African Journal of Professional Research on Human Development (AJPRHD Vol. 15, No 2b, June, 2019) ||gubdjournals.org

SUBSTITUTING THE RULE OF TO THE RULE OF THE RULER WITH IMPUNITY AND GRAND STYLE: A PEEP INTO EXECUTIVE RASCALITY AND SURVIVAL OF DEMOCRACY IN (2015-2019)

By Abacha Umar Deribe Department of Political Science, University of Maiduguri, Borno State, Nigeria E-mail: [email protected]

Abstract The executive forms one of the three arms of government in a democracy. It is the arm of government which the other two, the legislature and the judiciary exist to aid and complement for a successful democratic functioning. Every sane democratic government thrives on the code: The Rule of Law. However, different individuals who sit at the helm of national affairs are faced with options that range from observance and upholding the rule of law to ignoring and relegating it to the backdrop, but rather, ruling tyrannically with impunity. This places a big question mark on the integrity of democratic leaders and the possibility of providing dividends of democracy for the people. This paper takes a peep into Nigeria’s democratic leadership 2015-2019. It highlights issues of executive rascality and consequences for the country. The author opines that the executive urgently needs to redirect its approach to democratic leadership, eschew self-centredness, and uphold the rule of law at all times.

Keywords: Rule of Law, Democracy, Executive, Transparency, Equity, Accountability, Impunity

Introduction Democracy has commonly be defined and accepted to be government of the people, by the people and for the people. And the three arms of government in a democracy – the executive, the legislature and the judiciary – are meant to function in unison to achieve a noble democratic success. Though the executive in control seems to be placed over and above the other arms, it is obvious that it cannot truly succeed without the effective functioning of the others. The concept of the Rule of Law is meant to help the executive address governance from the perspective of integrity and equity. And every right-thinking democratic government thrives on this code. However, Nigeria’s democratic government of 2015-2019 is a clear exception. It clear ignores the principle of separation of powers which is constitutional. The regrettable tussles, hassles and unwarranted ignoble do-or-die approach of Nigeria’s political parties and their major political gladiators to democracy have over time seen many political administrators grow tyrannical. 2015-2019 in Nigeria has witnessed a democratic leadership akin to a military junta. So sad! Nigeria’s present leadership style with rascality and impunity has reduced the noble code, the Rule of Law to a mere concept on paper which is only fit for the archives. To further this paper, it is important that the concept of the Rule of Law be understood.

The Concept of the Rule of Law Oxford English Dictionary (2018) defines the rule of law as “The authority and influence of law in society, especially when viewed as a constraint on individual and institutional behaviour; (hence) the principle whereby all members of a society (including those in government) are considered equally subject to publicly disclosed legal codes and processes.”

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BusinessDictionary.com (2019) defines it as “Absolute predominance or supremacy of ordinary law of the land over all citizens, no matter how powerful.” In both definitions cited above, two things are distinctively clear: supremacy of the ordinary law over all citizens, and equality of all citizens under the law. Therefore, in a democracy there should be no place for discrimination, favouritism and their kind. This fact places a big question puzzle on the propriety of the immunity placed on certain public offices which shields them from being prosecuted while in active service. In his 2004 report on The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, former United Nations Secretary General, Kofi Annan (1938-2018) described the rule of law as “a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency.” (S/2004/616). Oxfordscholarship.com (2019) observes that “The rule of law is an essentially contested concept. It is defined in many different manners and debate is also necessary to keep it thriving. The differences concern the question which elements are included into the concept. In all definitions, the rule of law is concerned with the control of public power through law with the aim of protecting the individual. Legality is the core element of the rule of law.” In all definitions and facts so far, the concept of the rule of law establishes the need for fair play, equity, transparency and accountability. It also establishes the truth that avoidance of arbitrariness, and observance of procedural and legal transparency are certain to aid the good success of a democratic government, insure public trust and confidence in the government. The UN in its Universal Declaration of Human Rights of 1948 gives the rule of law a central place, stating that “… it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law…”

