This piece is partly a response to Biodun Jeyifo’s enjoyable contribution to the debate on President Muhammadu Buhari’s anti-graft war, especially the methods by which the All Progressives Congress (APC) government seeks to give vent to the public’s frustrations with endemic corruption. More debates are needed, particularly if they can be rendered as seminally as Prof. Jeyifo has done. He did not agree with what seemed to him to be Palladium’s devotion to ‘extreme formalism’ in the face of the brazen subterfuges by many judicial officers, and, among a few other reservations, he is alarmed by what he describes as the columnist’s ‘utter indifference to the revolutionary possibilities of the popular demand for justice by Nigerians in their tens of millions in their support of Buhari’s declared war against corruption. “ Undoubtedly, in the weeks ahead, many more analysts, both pragmatic and theoretical, will weigh in on the debate one way or the other until ample clarity has been beamed on the topic and perhaps the Buhari presidency compelled to understand that underneath the surface of the anti-graft war is a powerful undertow of complex forces and phenomena destined to shape not only this war but other social and economic crusades of the day.
Today’s column is also partly a response to Olakunle Ambibola’s piece on the same topic of President Buhari’s anti-graft war in which he dismissed what he all but described as Palladium’s methodological finickiness. Mr. Abimbola took refuge in Classics, particularly Greek Classics, using the examples of the Grecian trio of Draco, Solon and Pericles. President Buhari, he asserts, must have recourse to strong tactics, perhaps like the Greek legislator Draco, to fight corruption until sometime in the future tamer tactics, like those of Solon, are required in the struggle for a just society. Inspired by his own constant punning of Thorstein Veblen’s Theory of the Leisure Class (rendered as Leisure of the Theory Class), Mr Abimbola is also uncomfortable with what he describes as Palladium’s esoteric passion for theory and formalism.
Finally, this piece is partly a response to a host of Palladium readers who wonder what on earth the columnist is talking about in his rule of law essays in the face of clear and unambiguous danger to the republic constituted by a camorra of rampaging treasury looters. Some of the readers, Palladium is told, have wondered whether the columnist had not been bought. But how can anyone buy when no one is selling? In what seemed like a trilogy on the anti-corruption war, Palladium had berated the public’s lack of understanding of the issues surrounding the war, as much as he also took critical and unwavering exception to the Buhari presidency’s methods. Prof. Jeyifo, it appears, gave Palladium a slap on the wrist for all but declaring the public ignorant, given the manner the public wholeheartedly embraced the president’s methods, an embrace dictated by their pains, and pains for which they apparently needed a cathartic release.
This column will not be goaded into declaring summarily what the order of precedence should be between the theoretical adherence to rule of law and the practicality of bringing corrupt people to justice, as many of Palladium’s critics want. The fact is that while this column has repeatedly declared that the anti-graft war is a just and noble one, he has also vehemently denounced the collateral subversion of the rule of law. Both should not be mutually exclusive. As Prof. Jeyifo agrees, there are better and smarter ways to fight the war than to give the impression that if creative manipulation of the rule of law became ineluctable, the end perhaps would mitigate the obnoxiousness of the means. Palladium insists, even if he remains the only one left to do so, that the anti-graft war can be fought without undermining the rule of law. This is not a theory, nor is it formalistic. If Palladium appears to set store by the rule of law over the mechanics of the fight against corruption, it is simply because the Buhari presidency has approached the war with a much vaster misunderstanding of the concept of the rule of law than it has obviously appreciated the direct and beguiling benefits of the anti-graft war itself.
The first clear indication that the Buhari presidency intended to abridge the rule of law, despite its protestations to the contrary, was given during his maiden media chat. Until he gave that often quoted answer, most Nigerians, including this column, had no inkling anything was amiss, nor that if anything was amiss, that it was inspired by the presidency. The president had been asked why former National Security Adviser (NSA), Sambo Dasuki, a retired army colonel, was admitted to bail thrice, but the government would not release him. Had he answered with tact, few would have suspected the presidency had anything to do with the matter. Instead, the president launched into a diatribe against the colonel and the Goodluck Jonathan government which allegedly orchestrated the stealing of public funds on a gargantuan scale. The president’s answer effectively bifurcated the war between the majority victims of the stealing and the minority perpetrators of the looting. It was an obfuscation and dichotomy Palladium felt an urgency to address, for in his view fighting graft is embedded in the rule of law. The rule of law is so vital to everything, the columnist says, that no amount of crime nor the personality of the suspects should tamper with it. That position appears theoretical and formalistic. In reality it is anything but these.
