March 28th, 2011
The Era of the Gentiles, Atonement and the Brotherhood of
Man is ordained to “establish His covenant which He swore to
your fathers, as it is this day.”Deuteronomy, 8 verse 18.
On our part, we must obey the Ten Commandments, all man-made
laws, rules of morality, civility and the rights of other
people must be respected.
There are people, who violate the rights of others, do
horrific things to societies and yet, they seem to prosper.
This was why Job in the Bible wondered why “the wicked live
and become old.”
In Nigeria, we have religious institutions, which promote
Abrahamic precepts. It is therefore surprising that
criminality of the worst genre thrives in Nigeria and is
getting frightening. The ethical standards have become very
low. People now kidnap by their compatriots. Crime is no
longer condemned and the power of shame no longer pierces
the conscience of hoodlums. Hedonism has gained in
Under the Obasanjo regime, violations of the rule of law and
crude politics were prevalent. The government of Yar’adua
promised to observe the rule of law. He appointed cabinet
ministers and other officials, whose tenures were marked by
incompetence and corruption.
Unemployment, hopelessness and dire social conditions, have
pushed some citizens into desperation leading to all such of
Some lawyers have decided to bring issues concerning the
rule of law to the attention of the Nigerian society.
On 22nd March, 2011, the Rule of Law Committee of the
Nigerian Bar Association organized a one-day seminar on the
Rule of Law. Although members of the higher bench and all
stakeholders were invited, they were conspicuously absent.
The Chairman of the Rule of Law Committee, Yusuf Ali ensured
that the Seminar was successful.
However, this did not impact on the proceedings of the
seminar, in which strong views on the judiciary, the
behaviour of legal practitioners and the alien-based legal
system were put to the sword of learned criticisms.
Professor Itse Sagay, SAN, presented a comprehensible
lecture on “Rule of Law as an Agenda for the sustenance of
Enduring Democracy.” He reviewed the workings of the Supreme
Court during “its Golden Days “and lauded the work of the
Supreme Court and other courts in checking the excesses of
the government executive in certain cases where executive
lawlessness seemed to manifest.
The judges of the “Golden Age” of the Supreme were all were
tutored in British Universities and the Inns of Courts. With
Nigerian Law School examination papers are being leaked to
the highest bidders with parental support and connivance,
the further of legal practice and the performance of judges
It is advisable to study the intellectual history of the
rule of law by reflecting on the various epochs of societal
The harsh regimes of Kings and strongmen have been in the
discourses in the Laws of Manu, the Laws of Hammurabi, the
Feta Negact of the Ethiopian Orthodox Church, the laws of
Queen Ranavalona of Madagascar (now Malagasy).
These ancient regulatory norms were aimed at the promotion
of the rule of law and human rights.
The rule of law is embedded in liberalism,” a political
philosophy which postulates the freedom of the individual,
democratic institutions and free enterprise, upholds the
right of man.
In Britain, “19th-century liberalism was indebted to
philosophers like Adam Smith, Jeremy Bentham, John Stuart
Mills and T.H Green, who propagated the concepts of
democracy, natural rights, representative government and the
Wittgenstein said “Philosophy is an activity not a theory,
so too, law and jurisprudence. Law is no more than the
rules, which the lawyers use or have used, or might use in
their everyday business.”
In intellectual history, law has been defined according to
the kind of socio-economic system in vogue. So, also is the
understanding of the rule of law.
During the one-day seminar in Abuja, Judge Augie of the
Enugu Judicial Order presented a paper entitled “The Agenda
of Rule of Law for Nigerian leaders”.
In her erudite, lucid and frank address in didactic style,
the learned judge espoused the theoretical and practical
issues involved in discussions on the rule of law and human
rights. In so doing, the learned judge went through the
international meetings by international jurists aimed at
framing the synthesis for universally acceptable code of the
Rule of Law.
She discussed the Act of Athens, the Declaration of
Delhi,(1959), the Law of Lagos and the Declaration of
From these welter of juristic efforts, the norms of human
rights and the rule of law became solidified..