The rule of law is a concept established to insure human rights. Breach of human rights, fundamental or not adversely affects the peace, security and development of a governed state. In a 2014 report on Strengthening and Coordinating United Nations Rule of Law Activities, former UN Secretary-General, Ban Ki-Moon elaborated the linkages between the rule of law, human rights, peace, security and development. (UN, 2014: A/68/213/Add. 1). The Preamble of the Charter of the United Nations states as one of the aims of the organization “to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained.” The UN recognizes the central place of the rule of law in governance. Its General Assembly at its 67th Session, held a High-level Meeting on the Rule of Law at the National and International Levels on 24 September 2012. This was a unique occasion for all Member States, non-governmental organisations and civil society represented at the highest level, to commit to strengthening the rule of law. The High-level meeting concluded with the adoption by consensus of a Declaration in which Member States reaffirmed their commitment to the rule of law and elaborated on the efforts required to uphold different aspects of the rule of law. The Declaration recognises “that the rule of law applies to all States equally, and to international organizations, including the United Nations and its principal organs, and that respect for and promotion of the rule of law and justice should guide all of their activities and accord predictability and legitimacy to their actions. (UN.org, 2019). [It] also recognize[s] that all persons,

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African Journal of Professional Research on Human Development (AJPRHD Vol. 15, No 2b, June, 2019) ||gubdjournals.org institutions and entities, public and private, including the State itself, are accountable to just, fair and equitable laws and are entitled without any discrimination to equal protection of the law.” (UN.org, 2019). The Declaration highlighted the rule of law as a cross-cutting issue, linking the three pillars of the UN: peace and security, human rights and development. (UN.org, 2019) According to a World Justice Project (WJP) Report (2018), “The rule of law is a durable system of laws, institutions, and community commitment that delivers four universal principles: 1. Accountability The government as well as private actors are accountable under the law. 2. Just Laws The laws are clear, publicized, and stable; are applied evenly; and protect fundamental rights, including the security of persons and contract, property, and human rights. 3. Open Government The processes by which the laws are enacted, administered, and enforced are accessible, fair, and efficient. 4. Accessible & Impartial Dispute Resolution Justice is delivered timely by competent, ethical, and independent representatives and neutrals who are accessible, have adequate resources, and reflect the makeup of the communities they serve. The report states that these four universal principles constitute a working definition of the rule of law. They were developed in accordance with internationally accepted standards and norms, and were tested and refined in consultation with a wide variety of experts worldwide (WJP, 2018).

WJP states in its annual WJP Rule of Law Index that the four universal principles are further developed in the following nine factors: 1. Constraints on government powers. Sub-factors 1.1 Government powers are effectively limited by the legislature 1.2 Government powers are effectively limited by the judiciary 1.3 Government powers are effectively limited by independent auditing and review 1.4 Government officials are sanctioned for misconduct 1.5 Government powers are subject to non-governmental checks 1.6 Transition of power is subject to the law

2. Absence of corruption. Sub-factors 2.1 Government officials in the Executive Branch do not use public office for private gain 2.2 Government officials in the judicial branch do not use public office for private gain 2.3 Government officials in the police and the military do not use public office for private gain 2.4 Government officials in the legislative branch do not use public office for private gain

3. Open government. Sub-factors 3.1 Publicized laws and government data 3.2 Right to information 3.3 Civic participation

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3.4 Complaint mechanisms

4. Fundamental rights. Sub-factors 4.1 Equal treatment and absence of discrimination 4.2 The right to life and security of the person is effectively guaranteed 4.3 Due process of law and rights of the accused 4.4 Freedom of opinion and expression is effectively guaranteed 4.5 Freedom of belief and religion is effectively guaranteed 4.6 Freedom from arbitrary interference with privacy is effectively guaranteed 4.7 Freedom of assembly and association is effectively guaranteed 4.8 Fundamental labour rights are effectively guaranteed