History is replete with examples of the consequences of undermining the rule of law. That same history is replete with the grandness and greatness of powerful historical figures who, at great pains to themselves, families and interests, kept faith with the rule of law. It is this reading of history, a subject held in contempt by many Nigerians, and in particular by their leaders, that has spawned a vast misunderstanding of many a great concept and destroyed societies and empires. Palladium does not think the president and his aides, let alone a majority of Nigerians, understand the centrality of the rule of law. The concept is real and practical; it is not subject to negotiation, and must not be swamped by emotions. It is hard and unyielding. It is the foundation upon which a great society rests; it is the rubric by which the society stands and runs; and its is the panoply that shields it from impunity and arbitrariness. Beyond the constitutional and legal provisions that form the rampart of the rule of law, the concept has its metaphysical properties, which a society and its leaders violate at their peril.
If the president understands the connotations of the rule of law, he will recognise that as the chief custodian of the constitution, he personifies the country’s grundnorm: as if he wrote it, as if it is his whole being, as if it is his immutable word that cannot be dishonoured without dishnouring himself. Those who criticise his methods — not the goal of fighting corruption — are helping him to prosecute a just cause in a just way. The critics are helping him to see the future beyond the prosecution of one war, as huge and important as that war is. The critics are asking him to read history and interpret it well and be inspired by it. The critics want him to succeed, and they want the country cleansed of corruption so that Nigeria can stand tall and strong. But the critics will not compromise with him whenever he adopts the wrong methods simply because the war is so important that the survival of the society depends on ‘winning’ the war. What is the use of winning a war when a greater injury is done to the soul and spirit of the country? Everything begins from the spirit.
Palladium does not have the illusion that anything he writes on how the anti-graft war must be prosecuted in a lawful manner will cut ice with majority of Nigerians. They are satisfied condemning the detainees and suspects even before they are brought to trial and their side of the story heard. They forget that when American troops captured the Iraqi strongman, Saddam Hussein, they ensured he was brought to justice, unlike the fate that befell Muammer Gaddafi in Libya. They fail to recall the story in Acts 22 involving Paul the Apostle who was humiliated before trial, and who asked his tormentors whether it was lawful to scourge a Roman citizen before he was properly tried and condemned. Apostle Paul reminds everyone of the concept of citizenship, a concept either held in abeyance in these parts or often suspended at will by the government, police, army and other security agencies, as exampled by the Army/Shiites clash in Zaria recently, extrajudicial killings, arbitrary detention and various manifestations of assault and battery executed by law enforcement agents. Every society defines citizenship in its own special way. No one may suspend that definition because a citizen has committed crime.
The Ottoman ruler, Suleiman the Magnificent, a.k.a. el-Qanuni (the lawgiver) 1494-1566, codified Ottoman laws and applied them strictly, without exception and without fear or favour. His appreciation of laws was ennobled by his scholarliness, vast knowledge of various cultures, and personal discipline. Appreciating the huge and overarching importance of sustaining the rule of law without exception is not just a spiritual thing, it also derives from a ruler’s repository of knowledge and his metaphysical grasp of the intangibility of the law. This was why Augustus Caesar 63 BC-14 AD, adhering very strictly to the laws he made and exercising great self-denial, banished his own daughter and grand-daughter for adultery. It often costs the lawgiver a lot to keep the law. Those who understand this fact appreciate the deleterious effect of undermining it. The legal culture of the Medes and Persians, who conquered Babylon around 539 BC, offers a huge lesson to the world. Two biblical accounts in the Book of Daniel are instructive. In Chapter 3, certain Chaldeans accused three Jews of breaking a major religious decree promulgated by King Nebuchadnezzar. Enraged, the king summoned them for interrogation and found them guilty. The rule of law was preserved. Even then, he gave them a chance to show remorse, failing which they would be sentenced to be burnt alive. They refused to recant on religious grounds. If Palladium’s critics are still not persuaded that the rule of law was preserved in the distant past, then let them consider the utterances of the men who accused Prophet Daniel before King Darius, the Mede, in Daniel Chapter 6. Once they got King Darius to promulgate a decree precluding any prayers to any other gods for 30 days, a trap was set for Daniel. Summoned before the king for flouting the law, Daniel was tried and found guilty. Knowing how close he was to the king, the ministers and advisers reminded the king that the laws of the Medes and Persians could not be altered on account of friendship or for any other reason. Sentence was therefore passed and executed, and the rule of law preserved. There is a huge spiritual and transcendental symbolism to the rule of law.
