworking the doctrine of Separation of Power to exclude the legislature. It would look like the French political thinker, Baron de Montesquieu and his English counterpart, John Locke did not think deep enough before they came out to say that the only way society could run justly is for power to be separated into three portions.
If they did, they would have foreseen the current situation in Nigeria and found a proper name for it. These thinkers after thinking all day and night came to the inevitable conclusion that for power to be exercised on behalf and for the benefit of the people, it must first and foremost, flow from law (the Rule of Law) and then exercised through three channels (Separation of Power). These are the legislature, executive and the judiciary. They also said that the channels must remain operationally parallel to one another to achieve the same end of a just society. It means the instrument of law with which society is ordered, creates three functions, each of which must be carried out by each of the three channels of power. These functions are law making, law interpretation and law execution.
There is no intention to teach Ordinary Level Government here. It is just that some very simple things are getting too complex to understand in Nigeria for no clear reason. We have had 65years of self rule. Twenty-eight of this was under different military regimes and 37 under start-and-stop republics; the fourth of which we are still running and has managed to run unbroken since May 1999. This experience is rich enough to equip us with the basics. To understand that, what makes the difference between a military dictatorship and a democratic government is the presence or absence of the parliament. Under the military, laws are not products of robust parliamentary processes. They flowed from the tongue of one man, the same way the demolition of democratic structures in Rivers State had issued from the tongue of President Bola Ahmed Tinubu.
The third leg of the power tripod, the judiciary, may be diminished but never completely obliterated under the military. Ouster decrees had never amounted to absolute usurpation of judicial functions by military dictators. A pointer to that is the fact that a number of landmark cases that have enriched our jurisprudence were delivered by the court under military regimes. The courage to push against arbitrariness and stay with the law to serve justice is the defining feature of great jurists. Court decisions are sacrosanct. The judge can only lean on his own misunderstanding to err and not on external stimulus. Such is the majesty of the judiciary under our past jurists like Justices Oputa, Kayode Eso, Kaibi-Whyte and many others. When the decisions of court are legal, just and equitable in all ramifications, both winners and losers go home satisfied.
The judiciary has no option because justice has no second definition. It must rise up always to its description as the last hope of the common man. But when court rulings, as described by former President Goodluck Jonathan, become the verbatim dictations of interested parties, every hope is lost. Even the winner celebrates with a wounded conscience.
I shall go ahead to say that much of the judicial activism for which Late Chief Gani Fawehinmi became remarkable, happened under the military. The starting point was his defence of a reporter with the Observer Newspaper in Benin-City, Minere Amakiri in 1973. The reporter had written to expose a strike action by teachers in Rivers State. This was considered daring under the prevailing martial tensions of that era. But Amakiri had the added effrontery to file the story to his Editor for publication on a day the Military Governor of the State, Alfred Diete-Spiff was celebrating his birthday. That heightened the embarrassment caused the government and one Ralph Michael Iwowari, the Governor’s ADC, felt Amakiri should pay something for the embarrassment. The reporter was arrested, detained, flogged and shaved.
When Gani stepped in, the hunter turned the hunted. In the end, Amikiri went home with N10,000 in 1973 as damages. This was at a time that amount could buy two brand new 504 Peugeot cars with some change if the bargain was tough. And guess who delivered the judgement. It was delivered by Justice Ambrose Allagoa, then Acting Chief Judge of Rivers State.
Compelling the Attorney General to initiate criminal prosecution was far-fetched in the Nigerian legal system until Gani stepped in. He achieved the unthinkable with the celebrated Supreme Court ruling on Col. Halilu Akilu V Gani Fawehinmi. It all had to do with the death of Dele Giwa. In spite of the road blocks mounted by the military authorities under General Ibrahim Badamasi Babangida, Gani was bent on getting somewhere definite with his search for the killers of Dele Giwa, Newswatch Magazine’s Editor-in-Chief, who was killed on October 19, 1986 through a parcel bomb sent to him by yet to be identified courier. Gani got more than a mandamus to compel a hesitant Attorney General to do the needful. He also got judicial endorsement for the right of a private prosecutor to initiate criminal proceeding in situations where the statutory agencies are flip-flopping.
