Humankind has come a long way in the search for good governance and a wholesome political and socio-economic existence. Right from ancient times, tremendous efforts have been made towards fashioning governmental systems that would enhance the well-being of citizens. Proponents of autocracy, aristocracy, oligarchy and even kakistocracy would insist that they have in mind the best interests of the people.
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Nevertheless, it is now generally accepted that no system of government is perfect. In fact, Winston Churchill once observed that democracy was the worst form of government apart from all the others! Accordingly, many have come to the conclusion of Alexander Pope on the futility of debate on the best form of government, preferring instead to concentrate on the practicality of governance or the personality of public office-holders.
The centrality of human rights in the scheme of things is self-evident. Any system of government that is not founded on the protection of civil liberties and the public good is, quite simply, untenable in today’s realities. Politics is all about people, improving their existential conditions and inspiring hope and confidence in them of a better tomorrow. When and where the people lose hope in the future, the consequence is usually exhibited in the form of apathy, anarchical tendencies or rebellion. It is by engendering feelings of compassion, self-worth and relevance in the general population through the observance by the state of human rights norms that society can be assured of peace, order and good government. Needless to say, all this is brought about through the instrumentality of law. Without the due process of law, it is well-nigh impossible to contemplate society itself.
A law-governed society is clearly distinguishable from a colony of apes. While there could be a semblance of law and order in the animal kingdom, primates act more on instinct than the well-ordered rationality that is deemed to predominate in the human society. The notion of the rule of law, understandably, emerged at a particular point in time in the human evolution. While certain race supremacist theorists might wish to appropriate the concept of rule of law to themselves, the fact bears re-stating that subjection of human conduct to the governance of rules is a universal value of humanity and not one to be restricted to particular times or places.
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It is within this context that we are called upon to interrogate the nexus between human rights, democracy and the rule of law. However, one fact which should be borne in mind is the impact on our collective consciousness of three hundred years of the transatlantic slave trade and nearly a century of colonialism plus about fifty years of neo- colonialism. However much we might hate to admit it, our brutal encounter with Europe over the centuries has left an indelible mark on our thought processes and the way and manner we have been carrying on with our affairs and tackling issues such as today’s engagement. It is, therefore, not surprising that our understanding of human rights, democracy or, in fact, the rule of law has generally followed that of Europe and America. And, as we are discovering in today’s globalized world, it is becoming increasingly difficult to localize any concept as we are compelled, more and more, to chafe under the tyranny of imposed paradigms.
Law and the Democratic Process
It is not altogether difficult to understand those who rhapsodize on democracy as the preferred form of government in the contemporary world. The collapse of the ‘totalitarian’ regimes in Eastern Europe in the early 1990s thereby heralding ballot-box democracy, freedom of the press, an independent judiciary, the right to be different and all the other appurtenances of democratic praxis, would seem to have confirmed Churchill’s euphoria. If for the better part of the 20th century, we had lived in a divided world of competing ideologies, we were henceforth to be treated to a monochromatic diet of liberal democracy and human rights, symbolized by periodic elections based on free enterprise capitalism. The ‘right to choose’ which is usually said to lie at the epicenter of western democracy soon became the shibboleth of the new converts who relished consumerism, the right to be different and the other attractions of the democratic way of life. However, as the new initiates were soon to discover, democracy is more of a process than an event. More important, for full efflorescence of democracy to take place, parity of voting power at poling stations would need to be matched by parity of purchasing power in the market-place (at least, in relation to basic human needs). In other words, the right to elect one’s representative would have to be accompanied by the right not to go to bed hungry!
If politics is indeed about allocation of values or, as Harold Lasswell once put, deciding who gets what, when and how, it can quite legitimately be asked what role law has in the entire project. The simple answer is that law has everything to do with actualizing the promise of democracy. To the extent that law is doing things with rules, to borrow William Twining’s language, law sets the ground rules for democratic practice. A country’s constitution, being the fundamental law in the land, would normally have one or two things to say in respect of eligibility for political offices. Aside from this, the electoral laws would specify rules and regulations pertaining to conduct of elections. In some jurisdictions such as ours, ample provisions are contained therein for the registration of political parties, electoral expenses, campaigns, etc. What it all boils down to is that law plays an overarching role in the actualization of the democratic ideal. Indeed, any attempt to sideline or trivialize law in the democratic process could, in effect, render the entire process unworkable.