5. Order and security. Sub-factors 5.1 Crime is effectively controlled 5.2 Civil conflict is effectively limited 5.3 People do not resort to violence to redress personal grievances

6. Regulatory enforcement.

Sub-factors

6.1 Government regulations are effectively enforced 6.2 Government regulations are applied and enforced without improper influence 6.3 Administrative proceedings are conducted without unreasonable delay 6.4 Due process is respected in administrative proceedings 6.5 The Government does not expropriate without adequate compensation

7. Civil justice.

Sub-factors

7.1 People can access and afford civil justice 7.2 Civil justice is free of discrimination 7.3 Civil justice is free of corruption 7.4 Civil justice is free of improper government influence 7.5 Civil justice is not subject to unreasonable delays 7.6 Civil justice is effectively enforced 7.7 ADRs are accessible, impartial, and effective

8. Criminal justice.

Sub-factors

8.1 Criminal investigation system is effective

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8.2 Criminal adjudication system is timely and effective 8.3 Correctional system is effective in reducing criminal behavior 8.4 Criminal justice system is impartial 8.5 Criminal justice system is free of corruption 8.6 Criminal justice system is free of improper government influence 8.7 Due process of law and rights of the accused

9. Informal justice. This concerns the role played in many countries by customary and ‘informal’ systems of justice – including traditional, tribal, and religious courts, and community-based systems – in resolving disputes. These systems often play a large role in cultures in which formal legal institutions fail to provide effective remedies for large segments of the population, or when formal institutions are perceived as remote, corrupt, or ineffective. This factor covers three concepts: whether these dispute resolution systems are timely and effective (9.1), whether they are impartial and free of improper influence (9.2), and the extent to which these systems respect and protect fundamental rights (9.3). (It is noteworthy that the latest edition of the Index relies on more than 120,000 household and 3,800 expert surveys to measure how the rule of law is experienced and perceived in practical, everyday situations by the general public worldwide.)

Discussion The general election of 2015 saw Nigeria plunged into the vice grip of a retired army general as civilian president. Evidently, habit translates to character, and may not be easily adjusted or remoulded. This case may not be different for a career soldier who rose through the ranks to retire as a general. Traits are inherited. And there is truth in the maxim, ‘Once a soldier always a soldier.’ The point is: a former solder-turned-civilian president may not be able to shed his military traits overnight or even over a long period of time, just because he switched apparels from khaki uniforms to plain clothes. This point is very obtainable especially in the case of President Muhammadu Buhari who over-ambitiously and determinedly fought for and became Nigeria’s civilian president in 2015 after three spirited attempts at the polls, and 30 years after he was deposed as the country’s Head of State during a military coup d’état. Punch (2018) report entitled “Buhari’s Executive Order Devalues Constitution, Not in the Interest of Nigeria’s Economy” a former President of the Nigerian Bar Association (NBA), Chief Wole Olanipekun (SAN) raised issues on the Executive Order 6 (EO6) signed by President Buhari at the time. The legal luminary described the EO6 as a decree. In his reaction to the question, “What is the difference between this EO6 and a decree?” Olanipekun said: “A decree under militarism is an absolute law in the sense that it cannot be questioned by the constitution because the decree itself is superior to the constitution. Whenever the military takes over, they oust the jurisdiction of the court in respect to any matter or law promulgated by them. It was the Yakubu Gowon-led government that started the promulgation of decree upon decrees and their supremacy over the constitution. The decree under the military government is their own form of making a law and the constitution is made subject to the decree and not the other way round. Whereas under the democratic system of government by Section 1(3) of the constitution, the constitution is the supreme. It says that all laws are subject to the constitution, and all derive from it and are subsidiaries of it. All laws at the federal level are properly made when the bill is passed by the National Assembly and sent to the President for his assent and when he refuses to

