Challenges, Opportunities in Nigerian Law

The following article was originally published in This Day. Chidi Odinkalu is senior legal officer with the Africa Program of the Open Society Justice Initiative.

Imagining a prognosis for the law in Nigeria in 2007 is a bit of a no-brainer. The legal landscape will be somewhere between déjà vu and plus ça change. The defining elements of Nigeria's legal year at first blush appear predictable. First, government—including who controls it, how it is constituted, and what it does or doesn't do—remains by far the biggest and busiest beast in Nigeria. The general elections to take place in April and the ensuing transition to the winning candidates and parties in May 2007 will be the biggest defining incidents in Nigeria for the year and beyond. Their effects on all significant aspects of Nigerian life—economics, politics, institutional change, service delivery by public agencies (or the absence of service delivery), and the law, among others—should be far reaching.

Secondly, this quite challenging project will unfold in somewhat of a management-and-values-free-zone in which power and paternalism rather than clear rules fairly and firmly applied determine the winners and losers. The long-running national politics of pre-meditated power-grab, over-reach, and constitutional deadlock with its fecund menu of judicial afters and legal briefs will keep lawyers and judges busy running from court-rooms to tribunal hearings.

An Active Year for Litigation and Law Enforcement

It will be an active year for judicial correspondents and law reporters. There will be many more cases between the president, the vice-president, the federal attorney-general, and the ruling PDP party. The legal department of the Independent(?) National Electoral Commission (INEC) as well as the commission's external solicitors, will be frantically busy in and out of the courts. There will be the usual flurry of election petitions at all levels of the judicial process, leaving the judiciary struggling breathlessly to manage its case-loads well into the heart of the 2011 election cycle. We require no special gifts of clairvoyance to predict that the jurisprudence of the Supreme Court from Torti v. Ukpabi (1983) to Buhari v. Obasanjo (2005) places an impossible evidentiary burden on would-be petitioners and a high mathematical probability of failure for all but a few election petitioners. The incentives for electoral malfeasance—better known as rigging—with its accompanying violence, are high. There remains no recorded case of prosecution—successful or not—for offenses associated with election rigging in Nigeria, certainly not in the past eight years. The causes of this long-standing impunity enjoyed by the perpetrators of electoral violence and rigging are well known but have not been addressed. The combination of this inauspicious jurisprudence, the politics of zero-sum high stakes, and of impunity for electoral illegality will encourage in 2007 a huge bazaar for the purveyors of the Voodoo arts of electoral Abracadabra. It sure should be a busy year for the police and law enforcement whether in enforcing the law or in failing to do so.

For many Nigerians, whether or not legally trained, much of this would be both predictable and morbidly pessimistic. To persist in this version of Nigeria's legal future, however, would cast a vote of no confidence on the capacities of our country and its people for transformative imagination and suggests that the augurings spell imminent doom for the country's future. Essentially, the prediction would be that in 2007, Nigeria could set itself on an inexorable path of self-immolation in installments of one legal accelerant at a time.

To proceed in this way, therefore, is to become prisoner to the natural risk, in thinking about the future, to do it with both eyes firmly fixed on a negative past. Between the extremes of dogmatic pessimism encouraged by our current politics and a fatuous nirvana, there must be room for a wish list that includes possibilities for positive change, even if its incremental pace induces frustration in an impatient population. But this is impossible unless we are able to look beyond the persistent episodes of manufactured inertia, impunity, and duplicity towards the coherent narrative of unfolding political, economic and legal experimentation of which these disquieting episodes are parts.

A Year Like No Other?

As difficult as the past few years of governance with electoral legitimacy have been, they have also produced nuggets of positive developments. The largely civilized debate that guillotined of the tenure-elongation project in 2005 showed Nigeria at its best. By and large, the judiciary held firm against quite determined efforts to suborn its independence and decision-making capacities and managed to roll back the politics of unconstitutional power-grab. Notwithstanding its enormous powers, the Nigerian presidency established a pitiable but reassuring record as a serial loser before all levels of the judiciary. With time, surely, these losses will begin to attract political consequences.

Fugitive former Liberian president, Charles Taylor, lost his safe haven in Nigeria and is now a detainee awaiting trial before the UN-supported Special Court for Sierra Leone where his trial will begin in April 2007. Also in 2006, the ECOWAS Court of Justice achieved take-off with some thumping jurisprudence that should make the leaders and courts of all 15 ECOWAS member States take notice and the African Court of Human and Peoples' Rights was inaugurated.

For the narrow tribe legal profession, the election of the versatile Olisa Agbakoba SAN as the president of the Nigerian Bar simultaneously gave the profession a credible voice on national issues while also inspiring the bar to set an ambitious reform agenda for itself.

