Policy Briefs

Diminution of Due Process and Ordered Liberties in Nigeria 

Democracy remains the universally preferred form of government. Yet, Nigeria’s nascent democracy continues to throw up real and ethereal challenges that underline problems and paradoxes of democracy. Nigerian leaders, including the reformed, are simply not living up to the lore of being democrats by upholding constitutional dictates. Such realities impact adversely on Nigeria’s democracy. They also contribute to the growing amalgam of frustrations, vulnerabilities and the diminution of due process and ordered liberties in Nigeria. Because Nigerians now experience recidivism of social stresses and ethnic tensions, many now question the spatial limits of President Muhammadu Buhari’s promise of ‘change’. As Yakubu Mohammed observed, “Buhari’s coming raised so much hopes that the aspirations of the common people…would be met almost seamlessly.” That change not materializing instantly, is not the president’s fault. Yet, almost one year on, it is a forceful fact that such expectations are largely unmet. Hence, the persistent question on most Nigerian lips: Is this the change we voted for?
Some poignant analyses have grappled with challenges that makeNigeria’s democracy halting and less than ideal. To Nigerians, for whom pessimism is borne with stoicism, the ring of falsity to the touted change has further thinned the veneer of hope. The reality is gloomy. The economy continues to regress. The national rut is systemic, endemic and almost neurotic. In the governance realm, challenges abound as the distrust gap widens. Policy wise, whilst some challenges are perhaps excusable, some self-induced challenges are simply, inexplicable. This includes our unfamiliarity with democratic processes, after more than one-and-half decades into the fray. The second slate of challenges relate to how Nigerians grapple with a potpourri of governance modalities drawn from parliamentary and presidential systems. Over the past eleven months, Nigerians seem utterly uncertain, which political form should hold sway. The third cluster of challenges and the most inexcusable, relate to policy options used willfully or by legerdemain to frame executive and legislative fiats that truncate due process and erode ordered liberties.

In tandem with our systemic dysfunction, a two-track problem hasmanifested. First, Nigerians are increasingly dubious of their confidence in public officials entrusted to run our democratic institutions. Most elected officials now engage in fiefdom-building and self-promotion. Touted accomplishments are now synonymous with paid propaganda. And neither governance nor the anti-corruption crusade is yielding discernible ‘change’ results. Accordingly, Nigerians are no longer averse to demurring in public about certain unacceptable conducts of the government. As Dele Momodu put it to the president, “there’s fire on the mountain” and the poor “appear totally confused, disillusioned and ostensibly tired of the endless excuses coming out of your administration”. Yet, Buhari’s policy advisers, who should warn of the risks of not carrying the national population along, are instantly reticent on pressing national issues. The ironic fallout is that such disposition gives convenient cover for mischievous and trenchant critics of the Buhari government.

What is not often realized is that such circumstances are not peculiar to Nigeria. As observed, “Transparency and accountability also requires more bureaucracy as decisions and processes need to be recorded and made available for the general public to access, debate and discuss, if necessary. This seems easy to forget and so it is common to hear concerns raised about the inefficiency of some governmental department.” This pertains to both legitimate and rogue governments. Interestingly, Nigeria’s broadly elected democratic government under President Buhari fits this descriptive mold and reality; which makes certain criticisms of the government, if not all, seem legitimate.

The second cause for concern, which is more egregious, and therefore, cannot be explained away easily, has to do with the rising disregard for ordered liberties and due process by constituted authorities. Such acts in clear terms, amount to utter contempt for constitutional dictates by those sworn to uphold the Constitution. Some actions, in their character, form and principles, border on impunity. Some are clearly illiberal. It remains inconceivable that some precipitate governmental actions that violate extant statutes and draw public umbrage, are deliberate. Still it is possible, even probable, that they arise not inadvertently, but from the leadership being calculatedly misadvised. After all, Nigerians have in the past eleven months witnessed a welter of confusing policy pronouncements and reversals. Such start-and-stop disposition hardly induces confidence or trust. President Buhari even spoke of possible policy sabotage. The budget padding saga which remains fresh in many minds, is still perplexing as the culprits are still unidentified and not censured.

A constitutional debate is raging over Kaduna State Governor Nasir El-Refai’s attempt to legislate and regulate religious thought, conduct and assembly, under the warped pretext of preempting and minimizing radicalization. Indisputably, El-Rufai`s draft law, titled, “A Bill for a law to substitute the Kaduna State Religious Preaching Law, 1984” is in its intent and scope, greatly at odds with Sections 38 of and 39 the 1999 Constitution, which protect the rights of citizens to freedom of thought, conscience and religion. Such happening in a democracy is simply mind boggling. While security considerations might be at play, the Federal Government by not speaking up against such a Bill conveys its tacit support for the law. Nonetheless, Gov. El-Rufai’s present venture into such warped legislative agenda cannot be adjudged as triumph of innovative or transformative policy ideas.

Then there is the Ese Oruru and Ifesinachi Ani abduction and forced marriage of the girl-child saga. Such acts, which violate national and international laws, constitute a moral outrage. They create perceptible mistrust and dichotomy. They are also revelatory, showing as Obi Nwakanma observed, “that Nigerians apparently live in two countries, where parallel governments exist – one traditional and shadowy, the other a “pretend republic.” Nigeria’s handling of such sensitive cases is sadly telling of the preference for precepts over constitutional dictates. In all such instances, the constitution ought to hold sway meaning that sectional, ethnic, religious and primordial considerations must be subsumed in common laws made for the greater good.