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African Journal of Professional Research on Human Development (AJPRHD Vol. 15, No 2b, June, 2019) ||gubdjournals.org do that, the National Assembly can veto it. That is law. So under the constitution, the only law we know and which is recognized is the law passed by the National Assembly because it is only the National Assembly and the state Houses of Assembly that are vested with the powers and jurisdiction to make laws.” He further observed that “The President cannot make laws. In fact, under the constitution, the President is to carry out laws passed by the National Assembly under Section 5. And under sections 287 (1, 2 and 3), the President is also enjoined to enforce all judgments of the court.” This is an anomaly, an absurdity which should never be permitted in a democracy. Point number 2: Democracy, especially Nigeria’s notorious dirtiest brand is bound to see all sorts of odd persons elected, selected and/or appointed into public offices via wrangling, intense politicking, manoeuvrings and all sorts of political shenanigans. This paper if of the opinion that before a person can be elected, selected or appointed into public into public office, key interview questions should be: 1. Before one is considered for public office, political or otherwise, what is their pedigree morally, academically, politically, etc.? 2. Since it is often touted that ‘government is a continuum, should a right-thinking successive administration inherit its predecessors assets and liabilities hook, line, sinker? 3. Shouldn’t there be thorough auditing and/or probe of past administration(s) where necessary? (To bring culprits to book and deter potential criminals from embarking on their ignoble quests of looting and general corrupt tendencies.) 4. Shouldn’t character and competence be continuously promoted and upheld at all times as the key virtues of exceptionally effective leadership?

With the recent flagrant abuse of the rule of Law in Nigeria, one is left aghast and askance as to whither lies the survival of the country’s constitution and democracy. And this necessitates a look at the constitution which the President, his appointees, governors and their appointees swore to uphold. The Constitution of the Federal Republic of Nigeria, 1999 (as amended), gives express recognition to the operation of the principle of separation of powers among the three arms of government. Section 4 of the constitution vests legislative powers of the Federation and States on the National Assembly and the various states Assembly. Section 5 of the constitution gives the executive powers of the Federation and States to the President and Governors of each state respectively, while Section 6 vests the judicial powers on the Supreme Court of Nigeria and other superior courts of record.By Section 80 of the 1999 constitution as amended, the National Assembly is vested with enormous powers and control over public funds. It provides in Sub- section 1 that: “All revenues or other moneys raised or received by the Federation (not being moneys payable under this Constitution or any Act of the National Assembly into any other public fund of the Federation established for a specific purpose) shall be paid into and form one Consolidated Revenue Fund of the Federation.” It went further in Sub-section 2 to state that “no moneys shall be withdrawn from the Consolidated Revenue Fund of the Federation except to meet expenditure that is charged upon the fund by this Constitution or where the issue of those moneys has been authorized by an Appropriation Act, Supplementary Appropriation Act or an Act passed in pursuance of section 81 of this Constitution.”The constitution in its wisdom, vested note powers on the parliament. It gives the parliament, both at the state and federal levels, the powers to summon any person in Nigeria to give evidence at any place or produce any document or other thing in his possession or under his control, and examine him as a witness and require him to

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African Journal of Professional Research on Human Development (AJPRHD Vol. 15, No 2b, June, 2019) ||gubdjournals.org produce any document or other thing in his possession or under his control, subject to all just exceptions.

