The legal pillars of civilisation Nigeria hasn’t fully embraced

The Enlightenment, the 17th and 18th centuries’ movement, is credited with the modern understanding of the word “civilisation”. The movement advanced the idea of civilising humankind through progress in economics, science, government, industry, culture. A country is thus civilised when its social, political, economic and cultural life is highly developed. But law is central to such progress. And, indeed, there are legal pillars of civilisation that any country must fully embrace if it’s to progress. I argue here that Nigeria falls far short of these legal fundamentals, and thus can’t call itself a civilised nation!

So, what are the legal pillars of civilisation? Well, they are 7, namely: rule of law, independent judiciary, due process, natural justice, separation of powers, legal aid and judicial review. When some talk of Western civilisation, what they mean is that, in the West, these legal pillars, in addition to other pillars of civilisation, such as education, science, technology and culture, are highly developed. But the drivers of civilisation are universal, and there are developing countries, such as Singapore, that possess them. So, let’s look at Nigeria through the prisms of the 7 legal pillars. Take first the rule of law, which is the overarching pillar.

Is Nigeria a rule of law country? Far from it! The rule of law means that no one is above the law, that one law does not apply to the rich and powerful, and another to the poor and weak. Several years ago, Princess Anne, the daughter of the British monarch, Queen Elizabeth II, was convicted of speeding and fined £400. That’s the rule of law in action. She was treated like everyone else before the law! But here in Nigeria politicians and public officers act with unbelievable arrogance and impunity and get away with it. Recently, the former President of Brazil, Lula da Silva, was sentenced to nine years in jail for corruption and money laundering. Can that happen in Nigeria? Can a former president, vice president etc be convicted of corruption in Nigeria? Yet, as Paul Johnson argues in A New Deuteronomy: Ten Pillars of Our Civilisation, “Once the law is humbled, once the rule of law breaks down, all else that is valuable to a civilised society will vanish, usually with terrifying speed”. That, sadly, is what impunity is doing to Nigeria.

From the rule of law follows the second legal pillar: independent judiciary.  The United Nation’s “Basic Principles on the Independence of the Judiciary” states that judges “shall decide matters before them impartially without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason.” To show how important independent and incorruptible judges are to a civilised society, God even told them in Deuteronomy 16:19, “You shall not pervert justice. You shall not show partiality, and you shall not accept a bribe, for a bribe blinds the eyes of the wise and subverts the cause of the righteous”. But many Nigerian judges won’t pass God’s test in that scriptural verse. Consider the embarrassing case of James Ibori, the former governor of Delta state. He was discharged and acquitted of corruption and money laundering by Nigerian courts, yet when he faced the English courts, he confessed to the crime and was convicted and jailed!

That naturally takes us to the third legal pillar: due process, which developed from clause 39 of Magna Carta. “No one shall be arrested or imprisoned … except by the lawful judgment and by the law of the land”. A government that puts someone in jail and keeps him or her there indefinitely without or against the order of a court; a government that seizes or confiscates assets from an individual without a court order or within the law, violates due process. Indeed due process and fourth legal pillar, natural justice, go together. Both refer to fair treatment or hearing and the avoidance of bias, whether by the executive arm of government or the judiciary. But Nigeria has a long history of governments blatantly disobeying court rulings, a common phenomenon under the Obasanjo administration and something the Buhari government is also guilty of in respect of the indefinite detentions of individuals against court orders. Of course, it’s also true that judges too often ignore the “harm principle” by granting frivolous bails in serious criminal cases or acquitting people facing serious corruption charges on technicalities. The perversion of justice is as bad as a miscarriage of justice, and both are incompatible with civilisation.

The fifth legal pillar, separation of power, is critical to preventing abuse of power by any of the three branches of government. The ability of each branch of government to check and balance the other branches is central to the proper functioning of a civilised society. For instance, the legislature must scrutinise the executive and hold it to account; the judiciary must make sure the legislature doesn’t pass harmful laws and that the executive doesn’t abuse its powers, and, of course, the executive must be governed effectively within the law.

Unfortunately, as I wrote last week, tensions between the executive and the legislature in Nigeria often have nothing to do with ensuring good governance but a lot to do with the pursuit of self-interest. As a result, the National Assembly is not enacting critical laws – according to a recent media report, the Senate passed only 3 out of 11 economic recovery bills in two years. And the executive is weak, divided and dysfunctional, in part because of a gridlock. That’s not how the separation of powers should work. And when the principle doesn’t work well, it limits a country’s progress and its civilisation.

Let’s now turn the sixth pillar: legal aid. Every civilised society must have a proper legal aid system that guarantees equal access to justice for all regardless of means. According to the International Commission of Jurists, “It is essential to provide adequate legal advice and representation to all those threatened as to their life, liberty, property who are not able to pay for it”. In Britain, although there is cost pressure on the legal aid system, those who cannot afford legal representation in criminal and some civil cases are still entitled to legal aid, without going through any cumbersome process.

Of course, Nigeria has had a legal aid system since the 1970s, with the establishment of the Legal Aid Council. Yet, access to justice by the indigent and the underprivileged is still illusory. Indigent Nigerians are not entitled to legal aid; rather they are at the mercy of a dysfunctional and underfunded government-controlled scheme and disjointed and ad-hoc NGO-run schemes. In a country where poverty and inequality are so entrenched, Nigeria can’t claim to be a civilised country when it can’t provide well-funded legal aid to its citizens who need it.

Then, finally, the last legal pillar: judicial review. This pillar reinforces the others discussed above. It is essential that the lawfulness of a decision, action or inaction of any government and its agencies is subject to judicial review. Without an effective system of judicial review, public bodies will act illegally, unfairly, irrationally and disproportionately, and do so with impunity. In the UK, ministers and public servants make decisions with the risk of a judicial review constantly in their minds.  A failure to consult or to keep a promise when there is legitimate expectation it would be kept could lead to a judicial review, and a quashing order. That puts public bodies on their toes. But, in Nigeria, governments and their agencies often act irrationally or perversely, with impunity and no consequences. Given such proclivity for official lawlessness, the absence of effective system of judicial review diminishes Nigeria and its claims to civilisation.

So, to be clear, Nigeria falls far short of the legal foundations of civilisation. Of course, much of this is due to institutional deficiency and lack of political will. Yet, unless Nigeria privileges the role of law in its polity, it lacks the basic claim to civilisation!

Olu Fasan