As Roberto Unger once observed, law is the glue that holds society together and failure to acknowledge this fact could be fatal to the democratic project. This is even more so in a polity such as ours where there is little evidence that the political actors had fully imbibed the democratic ethos. Admittedly democracy to many of us is a learning process, having endured the diktat of our military elite for upwards of thirty years. Notwithstanding, it must be stated that our learning curve seems to be rather steep as we keep repeating the same mistakes so much so that some observers have virtually given up on Nigerians when it comes to the issue of democracy. We seem to have ended up with the situation of "anything goes" in relation to the way and manner we have been approaching the democratic experiment.
However, it seems to me that if all our political actors agree to abide by the stipulations of the Constitution, the Electoral Act and other relevant legislation, the country can be assured of a fruitful and working democracy. In other words, the key to successful democratic practice lies in respect by all for due process of law. Fidelity to law is the true and tested panacea to the distortions and infelicities that currently litter the political landscape. Anyone who professes democracy must be ready and willing to play by the rules. Anything to the contrary would only be tantamount to attempting to operate democracy without democrats or, trying to stage Hamlet without the Prince of Denmark.
The Cogency of Human Rights in the Contemporary World
In the long and chequered history of human rights protection, the world has come to the realization that rights have to be taken seriously if humanity is to make any progress. While the notion of rights as a de facto valid claim is today nearly universally accepted, it should be remembered that this has not always been so. In the slave societies of ancient Egypt, Mesopotamia and India, it bordered on sacrilege to talk of equality between master and slave. In fact, severe sanctions were prescribed for any such thinking which could have ultimately led to the overthrow of the power and authority of the ruling classes.
The feudal society hardly fared better. Although the vassals were no longer considered possessions of the landed gentry, the maze of tenurial obligations incumbent on serfs vis-à-vis the lords kept intact the class distinctions and cleavages of the ancient regime. Accordingly, the revolutions of the 17th and 18th centuries can be rightly considered as blows struck for human rights. Crusaders for liberty, equality and brotherhood, otherwise known as the social contract theorists, provided the intellectual and philosophical justification for the advancement of human rights. The Magna Carta had, undoubtedly, influenced developments in England right up to the Glorious Revolution just as the American Declaration of Independence impacted on the French Revolution. The notion of the right to life, liberty and property or what the Americans called the right to the pursuit of happiness permeated the writings of thinkers like Grotius, Hobbes, Locke, Paine, Rousseau and others that constituted the Age of Enlightenment. In fact, so great was the impact of the social contract theorists on subsequent political development that it is difficult to imagine what would have been the path of western civilization without them.
Nevertheless, it should be remembered that the lot of Africans hardly improved while all this was going on. Not only did the transatlantic slave trade continue, as late as 1857, the US Supreme Court could still opine that a black man had no right that the white man need respect.[1]Nor can we forget the fact that a few decades after, the leaders of Europe and America gathered round a table in Berlin and parceled out an entire continent like an apple-pie, without batting an eyelid or sparing any thought for the rights or interests of the indigenous population.
The rape of Africa by the imperialists which became the harbinger of full-blast colonization constituted a most brutal assault on the collective right of the African peoples for self-determination. The slave trade coupled with colonialism became the vilest and most despicable act of man’s inhumanity to man and a crude and unconscionable violation of human rights the like of which the world had never seen. That the selfsame marauder nations of Europe could later be talking of rights after Hitler had unleashed his terror machine on them demonstrated the inter-relatedness of rights and the need to apprehend the fact of indivisibility of human rights. It took humankind a long and tortuous journey to realize that abuse of human rights in any part of the globe constitutes an abuse everywhere else.