The year 2007 will surely be a year of enormous legal challenges. This also makes it a year of exciting opportunities for the country, its leadership and its legal profession. The promise of inter-regime transition—with or without electoral alternance—in 2007 offers the country a rare opportunity to renew all the leading positions of the law, its making, interpretation and enforcement. In 2007, the country will change its president and governors at the state levels (by whose official assent legislation become law); its legislators at all levels (who make the law); the chief justice of the federation (who heads the judiciary); its attorneys-general at all levels (as the principal legal adviser of government and its chief legal officer); and the inspector-general (who leads law enforcement). Truth be told, the country has in fact only had this kind of opportunity on this scale twice before: at independence in October 1960 and upon the transition of the military Obasanjo regime in October 1979. 2007 is a once-in-a-generation opportunity that must not be lost to renew the law and the machinery for its implementation and operation.

One Opportunity—Four Themes

Far from déjà vu all over again, 2007 offers the country the opportunity for agenda-setting and new beginning in reenergizing the institutional architecture and values of constitutional governance. Four themes stand out in this project.

First, there is an opportunity for the country to address the governance of power and access to it, most especially elections. Many people will argue that it is already too late to do so for the 2007 elections. This may be so. But the experience of 2007 should inspire a national consensus that must set its eyes firmly on getting it right in 2011. 2007 could be the year in which the Supreme Court begins to show awareness of the policy implications of its election jurisprudence. For instance, by creating insuperable evidentiary odds using the standards of criminal rather than civil litigation for upsetting rigged elections, the court's jurisprudence immunizes rigging and electoral fraud from justified challenge and grants its perpetrators impunity. There is an opportunity in 2007 to begin to develop zero-tolerance jurisprudence on electoral fraud. The Judiciary must be able to order criminal investigation into all cases of judicially up-turned election outcomes and the Police must be prepared to investigate these diligently. It is time to consider the establishment of a truly independent agency—independent of government, parties, civil society, and faiths but drawing representation from all—for electoral credibility and oversight of election-related crimes.

Second, the country can use the new energies of 2007 to reestablish hope in its citizens through a focused safety and security agenda founded firmly on a policy of zero tolerance for impunity. In the past year, the country has grown used to an avoidable epidemic of unsolved, uninvestigated, and unprosecuted assassinations, killings, pipeline explosions, and multiple aviation disasters. Nigerian citizens around the world have grown used to receiving unsolicited condolences from street-side strangers who wake up to yet more news of mass-casualty calamities and disasters. After each incident, the country buries the necessary search for responsibility and lessons with the burial of the casualties and proceeds on the path of business as usual. In persistent installments of impunity that has now become pervasive, we have reduced the value of the Nigerian life to a point of irrelevance and government appears committed to eliminating the law as a basis of a caring society. 2007 could be the year when this begins to change. But this can only be so if we begin to give the police the capacity to catch the criminals and appoint as attorneys-general people who will be committed to diligent prosecutions irrespective of which party thug is involved. To set us on this path, it will be necessary to reestablish the intelligence gathering and analysis capacities of the police and to give our police the material and skills capability for professional forensic work. Citizens and professional groups must be prepared to interrogate all candidates and political parties as well as the incoming government for clarity on their safety and security policy and agendas.

Thirdly, the governance of due process in Nigeria's court system must engage the urgent attention of the judiciary and the legal profession. The spectacle of cases that drag on for several decades through the court systems violates fairness, the constitution, and due process, and feeds impunity. Wrongdoers know they can get away with their acts by inducing fear of or fatigue with the legal process in victims using a battery of endless motions and maneuvers. The installation of a new chief justice presents us with the opportunity to evolve legal doctrine at the highest levels that will discourage this and give Nigerians more faith in the capacities of the country to redress injustice and unfairness. To encourage access to justice in 2007, we must focus on ensuring expeditions exit from courts.

Finally, there is the challenge of governing economic reform and entrepreneurial competition that gives competitive value and security to the Nigerian worker and consumer. To begin with, the uncertainties accompanying the elections will discourage investor and economic activities at the beginning of the year but successful or even tentative transition could easily encourage considerable innovation in Nigeria's economy. The areas in most dire need of activity will be the laws relating to the regulation or governance of competition and of commercial dispute resolution.

Conclusion

The governance of (access to) political power, of safety and security (and within it, of impunity), of access to due process, and of economic and commercial competition are, in the view of the present writer, the four broad narratives that will shape Nigeria's legal landscape for 2007 and thereafter. Within these broad themes, there will be natural tales of progress, reversals, installments, and increments. There will be enchanting tales of deliberate deadlock and premeditated overreach. These should contribute rich and busy chapters of legal calligraphy for students, observers, and scribblers in 2007. As a historical moment, however, Nigeria's 2007 will probably be defined and remembered not by any collection of captivating incidents, but by opportunities taken or overlooked.