No public official in Nigeria is permitted to alter, by word of mouth or in writing, the constitution or the law at will. There is a procedure for doing so. And until amendments are done, the government and the security agencies must adhere to the rule of law. Indeed, the major problem Nigeria is facing today is that the government and its security agencies have very little regard for the law and absolutely no understanding of the concept of citizenship. Palladium attributes this to ignorance. So, while the political economy of corruption will make the anti-graft war harder, if not unwinnable, the lack of understanding of the concept of citizenship, the want of discipline in faithfully enforcing the law, and the periodic recourse to self-help have fostered a culture of impunity and arbitrariness all over the country to the point of destabilising the polity and engendering both a spirit of tentativeness in the people and a disconnect between the people and their government.
This essay is not about examining the misshapen structure of the country as a factor in promoting corruption, though it is crucial, or about the political economy of corruption as a factor in complicating and mystifying the war; it is essentially a response to accusations that Palladium appears to revel in a formalistic or theoretical appreciation of the rule of law to the detriment of genuine and concrete efforts to arrest the terrible impact corruption is having on the society. But in the opinion of this columnist, the war cannot be won outside the rule of law. And for those who insist the Buhari presidency has kept to the rule of law, they do not give an accurate picture of the war. However, perhaps responding to criticism, the government has begun to observe the laws, awkwardly and perhaps half-heartedly it is clear, but nonetheless undoubtedly. The Buhari government must recognise it has no alternative. It should mortify Nigerians that the old Roman, Ottoman and Greek Empires observed the rule of law far more responsibly than Nigeria of the 21st Century.
Indeed, there may be some revolutionary possibilities in the demand for justice by Nigerians, but if both the demand and supply for justice are not regulated and mediated within the ambit of the rule of law, it could end up creating more problems than they would solve, as history also shows. Anyone who has read Thomas Carlyle’s The French Revolution: A History (1837) will not fail to be numbed by how so quickly the spirit of nationalism and patriotism could so easily transmogrify into something more perverse, sanguinary and ghoulish. Glance through the proceedings of the French National Assembly of the time, and of the Committee of Public Safety, and of the Revolutionary Tribunal, and consider how the children of the revolution ended up consumed by the revolution. A society must be careful how it searches for enduring change, in those heady moments when it leaps temptingly and idealistically beyond the boundaries of the law into a cataclysmic void.
Nigerian laws diligently applied, despite the artifices of looters and their legal accomplices, are adequate to police the corruption war. But if they are not, and the government can find a way to avoid the pitfall of making new, retroactive laws, then let them amend the law and the constitution. Early last month, Prof. Jeyifo wondered why President Buhari got himself needlessly entangled in the Dasuki bail affair when he could have prepared the grounds for his government to sensibly and judicially tackle the prosecution of looters. The professor explored three options, to wit, the Justice Oguntade committee (2014 National Conference) option; the operationalisation of the Administration of Criminal Justice Act; and sustaining the status quo. But whether one of these alternatives, or the Grecian options inappropriately adumbrated by Mr. Abimbola as capable of inspiring Nigeria, no one can dispute the fact that no leader is at liberty to operate outside the country’s laws if he is not to engender the chaos that followed the French Revolution as well as insidiously weaken the fabrics that both knit the society together and sustain the integrity of the social contract.
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