The establishment of the United Nations at the end of World War II and especially, the adoption of the Universal Declaration of Human Rights (UDHR) by the UN General Assembly on December 10, 1948 marked a new stage in human rights protection. Despite the fact that Resolutions of the General Assembly are merely hortatory and not strictu sensu binding on member states, the broad acceptance by the generality of the international community of the UDHR is such that it is practically impossible today to discuss human rights issues without paying due acknowledgement to it. Some countries have actually incorporated provisions of the UDHR in their constitutions while others deemed it fit to enact laws aimed at meeting the standards established under the instrument. In the words of Kofi Anan, the UDHR has truly become the international Bill of Rights of our time.
The evolution of human rights, it should be noted, has followed a trajectory characterized by concretization. Thus, while the UDHR can be considered the first generation in the development of modern human rights law, the adoption in 1966 of the two human rights Covenants-the UN Covenant on Social, Economic and Cultural Rights and the Covenant on Civil and Political Rights-is deemed in many circles as constituting the second generation of human rights. The third generation of rights is traceable to collective rights like that of self-determination.[2] In line with heightened consciousness across the world regarding conservation of resources and environmental protection or what has generally passed for ‘sustainable development,’ it has been suggested that there is now a fourth generation of rights.[3] The preoccupation of the West with democracy would seem to have given rise to a fifth generation of rights, that of democracy and good governance.[4] Although there is some talk about the sixth generation of rights arising out of the women’s movement and also a seventh generation concerned with the animal rights movement, it does not appear that sufficient support has been mustered to achieve widespread recognition for these rights.
At the regional level, it should be recalled that the Latin American Declaration of the Rights and Duties of Man of 1948, otherwise known as the Declaration of Bogota signaled the commencement of regional attempts to set international human rights standards. This was followed by the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) and the American Convention on Human Rights of 1969 as well as the African Charter on Human and People’s Rights adopted in Banjul in 1981. One should also mention the Cairo Declaration on Human Rights and Islam of 1990 as well as the Arab Charter on Human Rights (1994). The Bangkok Declaration of 1993, adopted by Asian states ahead of the Vienna World Conference on Human Rights of the same year stressed the necessity to adopt a regional and contextual approach to human rights as against the universalistic approach favoured by the western countries.
The expansion in scope of human rights protection can be attested to by the adoption of the following instruments : the UN Convention on the Elimination of All Forms of Racial Discrimination (1965); the UN Convention on the Elimination of All Forms of Discrimination against Women (1979); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984); the Convention on the Rights of the Child (1989) and the Convention on the Rights of Migrant Workers (1990). Furthermore, the creation of the Office of the UN Human Rights Commissioner in 1994 as recommended by the Vienna Conference in 1993, marked an important milestone in the history of human rights protection.
The commitment of the UN Secretary-General to the idea of placing human rights in the front burner of international discourse was borne out by the transformation of the erstwhile UN Human Rights Committee into a strengthened Human Rights Council in March, 2006.[5] The thinking which informed the decision was to the effect that it was about time to put human rights at par with security as part and parcel of the proposed re-structuring of the UN, bearing in mind the Millennium Development Goals (MDG).[6] Indeed so central is the idea of human rights to the MDG that none of the goals –eradication of poverty, universal primary education, gender equality and women empowerment, reduction of child mortality, improvement of maternal health, combating HIV-AIDS, malaria and other diseases, ensuring environmental sustainability and developing a global partnership-are imaginable without anchoring it firmly on human rights.
In a world fragmented, as it is, along the lines of class, race, religious belief and gender, the principles of equality and non-discrimination are decisive in the task of creating a better and more equitable world. If we are to move out of the situation where the vast majority of the people of the world are condemned to eke out an existence despite the abundance of material resources, considerable new thinking must come to play regarding the way and manner human societies are organized and towards this, human rights would seem to be a good starting point. However, the question of rights, it must be emphasized, is, ultimately, a question of law.