If Nigeria lack precedents on the underpinning ethos that guide respect for constitutional dictates, her policymakers and advisers should cue in on the recent case between the U.S. Government and Apple over the unlocking of a iPhone possibly used in committing a crime. Apple’s unyielding stance is not adversarial. Rather, Apple took the position that constitutional protection of opinion and belief as subsumed in the protection of the freedom of expression is sacrosanct. The question remains: How would this scenario have played out in Nigeria’s present day political environment?

Regarding present challenges, several come to mind. First, Nigeria continues to encounter dismissals from and appointments to statutory positions without recourse to extant laws. President Buhari’s sweeping dissolution of statutory boards and dismissal of university vice-chancellors are stark examples. The egregious gravity of the latter led President Buhari to apologize for the mistake and the decisions he made in a less accountable manner. Secondly, Nigerian security agencies continually breach due process by detaining individuals beyond the constitutionally stipulated timeframes, and ignoring court writs on bail or habeas corpus. The danger in such conduct, is not so much the harm done to individuals or to the courts, but in the unfettered undermining the Constitution from where the government and its agencies derive their powers and legitimacy.

Many state governments are opting not to hold local government elections, choosing instead to use other means to control the third tier of government. Similarly, some states are infringing on rights of individuals to privacy, including unauthorized monitoring of personal phone conversations, all in the name of security. NGOs and CSOs continue to campaign against other known governmental excesses, including possibleextra-judiciary executions. In parts of the south-east, unarmed peaceful demonstrators had been shot. And Police and DSS excesses in Ogun, Ekiti and Rivers State have been widely reported in the national media.

Electoral challenges rage with INEC ignoring court orders. Several electoral matters remain in abeyance despite subsisting unambiguous court orders. Together, these cases provide disturbing insights to what lays ahead. Such challenges are only possible due to executive fiats and acts of omission or commission. They also subsist, because the Nigerians seem willing to tolerate them, hardly speaking up in favour of those whose constitutional rights are breached. Indeed, certain breaches have becometolerable norms because policymakers and advisers are reluctant or too timid to speak up against such acts, while advising their principals. As Sam Omatseye averred; “The rage of impunity implies the atrophy of the rule of law.”

The judiciary is being badly subverted. An underfunded judiciary that lack autonomy can’t be effective. Moreover, overloaded court dockets resulting in delayed justice, compound existing challenges. Many accused persons lack access to legal counsel and representation, and therefore languish in jails while awaiting trial. The criminal-justice system especially the public defender, ombudsman and public complaints system geared at protecting individuals, are despoiled. Lawyers are more interested in prosecuting high-profile and high-paying criminal or electoral cases. Hardly is human rights cases accorded priority. So across board, compliance to constitutional dictates in Nigeria remains largely ambivalent. Glaringly, the judiciary has compounded its own problems and thus justified President Buhari’s criticism of that revered institution. Judges who adjudicate human rights issues get no credit for them as part of their workload returns. Hence, we continue to witness inaction in circumstances where serious injury or death has occurred while a person is in police or security agency custody or as a result of a police or security agency action. Such incidents are often covered up, and affected families hardly receive any succor. A judiciary that issues contradictory rulings, where incurious judges allow litigants to go forum shopping, essentially mitigates its own validity and relevance. As Sebastian Hon, (SAN) observed, because of “these breaches, administration of justice is almost grinding to a halt now! No nation, including even one run by the most brutal government, toys with its judiciary the way things are in Nigeria now.”

The shifting and unpartisan nature of Nigerian politics and various rights violation conundrum facing Nigeria under Buhari, calls for a rethink. It may seem perhaps, as someone suggested that “seeing hopelessness everywhere isn’t a bad thing, it’s what keeps us living our lives. Ultimately, it’s pessimism that keeps us happy.” Nonetheless, addressing the present constitutional challenges require the government to take the lead. The Attorney-General of the Federation (AGF), must double down, beproactive and indeed catalytic in triggering processes that ensure that civil liberties are protected, even when individuals right are at odds with views of the government. The AGF cannot pander to political or primal forces or even the Presidency by going against constitutional provisos.

I propose a three-part rudimentary approach to tackling the present constitution diminution challenges. The first is for the Attorney-General of the Federation (AGF), to institute a quarterly review and consultative meeting with all state Attorneys-General regardless of the political party that controls the state. The second is for the AGF to set up a small committee of friends – lawyers, academics, technocrats, representatives of CSOs and NGOs — to advise him on issues where breaches of due process and ordered liberties arise and where government needs to act to prevent such issues. The third is for the AGF to inform police and security agency bosses that federal and state public prosecutors will not proceed with prosecution of cases where there are breaches of the Constitution and illegally obtained evidence and arrests and seizures not approved by courts. The courts, for their part, must throw out cases where such violations occur. These, for starters, will underpin our resolve to uphold our Constitution, no matter what.


Obaze, MD/CEO of Selonnes Consult, is a strategic public policy adviser, consultant and immediate past Secretary to the Anambra State Government. ©Selonnes Consult Ltd. Nigeria

Oseloka Obaze, MD & CEO

Oseloka Obaze, MD & CEO

Mr. Obaze is the former Secretary to the State Government of Anambra State, Nigeria from 2012 to 2015 - MD & CEO, Oseloka H. Obaze. Mr. Obaze also served as a former United Nations official, from 1991-2012, and as a former member of the Nigerian Diplomatic Service, from 1982-1991.

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