Ikenna Enebe
1 September 2008
analysis
Lagos — The rule of law implies legality, regularity and consistency in the enforcement of the democratic order. It requires that the process of law-making be transparent and itself guided by law.
All exercise of public authority must be regulated by and consistent with the constitution and the law. An independent judiciary to which all persons have free recourse must control the application and interpretation of laws.
The first component of the rule of law is access to courts. Section 36 of the 1999 Constitution of the Federal Republic of Nigeria guarantees all citizens the right to fair hearing before an impartial and properly constituted court of law within a reasonable time. This is the first defense against dictatorship and the first target of dictators.
The second component is equality before courts. Everybody hails this principle in the abstract but many shrink from endorsing the consequential realities. It means the courts may not defer to the Government in the war against corruption. That constitutional right protects all of us, the suspected drug dealer, the accused spouse beater, the suspected armed robber, even the ex-governor accused of money laundering and other sundry offences.
The third component of the Rule of Law is procedural justice in every case. That is not to say that every case will have a just result, but for judges to substitute personal judgement for the results produced by rigorous adherence to procedural requirements would be to substitute rule of person for Rule of Law. Law governed by procedural due process produces the best justice possible in a mortal world of fallible humans. Rule of law requires judges to protect the Constitution at the expense of personal preferences.
The final and most difficult component of the Rule of Law to acquire and maintain is, supremacy of the courts. Court rulings must be accepted, court decisions must be respected and courts must be obeyed if we are to be ruled by law and not by individual and independent sovereigns.
In Nigeria today, the common refrain is the rule of law, it has become so commonplace that it is in danger of losing its essence. This present Government in power has manifested signs that it is ready and willing to abide by the decisions of courts of law. Going by the way the President ordered the expeditious execution of various court judgments even those given against members of his party at the various election petition tribunals, all democracy lovers and enthusiasts may be hoping that we are witnessing a marked difference from the past administrations, especially the immediate past one which had a remarkable penchant for disobeying court orders or interpreting them in a way to suit them.
However, it is not enough for this government to obey and carry out judgments given against it, what happens to those litigants who obtained myriads of judgments against government at all levels in the past but who have not reaped the fruits of their litigation. After all, government is a continuum and the fact that the judgment was not obtained against the government of the day does not render such earlier judgment nugatory.
This now raises the question of making sure that judgments given against government is not only obeyed but in good time so that the litigants can enjoy it while it still has value. It is a defining trait of our system of checks and balances that submission to court orders by other arms of government must be voluntary. Our courts cannot raise funds through taxation or deploy its own soldiers. It must rely on the commitment of the people and their political and military leaders to the rule of law for the acceptance and enforcement of its rulings.
This is why the recent Judgment Registry initiative of the Nigerian Bar Association is very commendable. The scheme involves the establishment of a judgment debt depository in all the Ministries of Justice of the 36 States of the federation and the FCT Abuja. The idea is to have a comprehensive list of all judgments against government, so that the Attorney-General of the state or the Federation is in a better position to advise the affected government agency or organ as to compliance with such judgement.
Also the 88 branches of the Nigerian Bar Association have opened judgment debt registers and are encouraging all lawyers and litigants to enter any judgment obtained against the government in the register. The idea here is to make sure that the judgments registered at the Ministry of Justice tallies with that registered at the various branches of the NBA and then also for the NBA to be able to publish periodically those judgments that have not been complied with.
The hope is that with the commitment of Government and the vigilance of civil Society organisations like the NBA, the enforcement of judgments against everybody including government will become a reality.
There is no gainsaying the fact that obedience to court judgement will boost our current reform efforts and encourage more foreign direct investment in the economy. Let the truth be told, nobody wants to invest their money where they are not sure they will have recourse to the judiciary and that what ever result is obtained from the litigation will be obeyed by both parties.
The rule of law and obedience of court orders is a necessary ingredient for the sustainability of development strategies and policies. The engagement of economic and social agents in development processes is facilitated when actions by institutions are predictable and reliable. A country operates under the "rule of law" when it has: a legislature that enacts laws which respect the constitution and human rights; an independent judiciary; effective, independent and accessible legal services; a legal system guaranteeing equality before the law; a prison system respecting the human person; a police force at the service of the law; an effective executive which is capable of enforcing the law and establishing the social and economic conditions necessary for life in society, and which is itself subject to the law.
Enebe wrote in from Lagos
Be the first to Write a Comment!
Copyright © 2008 This Day. All rights reserved. Distributed by AllAfrica Global Media (allAfrica.com). To contact the copyright holder directly for corrections — or for permission to republish or make other authorized use of this material, click here.
AllAfrica aggregates and indexes content from over 125 African news organizations, plus more than 200 other sources, who are responsible for their own reporting and views. Articles and commentaries that identify allAfrica.com as the publisher are produced or commissioned by AllAfrica.