Her references to learned opinion of eminent jurists helped
to elucidate her points. She spared her audience the usual
regurgitating of many many decided cases, which is the
hall-mark of Nigerian legal practice and academia and which
often results in obscurantism and plunges the subject under
review into obloquy.
The learned judge dealt with the issue of transparency, the
judiciary and the behaviour of some lawyers, who engage in
some unwholesome practices that militate against the rule of
The 27-paged paper, which the learned judge kindly
autographed for me is a must read.
I take the view that the subject of the rule of law, human
rights and constitutionalism form the tripod of modern
jurisprudence. The United Nations have passed many
declarations, conventions, protocols in furtherance of the
objectives of seeking compliance with the respect for the
rule of law and human rights,
The primitive societies adopted the rule of force by strong
men. The feudal societies were presided over and are still
being presided over by kings, who exercise an oppressive
sway over their citizens only yielding to revolutions.
Some capitalist states are democratic by virtue of the
dominance of the propertied class, who are adroit at
manipulating their societies. Socialist societies tend to
manifest intolerance for opposition, which is often seen as
As a result, the struggle for human rights and the rule of
law is a continuous societal agenda.
In Nigeria, we are yet to realize that our federalism is
neither just nor expressive of the wishes of the people. The
presidential system is very expensive.
Our mono-culture economy cannot sustain the system any more.
The system of revenue allocation, in which the Federal
Government takes the lion’s share, leaves states and local
governments with meager resources to ensure social justice
and a life that is marginally tolerable.
A deprived people are bound to throw caution to the winds
and engage in acts of criminality.
Without the rule of law, societies will be in a perpetuate
state of conflict. Just as one observes the rule of grammar
in order to make sense in conversation, so a society must
abide by laws to maintain peace. The rule of law is
imperative for the maintenance of public order.
Political parties do canvass for votes during elections. An
elected party by majority votes gains the legitimacy to
govern according to the rule of law.
Any form of arbitrariness and impunity, such as we have
witnessed in Nigeria, creates the despondency leading to
revolt as we have seen in North Africa and the Middle East.
Majority rule creates the legitimate legal basis for
legislative governance of a state. Legislations, which seek
to regulate the political, economic and social life of a
state, are indispensible for the enthronement of the rule of
law. The functions of law are to create an ordered
atmosphere in a polity, which enhance peaceful development
of the state. Laws also defines the citizens’ rights and
duties. No man should be dealt with wickedly either by the
government or his compatriots. Where such infringements
occur, the citizen must have free access to the judicial
The rule of law is both a deterrent and a shield. The legal
system must work properly, ensuring that justice is not
unduly delayed. During the one-day seminar in Abuja, it was
revealed that some cases had been on the Cause List for over
a decade. “Justice delayed is justice denied”
Some lawyers, it was reported apply for prolonged
adjournments, preliminary objections, unnecessary appeals in
order to stultify the judicial process and the rule of law.
It was agreed that the Nigerian elections of 2011, must be
credible, free and fair, in order to confer legitimacy on
the in-coming government. Usually, an illegitimate
government would resort to undemocratic and repressive
measures to stay in office. The rule of law and the rule of
force seem hard to reconcile.
Acceptance of the authority of the law is crucial for the
sustenance of the rule of law. For the rule of law to
prevail and thrive, there must be awareness on the part of
the people, the consequences of delinquent behaviour. The
law enforcement agencies, who are often over-zealous in
their dealings with civilians, must receive adequate
training that should put them in the orbit of civilized
attitudes. One cannot violate the law, while defending the
government during demonstrations.
The machinery for the administration of justice is a
competent and incorruptible judiciary, and other law
enforcement agencies. The caliber of these people can be
gleaned from court judgments, the quality of police
investigations and prosecutions.