Some Cases of Executive Rascality in Nigeria 2015-2019 The brazen executive rascality and intolerance being exhibited by the Buhari administration has been manifested in diverse monstrous ways. 1. President Buhari’s flagrant neglect and refusal to obey court rulings in the cases of Islamic Movement of Nigeria (IMN) leader, Sheikh El Zakzaky, Indigenous People Of Biafra (IPOB) leader, Nnamdi Kanu, and former National Security Adviser to former President Goodluck Jonathan, Rtd. Col Sambo Dasuki, who were granted bail by judges of the federal high courts. 2. Invasion of Nigeria’s oil-rich Niger Delta region by men of the Nigerian Army; a crackdown ordered by the executive in total neglect and disregard for the human rights, the wails and woes of the weather-beaten, endangered and languishing people of the region especially Ogoniland. 3. Former governor ’s removal of his deputy, Eze Madumere in 2018. 4. Osinbajo’s removal of incompetent DSS Director Lawal Daura in 2018, which was overturned by the President a few weeks later. 5. Constant harassment of activists Deji Adeyanju, Premium Times journalist reporter, Samuel Ogundipe, etc., denying them freedom and refusing them bail. 6. Invasion of the National Assembly by armed and masked operatives of the Department of State Services (DSS) and other security agents evidently loyal to the executive. Senator once stated that: “If Senators and Ovie Omo-Agege can be taken away by the police, it destroys the sanctity of this chamber.” (Sunnewsonline, 2018) 7. Senator Peter Nwaoboshi spent almost a week in the den of the Economic and Financial Crimes Commission (EFCC). He thereafter spent a brief moment in prisons. Former Senate President, and his then deputy, Senator Ike Ekweremmadu had their large shares of the assault and embarrassment meted to them, having been docked in the course of their service. In sum, the sanctity of the 8th National Assembly was completely eroded under the guise and watch of the executive. 8. The executive’s glaring overlooking of the pensions funds scam and prosecuting of the scammers. 9. The glaring witch-hunting of members of the past administration, currently the main opposition political party, the People’s Democratic Party (PDP). 10. The Executive Arm’s appropriation of monies to itself and expending same without recourse to the parliament. 11. Ministers, heads of agencies and security chiefs, flagrantly disregard summons extended to them by the National Assembly, in clear contravention of our constitution. A clear example is the refusal of the Director of Customs appointed by the President to appear before the senate. In most cases, these ministers and heads of agencies openly insult lawmakers. 12. The sabotage and disgrace of Acting Chairman of the Economic and Financial Crimes Commission, Ibrahim Magu during his confirmation hearing before the Senate. Egbosiuba (2018) raised some very pertinent questions and observations. He wrote: “Was Mr. Magu not screened before his name was forwarded to the senate for confirmation? How was it

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possible that a bad report was issued by a department under the control of the president? Department of State Security (DSS) issued a report to the senate with the sole aim of sabotaging Mr. Magu’s confirmation. The action of the head of DSS, Mr. Lawal Musa Daura and the secretary to the government of the Federation towards Mr. Magu is what happens when a president chooses to fill important positions in his government with his relatives. Relatives in Nigeria and other places are known to believe that they can do anything they want without any consequence. They start thinking after a while that they are untouchable and can go as far as taking laws into their hands. There is no other way to explain the conduct of the Director General of DSS who released two reports to the senate against Mr. Magu which the senate used as a cover to deny Mr. Magu conformation. He did it not once but twice and still kept his job.” 13. Former Minister of Finance, Kemi Adeosun was allowed to go home scot-free and junket around the globe at will even after a glaring certificate scam over which she was forced to resign from office. This was an erring minister who went to the House of Representative and asked members of the House to decrease the power of the Central Bank of Nigeria governor because she alleged that the Central Bank of Nigeria (CBN) was making it difficult for her and the executive branch to implement their economic agenda. It is obvious that handling the monetary policy was not in her domain but the function of the CBN just like it is done in other major developed countries. 14. The unconstitutional suspension and replacement of former Chief Justice of Nigeria (CJN), Walter Onnoghen. Executive Director of Yiaga Africa, an independent election monitoring group described this act of impunity as a gross display of ‘executive rascality.’ Describing the President’s action as an assault on the constitution of the federal republic, he stated that the attempt to rationalize the action, by the Executive, is equally irresponsible and should not be tolerated. In his words, “I thought that a President would have respected the oath that he swore; to protect and defend the Constitution and its fidelity, but to suspend the Chief Justice is completely unacceptable. And every attempt to rationalize this action by the Executive is completely irresponsible and should not be tolerated in any way.” He called on President Buhari to immediately reverse it. The President never did. The list is indeed endless.

