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The Role Of Law In Maintaining Sanity And Preventing Impunity In A Democratic Setting (Part 5), By Prof Mike Ozekhome, SAN, CON, OFR, Ph.D

Nigeria, We Hail Thee: What is in a Name? Prof Mike A.A. Ozekhome -  Courtroom Mail


The fourth part of this treatise dealt with a global review of the theme of “How law maintains sanity and prevents impunity in a Democratic setting”. In this feature, we shall continue with an appraisal of the position in India and Uganda before examining our experience here in Nigeria. Read on.


How Law Helps To Maintain Sanity And Prevent
Impunity In A Democratic Setting (Continues)

The Constitution being the organic law of the land ought not to be subjected to such ouster clauses, as subjecting it to outer clauses will only stunt the growth and development of the country and by extension, encourage impunity without caution among public office holders. In Oyewunmi v Ogunesan, (1996) 3 NWLR (PT. 137) 182) the court rightly held that in the present era issues of rights and development, no economic and/or social rights provisions in any Constitution ought to be made non-justiciable. Otherwise the government cannot be held accountable to the people which in turn, propagates corruption and hinders development. Therefore, to reposition Nigeria in a better light of actually stamping out impunity, section 6 (6) (c) of the constitution needs to be examined critically by those constitutionally empowered to make laws and amend same to that section 15(5) can become of utilitarian value and place public officers on their toes to fight impunity with all honesty.

In India and some other African countries, there has been a gradual shift from rigid adherence to the implication of non justiciability of the constitution to flexible amendments to judicially making non jusiticiable aspect of their constitution justiciable. India is one of such States as reflected by the Supreme Court of in Bharati v State of Kerala (1973) 4 SCC 222, where Hegede and Mukherjea J J rightly stated that directive principles is aimed at making the India masses free in the positive sense without faithfully implementing the Directive Principles, as it is contemplated by the Constitution (India 1950). In striving to improve quality social life, the Indian Constitution has had 97 Amendments.

Also the Constitution of Uganda, as amended in 2005, has made a strong case for the justiciability of non justiciable provisions of the Ugandan Constitution. Ogugua V.C. Ikpeze, Non-justiciability of Chapter II of the Nigerian Constitution as an Impediment to Economic Rights and Development, Developing Country Studies V0I.5, N0.18, 2015. For example Article 29 (See the Constitution of Uganda, 2005) provides for protection of freedom of conscience, expression, movement, religion, assembly and association and Article 30 provides for right to education. Article 33 is on rights of women; while Section 34 is on rights of children. This Article provides as follows:

“No child shall be deprived by any person of medical treatment, education or any other social or economic benefit by reason of religious or other beliefs”.

While Article 39 provides for rights to healthy environment, and Article 40 is on economic rights to employment.

Democracy And The Culture Of Impunity/Disobedience To The Rule Of Law In Nigeria

Democracy in Nigeria came with its price – the prevalent culture of impunity. This of course, is not unconnected with the many precarious and vengeful military takeovers of democratic governments with its total defiance to the rule of law, accountability and widespread unchallenged series of wanton corruption, murders and treasury looting. Analyzing Nigeria’s democratic setting and its attendant culture of impunity without considering the negative influence of military incursion into our democratic space will make the study to be bereft of completeness. This is rightly so because the military has ruled Nigeria for 29 years out of its 64 years since its independence and this has in no small measure contributed vigorously in shaping and reshaping the country’s political and democratic life.

On January 15th, 1966, Nigeria had its first military coup executed and spearheaded by Major Chukwuma Kaduna Nzwagu and his 5 cohorts 6 years after Nigeria’s young independence. Major Chukwuma toppled the government of Alhaji Sir, Abubakar Tafawa Balewa, Nigeria’s first prime minister. Until that time, the Nigerian army, as noted by Shittu was:

A normal professional force, the officers and men occupied themselves with training, peace keeping efforts in foreign land and other sundry military activities. But that changed when Major Kaduna Chukwuma Nzeogwu and his cohorts struck on January 15, 1966. That, apart from sounding the death knell of the 1st Republic, effectively brought the men in “khaki” into the murky waters of politics.” (ibid).

The military takeover by Major Chukwuma was first greeted with jubilation until it was discovered that the assassination and killings was sectionally imbalanced. This led to the retaliatory coup of 29th July 1966 masterminded by officers of Northern extraction. The coup led to Nigeria’s civil war between 1967-1970 as the Ibos saw the coup of 29th July 1966 and the following unresolved murders as genocide and ethnic cleansing against them and that the Gown led federal government of Nigeria was not ready to stop the genocide. However, by 29th January, 1975, General Gowon was overthrown in a bloodless coup by General Murtala Mohammad who was assassinated on 13th February, 1975, paving way for General Olusegun Obasanjo, who by October 1, 1979 handed over power to the Shagari led civilian government. It was not to last long as General Mohammed Buhari struck in his “khaki” and took over power. His government gained reputation for being harsh and brutal. Subsequently, on 17th August, 1985, General Ibrahim Babangidda took over power from Buhari stating human rights abuses and dwindling economy as excuses; then came General Sanni Abacha in 1993 and remained in power till his death in 1998.

One thing that gained prominence during the many years of military rule in Nigeria was widespread corruption, assassinations and killings, money laundering, human rights abuses and gross unaccountability and impunity which became a culture well entrenched in Nigeria’s social, political and economic space. Olaniyan (A.O. Olaniyan (2010). “The Military” in Lai Olorode (ed.) Reflections on a Decade of Democratization in Nigeria” Friedrich Ebart-Stiftung, Abhuja, Nigeria: 162-77 cited in K.A. Shittu, Military,), puts it better when he said:

“The military over the years have claimed to have come to power to rid the country of corruption; however, it is evident that the military itself is either corrupt or more corrupt than the secular class they claimed to have come to correct.” (ibid).

Aside the gross abuse of human rights, embezzlement, the military also bequeathed its defiance to constitutional provision to Nigeria even after its many years of military rule. Little wonder the Constitution of Nigeria largely remains the way it is at present because it is the brainchild of successive governments who have structured it to sooth its appetite for limitless and unchallengeable powers.

The year 1999, precisely May 29, ushered in a new democratic dispensation to the joy of Nigerians. The military government of General Abdusalam Abubakar handed over power to a democratically elected president – Olusegun Obasanjo, a retired army general. The change from military government to a the now democratic government appeared to have only taken place in form but not in substance as the country continued to wallow in unmitigated impunity. Thus, despite all laws and rules towards maintaining sanity and preventing abuse, it seems that in Nigeria, laws are not meant for the elite or the political big wigs to obey but for the less privileged in the society. The so-called custodians of democracy, who are equally supposed to be custodians of the rule of law, have abandoned the rule of law, for the rule of politics. There is a culture of impunity on going in the country. Abuse of power by the government and its agencies is on the increase, while certain individuals also seem to be above the law simply because their alliance with the government; they do whatever they will, but remain untouchable.

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