The Imperative of the Rule of Law
Despite all the hue and cry over the rule of law, it is something of a paradox that many who assume knowledge or familiarity with the concept do not really understand what it entails or realize its centrality in the workings of liberal democracy. In fact, we can say of the rule of law what Alf Ross once said of natural law: a harlot at the disposal of everyone. Nonetheless, the rule of law has well-known contours without which it would have been difficult to separate genuine from fake believers in the concept.
Briefly stated, the rule of law implies fidelity to due process of law. In other words, all actions in a polity should be traceable to prior established norms which all concerned are agreed to observe. Its template encompasses a law determining body, that is to say, the judiciary which is charged with pronouncing on the validity of all transactions in society. Accordingly, where and when the rule of law prevails, no room exists for whimsical or capricious action which could jeopardize certainty and predictability of the legal order. Since lawyers generally would prefer bad laws to no laws at all, the rule of law becomes the sentinel against unanticipated action and surprise in inter-personal relations.
However, the biggest problem with the rule of law as stated above is its value-neutral stance in the qualification and evaluation of social facts. The ideology of legalism is available to both the liberal democrat and the fascist since it fails to draw any distinction among the ends to which it can be harnessed. It is this flaw that has actuated proponents of the rule of just law as against a bland law with potentially catastrophic consequences.[7]
In circumstances such as prevail in contemporary Nigeria, where the preponderant majority of the population are unsure of their next meal or are mortally scared of visiting a doctor’s clinic, the question must be put as to the relevance of the rule of law. Nigeria’s prohibitively high misery index is such as to put on hold any promises for a better life through the application of due process of law. If we are to go by the classical formulation of the rule of law as formulated by Professor A. V. Dicey over 120 years ago, that is to say, all infraction is to be traceable to some law, equality of all before the law and the preeminence of judges in the determination of rights and duties, it would seem that as far as Nigeria is concerned, rule of law is merely a good point on paper. The tendency of our governing class towards arbitrariness is proverbial. In many instances, public office-holders act as if the dictates of the Constitution and the laws are not for them but for other members of the society. Even the law-enforcement agents have joined in this shameless disregard for law as they unashamedly act with impunity in their inter-relationship with "bloody" civilian compatriots. And since in a lawless society it is folly to be law-abiding, okada riders riding against traffic in our urban centres without compunction have become a common sight. In fact, any first-time visitor to the country would be pardoned for believing tha law and order had totally broken down in our cities. In case further proof of the pandemonium was required, he could readily cite our ability to navigate intersections without traffic lights and traffic control officers!
As for equality before the law, it is an open secret that there can be no equality between a Dangote and his driver, regardless of whatever the Constitution or the laws might say. Not only is there no equal access to legal services despite the existence of legal aid and efforts of pro bono lawyers, there is glaring inequality in the imposition of criminal sanctions among the highly-heeled vis-à-vis members of the underclass. While a poor, hungry citizen could bag a long term of imprisonment for stealing a goat, representatives of the ruling class are not unknown to have been slapped on the wrists for ‘misapplication’ or ‘misappropriation’ of large amounts from the public purse. The consequence of all this is that doubt and cynicism are bred among large segments of the populace whenever the topic of the rule of law is raised. When to all this is added flagrant disregard of judicial pronouncements especially by the executive arm of government, the perilous state of the rule of law in the country becomes self-evident.