The Col Halilu Akilu case was such that it was IBB that was effectively being pursued for the death of Dele Giwa. But Gani had the courage to forge ahead and the courts in reaching decisions did not invent technicalities or procedural breaches to obfuscate substantive issues. Both the Bench and Bar were gallant under the military. They didn’t dread the gun to slip into self censorship. They were stable in all indices of characterisation. Their gallantry is manifest in the robustness of case laws under the military. Things started turning differently with changes in the sociology of the justice system. Honour ceased to be the ultimate prize. Wealth took over and Judges and lawyers started nursing ambition to overtake billionaires in wealth creation while still working as apostles in the temple of justice. Owing five star hotels, private jets and building universities have become legitimate pursuits among today’s judges and lawyers.
What has happened to the judiciary under democracy is the national puzzle that is calling for urgent resolution. And until it is resolved, the risk of anarchy is real. The expectation that democracy will deepen the institutions of nation building including the judiciary has not been met. In fact, it has been dashed. Rather, there is an institutional conspiracy to express democracy through just a channel instead of the three known channels.
Do we really know what we are doing? Do the current players on the democratic turf understand the rules of the game. Maybe another experiment that we can bring to bear, is taking intending legislators, especially at the federal level, through some civic education. It should not be as fastidious as a conventional school programme. It could be true that majority or even all of them in the legislature do not understand what creates the difference between military regime and democracy. If they do, they will behave differently. It is in the civic education class that the teacher will tell them that it is the parliament that separates democracy from dictatorship. This will create awareness on the importance of the parliament and reduce the overflowing buffoonery being witnessed on a daily basis in the National Assembly. The tenants in that building should understand that it is not for nothing that the enclaves are called hallowed chambers. Both cambers are so described because of their role in ensuring democracy on behalf of the people.
For close to a month now, the business of the Nigerian parliament has been reduced to managing one young lady called Natasha who has refused to remain within bounds. She is bent on expressing freely. The other major business was the coming together of parliamentarians from both chambers to freely donate the power of checks and balances that is sacredly given to them by the constitution, to the executive so that the President alone (not even the Presidency) can personify democracy. They approved the sacking of Rivers State Governor, his deputy and House of Assembly members by President Tinubu, saying it was done to deepen democracy.
Still on Natasha, her constituents in Kogi Central are angry with her and they want to recall her home. It is within their constitutional rights to do so. I only want to add that if Kogi electorate can come together to recall their senator for crying against sexual harassment and the chauvinist tendencies in the Senate leadership, the rest of us ought to have done more after what happened in the National Assembly about the declaration of State of Emergency in Rivers State. It is not too late though. We can still do something. And so, I expect, in the weeks ahead, to witness a flurry of processes for legislative recalls by constituencies and constituents across the country. That is the only way to prove that the current national parliament is not a parliament of the people and must be sacked.
Let me explain in simple terms what the National Assembly did on the Rivers State issue. The Distinguished Senators and Honourable Members voted to remove parliament from the running of democracy in Nigeria. Short and simple. I had expected their constituents to shout blue murder and begin the process of recalling them home immediately without this prompting that I am doing here. This has not happened. Instead, it is some idle people in Okene that are collating signatures to recall Natasha from the Senate. Everything is happening to facilitate the executive arm into the sole arm of government. The flip flops in the judiciary, the docility in the parliament are all happening to put a lie to the time-honoured doctrine of separation of power.
The summary is that the kind of power under President Tinubu does not need separation. This has its advantages though. It means the huge budgets on the parliament and judiciary would be saved for other things if this democracy is dutifully facilitated by the legislature and the judiciary to be operated exclusively by the strong arm of the executive.