From available evidence the standards seem to have fallen
inexorably. The social pressures on families in Nigeria and
the false consciousness that make people live above their
means; culminate in the imperative to act with impunity on
the side of government officials. Those that have access to
public funds have not shown any restraint in embezzling
A Nigerian jurisprudence has not taken root to deal with our
wrong social values, the entrenched negative ethos, the
disparity in the wage structure and the revenue allocation
system, these hinder the positive operation of the rule of
The Nigerian legal system has not divorced itself from its
British colonial heritage.( See Emmanuel Omoh Esiemokhai,
“THE COLONIAL LEGAL HERITAGE IN NIGERIA” Fagbamigbe
Publishers, Ibadan, Akure, 1986.
Nigerian legal practice restricts itself to case law. There
is little erudition in advocacy except that the learned
justices show excellence in their written judgments. These
are later over flogged in subsequent litigations, both in
and out of contexts.
The British legal tradition from the lawyers outfit to” ME
Lord and as the court pleases,” have engraved an indelible
patch on Nigeria’s philosophy of law. This has handcuffed
This is why this writer was so pleased with the learned and
sophisticated presentation by Judge Augie during the one-day
seminar on the rule of law in Abuja that I recommend the
paper to our citizens.
The IFE Critical Legal School disapproves of legal formalism
which put undue emphasis on rigid adherence to procedural
aspects of litigation, which often allows the form to defeat
the substance of the case, even after the Supreme Court’s
pronouncement on the practice. We approve of robust advocacy
and logical delivery in courts.
After a close study of Nigerian Constitutions since 1945, I
came to the conclusion that they were not aimed at effecting
meaningful change, but were intended to diffuse, not to
consummate the national, democratic development that is long
In Nigeria, there are no galvanizing, democratic forces in
the various political parties that could bring about mass
mobilisation that will raise the consciousness among
Nigerians which will, in turn, engender popular revolt
against the forces of under-development.
Religious visions, which illuminate eternal truths, have not
helped Nigerians to throw off their chains. They rather seem
to blunt the edge of the struggle for democracy and the rule
of law, as well as stultify the objective conditions of
popular struggle for democracy, economic emancipation and
Franz Cumont, in his “After life in Roman Paganism”, wrote,
“In the heavy atmosphere of a period of oppression and
powerlessness, the despondent souls of men aspired with
ineffable ardour to the radiant space of heaven”. Some
victims of human rights violations in the Arab world, who
kill themselves, belong to this category.
The disrespect for the rule of law in Nigeria is the reason
that has permitted hopes that our new rulers will fashion
concrete policies to govern well.
The fight against corrupt persons must be sustained and a
directory already exists of the various cases. The efforts
to rescue Nigeria from the rule of lawlessness is a cardinal
undertaking.. We know that the glory of the corrupt shall
not descend after them. In the remembrance of the people,
they shall be called thieves and evil men forever.
Unfortunately, the manifestoes of the various Nigerian
political parties have inundated us with simplistic
sloganeering, vague promises and clichés.
We need political programmes that are devices designed to
strengthen the main propellant of the coming transformation.
I have advocated that we are rather a Confedral Republic
rather than a Federal Republic. We need to strengthen the
authority of individual states and encourage them to produce
wealth rather than lazily expect funds from the government.
A Confederal Republic will make states aware of their
inherent rights to peaceful co-existence with other states.
There will be inter-state trade, economic and cultural
cooperation, mutual exchange of agricultural products and
other serious forms of engagement.
States that are in control of their resources are likely to
be imaginative, hard-working and resourceful.
With a marked increase in the social conditions of people in
their confederal, composite units, the rule of law,
democracy and their human rights will be assured.
The new government of Nigeria needs to call a National
Conference of our Confederal States, re-draft the
Constitution to reflect Nigerian socio-economic realities
and ensure the rule of law.
I already know the new President. He will hear a lot from me
about the rule of law, social justice, the need for price
control, constant electricity, good roads, law enforcement,
transparency, good governance, during the coming
Professor Dr. Emmanuel Omoh Esiemokhai, a Writer and
Academic is the President of the proposed Afemai University,
Fugar, Edo State.