The present state of affairs is traceable to a number of factors. Nigeria, it seems, has not been blessed with a political leadership that is wedded to the idea of the rule of law. Aside from the first few years after independence when it could rightly be said that the country was undergoing its tutelage in democratic self-government, the long years of the locust, characterized by a rapacious, buccaneer military dictatorship foisted a culture of casuistic, whimsical disregard for due process of law on the population. Decrees issued "with immediate effect" became the order of the day. Military rule should, therefore, be considered as the culprit for the precarious state of affairs in relation to the rule of law in Nigeria. Furthermore, the "rule of man" which military government symbolized was not without the connivance of significant elements of the civilian elite. Their incorporation into military rule eroded the foundations for democracy and the rule of law in no small measure. It is no accident, for instance, that the idea of "executive lawlessness" which arose during military rule has continued to haunt the country even under a supposedly civilian administration.[8]
It should be stressed that the tendency, even at the highest level of government, to disregard judicial decisions belies Nigeria’s claim to leadership on the African continent. In a world where the democratic practice and good government have become desiderata for acceptance as full-fledged members of the international community, Nigeria is better advised to put its house in order if it intends to be reckoned with by the rest of the world. The defeat suffered by Nigeria’s nominees for international positions in the recent past, it would seem, has a lot more to do with the country’s image abroad than the qualifications of the nominees. A country where people are unable to have their day in court is definitely going to be a hard sell to any intending foreign investor. Accordingly, a lot would need to be done to exorcise the sense of impunity imbibed by the law-enforcement agents, not to speak of the pervasive corruption in the society including the police, judiciary and other institutions that one way or another have anything to do with sustenance of the rule of law.
The generality of the population too must be ready, willing and able to insist on the rule of law in their interaction with law-enforcement agents, judicial officers and other members of the bureaucracy. Without men and women of courage, fearless whistle-blowers and intrepid investigators, the current anti-corruption drive is doomed to failure. If the people are conscious of their rights and are prepared to defend same, it seems pretty obvious that no-one can ride roughshod on their rights. However, where and when they would only groan in silence or leave everything to the Almighty, the role of law as moderator of human actions can only be severely compromised. The lack of a long tradition of constitutionalism coupled with an enduring will of the population to struggle for their rights has made it easy for all manner of social demagogues and pretenders to hijack the public domain under the guise of ministering to the needs and interests of the masses. However, if sovereignty truly belongs to the people, then the time is more than ripe for the people to take their destiny in their hands and determine their own future and circumstances.
Concluding Remarks
If one was to make a prognosis on human rights, democracy and the rule of law, the inescapable conclusion one comes to is to the effect that, slowly but surely, the world would make progress towards their attainment in the years ahead. Whether we perceive it or nor, there are incremental changes going on which would inevitably lead to qualitative changes in the existential conditions of the people. To the extent that the people have a basic right to order their circumstance, to that extent would policies have to be put in place to enable the people realize their capacity for self-actualization.
The view of rights as merely legally enforceable claims would perforce have to yield to one which emphasizes utilitarian values, more collective than individual in accordance with well-grounded African traditions. The western concepts of human rights, democracy and I daresay, rule of law would have to be tempered by African realities for them to take firm root in these climes. The fact of the matter is that however much we want to imitate the Europeans and Americans, we are Africans with a peculiar history, tradition and idiosyncrasies which would need to be factored into our approach to the critical choices we have to make regarding human rights, democracy and the rule of law.
In the final analysis, the people of Nigeria would have to determine their place in the world. The quantum of rights they are going to enjoy would depend on the extent to which they are prepared to fight for them. International human rights norms may prod, plod and jostle but the success of the struggle for a better society lies firmly in the hands of our people. The task before us all is to ensure that the victory of the struggle of the people for the betterment of their circumstance is not unduly delayed.
* Lecture delivered to the Lagos State House of Assembly on Monday, January 8, 2007 in commemoration of the World Human Rights Day.
** Professor and Head, Department of Jurisprudence and International Law, University of Lagos.
[1] See Dred Scott v. Sandford, 19 How. 393 (1857).
[2]Cf. I. BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 540 (2003).
[3] A. OYEBODE, INTERNATIONAL LAW AND POLITICS :AN AFRICAN PERSPECTIVE 198-200 (2003).
[4] Id.
[5] See UNGA Res 60/251 of 15 March 2006.
[6] Cf. K. ANAN, IN LARGER FREEDOM 5,50 (2005).
[7]Cf. A OYEBODE, LAW AND NATION-BUILDING IN NIGERIA 35 (2005).
[8]For more on this, see id. at 85.
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