FEIN: Nigeria's rule-of-law challenge

By Bruce Fein | Tuesday, July 15, 2008

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COMMENTARY:

The Republic of Nigeria enjoys oil revenue surpluses by pumping more than 2 million barrels daily as the price per barrel soars past $140.

But Nigeria suffers from a rule-of-law deficit despite President Yar' Adua's pioneering rule-of-law agenda. The deficit threatens the surpluses because oil supplies will be disrupted and oil investments will be stunted if the Nigerian people doubt the legitimacy of their federal or state governments. The chronic disruptions of oil production and transport in the Niger Delta region are illustrative. Illegitimate governments are also more vulnerable to penetration by al Qaeda. The United States thus has an enormous national security stake in seeing Nigeria emerge as a rule-of-law nation.

On that score, Nigeria's judiciary must shoulder a heavy burden. Nigeria's political culture is immature. The nation labors under a 1999 constitution promulgated by a military government. From 1999-2007, Nigeria's President Olusegun Obasanjo conceived of law as a jumble of political calculations to punish enemies and to reward friends.

Take Abia State in the Niger Delta. To retaliate against the former Abia governor who was a political rival, Mr. Obasanjo unilaterally moved tens of oil wells to neighboring Rivers State in flagrant violation of the constitution's detailed procedures for boundary adjustments.

Nigeria's nonpolitical judges who are appointed from the civil service are keys to nurturing a rule of law through principled decisions faithful to core democratic principles. A comparable role is played by Pakistan's judiciary in arresting President Pervez Musharraf's dictatorial powers and decrees in favor of an elected parliament and individual freedoms.

The cornerstone of the rule of law is the legitimacy of electoral results. Citizens will shortchange willing obedience to their government if their governors were elected by fraud, violence or other manipulation in contravention of popular sovereignty. Zimbabwe's President Robert Mugabe is proof enough.

Since Nigeria's landmark elections in 2007, the nation's courts have been admirably active in policing electoral results. Most have been sustained, but several have been nullified. In contrast to his predecessors, President Umaru Yar' Adua has scrupulously honored court decrees. Nigeria's judges face many questions of first impression because Nigeria's constitutional jurisprudence is in its infancy. They could profit by drawing on the more developed constitutional philosophy and democratic customs in the United States that has evolved over more than two centuries.

A pending challenge in a federal court of appeals to the April 14, 2007, gubernatorial election in oil-rich Abia State is on point. The two major candidates were Chief Onyema Ugochukwu of the Peoples Democratic Party and Dr. T.A. Orji of the Progressive People's Alliance. The Independent National Electoral Commission declared Mr. Orji the winner by a 2-1 margin in an election untainted by fraud or otherwise.

That declaration should have ended the political drama A cardinal democratic precept is that majority will should prevail in the election of candidates for public office to honor the sovereignty of the people. That idea is enshrined in Part II, Chapter II, Section 14 of Nigeria's Constitution. It provides: "The Federal Republic of Nigeria shall be a State based on principles of democracy ... sovereignty belongs to the people of Nigeria."

United States President and author of the Declaration of Independence Thomas Jefferson elaborated on the meaning of a democratic republic. He maintained "the will of the majority to be the natural law of every society, and the only sure guardian of the rights of man." Jefferson added: "The first principle of republicanism is that the lex majoris partis is the fundamental law of every society of individuals of equal rights; to consider the will of society [announced] by the majority of a single vote as sacred as if unanimous is the first of all lessons in importance, yet the last which is thoroughly learnt. This law once disregarded, no other remains but that of force, which ends necessarily in military despotism."

A trial court reviewing the Abia State gubernatorial election results, nevertheless, declared the loser the winner - a frontal assault on the will of the majority and popular sovereignty. The court endorsed the following "Alice in Wonderland"-like reasoning: Losing candidate Mr. Ugochukwu had informed the voters he believed the winning candidate Mr. Orji was disqualified because of his alleged membership in a secret society. Abia State voters supported Mr. Orji by a 2-1 margin despite the warning of the losing candidate.

After the election, it was found Mr. Orji did belong to a disqualifying secret society. But instead of respecting majority will, the trial court decreed the majority should be punished for miscalculating Mr. Orji's eligibility and victory should crown the candidate who attracted only one-third of the vote!

The trial court also stumbled in finding that simple membership in a society later found to be secret disqualifies a candidate. Like the United States Constitution, Nigeria's Constitution recognizes a freedom of association; and, that freedom would be impaired if an organizational membership innocent at its inception could later be found retroactively to be a bar to electoral office. Moreover, limitations on candidate eligibility in a democratic society must be narrowly construed. Alexander Hamilton elaborated in defending the United States Constitution: "The true principle of a republic, is that the people should choose whom they please to govern them. Representation is imperfect in proportion as the current of popular favor is checked. This great source of free government, popular election, should be perfectly pure, and the most unbounded liberty allowed." Hamilton's views were echoed by the U.S. Supreme Court in U.S. Term Limits, inc. v. Thornton (1995) and Powell v. McCormack (1969).

In sum, Nigeria's quest to capture the rule of law - a pivotal foundation of oil and gas production and development and deterrent to religious or ethnic extremism - would be assisted by borrowing from more than two centuries of constitutional and democratic experience in the United States. No other form of U.S. assistance would be as valuable.

Bruce Fein is a constitutional and international lawyer with Bruce Fein & Associates Inc. and former associate deputy attorney general under President Ronald Reagan.

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