Consequences Frequent agitations and clamour for justice have been witnessed in some quarters over time. Public opinion is filled with a vote-of-no-confidence on the executive. Poor productivity marks the output of the country as many civil and public servants only strive to maintain status quo and much of the processes and services even official matters are run on business-as-usual mode. During elections, voter apathy thrives. The electorate is disenchanted and therefore, lesser figures mark election results, and the figures keep dropping. Executive rascality and impunity have severe economic consequences for the nation. This in turn, gives rise to youth restiveness and large scale corruption.

Recommendations Impunity and crass recklessness only leads even a well-intentioned leader to poor results and an inglorious end. Nigeria as Africa’s largest economy and Black population, the much-touted Big Brother to other African nations, has gone through avertable ridicule and mockery due to the insensibility of its leaders and negligence of duty. It is the author’s unflinching belief that the executive needs to retrace its steps and re-address its approach to democratic leadership. People’s

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African Journal of Professional Research on Human Development (AJPRHD Vol. 15, No 2b, June, 2019) ||gubdjournals.org voices are meant to be heard in a democracy and not to be subdued or silenced. Nigeria’s leaders today place no hopes but disillusionment before its citizens. Therefore, the executive should as a matter of divine, natural and human necessity eschew all forms of rascality and impunity in its dealings with its people. Democracy is meant to keep the average citizen at the fore and thoughts, at the centre of consideration of democratic leaders always. Unfortunately, the reverse is the case in Nigeria; a case of misplacement of priority. To restore public confidence in Nigeria’s current democratic leadership, the ruling party and its captain must redirect their priorities to be citizen- centred. That way, the country would avert the looming catastrophe and conquer the evils bedevilling it.

Conclusion The rule of law, principle of separation of powers, and democracy must be upheld in unison if a democratic government has the ultimate aim of achieving good success in governance. Nigeria’s executive 2015-2019 fell far too short of expectations, fell far too way behind in living up to its campaign promises and mantra ‘change’. Though the change came, like a respondent observed many Nigerians and even foreign observes cold swear it was on the negative side. With many crimes of executive rascality hanging on its neck, it is proper to question the integrity of that executive and its insistence on continuity after 2019. Unfortunately for the citizens of this Africa’s most populous country and largest economy, the same executive still holds the reins of power after the 2019 general election. What fate has in stock for the ‘masses’ cannot easily be deciphered! However, the author having made recommendations above believes that the executive is not and should never portray itself to be above the law but begin now to retrace its steps and uphold the rule of law to redeem its image and restore peoples’ belief in democracy.

References Balogun, A and Adeoye, G., (2018). Buhari’s Executive Order Devalues Constitution, Not in the Interest of Nigerians. Punch, 20 Oct, 2018 Egbosiuba, M., (2018). Executive Impunity and Rascality https://www.allthingsnigeria.com/2017/executive-impunity-and-rascality/ Ezimakor, T., (2019). Executive Rascality. independent.ng 26 January 2019 Federal Government of Nigeria, (1999). Constitution of the Federal Republic of Nigeria. Government press, https://www.sunnewsonline.com › Columns May 6, 2018 https://www.independent.ng/onnoghen-honour-your-oath-to-protect-nigerias-constitution-yiaga- africa-tells-buhari/ https://www.un.org/ruleoflaw/what-is-the-rule-of-law/ Feb 19, 2010 Oxford English Dictionary online (accessed September 13, 2018; spelling Americanized). The phrase "the rule of law" is also sometimes used in other senses. See Garner, Bryan A. (Editor in Chief). Black's Law Dictionary, 9th Edition, p. 1448. (Thomson Reuters, 2009). ISBN 978-0-314-26578-4. www.businessdictionary.com/definition/rule-of-law.html

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